Reforming Corporate Retail Investor Protection

Diane Bugeja is a Senior Associate at Camilleri Preziosi Advocates, Valletta (Malta) and has a PhD in Law from King’s College London.

• PART ITHE ILLUSION OF UNIFORMITY1. Breadth of Investor Protection Regulation I. Why Regulate to Protect Retail Investors? II. Categorising Retail Investors A. Individual v Corporate Retail Investors B. Uneven Retail Investor Protection III. The IRHPs Mis-selling ScandalIV. The Case for ReformV. Brexit Considerations 2. Understanding Corporate Retail Investors and their Behavioural Biases I. Defining Investor ‘Vulnerability’ II. A Behavioural Law and Economics Perspective A. Overview of Behavioural Biases in Complex Investment Transactions B. Behavioural Economics and Corporate Retail Investors III. The ‘Consumer Responsibility Principle’IV. Addressing Vulnerabilities and Biases 3. Applying Regulatory Reforms and Redress Avenues to the Case of Corporate Retail Investors I. The Regulatory Response to Retail Investor Protection Concerns A. The MiFID II Investor Protection ReformsB. The Retail Distribution Review (RDR) C. Changes to FCA Powers and Objectives II. The Limitations of the Redress Options Available to Corporate Retail Investors A. Regulatory Review and Redress Schemes B. The Financial Ombudsman Service (FOS) C. The Private Right of Action Under FSMA, Section 138D D. English Courts’ Reverence to the Rule of Law: The Principles of ‘Freedom to Contract’ and ‘Legal Certainty’ E. The Statutory Framework Surrounding Standard Form Contracts III. Concluding Remarks PART IITHE REGULATORY AND LEGAL INTERPRETATION OF ‘INFORMATION’ AND ‘INVESTMENT ADVICE’4. Distinguishing between ‘Information’ and ‘Investment Advice’ I. ‘Information’ v ‘Investment Advice’ – A Regulatory Perspective A. The Distinction between ‘Information’ and ‘Investment Advice’ Under the MiFID Regime B. The UK PositionII. Views from the Academic Universe and Consumer Bodies III. A Fair and Reasonable Perspective – The View of the Financial Ombudsman Service IV. The English Courts’ Interpretation of the Notions of ‘Information’ and ‘Advice’V. Concluding Remarks 5. Championing the Written Contract as the Decisive Tool for Managing Expectations: A Focus on the Mis-selling of IRHPs to Corporate Retail InvestorsI. The Irrelevance of Investor Protection Objectives in Private Law A. Contractual Duty of Care in Advised and Non-advised Investment Transactions B. The Principle of ‘Assumption of Responsibility’ C. Misrepresentation Act 1967 and Unfair Contract Terms Act 1977 – The English Courts’ Emphasison Legal Certainty D. Fiduciary Duties and the Establishment of a Fiduciary Relationship in the Context of Non-advised Sales II. Invoking the Doctrine of ‘Contractual Estoppel’ III. The Relevance of Alternative Doctrines IV. Concluding Remarks PART IIICONCLUDING REMARKS AND RECOMMENDATIONS6. Exploring the Co-extensive Relationship between Private Law and Regulation I. A Conceptual Approach to Co-extensiveness II. English Courts’ Approach to Co-extensiveness A. Merging Common Law Duties with Regulatory Standards B. Setting Apart Common Law Duties from Regulatory Standards III. Concluding Remarks 7. Regulating to Prevent Mis-selling: Proposals for Reform I. The Case for ‘Libertarian Paternalism’ II. Recommendations A. Compulsory Investment Advice for Retail Investors Transacting in Complex Investment Products B. Assessment of Product Complexity C. Introducing a ‘Retail Investor Charter’ D. Extending FSMA, Section 138D III. A Side-note on Unregulated Complex Products IV. Concluding Remarks