El régimen jurídico de la responsabilidad patrimonial de la Administración Pública en el Derecho Comparado: el caso de Francia, España y Argentina

The Chernobyl accident of 1986 brought significant changes to the scene of Nuclear Liability Legal Regime. In an effort to resolve the issues exposed by the Accident, which basically was the absence of an International Legal Regime for nuclear liability, the 1988 Joint Protocol was adopted. Seventeen (17) years after its coming into force, the crucial question to ask is: has the 1988 Joint Protocol brought about an International Legal regime for nuclear liability? How relevant is it? The paper seeks to give answers to these questions. In concluding, the paper found that the Joint Protocol has not brought about an International Legal Regime for nuclear liability and it is relevant only to the extent of achieving its twin objectives, which are creating a link between the Paris and Vienna Convention and eliminating conflict in the application of either Convention. The paper recommends the adoption of a single Convention that combines both civil and state liability in order to have an International Legal Regime for nuclear liability.

The total volume of oil spilled and the number of spills has declined significantly over the past forty years. However, oil spills are no longer considered as an unavoidable. The ship source oil pollution still remains a potentially important risk to the local economies and the marine environment which can cause major economic loss and severe damages to the coastal and marine environment. The international regulatory framework to deal with liability and compensation in the event of ship source oil pollution has evolved over the past three decades. The available international legal regime for oil pollution liability and compensation is playing a great role in governing a discharge of oil into the sea by ensuring liability for polluters and compensation for victims of pollution. Despite the fact that the total cost of the oil spill cannot be compensated through the available international civil liability regime and entire damages caused to the marine environment cannot be compensated or recovered. This paper examined the application and limitations of available liability and compensation mechanism for the protection marine pollution and compare the benefit of the establishment of a funding mechanism for the strengthening of the level of oil spill preparedness and the civil liability regime for the protection of the coastal and marine environment. In addition, this paper reviews the funding mechanism adopted by the countries to the strengthening the level of oil spill preparedness taken into account the polluter pays principle without a putting extra burden for the general taxpayers. The establishment of a system for the funding of oil spill preparedness using the polluter pay principle has immensely helped to improve the oil spill response capabilities and protection of the marine environment of coastal states which adopted a unique funding mechanism by applying the polluter pay principle. This paper recommends the among other thing review the available compensation and liability regime for the protection of the marine environment and recommend to adopt and apply a uniform funding mechanism for the strengthening of the level of oil spill preparedness taken into account the polluter pay principle for the protection of the marine environment and improve the status quo.

The author in this article analyses unlimited carrier's liability regarding not only to malicious behaviour of carrier in fulfilling obligations from contract of carriage (e.g. causing damage with intent, willful misconduct or recklessly), but also ordinary situation where, despite of non-fulfillment of contract, carrier's liability is limited. The core of this article is concentrated on the explanation of the link between strict carrier's liability and legal importance of degree of carrier's fault in non-fulfillment of contract. The author is on the standpoint that carrier should be liable limited, but not in amount below the value of goods, but in the amount equal to its market value. This liability regime is justified with the fact of high economic power of transport companies and developed technic in traffic and vehicles, which did not exist in the beginnings of modern transport. In the first part of the article is represented the notion of unlimited liability and legal regime of contemporary carrier's liability expressed in strict liability. Then is considered legal importance of carrier's fault in fulfilling contract, and especially the influence of degree of fault on (un)limitation of carrier' liability. Finally, author highlights the number of persons who could be identified with carrier and specifically whose intentional and recklessly action would be resulted in unlimited carrier's liability.

This essay focuses on three issues that are central to a law and economic analysis of the regulation of hazardous wastes: the choice between ex ante and ex post instruments for transmitting incentives, the extension of liability to several types of parties, and the impact of the liability regime on land transactions. To set the stage for this discussion, the essay begins with a brief description of the legal regime in the United States under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), popularly known as the Superfund statute. This background is useful because a great deal of the essay focuses on the design of liability rules, and because the Superfund statute has provided a model for the European Union’s proposed directive on civil liability for damage caused by waste (Revesz 1997), and for liability regimes in many European nations (Goldenman et al. 1994). The essay does not consider issues that are common to most regulatory programmes, such as the valuation of benefits or the choice of discount rates, and does not dwell on issues common to most liability regimes, such as the consequences of joint and several liability.

