Why MiFID matters to private law-the example of MiFID's impact on an asset manager's civil liability

The article addresses the Markets in Financial Instruments Directive's (MiFID's) influence in several important Member States on (1) the asset manager's duties under private law, (2) the requirement of proximity or relativity in the Member States where this is a requirement for liability in tort, (3) proof of causation, (4) the validity of limitation and exclusion clauses in asset management contracts and (5) the validity of an asset management contract. The article shows that there are considerable differences among the Member States regarding MiFID's impact on an asset manager's civil liability. To make things worse, national private law often provides little clarity either. In many jurisdictions, judges, practitioners, lawmakers and academics would struggle to respond to basic questions regarding MiFID's private law impact. This is regrettable having regard to both legal certainty and a level playing field for investor protection in Europe. The European legislator is unlikely to formulate uniform European answers in the near future. In any event, the current draft of MiFID II does not address questions regarding its civil law impact. We can only hope that the awareness of judges and practitioners concerning the issues surrounding the impact of MiFID on private law will grow, resulting in their explicit litigation before national courts. Through that route, national courts may eventually pose pre-judicial questions to the European Court of Justice with respect to MiFID's private law impact, which may have a unifying effect.