The chapter assesses the extent of integration of sustainable finance into the MiFID II and the IDD investor protection frameworks. The chapter explains why retail investors do not always act upon their investment preferences and the role of the investment product distributor in remedying investors’ value-action gap. The chapter discusses the main changes to the MiFID II and IDD frameworks by analysing the new sustainability-related definitions, the amended product suitability assessment, the amended product governance process, and the amended conflicts of interest procedure. The analysis argues that full cross-sectional consistency will not be achieved in the EU investor protection framework as only the MiFID II and IDD frameworks have been amended while rules covering other product distributors remain the same. It also highlights the problems of inconsistency caused by sustainable finance amendments to existing legislation, including when it comes to applying the definition of sustainability preferences, which refer to concepts of the Taxonomy Regulation and the Sustainable Finance Disclosure Regulation, and the lack of a complete Taxonomy covering social and governance perspectives in the amended MiFID II and IDD obligations.

The preceding chapter showed the piecemeal nature of regulatory protections for participants in the derivatives markets and explained how it has been justified on the basis that an alternative means of redress is available, namely private claims for mis-selling based upon ‘contract and negligence’. This chapter explores the reality of this type of private law claim. The argument focuses on those claims that are typically deployed by participants in the OTC derivatives markets and on the patterns that emerge from these mis-selling cases. The next chapter considers the related topic of contractual defences relied upon in this context. Together, these two chapters demonstrate why there have been so few successful mis-selling claims and question the assumptions behind the prevailing regulatory scheme.

Paradigmatic mis-selling claims involving OTC derivatives are based upon contract and tort law. Those types of claims, and the defences routinely deployed against them, are explored in subsequent chapters. We shall see in those chapters, as in later parts of the book, how the specialist mode of contractual interpretation adapted to the derivatives markets is integral to every stage of such claims. In many cases, in fact, it is decisive. However, the paradigmatic claims arising in this part of the financial markets are important not only for their own sake and for commercial law more broadly, but also because of how they relate to the regulatory rules in place to protect participants in the OTC derivatives markets, which is the concern of this chapter. In particular, as this chapter shows, the limitations of the regulatory schemes of redress in this context commensurately increase the significance of the private law claims explored in the remainder of this study.