3.7.2.0 Introductie

The establishment of causation with respect to prospectus liability claims is controversial among legal scholars. The recurrent question is whether the establishment of causation requires the claimant to have actually read the misleading prospectus such that he directly relied upon the misleading information. It has been argued that it is sufficient for the claimant to have indirectly relied on the misleading prospectus.1 These authors defend the position that the establishment of causation does not require that the individual investor by his own reading has relied on the misleading prospectus. The individual investor must have acted upon a positive market sentiment caused by the misleading prospectus.2 Some authors do not accept establishing causation so leniently; according to them, the minimum requirement is that the individual investor must have been influenced by the misleading prospectus (for example by intermediation of an investment advisor) when he purchased the securities.3 In my opinion, the aforementioned points of view in this respect pay too little attention to the specific question of causation. `The causation' does not exist. Causation will only be substantiated in relation to a specific basis on which a claim is made.4 In other words, the basis of the claim determines the perspective with respect to causation. So irrespective of the fact whether one defends the lenient or strict approach, one has to make a distinction on the basis of the factual grounds on which the claimant based his claim.5 Two factual bases for claims6 can be distinguished.7 These claims are discussed in the following subparagraphs.