Dirk A. Verse
Zur Reform der Kapitalmarktinformationshaftung im Vereinigten Königreich
Jahrgang 76 (2012) / Heft 4, S. 893-920 (28)
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The New Statutory Regime for Issuer Liability in the UK This article evaluates the extension of the statutory regime for issuer liability in the United Kingdom under the Financial Services and Markets Act 2000 (Liability of Issuers) Regulations 2010. By inserting a new section 90A and Schedule 10A into the Financial Services and Markets Act (FSMA), the new regulations complete the process of putting in place a comprehensive statutory liability scheme for issuer misstatements to the market, other than through prospectuses. After exploring the concerns that led to the new rules, the article analyses their scope, i.e. the markets and the range of statements to which they apply, the basis of liability (fraud including recklessness), the non-liability of directors and persons other than the issuer, the measure of damages, causation requirements, and the range of claimants (including not only buyers and sellers but also holders of securities). Each of these issues is discussed against the background of, and in comparison with, equivalent issues arising under German law. The picture that emerges is that the UK has opted for a fairly restrictive civil liability regime that offers only limited opportunities for private enforcement of disclosure obligations and thus implicitly relies all the more heavily on public enforcement by the Financial Services Authority (FSA). Regarding private enforcement in Germany, the article argues that lawmakers should revive the project of a comprehensive statutory regime for misstatements to the secondary market that was abandoned in 2004. Although any future German statutory scheme is likely to be less restrictive than its British counterpart, the German legislature could certainly find useful inspiration from the reform debate in the UK.