Finance, Law, and the Courts

By: Marco Lamandini

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eText | 9 November 2023 | Edition Number 1

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Law and courts are often neglected in finance. The discipline is so permeated by economic analysis - the enforcement of its rules so based on regulatory authorities - that it often seems more natural to speak of financial regulation rather than financial law, de-emphasizing the role of courts. Authored by leading experts in commercial law, Finance, Law, and the Courts goes beyond this limited perspective. The book demonstrates that law and courts are essential in providing finance with the certainty it needs to operate, and the elasticity it needs to evolve. As explored in Part I of the book, these benefits result from law's status as an interpretative construct formed by rules and principles, a construct shaped by a need for consistency. When principles collide, courts are often called to solve "hard cases", and in doing so the Law of Finance evolves. Examining such hard cases, Parts II and III analyze courts' roles in influencing finance's key concepts and principles. For Public Law this includes the impact of sovereign immunity, separation of powers or individual rights on the justiciability of financial acts, central banks' mandates, and the interplay between regulatory concepts and fundamental rights. For Private Law, these include the foundations of liability for misstatements, the validity and interpretation of financial contracts, and creditor-creditor conflict. The book further explores the interplay between specialist and generalist courts and other bodies in Part IV, concluding with a case for limited specialization of finance justice in the EU. Offering a comprehensive legal treatment of finance's regulatory sources, this book is an unparalleled resource for law academics, practitioners, and policymakers seeking to better understand the complex financial cases that they may encounter.