Kickback Payments under MiFID: Substantive or procedural standard of unconscionability?

Research output: Contributions to collected editions/worksChapterpeer-review

Authors

Outline, In this chapter, we discuss problems related to kickback payments in financial transactions. After a short introduction into the nature of kickback payments, we identify these problems and briefly address solutions that have been discussed under German law (section 2). We then turn to EC legislation, in particular Directive 2004/39/EC on Markets in Financial Instruments (the MiFID Directive) and subsequent instruments that are meant to elaborate this Directive and demonstrate the way in which the Directive addresses kickback payments as ‘inducements’ (section 3). While the new rules have been the subject of heated debate between the banks and consumer groups, the German implementation of EC legislation is, at first glance, scandalously bank-friendly (section 4). In contrast, we propose to use findings from research on behavioural finance to interpret the law correctly and to propose a stricter reading of the EC rules on inducement and implementing legislation (section 5). We also discuss whether more stringent national rules on kickback payments are still allowed following the adoption of the MiFID Directive (section 6). Finally, we return to the general issue of deciding between procedural and substantive mechanisms to protect customers of investment services against unconscionable transactions (section 7). Kickback payments in financial transactions and related problems Kickback payments First of all, what are kickback payments? Here we are looking at investors who use a bank or any other investment firm (for simplicity's sake, we will refer to banks) to get advice with regard to investment decisions – such as the purchase of stocks, shares in investment funds or other investment instruments.

Original languageEnglish
Title of host publicationUnconscionability in European Private Financial Transactions : Protecting the vulnerable
EditorsMel Kenny, James Devenney, Lorna Fox O'Mahony
Number of pages24
Place of PublicationCambridge
PublisherCambridge University Press
Publication date01.01.2010
Pages326-349
ISBN (print)978-0-521-19053-4
ISBN (electronic)9780511760938
DOIs
Publication statusPublished - 01.01.2010
Externally publishedYes

    Research areas

  • Law

Recently viewed

Publications

  1. Process limits of extrusion of multimaterial components
  2. Trust Centrality in Online Social Networks
  3. Bush encroachment control and risk management in semi-arid rangelands
  4. Visualizing stakeholders’ willingness for collective action in participatory scenario planning
  5. Integration of Material Flow Management into Company Processes within the Automotive Industry
  6. Supportive Mental Health Self-Monitoring among Smartphone Users with Psychological Distress
  7. The emotional spectrum in traffic situations: Results of two online-studies
  8. Notting Hill Gate 4 Basic
  9. The distribution of power within the community
  10. Mediengenealogie
  11. How much does agriculture depend on pollinators?
  12. Motivation related to work
  13. Inhibition of foam cell formation using a soluble CD68-Fc fusion protein
  14. Der Raum des Cyberspace
  15. Mad speculation and absolute inhumanism
  16. Every single word
  17. Analytical model to determine the strength of form-fit connection joined by die-less hydroforming
  18. Attention on the source of influence reverses the impact of cross-contextual imitation
  19. Transcending the transmission model
  20. Einleitung
  21. Methan - das unterschätzte Klimagas
  22. Rats dying for mice: Modelling the competitor release effect
  23. § 23 Wasserkraft
  24. Linked Data-driven Resilience Research 2023
  25. Community awareness and engagement for arsenic management
  26. The application of environmental ethics in biological conservation
  27. Do Online Training offer an effective Option for the Prevention and Health Promotion of Professionals? A systematic Overview and Meta-analysis
  28. Genotoxic effect of ciprofloxacin during photolytic decomposition monitored by the in vitro micronucleus test (MNvit) in HepG2 cells
  29. Beyond Tolerance
  30. Development of a magnesium recycling alloy based on AM50
  31. Democratic representation in the EU: Two kinds of subjectivity
  32. Intracellular Accumulation of Linezolid in Escherichia Coli, Citrobacter Freundii and Enterobacter Aerogenes
  33. Minor keywords of political theory
  34. Managerhaftung und persönliche Verantwortung
  35. Der Verlust der Dinge
  36. Separation of lactic acid and recovery of salt-ions from fermentation broth
  37. Fundamental Theology
  38. Electroanalytical and chromatographic determination of pentachlorophenol and related molecules in a contaminated soil