Legal questions on financial market abuse: Criminal punishment penalties versus private law remedies

Abstract

Purpose - The purpose of this study is to underline the impact that globalization of financial markets has on national punishment policies. The US financial crisis has strongly affected consumers' lives, but the focus of this research is on the national provisions against the illegal and unfair behaviour of economic actors, with special regard to a phenomenon that took place abroad, but whose effects came to light in many different countries. Design/methodology/approach - Different methodological approaches, both deductive and inductive, are combined in the present paper, together with comparative and philosophical insights on national Court decisions and scholar writings. Findings - As European Union (EU) member States experts are discussing about a lex mercatoria for the financial markets to govern the EU integration process, this study highlights some questions concerning mainly three aspects: the level of censorship; forms and nature of responsibility; punitive models and their micro- and macro-economic effects. Originality/value - The study offers insights into the possible answers in terms of criminal and private law remedies to fight financial market abuse in a global dimension, through the use of general principles of contractual and tort law, which are common among EU member State, as culpa in eligendo, culpa in vigilando, duty of information, duty of care, ecc [...].