The research about establishing international nuclear damage liability legal regime never stops since the draft of the Paris Convention. The current international nuclear damage liability regime can be seen as two branches: the Paris Convention system and the Vienna Convention system. In spite of the similarity between the Paris and Vienna Conventions, their existences do not provide a uniform liability regime for all countries which are parties to either convention. Thus, there is a necessity to build a bridge between the two systems. Convention on Supplementary Compensation for Nuclear Damage establishes a worldwide liability regime attracting more countries. Compared with the previous two systems, Convention on Supplementary Compensation is more open and tolerant, supplement and enhance kinds of measures to increase the amount of compensation for nuclear damage, and is also the most frontier international convention of nuclear damage liability. Becoming a party of this Convention with the USA and Japan, China can not only enjoy the benefits from the Convention, but also be pushed to establish and perfect our own nuclear liability legal system and merges into international regime. In order to join this Convention, China must make full preparations, establish nuclear damage liability legislation, increase the compensation amount of the operators and the supplement compensation of government, and strengthen the ability of managing nuclear damage accidents of the operators and national government.

Until the beginning of the 21st century, the possibility to exploit extraterrestrial resources for commercial purposes has been considered no more than a dream and just a topic for science-fiction novels. The rules regulating the exploitation of the resources of the Moon and other celestial bodies should be inserted in a legal instrument that will be open for acceptance and ratification of States. The main purpose of the proposed legal regime is to facilitate, encourage, manage, and control the exploitative activities of lunar and other celestial bodies' resources. A legal regime to govern the exploitation of extraterrestrial resources requires an adequate set of rules dealing with liability issues. The dispute settlement mechanism of the legal regime governing the exploitation of lunar and other celestial bodies should be modeled on the example of the one operating within the world treaty organization (WTO).Keywords: celestial bodies; dispute settlement mechanism; extraterrestrial resources; liability regime

This paper expands the set of previously considered liability rules to include a negligence liability rule with a vague specification of due care. Auditors who are negligent in conducting their audit are liable for losses that result from reliance on misstated financial statements. However, what constitutes negligence for auditors is not clearly specified in the law. Consequently, courts often resort to Generally Accepted Auditing Standards (GAAS) and Statements on Auditing Standards (SAS) as benchmarks for determining due care. A liability regime that consists of a vague negligence rule supports and amplifies the credibility of auditing standards. While auditing standards alleviate some of the vagueness that is inherent in the legal standard, they also form a lower bound on due care, since an audit of a quality that is lower than the quality that auditing standards require would be considered negligent. Thus, the vague specification of due care enables auditors to commit to audit quality as pronounced in auditing standards. This paper explores this link between professional standards and auditors' legal liability. It establishes that the commitment to auditing standards could not have been as credible as it is, if auditors' liability was determined based on the strict liability rule, or based on a negligence rule with a clearly specified due care, since under these two liability rules courts would not need to refer to auditing standards to establish fault. The paper also demonstrates that a legal regime where audit standards are used as a benchmark to evaluate negligence is not the same as a legal regime where due care is defined clearly. Therefore, previous studies that assumed a negligence regime with clear due care may have overstated the effort level that is induced by legal liability.

The pollution caused by the explosion of the Deepwater Horizon oil rig in the Gulf of Mexico, and the Montara blowout in the Timor Sea, put the call for an international regulatory framework for oil pollution liability on the global agenda. Although international law regulates the prevention of offshore oil pollution and protection of the marine environment, certain activities do not fall inside the ambit of international regulations. For example, while new technology has made it possible for companies to drill to deeper depths and explore further away from the coastline, existing international conventions generally do not extend to liability for, and restoration of, damage caused by oil pollution from offshore installations. These issues are regulated by the national laws of the country that governs the continental shelf where the petroleum activities are conducted. Thus, from an international perspective, the legal regime is disperse and complex. The amount and complexity of claims arising from large-scale incidents has raised interest in creating a consistent international liability regime. This could be done through a multilateral treaty. Alternatively, the development and application of common principles across national and regional jurisdictions can lead to the increased internationalisation of liability regimes. This paper compares the laws of Australia, the USA and the UK to identify common principles for liability and environmental restoration. The authors argue that as the legal framework becomes internationalised, increasing pressure will be placed on companies to accept the highest standards of liability, rather than the lowest national standard.

