IMPORTANTISSIMA SENTENZA TRIBUNALE MILANO leggere tutta e con attenzione The above is referred to Cirio bonds but reaffirms important principles that well suits the story of Argentine bonds. Here it is in its introduction (what is omitted as regards the specific case):
Milan Court Decisions Decision No. 3575/2006 of 20/3/2006 solicitation - Nature of public and private - Substance - Distinction. For a solicitation is classified as private and therefore is not for the public, it is necessary that the investment in real estate values \u200b\u200bis not a functional distribution of values same in the audience of investors. In other words, if those securities are subscribed for or acquired with the intention of making, or once after some time course, distribution among investors, even the original solicitation should be classified as public. Solicitation - Effective target to individual investors - Prospectus - "Offer" indirect "- Nature - Effects. Gives a behavior that may well be called "indirect offer" the bank, acting as institutional investor (and hence exemption from the prospectus), has purchased newly issued securities for which there was a ban on direct sales to retail customers but in fact has not held the same securities in their portfolios because they had already sold before they were to material existence, to small savers. In this situation, the bank, selling these securities at the stage of the CD. gray market before their material existence, is even "self-funded" to meet the payment of the amount that was required to pay the broadcasters / co-manager / participants in the consortium, "draining" the funding from the customers and actually moving on it the risk of the placement of securities together with the risk of insolvency of the issuer. In this case, not only can be regarded a conflict of interest, but even before a breach of regulations on employment, there is a fictitious interposition of the institutional investor to circumvent the legislation provided more protection for "public offering" direct. Solicitation - CONSOB - Nature regulate - Prevalence of judicial review - Existence. The existence of Consob, exempting those that can be described as "indirect offers" from the publication of the prospectus, can not exclude the review by the court on the legality of the acts and behavior and the intermediary their responsiveness to primary and secondary rules governing the matter, since the evaluations of the supervisors are purely regulatory, and then put on a different level than that of judicial review. Financial intermediation - Relations with the issuer of the intermediary - Conflict of interests - Existence. There, in two respects, the conditions of the conflict of interest - for whom the art. 27 Reg Consob 11522/98 customer information requires the express written authorization of the latter during the operation - if the intermediary bank is a creditor of the issuer bonds and has, through its group companies, directly participated in the bond underwriting syndicate. Financial intermediation - General obligation negotiated indication - different legal regimes - aliud pro alio - Termination of contract. The only indication "Cirio" with no reference to the fact that it was foreign bonds issued in Luxembourg, leads the investor to refer to a license issued by the Italian company known Italian food, ie a type of bonds issued in accordance with the rules the Italian market. In this case, the irreconcilable differences of the regulatory framework reference (ie the peculiar laws of Luxembourg and different from those of the Italian system) they entail the radical difference of the title actually delivered compared to the program contract under which the investor has agreed to buy the bonds. And this diversity in the legal and substantive delivered what seems likely to be the case dell'aliud pro alio, resulting merits of the application to terminate the contract pursuant to art. Financial intermediation 1453 cc - Refusal to provide investor information - Consequences - Evaluation of the adequacy of the operation - Consequences. Refusal customer to provide information on their financial situation and risk tolerance, even if the result of self-determination rather than encouraged by the Bank official, is not the case, as noted, to exempt from the broker of information and verification of adequacy Profile financial product traded. Such refusal must show "a minimal or reduced risk appetite, a lack of knowledge of financial instruments and, accordingly, investment objectives geared to the preservation of capital, rather than the maximization of profitability" This is because the interpretation of the rules regulatory cited "can not descend adverse consequences to the client "(as Trib Trib and Monza 16.12.2004 12.01.2004 Mantova). Financial intermediation - Duties of the intermediary information - actual knowledge of the operation - Sufficiency - Need. The disclosure requirements may actually be considered fulfilled only when the investor clearly understand the characteristics of the transaction, given that "knowledge must be actual knowledge and (...) the broker or the developer must verify that the client has understood the characteristics essential to the proposed transaction not only with respect to its capital costs and risks but also with reference its adequacy "(as Trib Trib Rome and Florence 5/30/2004 10/08/2004). The so-called gray market trading - Knowledge of the product traded and duties of the intermediary ubject - None. If the negotiation of the financial product has occurred during the gray market and before publication of the Offering Circular, is unlikely to assume that the intermediary bank, not having adequate information, has been unable to carry out its obligation information. Financial intermediation - Adequacy of the operation - Content of the evaluation - Effects. The adequacy of an operation must be assessed in several respects, namely the introduction all the criteria of art. 29, paragraph 1 of Reg Consob 11522/98, which states that any transaction may be inadequate by type, location, frequency, or even size. It follows that each of the causes for which the operation can be estimated inadequate must be specifically brought to the attention of the investor and explained its contents, in order to put the investor in the same condition to assess as well the opportunity to proceed or not investment (in this sense and Trib to Trib Mantova 12.01.2004 16.12.2004 Monza). Financial intermediation - Violation of the duties of information and violation of the rules on the distribution of titles - Failure and invalidity - Distinction - Effects. Although the violation of disclosure requirements (financial product, the existence of possible conflicts of interest, or the inadequacy of the operation) should be penalized in terms of default, breach of the rules governing (upstream) the distribution securities market, given the more general underlying interests, should be penalized by revocation pursuant to Art. 1418 cc contrary to public policy statement. Financial intermediation - Violation of the rules on solicitation - "Offer" indirect "- Nullity - Existence. Any violation of the solicitation via the so-called "indirect offer" is likely to establish a declaration of nullity of contracts for breach of the principle of greater market integrity, as well as the possibility of a prospettabilità shop in circumvention of the law . Financial intermediation - Damage to the investor - Quantification - Burden of proof. In the absence of specific evidence on the investor's average return of the portfolio (index might be a useful reference for the location of the injury suffered due to lack of alternative use of money) on the amount of restitution to the investor damage seems appropriate tax the legal interest from the date of the balance of payments.
