'Roma Locuta, Causa Finita? Banking Liability and Conflicts of Laws after the Rome II Regulation' (Article in Dutch)

31 Pages Posted: 21 Nov 2009

See all articles by Michel Tison

Michel Tison

Universiteit Gent - Financial Law Institute

Date Written: November 20, 2009

Abstract

In this paper, we analyze the impact of the Rome II Regulation regarding the law applicable to non-contractual obligations on cases of cross border liability regarding banking and financial services. In view of the current state of harmonization of substantive law in the European Union, which obeys to the home country rule, the conflict rules as contained in the Rome II Regulation may potentially undergo some interference from sectoral harmonization directives. We illustrate this with regard to liability issues arising of the MiFID conduct of business rules and the European Prospectus Directive. We conclude that the substantive harmonization of conduct of business rules and prospectus requirements do not formulate a conflict rule regarding liability issues. The home country principle does at most involve the law of the home country in setting the standard of care or the information duty with a view to determining possible liability. The provisions regarding damages and causation will, in conflict of law terms, continue to be determined by the Rome II Regulation.

A detailed analysis of the conflict of law regime regarding prospectus liability, analyzed in part 2 of this paper, illustrates the quite complex interrelationship between substantive law harmonization and conflicts of laws in a intra EU context.

Keywords: prospectus liability, conduct of business, private international law

JEL Classification: K22, K23, K42

Suggested Citation

Tison, Michel, 'Roma Locuta, Causa Finita? Banking Liability and Conflicts of Laws after the Rome II Regulation' (Article in Dutch) (November 20, 2009). Available at SSRN: https://ssrn.com/abstract=1510075 or http://dx.doi.org/10.2139/ssrn.1510075

Michel Tison (Contact Author)

Universiteit Gent - Financial Law Institute ( email )

Universiteitstraat 4
Gent, B-9000
Belgium
32 9 264 68 27 (Phone)
32 9 264 68 55 (Fax)

HOME PAGE: http://www.law.UGent.be/fli

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