Informations and abstract
Keywords: Selective Use of Invalidity, Investment Contract, Investor Protection, Good Faith, Agency Problem.
The provision for invalidity established by article 23 of the TUF (Consolidated Law on Finance), for investment services, has given rise, over time, to a series of difficulties of interpretation, including the lawfulness of the selective invalidity. It consists in the practice carried out by costumers of banks and financial intermediaries, taking legal action to obtain the declaration of invalidity of the contract concluded for the provision of investment services by financial intermediaries, of contesting only the operations with a negative outcome, without considering other transactions, which have had positive results, even if concluded within the frame of the same void contract. The Italian Supreme Court has ruled on this subject with judgement n. 28314 on November 4th, 2019, stating that this practice is admissible, but must comply with the principle of good faith. The issue involves the category of «protective invalidity», and the problem of investor protection and opportunistic behavior of the parties involved in investment transactions. This work, after examining the various doctrinal and jurisprudential reconstructions of the subject, aims to offer, along the lines of a critical analysis of the arguments used by the Supreme Court in the mentioned judgement, a further interpretation of the practice of the selective invalidity, in the light of the agency problems