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Международная унификация и гармонизация частного права в сфере финансовых рынков
INTRODUCTION. Concepts such as “harmonization” and “unification” are currently widely used in the legal field as methods for harmonizing legal regulation. Unlike domestic harmonization and unification, international legal convergence aims to eliminate contradictions in the laws of different states. The implementation of transnational harmonization and unification projects has been greatly facilitated by the activities of international organizations in the field of private law, including the International Institute for the Unification of Private Law (UNIDROIT), the Hague Conference on Private International Law (HCCH), and the United Nations Commission on International Trade Law (UNCITRAL). The efforts of these highly respected organizations, which can be loosely referred to as the "Big Three" in the world of private law, have contributed to the convergence of legal regulation globally and have been quite successful in some areas. Bilateral international treaties, as well as regional unification and harmonization, should not be overlooked. The process of convergence of legal regulation has encompassed such areas as the international sale and purchase of goods, family law, the protection of foreign investments, the international carriage of goods, international civil litigation, international commercial arbitration, and cross-border bankruptcy. Unification and harmonization processes have also affected international financial instrument markets, which, in the understanding of Russian law, are represented by the market for issued securities, such as stocks and bonds, and the market for derivative financial instruments. In the latter case, it is permissible to speak of a significant variety of contractual structures, such as options, swaps, futures, forwards, and their analogues. This publication proposes to study the process of convergence of law in the field of financial markets in relation to the substantive and conflict of laws regulation of the issue and circulation of financial instruments.
MATERIALS AND METHODS. The primary research material utilized legal unification and harmonization instruments, such as international treaties and soſt law documents, including model laws and collections of principles. Materials from Russian and foreign legal doctrine provided significant assistance. The methodological basis of the study included both general scientific methods (analysis, synthesis, deduction, induction) and specialized legal methods. Specifically, the formal legal method was used for a literal interpretation of the provisions of various legal harmonization instruments.
RESEARCH RESULTS. This article formulates and substantiates the thesis that the process of regulatory convergence in financial markets has been extremely uneven. Regarding equity securities, international treaties aimed at unifying substantive and conflict-oflaws approaches were developed under the auspices of UNIDROIT and UNCITRAL. However, no binding treaties were proposed for derivative financial instruments. Instead, associations of financial market regulators, professional associations, and later UNIDROIT published soſt law documents aimed at substantive harmonization of the derivatives market. Conflict-of-laws issues were of no interest to them in this case, as their focus was on the procedure for satisfying claims under derivative contracts during bankruptcy proceedings. Furthermore, the authors of the instruments for harmonizing derivatives law were interested not only in the international aspects of satisfying claims under financial contracts but also in the legal fate of purely domestic contracts.
DISCUSSION AND CONCLUSIONS. The author concludes that the unification project in the securities market has failed. At the same time, the harmonization of legal regulation in derivatives markets has proven extremely successful: the possibility of early termination of obligations with subsequent netting is now recognized almost universally. It is also noteworthy that the main lobbyists for derivatives market harmonization were not international organizations or even regulatory bodies, but rather an association of professional securities participants. According to the author, the success of harmonization in this case lies in the "initiative from below" and the shared interest of market players in legal convergence.