LOS PRINCIPALES ASPECTOS CONTROVERTIDOS EN LA LITIGIOSIDAD DE LOS SWAPS.

Abstract

 

The lawsuits regarding swaps has greatly increased last years. There are several topics that are addressed in them such as mistake in the formation of the contract, the lack of consideration, the infringement of the duty to inform or bringing a joint action. The final judgment will depend on the circumstances and the evidence of each case. Notwithstanding the above, some general conclusions can be reached. Thus, this kind of contracts have their own and independent consideration which is not related to the risk that is covered with them. It can also be affirmed that bringing a joint action will rarely succeed when it is related to mistake in the formation of the contract. It seems that the strict fulfillment of the law does not include the obligation to inform about the foreseeable behavior of the element which is the reference of the contract. By the same token, there are certain circumstances which may determine that the mistake was avoidable, such as the fact of entering into several swaps without submitting any claim in this regard.