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

Q2 Social Sciences European Business Law Review Pub Date : 2021-06-01 DOI:10.54648/eulr2021017

D. Busch

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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. 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, FinTech, sustainable finance, mass damage

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金融部门特殊注意义务的未来——来自荷兰的观点

随着越来越多的银行和其他金融机构因违反其特殊注意义务而被荷兰民事法院成功起诉，一个明显的趋势正在演变（“ijzondere zorgplicht”）。尽管最初主要是银行有理由担心因违反特别注意义务而提出的损害赔偿索赔，但其他金融机构现在也不得不非常认真地对待此类索赔的可能性。另一个因素是，金融机构所承担的特殊注意义务现在似乎不仅适用于与零售客户的交易，也适用于需要保护的非零售客户。作者讨论了与特别注意义务有关的主要发展，从而思考了未来的发展。银行、金融机构、MiFID（指令2004/39/EC）、MiFID II（指令2014/65/EU）、商业规则行为、注意义务、产品治理、产品干预、错误、合同法、侵权法、荷兰民法典、不公平合同条款指令（指令93/13/EEC）、轻推、金融科技、可持续金融、大规模损害

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来源期刊

European Business Law Review Social Sciences-Law

CiteScore

1.10

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0.00%

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期刊介绍： The mission of the European Business Law Review is to provide a forum for analysis and discussion of business law, including European Union law and the laws of the Member States and other European countries, as well as legal frameworks and issues in international and comparative contexts. The Review moves freely over the boundaries that divide the law, and covers business law, broadly defined, in public or private law, domestic, European or international law. Our topics of interest include commercial, financial, corporate, private and regulatory laws with a broadly business dimension. The Review offers current, authoritative scholarship on a wide range of issues and developments, featuring contributors providing an international as well as a European perspective. The Review is an invaluable source of current scholarship, information, practical analysis, and expert guidance for all practising lawyers, advisers, and scholars dealing with European business law on a regular basis. The Review has over 25 years established the highest scholarly standards. It distinguishes itself as open-minded, embracing interests that appeal to the scholarly, practitioner and policy-making spheres. It practices strict routines of peer review. The Review imposes no word limit on submissions, subject to the appropriateness of the word length to the subject under discussion.