Financial instruments : A law and economics analysis of the fundamental contracts of the capital markets

This thesis evaluates and constructs a general, product-neutral legal concept and model of financial instruments, as opposed to the product-dependent definitions currently employed in contemporary capital markets law. Through a combination of law and economics perspectives, legal history, and comparative analysis, the study examines the various types of financial instruments currently and previously in use. The legal characteristics and features of these instruments are evaluated and compared, leading to the identification of commonalities that can be used to define a product-neutral concept. The thesis argues that such a concept is more beneficial to the function of the capital markets by removing obstacles for financial innovation while also providing a consistent way to ensure that new financial products are governed by the same regulatory framework as comparable instruments.The thesis also examines the historical evolution of financial instruments and how it has been driven by the evolution of international trade and the demand and surplus of available capital. The proposed concept is applied to current financial instruments, including equity and debt, as well as pre-modern markets, and evaluated in terms of regulation, practical use, and legal characteristics such as transferability and negotiability.The research of this thesis encountered several challenges and limitations. Firstly, the historical and comparative analysis proved difficult to carry out, due to limitation in available source material and language related restrictions, respectively. These limitations were overcome by limiting the scope and by employing contacts with law firms in the respective jurisdictions. Secondly, several key issues proved to require further research to be able to provide definitive conclusions. Such research would have been out of scope and as such, simplified explanations and models were employed. The thesis concludes with a discussion of the practical implications of the proposed concept, including its application to cryptocurrencies and similar assets, and identifies potential areas for future research.