La qualification juridique des swaps comme site d'une lutte globale pour le droit

Based on archival research in literature by and for legal practitioners on swaps since the 1980s, this article presents the early controversy about the nature of swaps and elucidates the legal work deployed in support of financial innovation. How swaps would fit into the available legal categories o...

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Bibliographic Details
Published inMcGill law journal Vol. 62; no. 1; pp. 79 - 109
Main Author Pascale Cornut St-Pierre
Format Journal Article
LanguageEnglish
Published Montreal McGill University Faculty of Law 01.11.2016
Subjects
Attitudes
Finance
Financial instruments
Law and legislation
Lawyers
Legal professions
Securities
Swap arrangements
CANADA
Canada
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Summary:Based on archival research in literature by and for legal practitioners on swaps since the 1980s, this article presents the early controversy about the nature of swaps and elucidates the legal work deployed in support of financial innovation. How swaps would fit into the available legal categories of diverse jurisdictions was an open question to which many practitioners crafted tentative answers based on various repertoires of legal argumentation. This controversy reveals a co-production of law, where legal knowledge carries a power to inflect the scope of existing legal categories, a power all the more significant in the global environment that is finance where State authority is more fragmented. This article shows how financial lawyers globally resisted law by arguing consistently about what swaps were not (neither securities, nor insurance, nor gambling, etc.) and by characterizing them as 'sui generis' financial instruments. As such, swaps were able to grow relatively immune from most legal regimes that were in place to regulate finance since the 1930s.
Bibliography:MCGILL LAW JOURNAL, Vol. 62, No. 1, Nov 2016, [79]-109
Informit, Melbourne (Vic)
ISSN:0024-9041
1920-6356