Caracterización jurídica del contrato de permuta financiera sobre acciones cotizadas o índices bursátiles ("Equity Swap")

Abstract

The purpose of this paper is to analyse the legal regime for equity swaps (in Spanish: contrato de permuta financiera sobre acciones o índices bursátiles), considering the most salient commercial and contractual, corporate, bank/stock market and insolvency arrangement factors thereof. The topic of financial derivative contracts is not completely alien to commercial legal doctrine or case law, which has addressed the birth and development of financial derivative instruments as part of the analysis of the financial innovation phenomenon that first gave rise to options, futures and swaps as the main commercial categories of financial derivatives and, subsequently, other derivatives such as interest rate caps and floors, credit risk hedges and contracts for difference. Because of their commercial characteristics deriving from their common usage in business dealings, swaps have formed the subject-matter of numerous high quality papers and monographs analysing the legal nature and characteristics of swaps, with particular focus on the category of interest rate swaps. Considerable legal controversy has arisen regarding interest rate swaps in relation to the existence of potential defects of consent in the arrangement of interest rate swaps on mortgages channelled through the retail network of credit institutions falling under the legal duty to offer mortgage hedges. Within the different classes of swaps, equity swaps are commercial, bilateral, atypical, over-the-counter (OTC) financial derivative contracts that are not netted which, although they are widespread on the securities markets and represent a clearly significant volume of OTC transactions tied to the value of shares or stock market indices, they have hardly been described in legal doctrine, as there are few court judgments that address them. The underlying asset of the contract may be securities or stock market indices. The contract, despite its contractual name in Spanish (contrato de permuta financiera sobre acciones cotizadas o índices bursátiles), cannot cover both underlying assets in the same transaction and can only be either a swap involving shares or a swap involving stock market indices, and not a swap involving both at the same time. The main objective of our analysis is the legal and commercial characterization of equity swaps in a pertinent and original paper that examines a very novel area of research...