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Conference Paper: The renewed death of contract? Post-crisis financial product conduct reforms

TitleThe renewed death of contract? Post-crisis financial product conduct reforms
Authors
KeywordsFinancial regulation
Mis-selling
Complex financial products
Issue Date2012
PublisherFaculty of Law, The University of Hong Kong.
Citation
HKU Law Lectures for Practitioners, Hong Kong, 2012, p. 1-36 How to Cite?
AbstractPost-crisis financial re-regulation in place or underway in Hong Kong and elsewhere includes restrictions on forms of contracting and new rules governing business and financial product conduct. Measures of this kind may dampen activity but do little to protect investors or other users, nor mitigate against future instability. They resemble a swing towards state incursion on contracting of a kind regularly identified by legal scholars. To the extent that the state wishes to protect the interests of retail investors or speculative users of complex financial instruments there may be more merit in requiring “intelligent disclosure” specific to each class of instrument, and extending the doctrine of unconscionability to include financial instruments, as in certain circumstances in Australia. Outright contractual bans are an unreasonable and costly extension of state policy, the underlying purpose of which is to divert popular attention from regulatory failure, while highly prescriptive point of sale rules may make it less likely for legitimate complaints of mis-selling to succeed.
Persistent Identifierhttp://hdl.handle.net/10722/169426
SSRN

 

DC FieldValueLanguage
dc.contributor.authorLejot, PLen_US
dc.date.accessioned2012-10-18T08:54:21Z-
dc.date.available2012-10-18T08:54:21Z-
dc.date.issued2012en_US
dc.identifier.citationHKU Law Lectures for Practitioners, Hong Kong, 2012, p. 1-36en_US
dc.identifier.urihttp://hdl.handle.net/10722/169426-
dc.description.abstractPost-crisis financial re-regulation in place or underway in Hong Kong and elsewhere includes restrictions on forms of contracting and new rules governing business and financial product conduct. Measures of this kind may dampen activity but do little to protect investors or other users, nor mitigate against future instability. They resemble a swing towards state incursion on contracting of a kind regularly identified by legal scholars. To the extent that the state wishes to protect the interests of retail investors or speculative users of complex financial instruments there may be more merit in requiring “intelligent disclosure” specific to each class of instrument, and extending the doctrine of unconscionability to include financial instruments, as in certain circumstances in Australia. Outright contractual bans are an unreasonable and costly extension of state policy, the underlying purpose of which is to divert popular attention from regulatory failure, while highly prescriptive point of sale rules may make it less likely for legitimate complaints of mis-selling to succeed.-
dc.languageengen_US
dc.publisherFaculty of Law, The University of Hong Kong.-
dc.relation.ispartofHKU Law Lectures for Practitionersen_US
dc.rightsCreative Commons: Attribution 3.0 Hong Kong License-
dc.subjectFinancial regulation-
dc.subjectMis-selling-
dc.subjectComplex financial products-
dc.titleThe renewed death of contract? Post-crisis financial product conduct reformsen_US
dc.typeConference_Paperen_US
dc.identifier.emailLejot, PL: plejot@hku.hken_US
dc.identifier.authorityLejot, PL=rp01475en_US
dc.description.naturepostprint-
dc.identifier.hkuros211639en_US
dc.identifier.spage1-
dc.identifier.epage36-
dc.publisher.placeHong Kong-
dc.identifier.ssrn2256360-
dc.identifier.hkulrp2013/019-

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