5.9 Listing and the Information Management Regime 217matter.^409 A Community issuer can influence the governing law by choosing
where to have its registered office.^410
There can nevertheless be particular connecting factors. According to the Di-
rective on market abuse, each Member State must apply the prohibitions and re-
quirements provided for in the Market Abuse Directive to actions carried out on
its territory (or abroad, where the actions concern financial instruments admitted
to trading on a regulated market situated or operating within its territory).^411 The
Directive is silent on the governing law. The choice of law rules of the forum can
therefore play a role. (a) In principle, they can refer to the law of the home Mem-
ber State. The Directive does not prohibit the application of the laws of the is-
suer’s home Member State even in host Member States (see above). (b) According
to traditional choice of law rules, however, each competent authority will apply
the law of its own country. In this case, the most important connecting factor ap-
plicable to ongoing disclosure obligations under the Market Abuse Directive
would be the Member State on the territory of which actions are or should be car-
ried out. (c) In order to prevent circumvention, the Market Abuse Directive re-
quires Member States’ competent authorities to co-operate.^412
Furthermore, one can distinguish between the law governing disclosure obliga-
tions and the law governing the civil liability for their breach. Generally, FSAP di-
rectives are without prejudice to Member States’ civil liability regimes and do not
designate the law governing such questions. Typically, company law questions
will be governed by the law governing the company (Inspire Art).^413 Questions of
non-contractual liability arising out of a tort or delict will usually be governed by
the law of the country in which the damage occurs, unless the tort/delict is mani-
festly more closely connected with another country.^414
According to Swiss law, prospectus liability is governed by the law governing the issuer or
the law of the country in which the securities have been issued to the public.^415
International jurisdiction. The question of governing law should be distinguished
from the question of the international jurisdiction of courts. The issuer cannot ex-
clude the potential jurisdiction of other Member States’ courts without adapting its
actions and limiting them to certain jurisdictions.
As regards civil liability for periodical information and liability for ad-hoc dis-
closures to the capital market, the issuer cannot exclude the potential jurisdiction
of other Member States’ courts. This can be illustrated by the Transparency Direc-
(^409) Recital 14 of Directive 2003/71/EC (Prospectus Directive).
(^410) Article 2(1)(m) of Directive 2003/71/EC (Prospectus Directive).
(^411) Article 10 of Directive 2003/6/EC (Directive on market abuse). See also Moloney N, EC
Securities Law. OUP, Oxford (2008) pp 969–970.
(^412) See, in particular, Article 16(3) of Directive 2003/6/EC (Directive on market abuse).
(^413) Case C-167/01 Inspire Art [2003] ECR I-10155, paragraphs 97 and 100. See also Article
1(2)(d) of Regulation 864/2007 (Rome II).
(^414) Article 4 of Regulation 864/2007 (Rome II).
(^415) Art. 156 IPRG. For prospectus liability in Switzerland generally, see Roberto V, Weg-
mann T, Prospekthaftung in der Schweiz, SZW/RSDA 73 (2001) pp 161–178.