INTERNATIONAL NON-CONTRACTUAL LIABILITY FROM A DUTCH PERSPECTIVE

Introduction

Financial law is not an exclusively national affair. Cross-border transactions and service provisions have been common place for a very long time. Harmonisation of rules has been worked towards in a European context for decades. Leaving aside special subject matters such as liability for products and road accidents, the (partial) harmonisation of the rules in respect of the cross-border tort (wrongful act) has only relatively recently been realised.

Rome II, which concerns the law applicable in respect of non-contractual obligations, has been in force in the Netherlands since 11 January 2009. It applies to non-contractual obligations which have arisen after that date. The regulation has universal application and therefore applies irrespective of whether or not it is the law of a member state (article 3 Rome II). As evidenced by Recital 7 of the regulation, the material scope of application and the different provisions of Rome II must, as far as possible, be consistent with the Brussels I Regulation and with Rome I.

On 23 September 2010, the Dutch Lower House passed a bill to adopt and introduce Book 10 (International private law) Dutch Civil Code. The bill aims to codify and consolidate the different laws of conflict in a new Book 10 DCC. The consolidation is preceded by general provisions of international private law which in principle apply to all cases. The bill is currently before the Dutch Upper House.

As regards non-contractual liability, this contribution is only concerned with the doctrine of tort (wrongful act). Other doctrines such as management of another’s affairs and unjust enrichment are not reviewed. Firstly, Rome II and the draft of Book 10 DCC are going to be addressed in brief, more attention is subsequently paid to the liability for the prospectus in the event of a cross-border offering of securities. Torts can also play a role in other disputes in the field of financial law, possibly in addition to liability on the basis of an agreement. Think for example of damage which, after the shares have been listed at a stock exchange, arises as a result of misleading information issued by a listed company. What is stated in the context of prospectus liability applies mutatis mutandis to those subjects.

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Karel Frielink

(31 January 2011)

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