7.7 Measure of damages and causation in law

The measure of damages awarded to the claimants in Dutch and French law is based on the doctrine of restitutio in integrum (full compensation): the claimant must be restored to the position he would have had but for the misleading statements in the prospectus. Therefore the matter of causation in law or remoteness does not arise.

Under German law, it depends on the legal basis of the damage claim whether the causation in law requirement matters. An investor can claim restitution of his purchase price of the securities or damages equal to the difference between the issue price and the price at which he sold the securities if he brings such a claim on the basis of section 44 of the Stock Exchange Act within 6 months after the misleading nature of the prospectus was revealed. For securities which were not bought on a regulated market, the damages awarded to the investor are based on and restricted to a specific category of losses, i.e. damages for breach of trust (Vertrauensschaden).

In English law, the question of causation in law artses as well; the defendant is only liable for the losses for which is responsible in a normative sense.1 The measure of damages in common law claims for tort of negligence is limited to the defendant's scope of duty and the foreseeability of the losses (SAAMCOcap). Even though there is no judicial authority yet, it is very likely that for claims based on the statutory liability of section 90 FSMA 2000, the measure of damages for claims in tort of negligence is applied.