Financial Crisis – The Liability of Banking Institutions

Abstract

This article outlines what roles the banks have played in the subprime crisis and whether liability for damages sustained may be incurred. Apart from the conventional responsibility of banks towards their clients within the framework of wealth management or advisory services, the particular issue of possible liability for the creation and placement of investment products on the market is explored. Many questions which remain unanswered or are barely discussed are raised in the article. Independently of prospectus liability arising under specific legislative provision, is there a general tortious responsibility for providing incorrect information in connection with the issuing of securities? Is strict liability for the creation of dangerous products a realistic alternative – or supplement – to liability based on fault? Can individuals or institutions who were only indirectly involved as secondary victims claim compensation? In addition to the grounds of liability, other delicate legal questions are addressed, particularly relating to causation. For instance, it may not be clear whether an error in information or rather general market euphoria was the decisive factor in the investment decision. If, moreover, one wanted to extend liability to a large number of persons involved, the causal contributions of the individual banks may barely be determinable and could well be minimal. This leads to the question of whether procedural law is capable of dealing with such cases of loss.