Netherlands

The increase in the offering of financial products to consumers has driven developments in Dutch case-law pertaining to a bank’s duty of care. In view of this, it seems only natural to begin with an overview of the major cases in this area (section II), followed by a treatment of the legal basis of a bank’s duty of care (section III), and the essential duties typically flowing from it (section IV). The hotly debated topic of the impact of MiFID on a bank’s duty of care is dealt with in section V. In section VI, in view of the fact that a claim based on a breach of a bank’s duty of care is in Dutch law generally based on tort or breach of contract, we will focus on the requirements which must be fulfilled in order to institute a successful damages claim based on tort or breach of contract. Then we move on to the relation between a bank’s duty of care and more traditional doctrines, including reasonableness and fairness, mistake and other defects of consent, unfair contract terms, and voidability or avoidance based on breach of mandatory law or the violation of public morals or public policy (section VII). We continue this chapter with some remarks on group actions and mass claims (section VIII), a proposal of the Ministry of Finance to concentrate civil litigation on the provision of investment services, investment activities and prospectus liability at the Amsterdam District Court (section IX), alternative dispute settlement at the Complaint Institute Financial Services (section X) and the role of the regulator in settling disputes (section XI). Section XII contains some concluding observations....