Gerichtsstands- und Rechtswahl im Kapitalmarktdeliktsrecht

The treatment of antifraud provisions in international securities litigation is a salient topic of both European capital markets law and European private international law. The article sets the stage by identifying the applicable sources of international jurisdiction in this area as well as the situations in which a conflict of laws may arise. It then moves on to give a rough and ready interpretation of these rules, notably construing the »place where the damage occurred«, according to both Art. 7 No. 2 Brussel Ibis Regulation and Art. 4(1) Rome II Regulation, as being equivalent to the market where a financial instrument is listed or is intended to be listed. However, as the article sets out in due course, this still leaves plenty of reasonable opportunity for a contractual choice of court or choice of law. This is why the article's main focus is on creating a possibility to utilize choice-of-court and choice-of-law agreements. This is feasible either in the issuer's charter or, notably in the case of bonds, in the prospectus accompanying the issuance of a given financial instrument. The article shows that both arrangements satisfy the elements of Art. 25 Brussel Ibis Regulation on choice-of-court agreements and Art. 14(1) lit. b Rome II Regulation on ex ante choice-of-law agreements.