FINANCIAL MARKET LEX MERCATORIA AND ITS INFLUENCE ON THE FINANCIAL COLLATERAL DIRECTIVE

Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements (‘Financial Collateral Directive’) was adopted as a part of the EU legal framework for financial markets in order to enhance the stability of the financial system in the EU. Several of its key provisions dealing with the financial collateral arrangements had required the Member States to introduce new rules in the national legal systems which were substantially different from the existing legal solutions employed in the national property, contract, and insolvency laws. These provisions of Financial Collateral Directive represent a reception of the financial market practice embodied in the various standard master agreements drawn up by the international financial market associations. The level of this reception indicates that the true legislator of the European financial market in the field of financial collateral is the financial market itself. This paper identifies and explores the origins of the provisions of Financial Collateral Directive in the financial market practice and the effects of the Financial Collateral Directive on the national legal systems in the EU.