This chapter analyses legal responses to three situations: someone pretending to intend marriage, someone entering marriage or a civil partnership for ‘ulterior motives’ and someone entering marriage or a civil partnership when an existing relationship disqualifies them from doing so. It argues that, historically, marriage was used to compensate women who experienced the first form of deception and to punish the men who deceived them; that in ‘ulterior motive’ cases, marriage might have been withheld from the deceptive party; and that bigamy provided legal recognition of the harms and wrongs experienced by duped individuals at the same time as it protected the state’s interest in shoring up marriage. The chapter concludes by arguing that the move away from each of these positions over time means that the extent to which the law protects individuals’ interests in avoiding deceptively induced intimate relationships has decreased. It further argues that this development has implications for how we assess the adequacy of contemporary legal responses to inducing intimacy.

This chapter analyses crimes involving procuring sex, including procuring sex by deception. It argues that to appreciate the nature of these offences, and their place within this book, it is necessary both to understand how the verb ‘to procure’ was interpreted, including when and why it required deception, and to pay attention to the acts whose procurement was proscribed by law. The chapter provides elucidation on both fronts, showing how the procuring offences were geared towards prohibiting ‘illicit’ (i.e., immoral) sexual activities and therefore criminalised the use of deception to lure others into committing such acts. In demonstrating this point, the chapter argues that a culturally sensitive vision of what makes intimacy valuable shaped and constrained the use of the procuring offences. Finally, the chapter argues that the demise of the procuring offences set the stage for the expansion of the crime of rape by deception and that examining how the procuring offences worked yields important lessons for those attempting to engage critically with this development.

This chapter summarises the overarching narrative of this book and argues that as was as being intrinsically valuable it can inform contemporary debates about using law to regulate the practices of inducing intimacy. The discussion is organised around three sets of issues: the public and private dimensions of sex and intimate relationships, including the interests protected by law, the form of response (i.e., state or non-state), and the variety of legal response (i.e., public or private); the structure of legal responses, the meaning of consent and its relation to deception, targeted modes of deception, culpability matters, the requirement for a causal link between deception and ‘outcome’, and the temporalities of the legal wrong; and the substance of deceptions, including the dynamics governing the range of topics about which transparency has been expected. Drawing the discussion together, the chapter concludes by offering a new framework for constructing legal responses to deceptively induced intimacy, which builds on the core insight and these responses have historically been predicated on temporally sensitive associations between self-construction and intimacy.

The economic and financial difficulties encountered by European States since the global 2007–2009 financial crisis have led to a loss of trust in the banking and financial system, and have made the previous theoretical assumption of the bankruptcy of credit institutions perceptible. The financial crisis showed the importance of maintaining depositor confidence in the financial system, and using such tools as increases in deposit insurance coverage and strengthening of funding arrangements, to support financial stability. In a changing world, challenges with respect to deposit schemes are numerous. In June 2017 (i) an agreement was reached at the EU and Italian levels to recapitalise the Italian Banca Monte dei Paschi di Siena, and (ii) the Spanish Banco Popular Espanol S.A. was put into resolution and its equity instruments were transferred to Banco Santander S.A. The failure of those two credit institutions illustrates the fact that bankruptcies of banks are not hypothetical, 10 years after the Lehmann Brothers collapse. March 2023 proved that risks on deposits still exist. Indeed, US regulators rushed to seize the assets of Silicon Valley Bank (SVB) after a run on that bank, the largest failure of a financial institution since the height of the financial crisis more than a decade ago. Pursuant to a 12 March 2023 Joint Statement by the US Department of the Treasury, US Federal Reserve, and US FDIC, the resolution of Silicon Valley Bank was announced to be executed in a manner that fully protects all depositors.

