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Financial Market Regulation and Private Law

其他書名	A New Frontier of Transnational Commercial Law
出版	SSRN, 2023
URL	http://books.google.com.hk/books?id=sOgw0AEACAAJ&hl=&source=gbs_api

註釋Global financial markets are among the most extensively regulated markets in the world economy. This poses significant challenges from a private law perspective when regulatory rules interfere with private rights and obligations. The article examines the potential of Transnational Commercial Law (TCL) to provide for a private law framework suited to the regulatory reality in global financial markets. The article finds that, while regulatory aspects are generally excluded from TCL instruments, notable exceptions to such general rule occur. Based on an analysis of the approaches undertaken in the UNIDROIT Convention of Substantive Rules for Intermediated Securities ('Geneva Convention') and the UNCITRAL Model Law on Secured Transactions, the article maps out two methods that allow for a reconciliation of private and regulatory rules: (i) the adoption of a flexible private law system including default and conflict rules or (ii) a codificatory approach through development of a comprehensive and systematic legal framework consisting of both private law and regulatory rules. Finally, the article addresses potential obstacles and objections future TCL instruments will face when addressing regulatory aspects. Overall, the article argues that an efficient financial market requires a foreseeable set of private law rules which - considering the continuous expansion of regulatory law - must address the pressing issues deriving from the interrelation of regulation and private law. However, the adaption of TCL instruments should be limited to common sense financial market regulation that, even if differing from state to state, generally follows globally shared regulatory goals and stays within the territorial limits of the respective regulator.