Universität zu Köln

Dennis, Sebastian Benjamin (2026). Risk, Uncertainty, and Financial Law Beyond the State: Observations from the Over-the-Counter Derivatives Market. PhD thesis, Universität zu Köln.

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Abstract

This thesis analyses the particularly dense normative space in which a specific financial asset class, over-the-counter (OTC) derivatives, is traded. National contract and insolvency laws, rules of financial regulation and the standardised contractual architecture of the International Swaps and Derivatives Association (ISDA), a private trade association, all lay concurrent claim to governing the market’s different features. It proceeds from derivatives’ principal economic function as instruments of priceable financial risk transfer. However, the Global Financial Crisis of 2007–08 also threw a renewed spotlight onto categories of uncertainty which do not lend themselves to the conceptualisation of risk as quantifiable uncertainty, most prominently Knightian uncertainty. OTC derivatives are at their core dual-natured instruments, as much products of financial engineering, premised on quantifiable cashflows, as they are legal contracts. Translating future cashflows into enforceable rights and obligations serves to make manageable the manifold forms of economic uncertainty and highlights the constitutive role played by law in the OTC derivatives market. Conversely, since the global OTC derivatives market legally fragments along the jurisdictional lines of territorial nation states, the ideal of predictable risk transfer through transnational contractual hedging chains is threatened where different legal orders seek to regulate discrete contracts within the wider transnational network. The thesis terms this ‘transnational legal basis risk’. The standardisation initiatives advanced by ISDA lie at the core of its mitigation. The thesis, drawing on theories of global legal pluralism and transnational law, traces through various case studies how a transnational financial law has emerged from these private standardisation efforts by way of a productive dialectical interplay of private and state normativity – a genuinely global financial law not without, but beyond the State.

Item Type:	Thesis (PhD thesis)
Creators:	Creators Email ORCID ORCID Put Code Dennis, Sebastian Benjamin UNSPECIFIED UNSPECIFIED UNSPECIFIED
URN:	urn:nbn:de:hbz:38-813392
Date:	2026
Language:	English
Faculty:	Faculty of Law
Divisions:	Faculty of Law > Zivilrecht > Lehrstuhl für Bürgerliches Recht, Deutsches und Internationales Handels- Wirtschafts- und Bankrecht, Internales Privatrecht und Rechtsvergleichung
Subjects:	Law
Uncontrolled Keywords:	Keywords Language Bank Insolvency English Choice of Law English Close-out Netting English Contract Standardisation English Contractual Interpretation English Financial Dispute Resolution English Financial Law English Financial Regulation English International Swaps and Derivatives Association (ISDA) English ISDA Master Agreement English Knightian Uncertainty English Legal Pluralism English Legal Theory of Finance English Lex Mercatoria English New Institutional Economics English Over-the-Counter Derivatives (OTC Derivatives) English Private Ordering English Risk English Transnational Law English
Date of oral exam:	18 February 2026
Referee:	Name Academic Title Berger, Klaus Peter Prof. Dr. Schlitt, Michael Prof. Dr.
Refereed:	Yes
URI:	http://kups.ub.uni-koeln.de/id/eprint/81339