The banker's conflict of interest.

Summary The banker's conflict of interest, a terminology that has been overused by dint of being invoked at each new crisis, without the law being able to fully grasp it, is a particular, autonomous and original notion that nevertheless aspires to a legal existence. It is first of all the result of an incompatibility of a power and a duty that are concomitantly in the hands of the banker. In other words, it is the state of affairs where the banker holds the power to affect an interest, predefined as superior, which he is bound to protect by duty. If it is thus at the heart of the law of representation, which governs a considerable part of the client-banker relationship, it is not confined to it and can also flourish outside the contractual framework. However, after a critical review, it appears that, mainly inherited from regulations specific to investment services, they do not fully cover this field, and a fortiori not in its sphere of expression, which extends well beyond it. In a prospective approach, an analysis of the interpretation of the legal concepts used to control the banker's contractual conflicts of interest is necessary and reveals that the obligation to manage the conflict of interest has features in common with the traditional obligation to guarantee the personal fact. A comparative approach to Anglo-American law confirms the particular nature of this obligation of the banker in the face of a conflict of interest. Such an obligation necessarily calls for a specific regime, of which a draft regime has finally been proposed.