Shaping a legal framework for China's BeiDou Navigation Satellite System

This case turns on whether the Supreme Court’s 1984 decision in Sony conclusively resolves at the summary judgment stage the present dispute – involving strikingly different technology that was unimaginable at the time that the Sony case was decided. Although some of the language used in the Sony decision – stating that providers of technology that is capable of substantial noninfringing uses cannot be subject to contributory infringement liability – appears to predetermine the outcome of this matter, such a far-reaching, prospective rule goes well beyond the language or intent of the Copyright Act and misconstrues the proper judicial function in copyright adjudication. Over the course of nearly two centuries, courts have evolved, with tacit legislative consent, a rich infringement jurisprudence that balances a range of considerations on a case-by-case basis. This jurisprudence has long recognized indirect as well as direct infringement. In its comprehensive reform and codification of copyright law in the 1976 Copyright Act, Congress purposefully reaffirmed the continued applicability and evolution of this jurisprudence. At the same time, Congress established various express immunities, compulsory licenses, and other categorical limitations on liability. It would be incongruous, therefore, for courts to read additional categorical immunities into the Copyright Act’s liability regime. Congress has since added numerous other limitations to copyright liability, none of which bar a finding of infringement in the present case. Several amendments prohibit trafficking of particular classes of technology capable of substantial non-infringing uses. The Sony Court derived its “staple article of commerce” standard by analogizing to the Patent Act. Transplanting such a rule from the Patent Act, however, misapprehends critical differences between the two legal regimes. Whereas patent law seeks to promote technological innovation and evolved a staple article of commerce doctrine primarily out of concern for unduly expanding patent scope, copyright law seeks to promote cultural and social progress, manifesting a more cautious stance toward technological dissemination, particularly where a technology threatens widespread piracy of expressive works. Furthermore, amendments to the Copyright Act since the Sony decision demonstrate that Congress does not believe that dual-use technology – i.e., technology that is capable of both infringing and substantial non-infringing uses – should be treated as inviolate under copyright law. Rather, Congress has shown that it sees a need to balance the efficacy of the copyright system for promoting creative expression against social interests in technological innovation and consumer autonomy. Consequently, this Court should clarify that indirect copyright infringement liability requires a balancing of factors based on the protection of copyright owners’ rights and other recognized interests and concerns undergirding copyright law. Adverse effects of potential liability on incentives to innovate can and should be considered in such a balance, but no judicially established safe harbors should be recognized or imposed. Any such prospective, categorical safe harbors are properly within the exclusive power of Congress. Until such time as Congress establishes a staple article of commerce immunity to copyright liability, courts should continue to evolve balanced infringement standards that respond to new technologies guided by the text, structure, and purposes of copyright law. For the present case this means that the Ninth Circuit’s decision to affirm summary judgment dismissing the plaintiffs’ cause of action should be overturned and the case remanded for a full trial applying an appropriate balancing test. This Court should clarify that copyright liability extends to acts inducing copyright infringement and that contributory and vicarious liability should be judged on the basis of traditional criteria, including considerations of causation, knowledge, and intent. Given the policies animating copyright law, the standard for indirect liability should balance the harm to copyright owners against adverse effects on consumers from the loss of non-infringing uses from dual-use technologies. Such a balance should consider the full range of factors, including the relative magnitudes (present and foreseeable) of infringing and non-infringing use, the degree of control exercised by manufacturers and distributors of means for reproducing and distributing works of authorship, the intent of such enterprises, the extent to which noninfringing uses can be continued without the technologies at issue, and the extent to which copyright owners can limit unauthorized uses of their works (without undue expense or loss of market). Such an approach would continue the judiciary’s vital role as a flexible and responsive institution for addressing evolving challenges to the copyright system. Until such time as Congress expressly enacts a safe harbor in the Copyright Act analogous to patent law’s staple article of commerce doctrine, the distributor of technology that is merely capable of substantial non-infringing uses (but is in fact used predominantly to facilitate massive infringement) should not be categorically immune from copyright liability.

The article addresses the establishment of a legal regime concerning liability questions of the aerospace plane. The existing air and space law, as laid down for example in the Chicago Convention and the Outer Space Treaty -especially the definition of the words ‘aircraft’ and ‘space object’-is used as a starting point. The applicability of the existing regimes to the aerospace plane is then evaluated. Two concrete cases, namely liability resulting from damage to third parties on the suiface of the earth and liability after collisions, are presented in depth to illustrate the legal questions that this new hybrid craft will raise. Finally some modest suggestions are made as to the resolution of the conflicts.

E-commerce has grown exponentially in recent years. For instance, the European e-commerce market broke the €500 billion mark in 2016, with the UK accounting for around €157 billion.1 These numbers reflect the increasing importance of e-commerce to the growth of the e-commerce regime and strengthening the harmonisation efforts within the EU ISP regulatory regime. In continuing the push towards harmonisation, it is important to consider the liability regime with respect to the activities of ISPs and available exemptions. Liability for online information can arise with respect to trade marks, privacy, copyright, trade secrets, defamation and unfair competition. This article examines the exemptions available to internet service providers (ISPs) under the EU electronic liability regime. The article will use the term “ISP” to capture service providers as described in Directive 2000/31. The article proceeds as follows. First, it provides a definition of an ISP and describes their activities. Secondly, it discusses the legal regime governing the activities of ISPs. Thirdly, it discusses the exemptions provided under arts 12 to 15 concerning the liability of ISPs as it relates to their activities. Lastly, the paper concludes by highlighting that it is necessary to balance the responsibilities and activities of ISPs against the intellectual property (IP) rights of owners of materials that is shared through the platform of ISPs.

