Developing a regulatory framework for distance selling and marketing of consumer financial services with particular focus on investment services

Abstract

It has been stated by various jurists that one of the most difficult and challenging tasks is to produce a legal analysis of commercial relationships that are still not exhaustively defined and that are subject to constant evolution and development. Similar analyses run the further risk of becoming rapidly obsolete. Nevertheless, if they are well-researched and well-expounded these analyses contribute significantly to the development of a coherent framework governing the commercial relationships which they examine. This thesis endeavours to produce one such analysis: the examination of the contractual relationship between distance providers of financial services and individual private consumers. The discussion of this relationship depends directly on the development of innovative and efficient means of distance communication and is based on the underlying recognitions that technology is a prime mover of legislative intervention and that commercial development in this area is better achieved through a 'light-touch' regulatory approach rather than through the creation of unduly heavy regulatory burdens on market participants. The exclusive focus of this thesis is the creation of distance contractual relationships with the private consumers of financial services. This thesis analyses existing and proposed regulation in this area and provides economic, commercial and legal rationales for legislative intervention therein. Having witnessed the rapid global evolution of distance trade in financial services over the past years, it is important to see how the new marketing and selling techniques have forced (and are forcing) a responsive adaptation in the existing normative structures, not only in terms of the creation and enforcement of contractual obligations but also in terms of for example access to efficient modes of dispute resolution and other redress mechanisms. It is likewise important to see how maximum economic benefit for all market participants is achieved through proper regulatory intervention. In this sector, regulation is seen to harness all these developments in distance contracts within a dimension of certainty and predictability which has been lacking in the first years of the emergence of the distance selling phenomenon in global financial markets.