International and Comparative Corporate Law Journal Volume 11 • 2015 • Issue 2 Special Issue: Civil Liability of Credit Rating Agencies in the European Union Selected Legal and Economic Aspects Editors: Gudula Deipenbrock and Mads Andenas CAMERON MAY I N T E R N A T I O N A L L A W & P O L I C Y GENERAL EDITORS Professor Mads Andenas Professor of Law, University of Oslo, Research Fellow, Institute of European and Comparative Law, University of Oxford, UK Professor Dr. Gudula Deipenbrock HTW Berlin, University of Applied Sciences, Germany Professor Johan Henning Dean of the Faculty of Law, University of the Free State, South Africa; Director of the Centre for Company and Partnership Law, IALS, University of London, UK Dr. Tineke Lambooy Utrecht University, Molengraaff Instituut voor Privaatrecht, and Nyenrode University, Center for Sustainability, The Netherlands Professor Barry A K Rider Fellow Commoner of Jesus College, Cambridge; Former Director of IALS, University of London, UK Professor Dr. Beate Sjåfjell University of Oslo, Faculty of Law, Department of Private Law, Norway CONSULTANT GENERAL EDITORS Professor Anthony J Boyle Institute of Advanced Legal Studies, London, UK Professor Sir Roy Goode QC St John’s College, University of Oxford, UK Professor Len Sealy Gonville and Caius, University of Cambridge, UK Professor Eddy Wymeersch University of Gent, Belgium EDITORIAL BOARD Professor Guido Alpa Professor of Law, University of Rome, La Sapienza, Italy and President of National Bar Council of Italy The Honourable Justice Austin Supreme Court, New South Wales, Australia President Pierre Bézard President Cour de Cassation, Chambre Commerciale, Paris, France Professor Elizabeth Boros The Sir Keith Aickin Professor of Company Law, Monash University, Australia Professor Brian Cheffins SJ Berwin Professor of Corporate Law, University of Cambridge, UK Professor Nis Jul Clausen University of Southern Denmark, Odense, Denmark Professor Guiseppe Conte University of Florence Professor Gerhard Dannecker University of Bayreuth, Germany Professor Paul Davies Professor, University of Oxford, UK Professor Adriaan Dorresteijn Open University of the Netherlands Her Hon Judge Faber Circuit Judge and former Commissioner, Law Commission for England and Wales, London, UK Professor John Farrar Bond University, Brisbane, Australia Professor Eilis Ferran Director of The Centre for Corporate and Commercial Law, University of Cambridge, UK Professor Guido Ferrarini University of Genoa, Italy Professor B Gomard University of Copenhagen, Denmark Professor Marc Groenhuijsen Catholic University of Brabant, the Netherlands Professor Stefan Grundmann Humboldt University of Berlin, Germany Professor Klaus J Hopt Director, Max-Planck Institute, Hamburg, Germany Professor Thomas Hurst University of Florida, USA Dr Dayanath Jayasuria Chairman, Securities and Exchange Commission of Sri Lanka The Hon. Justice Michael Kirby High Court of Australia, Canberra, Australia Professor Donald C Langevoort Georgetown University, Washington, USA Professor Eva Lomnicka King’s College, University of London, UK Professor Dr Manuel Lopez University Antonio de Nebrija, Madrid Professor HC Marcus Lutter University of Bonn, Germany The Rt Hon Lord Millett of Lord of Appeal, House of Lords, St Marylebone London, UK The Rt Hon Lord Justice Mummery Court of Appeal, London, UK Dr Chizu Nakajima Director of the Centre for Financial Regulation and Crime, Sir John Cass Business School, City University Business School, London, UK Professor Peter Nobel Nobel & Hug, Zurich, Switzerland Sir Michael Ogden QC The Honourable Society of Lincoln’s Inn, London, UK Professor Arthur Pinto Brooklyn Law School, New York, USA Professor Dan Prentice Professor, Pembroke College, University of Oxford, UK Professor Ian Ramsay University of Melbourne, Australia The Honourable Justice Santow Supreme Court, New South Wales, Australia Professor H Schmidt University of Hamburg, Germany Professor Karsten Schmidt University of Bonn, Germany The Hon Carsten Smith Former President, Norwegian Supreme Court, Oslo, Norway The Rt Hon Lord Steyn of Swafield Lord of Appeal, House of Lords, London, UK Professor Mitsumasa Tanabe Nagoya University, Japan Professor Per Thorell Uppsala University, Sweden Maître Bernard Vatier Granrut Vatier Baudelot & Associés, Paris, France Professor William Wang Brooklyn Law School, New York, USA Professor Rheinhard Welter University of Potsdam, Germany Copyright © CMP Publishing Cameron May is an imprint of CMP Publishing Ltd Published 2015 by CMP Publishing 65 The Old High Street, Folkestone, Kent CT20 1RN, UK Email: [email protected] Website: www.cmppublishing.com All rights reserved. 