A Bank's duty of care:Perspectives from European and comparative law - Part II

In this article we place a bank’s duty of care in a European and comparative law perspective. We have chosen five topics which are hotly debated in theory and practice. The first topic is the scope and intensity of the essential duties which typically flow from a bank’s duty of care: duties to investigate, duties to disclose or warn, and – in exceptional cases – outright duties to refuse to render financial services or products. In some jurisdictions, financial disputes between investors and banks are not so much resolved by reference to a bank’s duty of care, but by reference to the traditional doctrine of error or mistake, and fraud. That is the second topic we discuss in this article. The third topic is the impact of the European Markets in Financial Instruments Directive (MiFID) on a banks’ duty of care. The fourth topic focuses on the role of the financial regulator in settling disputes between banks and clients. We conclude this article with the bigger picture and relevant reform perspectives