Abstract
Introduction: there is no unity of approach to the concept of ‘derivative’ as a legal category in doctrine and in legislation. When defining the term ‘derivative financial instrument’, economists and financial experts base their definitions on the non-legal attribute of price derivativeness as well as on maturity of the assets. Purpose: to analyze approaches to the concept ‘derivative’ that have developed in various sources, including Russian and foreign legislation, scientific works on finance, doctrinal legal sources, soft law acts, and standard agreements. Methods: general scientific (analysis, synthesis, induction, deduction), special legal methods (historical, comparative legal, formal legal), statistical methods. Results: the author distinguishes between the narrow and the broad contractual approaches to the category ‘derivative financial instrument’. There is also outlined an approach according to which embedded derivatives, i.e., conditions for the placement of securities or contracts that are not related to derivative instruments, should also be classified as ‘derivative financial instruments’. In addition, the author outlines an approach according to which securities such as issuer options or depositary receipts can be classified as derivatives. Conclusions: referring certain constructs to derivatives largely depends on the legislator's preferences and traditions established in the financial and stock exchange circles, since a repo agreement, which to a certain extent has the features of maturity and derivativeness, is not classified as a derivative financial instrument in any of the studied sources.
Published Version
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