IS THERE AN INVESTMENT SERVICE PROVIDER’S AUTONOMOUS DUTY TO WARN A NON-PROFESSIONAL CLIENT?
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Abstract
The article analyses one of the duties incumbent upon an investment service provider, i.e. the duty to warn a non-professional client, and raises the question whether this duty can be regarded as an autonomous one (besides the duty to inform and the duty to consult), whether it exists in pre-contractual stage only or whether it has to be observed while performing the contract as well. The question arises as to the
source of this duty – whether it stems from MiFID (and national implementing measures of public nature) or national private law or from both of these sources. Under MiFID and its implementing acts the pre-contractual duty to warn a non-professional client is incorporated into a duty to inform. Lithuanian courts have recognised an autonomous duty to warn as a duty that an investment service provider has to fulfil in regards to a non-professional client in the course of the provision of a certain investment service. This duty is being inferred from a general private law duty to cooperate in conjunction with a general professional duty of care incumbent on an investment service provider while recognising that a concrete scope of this duty depends on contractual provisions.
source of this duty – whether it stems from MiFID (and national implementing measures of public nature) or national private law or from both of these sources. Under MiFID and its implementing acts the pre-contractual duty to warn a non-professional client is incorporated into a duty to inform. Lithuanian courts have recognised an autonomous duty to warn as a duty that an investment service provider has to fulfil in regards to a non-professional client in the course of the provision of a certain investment service. This duty is being inferred from a general private law duty to cooperate in conjunction with a general professional duty of care incumbent on an investment service provider while recognising that a concrete scope of this duty depends on contractual provisions.
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Articles
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Please see Copyright and Licence Agreement for further details.
