Is emergo pt legitimate 1

6. Non-contractual liability

Hint

Swipe to navigate through the chapters of this book

2020 | OriginalPaper | Chapter

Abstract

This chapter deals with non-contractual (tort) liability, which offers an underutilized avenue of judicial enforcement of the MiFID and MiFID II conduct of business rules. Non-contractual liability is shown to provide an advantage over contractual liability by offering a gateway not only to the indirect effect, but also to a more direct effect of the conduct of business rules on a firm’s liability to pay damages. The direct effect is grounded in a tort category which establishes liability for breach of a statutory duty. The direct effect presents a more straightforward way of claiming damages with regard to a breach of the conduct of business rules as it does not depend on the existence of a duty of care implied in contract or a general duty to act. The chapter analyzes the avenues of judicial enforcement of the MiFID and MiFID II conduct of business rules through non-contractual liability available in German, Dutch and English law. Although these legal systems contain mechanisms that establish liability for breach of a statutory duty in either a civil code or financial supervision legislation, several obstacles can restrict the extent to which investors can benefit from direct effect of the conduct of business rules on private law. Investors might however be able to invoke the conduct of business rules, and the underlying investor protection aim, in line with the complementarity approach to the relationship between these rules and private law norms governing private law liability in order to overcome such obstacles to redress.

To get access to this content you need the following product:

Springer Professional "Business + Technology"

With Springer Professional "Business + Technology" you get access to:

  • above 69,000 books
  • above 500 magazines

from the following fields:

  • Automobile + engines
  • Construction + real estate
  • Business IT + informatics
  • Electrical engineering + electronics
  • Energy + environment
  • Finance + Banking
  • Management + leadership
  • Marketing + sales
  • Mechanical engineering + materials
  • Insurance + risk

Try now for 30 days free of charge.

Springer Professional "Economy"

With Springer Professional "Economy" you get access to:

  • above 58,000 books
  • above 300 magazines

from the following fields:

  • Construction + real estate
  • Business IT + informatics
  • Finance + Banking
  • Management + leadership
  • Marketing + sales
  • Insurance + risk



Try now for 30 days free of charge.

Footnotes
123456789101112131415161718192021222324252627282930313233343536373839404142434445464748495051525354555657585960616263646566676869707172737475767778798081828384858687888990919293949596979899100101102103104105106107108109110111112113114115116117118119120121122123124125126127128129130131132133134135136137138139140141142143144145146147148149150151152153154155156157158159160161162163164165166167168169170171172173174175176177178179180181182183184185186187