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Satzungsmäßige Gerichtsstandsklauseln für informationsbedingte Kapitalanlegerklagen im europäischen Zuständigkeitsregime (Forum-Selection Clauses for Investment Fraud Claims under the European Union's Brussels-I Regulation)

Citation

Publication Date: 
January 01, 2011
Format: 
Journal Article
Bibliography: Felix Mormann, Satzungsmäßige Gerichtsstandsklauseln für informationsbedingte Kapitalanlegerklagen im europäischen Zuständigkeitsregime (Forum-Selection Clauses for Investment Fraud Claims under the European Union's Brussels-I Regulation), 56 Die Aktiengesellschaft 10 (2011).

This Article challenges the deficiencies of the European Union's jurisdictional regime for investment fraud claims, explores their resolution through forum-selection clauses, and offers design recommendations for such clauses to be included in articles of incorporation.

The European Union's Brussels-I Regulation sets out a framework for the jurisdiction of its member states' courts that, where applicable, supersedes national rules of jurisdiction. Following the European Court of Justice's Group Josi and Owusu decisions, the Regulation is construed to apply to civil lawsuits against an E.U. domiciliary provided that the underlying facts or the parties' domiciles establish a link to another state with or within the E.U. The Brussels-I Regulation's precedence is of particular importance for investment fraud claims, where factual or personal multi-state connections are commonplace. In the absence of a specific jurisdictional mandate for investor claims, the Regulation establishes a multitude of competing jurisdictions.

This Article illustrates the resulting risk of fragmented and overlapping international multiple-fora disputes - to the detriment of defendants, courts, capital markets, and in some cases plaintiffs. I explore the possibility to attain jurisdictional clarity through forum-selection clauses in articles of incorporation. To do so, the Article investigates whether existing boilerplate clauses for lawsuits between a corporation and its shareholders can, in accordance with the Regulation's specificity requirements, be construed to include investor fraud claims. Based on the European Court of Justice's reasoning in Powell Duffryn, I compare the doctrinal nature of classic shareholder suits and investment fraud claims to conclude that the latter fall outside scope of boilerplate forum-selection clauses for shareholder lawsuits. Accordingly, the Article offers recommendations for the proper drafting and notice of forum-selection clauses in articles of incorporation so as to cover all investment fraud claims against the respective corporation and its officers. In closing, I proceed to extend these recommendations from corporations to limited liability companies and limited partnerships.