Jo Braithwaite

Private Law and Financial Crises

Regulation has been at the centre of the financial debate since the global financial crisis, but a full appreciation of the lessons of the crisis also requires account to be taken of private law. This article begins by considering the overlapping functions of private law in the financial markets, including its capacity to address the unprecedented and complex problems that arise during crises and their aftermath. Focusing on the role of property law in insolvency proceedings, we use four case studies to evaluate the wider implications of this function of private law. Our research suggests that the use of private law to manage the fall-out to the recent crisis has come at a price, which is the impact on a number of fundamental legal principles that underpin the markets. We conclude that the continued robustness of private law requires a more proactive approach from various constituencies.

Central Counterparties (CCPs) and the law of default management

ABSTRACT This article explores the legal framework around the process of ‘default management’ and explains its significance in the setting of central clearing. Having contextualised the discussion by considering central counterparties (CCPs) as default managers, and examined the safe harbours that CCPs enjoy from various provisions of insolvency law, the article considers the legal challenges arising along a ‘default timeline’ consisting of three different stages: declaration of default; close out; and collateral management. It finds that even in the context of central clearing, where robust default management is now of systemic importance to the financial system and the law is generally supportive, material risks remain and must be accounted for. The article suggests that while some of these risks may be mitigated by the parties, others require action from legislators, so addressing the fragmentary nature of the framework governing CCP default management should be a legislative priority.