INTRODUCTION

Relying on a ‘tragedy of the commons/anti-commons’ analysis, this contribution seeks to develop a conceptual framework that explains and justifies both the procedural and substantive transformation of property rights in corporate insolvency and bank resolution. On that basis, the chapter further seeks to predict one of the unintended consequences of the new bank resolution framework: a likely increase of the costs of capital for medium-sized and less complex institutions, that may result in a further consolidation of the banking sector over the long term. This goes against the underlying rationale of the bank resolution framework to effectively tackle ‘too-big-to-fail’.

The commencement of proceedings with a view to resolving financial distress, and to a lesser extent the financial state of insolvency, can have a transformative effect on the property rights held by counterparties of the debtor. The term ‘property right’ is here used in a broad – economic – sense, encompassing personal (contractual) rights as well as proprietary interests (ius in re). Depending on the legal system, contractual obligations and security interests may no longer be enforceable; after-acquired property clauses in security agreements may be ineffective; rights acquired pre-commencement may be subject to a challenge under voidable transfer laws; mutual obligations may be reduced to a net balance; and debt may be deferred, written down or converted to equity. As a general principle, in a market economy parties are free to agree on any amendment of their rights and obligations. In the insolvency context, they may do so ex post through a contractual workout,

INTRODUCTION: A REGULATORY PARADOX

The regulatory response to the financial crisis has had a paradoxical effect: stricter public supervision of the financial sector has led to more private selfregulation. So-called codes of conduct and codes of ethics, i.e. self-made rules of banks, banking groups and associations, have proliferated in recent years They have grown in number, and they have often grown in length. But – have they also grown in importance? This will be the subject of this contribution, with a specific view to the doctrine and practice of European contract law.

The contribution will proceed in three steps. As a first step, it will try to explain why and how the proliferation of private codes in the banking sector is a consequence of stricter public regulation (below section 2). The second step will be a brief look at a practical example of a conduct code in the banking sector (below section 3). The main focus will be on the third step. Here, the contribution aims to analyse the different ways in which codes of conduct might have legal effects on the relationship between the bank and its customers (below section 4). The contribution will then draw some conclusions, which might be relevant not only for the field of banking law, but for contract law more generally.

THE SPREAD OF ADR BANKING AND FINANCIAL SYSTEMS IN EUROPE

Alternative Dispute Resolution mechanisms (ADR) have become increasingly widespread in Europe over the last two decades, being favoured by the laws of both the Member States and the Union, especially with regard to the trade of banking and investment services (and, to a lesser extent, insurance services as well).

Directive 2013/11/EU refined the general framework of ADR for consumer disputes in the Union's law, which was further specified by the Regulation (EU) No. 524/2013 on Online Dispute Resolution for Consumer disputes (CODR). The depiction of these mechanisms as ‘alternative’ means that they strive to settle disputes out of court, and it thus implies a neat opposition between them and the judicial systems of the Member States. However, it is less appropriate than in the past to draw a line between these two realms of civil justice, since on the one hand the boundary between them is becoming increasingly blurred, and on the other hand, ADR systems cannot be properly understood as (just) a means to address the shortcomings of the judicial process and to diminish the number of cases pending before the courts.

The nature of ADR systems is highly mutable, both in terms of their architecture and of the type of activity carried out in pursuing the settlement of disputes brought to them. In the banking and financial markets, particularly, the panoply of techniques used by ADR systems covers a broad array of services, ranging from a ‘soft’ facilitation of amicable solutions between the parties (mediation) to proper adjudication of cases by arbitrators, be they monocratic or sitting in a panel.

INTRODUCTION

The effectiveness of EU law largely depends on national enforcement mechanisms. This concerns both national authorities executing EU administrative law and private parties enforcing EU law content. In EU banking regulation, most attention has been devoted to the administrative enforcement of regulatory goals at the national and EU levels. Private law has not played an important role in this context so far. This starkly contrasts with other areas of EU regulation where private law remedies have increasingly gained importance, namely competition law and capital markets regulation. In competition law, the ECJ first ruled in Courage that EU law required individual compensation rights for anybody negatively affected by a cartel and later specified conditions for cartel damages claims. The EU legislator then introduced the Cartel Damages Directive. In capital markets regulation, private law duties are sometimes explicitly codified in EU legislative acts and are sometimes the subject of discussion. The Transparency Directive and Prospectus Regulation provide for individual liability mechanisms. In contrast, it is a matter of debate if and to what extent the MiFID II provisions on investment advice contain private law duties. In any case, private enforcement has moved to the core of discussions on competition law and capital markets regulation.

