The Future of the Special Duty of Care in the Financial Sector – Perspectives from the Netherlands

32 Pages Posted: 27 Apr 2020 Last revised: 14 May 2020

See all articles by Danny Busch

Danny Busch

Radboud University Nijmegen - Institute for Financial Law (IFR)

Date Written: April 27, 2020

Abstract

A clear trend is evolving as more and more banks and other financial institutions are being successfully sued before the civil courts of the Netherlands for breaches of their special duty of care (‘bijzondere zorgplicht’). Whereas it was initially mainly banks that had reason to worry about claims for damages based on a breach of the special duty of care, other financial institutions too are now having to take the possibility of such claims very seriously. Another factor is that the special duty of care owed by financial institutions now seems to apply not only in their dealings with retail clients but also in relation to non-retail clients that need protection. The author discusses the main developments relating to the special duty of care, leading to a consideration of how things may evolve in the future.

Keywords: banks, financial institutions, MiFID (Directive 2004/39/EC), MiFID II (Directive 2014/65/EU), conduct-of-business rules, duty of care, product governance, product intervention, mistake, error, contract law, tort law, Dutch Civil Code, Unfair Contract Terms Directive (Directive 93/13/EEC), nudging

JEL Classification: K12, K15, K22, N20

Suggested Citation

Busch, Danny, The Future of the Special Duty of Care in the Financial Sector – Perspectives from the Netherlands (April 27, 2020). European Banking Institute Working Paper Series – no. 63, Available at SSRN: https://ssrn.com/abstract=3586931 or http://dx.doi.org/10.2139/ssrn.3586931

Danny Busch (Contact Author)

Radboud University Nijmegen - Institute for Financial Law (IFR) ( email )

Nijmegen
Netherlands

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