It is in many assumptions little suited

The crisis has not finished to produce all its legal effects. Because this only where there is degradation of markets revealed the importance of the risks they involve derivatives. Investors then become aware of "financial intoxication" which they face. They may seek to untie of contracts or engage the liability of the banks that have advised. Given the limitations of the current regulations, this task is not always easy. Nevertheless, two judicial channels can now be considered. First of all the action in civil liability. It aims to obtain the Bank Board, in respect of the breach of obligations of information and of last warning, of damages. They repaired the damages resulting from the use of particularly risky financial products. This action however assumes the existence of a direct and certain damage. It is, in many assumptions, little suited.

Indeed, when at the deterioration of market conditions, investors are aware of the real risks to which products expose them, the outcome of the operations has, in the majority of cases, not yet taken place. The incurred damages are, therefore, that potential. Only the loss of chance to use a product less risky and more responsive to its needs could allow the investor to obtain compensation. But this remedy will not be able to match the amount of the losses that the investor may actually suffer. In these circumstances, rather than be satisfied with a symbolic compensation, the investor might want to break out of the product "toxic." Products structured being in principle of the contracts, it is possible to apply for a mistrial on the basis of fraud or error: This includes support that the breach of the banker to obligations of information and warning could vitiate the consent of the investor. Whether an action in nullity or liability, breach of the Bank obligations of information and/or warning must be established. In 2007, the legislature spent these obligations, which were traditionally imposed by the courts.

Mobilization of the actors

The goal was particularly to facilitate the task of investors by strengthening their protection. The goal however could not be fully achieved. Indeed, information and warning obligations enshrined in the Act are part of the specific rules applicable to providers of investment services (PSI). These provisions are therefore applicable only when the Bank Board has been approved as the PSI; so there is no difficulty, investment banks in principle with this quality. But it must also be that the Bank Board has provided one of the services of investment and related services defined by the Act. However, structured (such as complex contracts of "swap") financial products generally fit in any category of investment and related services. They are thus paradoxically excluded from the scope of the protective legal provisions. The liability of the Bank for breach of the obligations of information and caution should be sought on the basis of traditional jurisprudential solutions. However, these obligations as enshrined in the law do not have the same contours than those from the specific to the PSI Regulations. Which is not without impact on the prospects for success of the action in responsibility or nullity of the investor.

To cite only an example, the duty to warn is imposed by the courts when it is in the presence of a speculative operation. However, no text provides such a requirement. In these circumstances, and given the recent reduction of disputes regarding contracts for structured products, a mobilization of the various actors would be particularly significant to unify the legal regime and restore confidence in markets.