Review of the first financial market test case in China

2023-02-23

On February 22, the Shanghai Financial Court concluded the country's first financial market test case and publicly announced its judicial opinion. The opinion clarifies the applicable principles of law for disputes involving financial market infrastructure, and identifies the focus of disputes related to the first case of the test. This case is the first test case heard in accordance with the Provisions of the Shanghai Financial Court on the Financial Market Case Testing Mechanism (Trial) (hereinafter referred to as the Provisions). In response to the financial reform and innovation and increase the supply of financial rule of law, in July 2022, the Shanghai Financial Court issued the "Provisions" to clarify the disputes that may be caused by financial institutions, counterparties and other entities in respect of the typical facts and legal issues that are cutting-edge in the financial business to be carried out or are being carried out, which need to be clarified by law and have a significant impact on the financial market, and can apply to the Shanghai Financial Court for case testing. The Shanghai Financial Court provided clear rules and guidance to the financial market through the trial. On October 12, 2022, the Inter-bank Market Clearing House Co., Ltd. (hereinafter referred to as the Shanghai Clearing House) and four banking financial institutions jointly applied for a case test on the legality of the rules for the disposition of the default of the central counterparty and the rationality of the disposition behavior in accordance with the Provisions. The case test was conducted in the form of four banks as the applicant institution A suing the respondent to the clearing house, demanding the respondent to compensate for the loss of margin due to default disposal, and was publicly heard on December 12, 2022. On February 22, this year, the Shanghai Financial Court, in accordance with the Futures and Derivatives Law, the Principles of Financial Market Infrastructure and other laws and regulations, normative documents and domestic and foreign financial market practices, determined that the relevant rules for the disposition of default of the Shanghai Clearing House met the relevant conditions and were legally binding, and there was no obvious irrationality in the specific disposition of default, which had legal effect on Institution A. Taking the first financial market case test mechanism as the carrier, the Shanghai Financial Court has demonstrated the characteristics of this mechanism based on consensus initiation, comprehensive disclosure of evidence, preferred agency, substantive defense and full participation of all social parties through the trial of major legal issues that may lead to disputes at the forefront of the central counterparty's centralized clearing business. With the judicial trial mode different from the traditional civil litigation system, the case test mechanism has expanded the service guarantee function of financial justice in the new era, and formed a new Chinese-style financial dispute resolution path that conforms to the concept of financial market supervision sandbox governance and social coordinated comprehensive governance. At the same time, the first test case systematically put forward three trial principles: giving priority to the application of specific rules of financial law in accordance with the basic principles of civil law, fully respecting the domestic and foreign financial market practices, and comprehensively considering the coordination of financial supervision and financial trial rules. The case focuses on the legality and rationality judgment criteria of the disposal of the default of the central counterparty, forms the judicial opinion and judicial suggestions, and pertinently improves the rules and regulations of China's financial market infrastructure, provides more explicit rule expectations for the derivatives market entities, and improves the ability of the financial market to prevent and resolve systemic financial risks. The Shanghai Financial Court will further innovate the professional financial trial mechanism of balancing the domestic and foreign-related rule of law in the financial field, serve to ensure the upgrading of the level of the Shanghai International Financial Center, and provide the financial department for creating a market-oriented, rule-based, and internationalized first-class business environment

Edit:Ying Ying    Responsible editor:Shen Chen

Source:rmfyb.chinacourt.org

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