Interest rate swaps and the sale of the unknown

Interest rate swaps and the sale of the unknown

This article was originally published in Butterworths Journal of International Banking and Financial Law, under the title: 'Interest rate swaps and the sale of the unknown. Blind alleys, an enfeebled equity and the triumph of certainty over fairness.'

Paul Marshall*  of No.5 Chambers, London, considers the unsatisfactory interface between financial regulation and private law illustrated by Green and Rowley v Royal Bank of Scotland [2013] EWCA Civ 1197 (October).

Key Points:

  • We seem to have developed a cordon sanitaire between the regulatory structure, with its strikingly restricted remedies, and private law duties.
  • The distinction between information and advice is an illusion, particularly where the requirement is to achieve understanding of the nature of risk.
  • An obligation to put another’s interests ahead of one’s own may readily indicate a fiduciary relationship.

Abstract:

In this article, Paul Marshall considers the unsatisfactory interface between financial regulation and private law illustrated by Green and Rowley v Royal Bank of Scotland [2013] EWCA Civ 1197 (October).

“The real trouble with this world of ours is not that it is an unreasonable world, nor even that it is a reasonable one. The commonest kind of trouble is that it is very nearly reasonable, but not quite. Life is not an illogicality; yet it is a trap for logicians. It looks a little more mathematical and regular than it is; its exactitude is obvious, but its inexactitude is hidden; its wildness lies in wait.”

GK Chesterton writing in 1909. Quoted in 1996 by Peter Bernstein in Against the Gods, The Remarkable Story of Risk (in a chapter entitled Awaiting the Wildness) writing that “we are still trying to understand …… how human beings make choices and respond to risk”; apt to the banking crisis. It is a commonplace that the crisis was not precipitated by unlawfulness (such as the supposed threat to the stability of the financial system presented by money laundering) but by inappropriately sold securities, bundled, and then sold on. When multiplied by bundling, the risk carried, once identified, was sufficiently toxic to

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