CURRENCY OPTIONS AS AN ECONOMIC PROBLEM - LEGAL ANALYSIS OF SOLUTIONS (Opcje walutowe jako problem gospodarczy - analiza prawna proponowanych rozwiazan)
Currency options contracts which were generally concluded between banks and Polish enterprises currently lead to the huge financial problems or even to the bankruptcy of many of them. These contracts very often had an asymmetrical and harmful character for enterprises. Regarding to this matter the Minister of Economy put forward the statutory solution. All three options of the statutory project were critically discussed in this article. Bringing the Minister's of Economy ideas into effect would expose Poland to the great financial losses connected with expensive international arbitration legal proceedings. Currency contracts were signed by the banks with majority foreign capital, therefore cancellation of these contracts in legislative procedure would be against the bilateral agreements regulations concerning support and mutual protection of investment, so-called BIT (Bilateral Investment Treaties). The governmental ideas' weak point is also a great possibility of the opinion that these regulations are in contradiction with the Constitution of the Republic of Poland. Also making implementation of the Minister's of Economy act dependent on banks' failure to comply with informative duties, questioned in the 2004/39/WE European Parliament and European Council Directive of 21st of April 2004 concerning financial instruments' markets, known as MiFID (Markets in Financial Instruments Directive) deserves criticism. The main purpose of the directive is to implement freedom of investment services within the European Community and to protect the customers of investment services and also to ensure the bigger transparency in banks', brokerage houses' and financial agents' activities. Unfortunately, for some reason, MiFID has not been implemented by Poland yet (the implementation's deadline expired on 31st of January 2007), in this case, referring to it in the horizontal relations between banks and enterprises is an error. Under the circumstances, there is nothing left for enterprises but claiming the agreements' cancellation and suing for damages. The legal basis of making the claim was discussed in this article. These are, first of all, the error (a. 84 of the Civil Code), the exploitation (a.388 of the Civil Code), rebus sic stantibus clause (a. 3571 of the Civil Code) and also unfulfillment of informative duties by banks (a. 94 of the act of 29th of July 2005 concerning dealings in financial instruments and the Minister's of Finance Regulation of 28th of December 2005 concerning the procedure and conditions of investment companies' and trust companies' activities). In this article the emphasis was put on the courts' duty of pro-community interpretation of the above-mentioned regulations. It means that the court while interpreting Polish regulations, referred in the plaint, should follow the MiFID despite it has not been implemented.
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