9 Post-Crisis Regulatory Responses

This chapter looks at those rules of regulatory law that have been promulgated since - and largely because of - the 2008 global financial crisis, and which concern collateral transactions. It first examines the European Market Infrastructure Regulation (EMIR). This regulation, of which US law has a similar counterpart in the Dodd-Frank Act, has led to a massive increase in need of financial collateral. However, both legislative instruments do not seem to have direct consequences under private law. In contrast, the EU Markets in Financial Instruments Directive II and the Securities Finance Transactions Regulation of 2015 have imposed restrictions on entering into collateral transactions and contain several information requirements. These instruments may lead to consequences under private law, but not necessarily. This is different for recent EU and US rules concerning investment funds. Here, the private law consequences are obvious - and mostly unwarranted.