Tobias SchellDie Haftung des externen Verwalters alternativer Investmentfonds aus dem zugrunde liegenden Bestellungsverhältnis im Luxemburger Recht

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Written by a practitioner for practitioners and prospective practitioners, the dissertation ex-amines and clarifies the interaction between Union law and Luxembourg law in the area of the contractual liability of the external manager of alternative investment funds (the “AIFM”). It looks more closely at how the Union law provisions of the Directive 2011/61/EU of 8 June 2011 (the “AIFM Directive”), as transposed by the Luxembourg Law on Alterna-tive Investment Fund Managers (the “AIFM Law”), affect the contractual liability rules of the Luxembourg Civil Code. The Luxembourg transposition of the AIFM Directive’s manager regulation offers the advantage that it transposes the Union law rules into national law almost on a copy and paste basis. Consequently, the dissertation’s considerations on the impact of the Luxembourg AIFM Law on national private law may also be generalised so that the dissertation’s relevance also concerns indirectly the AIFM Directive’s impact on other Member states’ national private law rules.

In terms of content, the dissertation is divided into three major thematic blocks: (a) an introduction to the liability law of Luxembourg's civil law, with its inherent subdivision into contractual liability and liability in tort, and the prerequisites for claims for damages (b) an introduction to the manager regulation of the AIFM Law including its manager liability rules and (c) the merging of both liability worlds, showing here that the AIFM Law’s Union law rules massively impact the liability regime and contractual freedom in the area of the AIFM liability.

The practical relevance of this dissertation arises from the fact that the interlocking of the EU AIFM rules and national civil law is often neglected. Here, this dissertation makes a contribution to the discussion, which is particularly important in view of the current review of the AIFM Directive at the European level. Another practice-relevant area is the examination of the actual effects of the AIFM Law’s rules on the applicability of exemptions from liability and limitations of liability.

In addition, beyond the actual question of the AIFM’s liability, the dissertation also covers various questions on regulatory interpretation and structuring issues of the investment fund sector in Luxembourg.

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