INTRODUCTION

The Directive 2014/59/EU has considerably widened the crisis prevention measures used to intervene when a bank is experiencing difficulties, to prevent them from worsening. Indeed, due to the limitation on shareholders and creditors’ rights that is entailed as a consequence of a decision adopted by a public authority, ‘resolution’ should be only adopted as a last resort measure when there are no reasonable prospects that any alternative supervisory action or private sector measure can prevent the bank's failure.

Yet, the new recovery and resolution framework provides for neither special negotiated solutions of the crisis, nor harmonised rules on financing arranged by the bank during the recovery or early intervention phase (‘funding for recovery’). In addition, the more volatile market environment linked to the new ‘bail-inable’ regime and the lack of a credible public backstop may make it more difficult to arrange early intervention measures and private sector solutions.

Crisis prevention measures and the resolution framework provided for in the Bank Recovery and Resolution Directive (BRRD) can affect the contractual relationships between banks and investors and the incentives to the latter to provide funding for recovery.

We will first recall the current provisions in the Bank Recovery and Resolution Directive on preventive, preparatory and early intervention measures that are especially relevant for the effects that they may have on contracts.

INTRODUCTION

The problem of liability of national financial supervisory authorities (FSAs) transcends the classical division between public and private law. The duties of the authorities are regulated by public law, but liability claims by aggrieved persons are rooted in private law. Entitlement to private law remedies is not limited to individuals such as depositors and embraces other actors in the financial markets (banks, insurers, stock exchange, etc.) which can suffer damage to reputation or to their financial position in the market, and possibly their shareholders.

In recent years European courts have increasingly admitted the possibility of seeking civil remedies, specifically based on tort law, against FSAs and/ or the state. The nature of the liability of FSAs is tortuous, as a contractual relationship between a public authority and an injured individual cannot be established. This contribution reviews the case law and provides a theoretical framework for such claims. Latest comparative research by R.J. Dijkstra has shown that no common approach to financial supervisory liability exists in the EU Member States. Nevertheless, we should try to identify some convergences or at least common trends in the present developments.

PUBLIC AUTHORITY LIABILITY MATRIX

We should begin with a sketch of the current state of the liability of public authorities in Europe. Depending on the national system, the rules on liability of public authorities belong to either the private or public law domain, or to both. Thus, the problem discussed here may be approached from different angles: civil law, constitutional law, administrative law and EU law.

INTRODUCTION

The legal assessment of foreign currency loans under the Unfair Contract Terms Directive has recently become a topic of major importance in the scholarship on European private law. Litigation regarding foreign currency mortgage loans in several Member States of the European Union, mostly in Central and Eastern Europe, led to dozens of judgments by the Court of Justice of the European Union (subsequently CJEU). This contribution gives a brief account of the Polish experience with foreign currency loans. It focuses on the CJEU jurisprudence inspired by requests for preliminary rulings by Polish courts and its implications for the jurisprudence of Polish courts. The chapter advances the claim that a national legal system which provides no significant regulatory intervention of its own to remedy the consequences of foreign currency lending is far more susceptible to the influence of CJEU law-making than legal systems offering national solutions.

Poland is one of the countries most affected by the legal and economic consequences of foreign currency lending. Early in the 2000s, as interest rates were much lower in Switzerland than in Central and Eastern European countries, the Swiss franc emerged as an attractive currency index for mortgage loans. In 2010 around 64 per cent mortgage loans in Poland were indexed in foreign currency (mostly CHF) with the total value of 40 billion euro.