Reconstructing conflict of interest in financial markets: private management, public challenges and the prospects for a distinctly European approach

Following widespread criticism of financial market (self-)regulation, there is a shift in regulatory mood, explored here with reference to evolving conceptions of conflict of interest. The pre-crisis distinction between conflict of interest (normal, manageable) and its exploitation (unacceptable, legally actionable) has become somewhat eroded, as exemplified by the SEC’s 2010 civil fraud action against investment bank Goldman Sachs. However the settlement of that case on the basis of ‘mistake’ left many questions unanswered: about the meaning(s) of conflict of interest, about managerial mistake versus exploitative intent in administrative/civil cases and equally about the potential for action under criminal law. Looking forward, a judgement of the European Court of Justice on insider trading e concerning a rebuttable assumption of intent e could be taken as a template for ‘drawing the line’ on conflict of interest. Acting on the basis of informational asymmetry could be taken as an indicator of intent and serious wrongdoing unless financial market actors can demonstrate otherwise.