Contractual remedies for banking misconduct under European regulatory private law

Abstract

This article deals with the responsibility for the provision of financial services, particularly investment services, from the perspective of European regulatory private law blurring the conventional dichotomy between public and private law. The contract between the provider and the customer is analysed. Finally, the article examines the remedies for breaches of contractual obligations, taking Spanish law as the main reference, to conclude that the predictability of the consequences of breaches in the provision of investment services is an essential element of legal certainty and that it is the judge who determines due diligence, in accordance with contract law, using the conduct of business rules as a guideline criterion. Case law is contributing to the creation of a financial services contract law that complements the general framework of obligations and contracts with financial market conduct rules. The complementary model of European regulatory private law that preserves the autonomy of contract law in the judicial enforcement of conduct of business rules applies.