Dos conflitos de interesses no setor bancário

• Autor(a) principal: Antunes, Mariana Sofia Silva
• Data de Publicação: 2017
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/22976
• topic: Direito

In this essay, we conformed the investment recommendation and its importance in conflicts of interest, and we have characterized the information duties from the legal point of view (according to the regulation legislation), and from the financial point of view (Commission Regulation 2/2012 CMVM). We acknowledge the importance of the investment recommendation given the investor's confidence in the financial entity as well as the information asymmetry between the parties, reinforced by the low levels of financial literacy identified in the reports conducted by the supervisory entities. We analysed the legal framework of the investment recommendation, provided by the Portuguese courts, to comprehend how they appreciate it and to verify the level and type of accountability that they impute to the banking entity in this matter. The courts substantiate the bank's accountability by extending the investment recommendation to the figure of cumulative debt assumption. This jurisprudential understanding does not gather unanimity since some understand that the accountability is operationalized in the framework of the recommendation of investment in the guarantee. We conclude that, whether it is understood to be a cumulative assumption of debt or a bank guarantee, and in accordance with the jurisprudential framework elaborated in the respective concrete cases, the assumptions of compulsory civil liability are encountered. There is also a need for more effective oversight by the regulator, but also by financial entities, to comply with their widely-circulated codes of conduct and independence. We analysed future perspectives regarding the legislative regulation of this issue through the analysis of a draft law drafted by the current Government, which will be subject to parliamentary appreciation, a clear sign of the recognition of the importance of assisting the courts in achieving the effective protection of Interests of investors. In our opinion, it is important for the financial intermediaries to be held accountable whenever they incur a breach of their duties when making recommendations for investment in a conflict of interest.