SearchPublisher and Institutes
You are here: Home :: Area JESP :: Jurisprudence
Guido Ferrarini
Contract Standards and the Markets in Financial Instruments Directive (MiFID): An Assessment of the Lamfalussy Regulatory Architecture
Rules of conduct, in addition to being part of the regulation of investment intermediaries, operate as contractual standards in the relationships between intermediaries and their clients. In this paper, I critically analyze the provisions of the Markets in Financial Instruments Directive (MiFID) regarding conflicts of interest, suitability of investment services and products, best execution of transactions, and prompt and fair handling of client orders. In addition, I consider the main goals of the Lamfalussy regulatory architecture and argue that the MiFID’s rules of conduct do not satisfy these goals, as they are too detailed and touch upon very technical issues. Also the (draft) implementing measures are too specific and will result in substantial re-regulation. Therefore, rules of conduct have possibly become more uniform in Europe, but also more abstract and rigid, while the scope of contract law has been reduced. Moreover, political compromises have been made on core provisions diminishing their regulatory bite and intrinsic logic. I conclude that the cost paid by EU securities law is substantial in terms of rigidity, complexity and politicization, while the effectiveness of harmonization still needs to be proven.
European Review of Contract Law, Walter de Gruyter
Print ISSN: 1614-9920
Volume: 1, 05/2005
Pages: 19 - 43