Правове регулювання правочинів з іноземним елементом на фінансовому ринку України

Abstract

The dissertation is one of the first comprehensive national studies of the state of legal regulation of cross-border legal relations on the financial market of Ukraine with a comprehensive study of contracts on the financial markets of Ukraine in the system of international, European and Ukrainian financial markets. The choice of the specified topic is determined by its relevance in the view of the following points. Financial markets are becoming more democratized, the offering of financial services mostly does not depend on borders, the financial market is transforming and attracting new financial technologies. The main task for regulators in financial markets is to preserve the stability of the financial system. Legal regulation designed to achieve the specified task should not be an obstacle to the development of financial markets and compromise their efficiency. Financial markets are centralized and subordinated, and new legal relations tend towards their decentralization and maximum non-interference of the state. Contracts on the financial markets set the task to obtain the greatest economic opportunities for their parties, which becomes possible due to a wide range of financial instruments and offered financial services, which participants in legal relations can choose not only within the country of residence, but also throughout the world. When entering into such cross-border contracts in the financial markets, questions regarding the law applicable to such contracts are important aspects. Due to the complexity of some types of financial instruments, this issue becomes more important, which is important for research. Thus, new unsolved issues before private international law arise. Accordingly, in the first chapter, the author analyzes scientific approaches to the definition of the concepts of "financial market", "contracts on the financial market", “international financial market”. The structure of the financial market, its nature and classification of transactions on the financial market are determined herein. Further, in the first chapter, the characteristics of "cross-border" and "foreign element" in the financial markets of Ukraine are given, the need to determine the jurisdiction of the counterparty is established, and cross-border transactions are analyzed at the moment in the capital market of Ukraine. In the second chapter, the author directly examines each segment of the financial market and cross-border legal relations in it. Further, the main types of contracts on financial markets are analyzed and the issue of law applicable to these contracts is investigated herein. Also in the second chapter, regulatory regulation at the national, regional (EU) and international levels is defined. Judicial practice regarding contracts on the financial market is studied herein. Further, the General Agreement and contracts concluded with a trader conducting professional activity on the capital market and the client are analyzed. The role of transactions in each segment of the financial market is established and mechanisms for resolving disputes regarding such transactions are considered. In the third chapter, the legal regulation of the main transformational processes in the international financial market and the financial market of Ukraine are predicted. The main obstacles to cross-border activity in the financial market are determined herein. The legal regulation of the EU regarding virtual assets and distributed ledger technology, the corresponding infrastructure of the virtual assets market is analyzed in detail. The main trends for changes in the legislation of Ukraine regarding financial markets during Covid-19 and during the full-scale invasion of the Russian Federation are determined. When conducting the research, the author compares the previous and current legal regulation of Ukraine in the financial market, conducts a comparative analysis of Ukrainian legislation with EU law and the compliance of current legislation with international standards and principles, requirements of international regulators. Case study is analyzed and practical recommendations are provided for improving the legal regulation of Ukraine. The scientific novelty of the results obtained as a result of the dissertation research is as follows. The following author's definition is proposed: "financial market" – legally regulated mechanism of redistribution of financial assets, which occurs between participants of the financial market in accordance with the current legislation in order to obtain certain economic benefits. For the first time, the need to include the following segments in the composition of the financial market is justified: the capital market, the market of banking and non-banking financial services, the market of virtual assets, the organized commodity market, the foreign exchange market. Since the specified segments of the financial market are the mechanisms on which legal relations arise with respect to various financial assets to meet the needs of their participants. The author's view on the feature of "cross-border" is proposed: cross-border activity on the financial market is defined as the activity of any subject of the financial market, which carries out activity that has international characteristics, including legal relations of a private law nature with a foreign element. The special role of transactions in each segment of the financial market is determined: in the capital market, the role of a transaction of an auxiliary nature (not related to the basic financial asset), in relation to transactions with the infrastructure of the capital market and directly the main agreements regarding a financial asset (financial instrument), the role of a derivative financial instrument as a contract and a financial instrument, not a security, the role of a contract in the financial services market as the basis for providing a corresponding banking or financial service, the role of a currency contract as a type of derivative financial instrument. In order to improve the national legislation, it is recommended to make changes to the Law of Ukraine "On Virtual Assets" in order to harmonize the specified legal act with EU law. In particular, add the following provisions: clause 13, part 1 of Art. 1: 13) distributed ledger technology – virtual asset market infrastructure technology that implements a distributed ledger of data that is synchronized using an algorithm. Clause 8, Part 1, Art. 1 shall be amended as follows: 8) providers of services related to the turnover of virtual assets – exclusively business entities – legal entities that conduct one or more of the following types of activities in the interests of third parties: ... administration by distributed registry technology; Recommended subject to the entry into force of the Law of Ukraine "On Virtual Assets", the Law of Ukraine "On International Private right" to add the provision: Clause 5 Part 2 of Art. 44: 5). regarding contracts and operations concluded with the help of distributed ledger technology – the right of the state of the administrator of the distributed ledger technology. The classification of transactions on the financial market of Ukraine has been analyzed further (depending on the type of financial asset, the consolidation of obligations, the method of conclusion, the place of conclusion, by the presence of a foreign element, by segment of the financial market, with the participation of an intermediary). The author's definitions is proposed: "contract on the financial market" – a transaction entered into in any segment of the financial market and aimed at establishing, changing or terminating legal relations with respect to a financial asset and/or ensuring the efficient functioning of the financial market in accordance with regulatory requirements; "international financial market" – the mechanism of redistribution of international financial assets between participants of the international financial market in accordance with the harmonized norms of international legal regulation of the financial market. Scientific views on conflict-of-law regulation of the circulation of indirectly owned securities, transactions on the financial market concluded with the help of distributed ledger technology have received further development. Recommendations regarding the legal regulation of the virtual asset market in accordance with EU law were further developed, in particular, the provisions on tokens and tokenization as a digital representation of a value or right that is accounted for and stored using distributed ledger technology. The following proposals have been made regarding conflict regulation of transactions on the financial market. Since the analyzed attempts to unify the issues of the law applicable to legal relations regarding securities, in particular by solving conflicting issues regarding securities of indirect ownership, have common shortcomings regarding, in particular, the unresolved issues regarding virtual assets, which leads to potential future difficulties in the aspect of the application of financial technologies, the circulation of virtual assets, it is proposed to enshrine the following: issues arising in relation to transactions made by a transaction on the financial market, including transactions made on the DLT platform, in particular, issues of ownership of an asset, are resolved by the national law of the country that was determined in a specific transaction. In the event that such a right has not been determined by the parties, the law of the country shall be applied: – in relation to securities of indirect ownership: the right of location of the relevant intermediary – the formal holder of securities carrying out activities related to the administration of the securities account; – in relation to smart contacts: the right of the administrator of the DLT platform on which the smart contract was concluded; – in relation to other