The main theme of this chapter is the multifaceted debate surrounding accountability and liability for AI systems. Paying special attention to matters of their application in public administration, this chapter sheds light on these AI-based systems’ technical complexities, such as the black-box problem, and their interaction with the liability regime in Estonia and the EU, to carve out the scope and nature of the legal liability assumed for the use of AI systems in the field of public administration.

Socio-economic changes caused by digitalization naturally require the adaptation of existing mechanisms for the implementation and protection of civil rights to new digital realities. Current problems in the field of the implementation and protection of civil rights are combined into two large-scale blocks. Firstly, these are modern problems of classical institutions of civil law, and secondly, these are problems related to the formation of fundamentally new institutions of civil law, the digitalization of civil turnover. In this regard, the main conceptual approaches to the development of civil law at the present stage include: the revision of traditional institutions of civil law, the introduction of relations with digital objects and technologies into existing civil law institutions, situational civil law regulation, the formation of independent legal regimes. Modern problems of civil law concern the main legal regimes – property, obligation, inheritance, corporate law, as well as intellectual property rights. The most obvious problems are the definition and correlation of new concepts that are similar in essence: digital property, digital objects, digital property, digital assets, digital financial assets, digital currency, digital law. The identification of the legal essence of these phenomena will allow the formation of new legal regimes and correlate them with the legal regimes of property, liability, corporate law, and intellectual property rights. As a result of digitalization, there is a gradual transformation of traditional institutions of civil law. The so-called machine-readable law is being formed. One of the ways to modernize legislation is the enrichment of new concepts and categories, the lacunary introduction of individual norms or entire regulatory systems that have a different nature of impact on public relations related to digital objects and the digital form of the exercise of rights and duties. The protection of property and non-property rights is becoming one of the few most effective levers of state influence on participants in relations emerging in the innovation sphere. The protection of rights must be made directly dependent on the legitimacy of the actions of the participants in the relations in the information and telecommunications system. It is necessary to legislate a rule according to which any actions circumventing the law, regardless of whether or not the subject's goal was to circumvent the law, should be qualified as an abuse of the right, entailing the loss of the right to protection. To solve problems in the field of the exercise and protection of civil rights, it is necessary to create a multi-system approach to regulating relations: along with the traditional system of law (dividing law into branches, institutions and norms), a special machine-readable law based on digital algorithm technology and program code should be formed.

As International Atomic Energy Agency has stated in its Handbook on Nuclear Law, “Even in situations for which the highest standard of safety has been achieved, the occurrence of nuclear accidents cannot be completely excluded.” Therefore, the international legal framework for nuclear damage compensation liability has been evolving since the establishment of Nuclear Energy Agency of Organization for Economic Co-operation and Development (OECD NEA) and International Atomic Energy Agency (IAEA). Over the years, various international treaties have been enacted to address the compensation of nuclear damage and to establish liability regimes for nuclear incidents. To date, these treaties have established a series of legal principles of nuclear damage liability, such as the sole liability principle, the strict liability principle, the financial guarantee principle etc., which have been developing since establishment. This paper offers an overview of the historical development of the principles of these international treaties for nuclear damage liability and thus draws upon both primary and secondary sources, including treaties, official documents, academic literature, and reports by international organizations. Including the legislation study methodology, comparative methodology is also adopted in this paper to analyze the changes and trend of these principles. The paper reveals that the Paris Convention, which was established in 1960, was the first attempt to establish a comprehensive legal regime for nuclear damage liability. Most of the principles of this Convention have been inherited by subsequent international treaties and domestic legislations. With the awareness of protecting public’s rights having been significantly strengthened, the range of compensation has been broader, the matters of immunity from liability for operators of nuclear power plants have been reduced, the limitation of the compensation amount has been higher etc. In conclusion, the international legal regime for nuclear damage liability has been showing a shift from protecting the development of the nuclear industry to a joint protection of both public health and rights and the nuclear industry, which should be paid attention to and deeply learnt by domestic legislators of all states for the establishment and perfection of their domestic legislation in this field.