LA NULIDAD ABSOLUTA DE LOS DERIVADOS FINANCIEROS POR INCUMPLIMIENTO DE LA NORMATIVA MIFID.

Abstract

There are many, many rulings looking at the question of the validity or invalidity of OTC derivatives from the stance of the application of the MiFID to OTC derivatives, although this legislative realm has been recently reviewed by the Bank of Spain and the Spanish National Securities Market Commission as regards derivatives linked to mortgage financing. Trading in this type of complex financial instrument without the necessary information, transparency and clarity has on repeated occasions led to the instruments' being declared relatively void due to the existence of defects of consent, although a review of the existing body of cases also implies the necessary consideration of the ipso jure absolute nullity of a derivative when the imperative applicable rules of conduct have been infringed in its trading.