Informations and abstract
Keywords: Financial Intermediation, Financial Investment Services, Investment Services Agreement, Investment Orders, Article 23 of the Consolidated Law on Finance, Protection of Consumers, Unfair Contractual Terms, Contractual Form, Selective Application of Invalidity, Transparency, Bad-Faith Arguments, Good Faith; Abuse of Rights.
This article probes a topic of heated debate in Italian caselaw and legal literature, namely that of financial intermediaries’ recourse to arguing the bad faith (exceptio doli generalis) of clients that «cherry pick» which investments they claim are invalid under investment services agreements held to be null and void under Article 23 of the Consolidated Law on Finance. Upon closer examination of the matter, it becomes clear that there is complexity in employing such bad-faith arguments as a way to impede, within certain limits, the selective application of the invalidity pursuant to Article 23 of the Consolidated Law on Finance. In analysing a recent Italian Supreme Court ruling – which constitutes an additional endeav- our to create a common framework for the protection of consumers against unfair contractual terms (nullità di protezione) – it can be seen that such appeal to bad-faith arguments is an approach that seeks to balance the contrasting need to safeguard investments while protecting intermediaries, also with a view to ensuring market stability and guaranteeing financial investments.