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ISSN: 1388-7084 Printed by Grosvenor Group To subscribe please contact CMP Publishing Ltd Annual subscription price £175.00 International and Comparative Corporate Law Journal Volume 11 • 2015 • Issue 2 Special Issue: Civil Liability of Credit Rating Agencies in the European Union - Selected Legal and Economic Aspects Editors: Gudula Deipenbrock and Mads Andenas Editorial Introduction: Civil Liability of Credit Rating 1 Agencies in the European Union - Selected Legal and Economic Aspects Gudula Deipenbrock and Mads Andenas The European Civil Liability Regime for Credit Rating 3 Agencies from the Perspective of Private International Law - Opening Pandora's Box? Gudula Deipenbrock Tort Liability for Ratings of Structured Securities under 26 English Law Kern Alexander Civil Liability of Credit Rating Agencies from a European 41 Perspective: Development and Contents of Article 35(a) of Regulationn (EU) No 462/2013 Francesco De Pascalis Does Member State Law Make Article 35(a) of Regulation 71 (EU) No 562/2013 on Credit Rating Agencies Redundant? Emil Nästegård The Civil Liability Regime of the CRA-Regulation and the 91 Requirement of Causation Aaron Verständig Civil Liability of Credit Rating Companies - Qualitative 107 Aspects of Damage Assessment from an Economic Viewpoint Andreas Horsch Civil Liability of Credit Rating Companies - 134 Quantative Aspects of Damage Assessment from an Economic Viewpoint Jacob Kleinow EDITORIAL INTRODUCTION: CIVIL LIABILITY OF CREDIT RATING AGENCIES IN THE EUROPEAN UNION - SELECTED LEGAL AND ECONOMIC ASPECTS Gudula Deipenbrock and Mads Andenas A key challenge for the European Union (Union) since 2008 has been to design appropriate regulatory and supervisory responses in the realm of financial markets in order to tackle their dysfunctions as revealed in the recent financial crisis. Identifying and preventing systemic risks affecting the whole European financial system and those linked to individual financial market actors including improving their supervision in general also became core concerns, here. The Union legislator established accordingly a sophisticated system of ‘macro-prudential supervision’ and ‘micro-prudential supervision’. In addition, the Union revisited existing financial market regulation and identified also new areas and sectors of the European financial market which require regulatory measures. Due to the role credit rating agencies played in the causation of the financial crisis and have played in general in global securities and banking markets the Union introduced in 2009 a European regulatory and supervisory regime for credit rating agencies and afterwards reformed it twice. Its second reform in 2013 provided for the first time a European civil liability provision for credit rating agencies. Designed as a rather fragmentary civil liability concept leaving the definition of its pivotal constituent elements and the filling of gaps in this context to the applicable national law multiple problems arise with a view to its interpretation and application. This special issue of the International and Comparative Corporate Law Journal is compiling papers addressing selected legal aspects of the European civil liability regime for credit rating agencies and those linked to civil liability regimes in the national law of selected Member States of the Union (Member States) complemented by papers addressing relevant economic issues in this context. The specific topics of the papers focussing on the legal view range from assessing critically the European civil liability regime for credit rating agencies with a view to private international law aspects, the problem of causation and from a broader European perspective to papers add- ing comparative aspects by analysing the civil liability of credit rating agencies under English law and Swedish law. The specific topics of the papers drafted from the economic point of view cover the qualitative and the quantitative aspects of damage assessment in context with the civil liability of credit rating agencies. The papers compiled in this issue are aimed at contributing to a lively debate amongst scholars, practitioners and those involved in the legislative