Yane Svetiev

Financial Supervision in the Interstices Between Private and Public Law

The article focuses on the recently enacted EU legislative provisions on financial product development from the perspective of the current supervisory approach of national financial authorities of three EU Member States: the Netherlands, France and Germany. Of principal interest is the interaction of the EU substantive interventions into the private law dimensions of financial product development – such as contracting and corporate governance – and the remedial emphasis of the legislative package on public law sanctioning. To study their current practices, we conducted interviews with officials of the three national authorities, focusing on their supervisory approach, as well as the ways in which they currently intervene either formally or informally into the private law aspects of financial product development, oversight and distribution. While we find persistent divergences in the supervisory approaches of the authorities, as well as the regulatory paradigms that inform those approaches, three important aspects are worth highlighting. First, the authorities that probe more deeply into the product manufacturing processes do not necessarily do so with the intention of limiting the parties’ contractual freedom, but also to help them evaluate their interests more deliberately. Secondly, all authorities have already developed techniques for probing into the contracting and corporate governance aspects of financial institutions, often through informal interventions that do not involve infringement findings and sanctioning, even if they use different ways to formalize, publicise and learn from such interventions. Finally, our findings suggest some doubt about the appropriateness of the remedial aspects of the enacted EU package on investment services, as well as a failure to more fully incorporate the customer perspective in the investor protection activities of supervisory authorities. Prof. Yane Svetiev: Department of Legal Studies, Università Bocconi, Milan and Law Department, European University Institute, Florence, Italy, E ˗ Mail: Yane.Svetiev@unibocconi.it Prof. Annetje Ottow: Dean, Faculty of Law, Economics and Governance and RENFORCE (Centre for Shared Regulation and Enforcement in Europe), Universiteit Utrecht, The Netherlands, E ˗ Mail: a.t.ottow@uu.nl ERCL 2014; 10(4): 496–544

The EU's Private Law in the Regulated Sectors: Competitive Market Handmaiden or Institutional Platform?

The article contests the claim that EU private law is narrowly circumscribed by a market rationality. Such a claim tracks broader criticism of EU functional legal integration, although it tends to obscure the underlying transformative pressures on private law and regulation and the role EU law plays in coping with such pressures. To offer a number of counter‐narratives, the article draws on examples from the regulated sectors, including telecommunications and energy, to reveal their experimentalist features. These suggest that EU private law is constructed through a process of error‐corrections, which allows for mutual adjustment of instruments and hybridisation of EU and local policy goals. The process results in more finely grained assemblages of autonomy and regulation to respond to concrete problems or newly salient policy goals, so that markets are understood as social institutions that are always works‐in‐progress rather than convergence points. Thus, EU private law provides a platform for transnational market‐building through innovating institutions that promote various normative and policy commitments despite the interdependencies that could undermine them.

The Fairness of Contractual Exchange in a Private Law Society : A Case Study of Early Modern Credit Markets

Quite apart from the question of the justifiability – based on prior normative commitments – of legal rules controlling the substance of contractual exchange, such as a fair price rule, a common co ...

Private actors and their advisers in administrative agency networks

This ebook brings together political scientists and legal scholars with a view to explore the transformations that affected the rather stable institutional settlement of EU competition law and in particular the emergence of a transnational field of competition policy since the 1990s. Beyond its insistence on “transnational fields” and the on-going conflicts and competitions that structure its dynamics, the book also suggests a new entry: the power-knowledge nexus that considers the production as much as the import-export of ideas, theories and “models” about competition policies as one essential lever through which these battles are fought.

European regulatory private law : from conflicts to platforms

The essay provides a reflection on European Regulatory Private Law (ERPL), as both a perspective on and a model of European legal integration. First, it outlines some of the problems familiar to legal and other scholars that give rise to ERPL as a perspective on legal integration, including the pluralisation of legal sources and institutions and the resulting legal fragmentation. This in turn produces the need to manage conflicts or collisions in law-application to concrete legal problems either by making choices from existing alternatives or by innovating. Secondly, it provides possible impulses that inform ERPL as a research agenda and a way of making headway on those familiar problems. The final—and more exploratory—step, is to envisage the shape that ERPL might take given those problems and impulses as a model of normative interaction in the EU context. One guiding intuition is that it might be limiting to speak of the resulting normative framework as one for merely managing conflicts between normative orders. An alternative conception might be that of integration, so that ERPL could be thought of as a platform (or platforms) aiming to integrate to the greatest extent possible the perspectives of the various relevant law producers and enforcers in the pursuit of various dimensions of the public interest. For that purpose, the essay will sketch out some possible platform models drawing on existing examples.

Dimensions of Self-Sufficiency

This working paper addresses two dimensions in which transnational or supranational regulatory regimes may be regarded as self-sufficient, providing some reasons, limits and pitfalls from such a tendency. The focus of both parts is on competition policy, which is of particular importance because of its transversal character: the fact that it can be applied in many if not all markets means that competition policy is a useful tool for market opening/integration and is likely to create conflicts with different policy objectives pursued in various market settings. Moreover, competition policy often acts as a trump on ordinary private law principles and can be used by administrative actors to substantially re-order private relationships. The first section focuses on the regulatory network and the idea of its self-sufficiency as a regulatory club for the self-enforcement of commonly agreed-upon norms independent of any formal mechanism for enforcement or dispute resolution within the network. As such, national regulators may develop obligations qua club members, distancing themselves from national communities. Yet the paper seeks to show that even informal enforcement requires mechanisms for making the actions of national administrations observable and characterisable. While mechanisms that perform that function have been observed in some EU networked regimes, these can be used either to enforce a hierarchical EU intrusion into national legal orders or to stimulate learning from divergent approaches stemming from persistent heterogeneity within the EU; it is an empirical research question to determine which is a better characterisation of the networked regulatory regimes. The second section focuses on self-sufficiency by way of a narrow definition of the policy mandate of legal and regulatory regimes, i.e. the idea of the instrumentalisation of a branch of the law for the achievement of a particular policy objective. This type of mandate definition can have a number of advantages: concentrating on a narrowly defined mandate can increase the likelihood of achieving it, it can allow for the proper sequencing of different policy tools where some objectives need to be prioritised and in a multi-level environment it can allow for the allocation of policy tools to different levels. Yet, by reference to the relationship between competition policy and social policy objectives, the second part highlights some of the risks involved in building such self-standing regimes, including the development of rationalities and institutional habits that are difficult to dislodge even in the face of absence of success in achieving (or better yet trading off) the myriad objectives of public policy.

Competition Law and Development Policy: Subordination, Self-Sufficiency or Integration?

International competition lawyers often refer (with some pride) to the exponential growth of the number of jurisdictions in the world that have adopted antitrust enforcement regimes since the early 1990s. Namely, over 100 national jurisdictions now have some competition law mechanism and in addition, quite a few regional integration regimes contain competition provisions. Since industrialised countries have been covered by the more established and long-standing antitrust regimes in the US and the EU, much of that growth is due to the adoption of competition laws by transition and developing economies. Some of those jurisdictions have adopted or strengthened their competition enforcement regimes of their own initiative. However, more often, such a regime is implemented at the instigation or encouragement of international donors and development bodies, such as the World Bank, the IMF, as well as the EU.