Financial stability in private law: Intersections, conflicts, choices

Abstract

The article discusses how the emergence of a policy of financial stability in international and European economic law has an impact on private relations, leading private law itself to become an instrument of financial stability. The result is an intersection of financial regulation and private law whereby financial regulation addresses consumer protection top-down and private law addresses financial stability bottom-up. The incorporation of the goal of financial stability nonetheless creates tensions in private law, since the latter aims at further objectives, occasionally leading to conflicts. The article shows how the accommodation of those objectives requires the striking of balances, and discusses instances in which case law of European courts arbitrated between different interests producing dissimilar results in different contexts. This casts further doubts on the consistency of the notion of financial stability as a policy or legal principle; despite its prominence at the international and European level, it unfolds in different forms depending on the interests at stake.