Conformità e controllo nel mercato mobiliare: la funzione di compliance

Abstract

Recently, regulatory compliance has become increasingly important in the banking and financial sector. Both the European legislator and the Authorities have imposed on banks and intermediaries a duty to implement an effective compliance function. The phenomenon has been analysed from an economic and business standpoint, but less so far as regards its impact on negotiations between savers and intermediaries. This research aims to highlight the effects that regulatory compliance may have on the contractual relations. To this end, the connections with the corporate social responsibility theory have been firstly examined. Then, the analysis focuses on the relation between the regulatory compliance discipline and some classic issues of the Italian Contract Law literature, such as the conflict of interests and the remedies that the client can activate if the intermediary breaks the mandatory behavioural rules. «Non compliance» (or inappropriate compliance) with the applicable contractual rules can be regarded as a further tool that the judge can use to determine the intermediary’s degree of diligence in operating within the financial market. The assessment as regards the impact of «non compliance» on the whole economic operation must always take into account the concrete interests underlying each negotiation. It is reasonable to assume that this topic will be further analysed in the literature and applied in case-law, in order to begin a process that will ultimately lead to building up a corporate culture based also on compliance with Contract Law. [edited by Author]