Financial Derivatives. Regulation and Disputes in the Italian Legal Order

Abstract

In this paper, the main features of over-the-counter derivatives are examined together with the rules applicable in case of so-called negotiation “per conto altrui” (that means as a simple seller of financial instrument on behalf of the issuer or owner). In this regard, the questions and following litigation on trading in derivatives concerned essentially the operations in direct counterpart not traded on regulated markets that have been characterized by evident problems of illiquidity and opacity. As a consequence, the reference to the behavioral norms that the legal system requires to intermediary in the execution of investment services and that have been subject to revision as a result of the transposition of MiFID directive. In the attempt to identify remedies that protect the investor from errors in risk assessment assumed on trading these financial instruments (remedies able to prevent a misuse of derivatives and able to come beyond the information transparency) it draws to the attention the behavioral finance and the probabilistic risk assessment.