Compensation Awards Research Articles

The Italian Nazi Crimes Reparations Fund and Judicial Protection: Navigating the Drawbacks of Judicial Responses to Mass Crimes

Abstract Reparations for mass crimes and systematic human rights violations are inherently complex endeavours and can be approached through various means. At the domestic level, a fundamental distinction can be made between judicial and administrative remedies, each with its own advantages and drawbacks. The present contribution focuses on the “Nazi Crimes Reparations Fund” established by the Italian government to provide redress to Italian victims or victims of crimes committed on Italian territory by the Third Reich during the period between 1 September 1939 and 8 May 1945. This Fund has a peculiar relationship with judicial proceedings. On one hand, eligibility to receive compensation through the Fund is contingent upon victims obtaining or intending to obtain a final judgment against Germany based on a claim filed by 31 December 2023. On the other hand, the Italian Decree-Law establishing the Fund precludes any continuation or institution of enforcement proceedings stemming from judgments that condemn Germany to award compensation to WWII victims of Nazi crimes. In practice, a judgment awarding compensation entitles victims to access the Fund, which is intended to be the sole means of execution. The main purpose of the present paper is to reflect on the nature of this legislative measure, especially concerning its relationship with – or rather, dependence on – judicial proceedings. The paper highlights how judicial remedies for mass human rights violations may raise concerns about both financial sustainability for the State and equality among victims.

Про концепцію соціальної відповідальності бізнесу та унормування відповідальності материнських компаній

The article identifies various areas of violations of human rights and freedoms by industrial companies, which require an adequate response from the legislator. The experience of French and German law in protecting human rights and freedoms from the adverse impact of economic activity may be useful. This also applies to the liability of a parent company for the actions of its subsidiaries, given the existence of control over the activities of the latter, and the adoption of decisions that indicate the level of influence they exert. Despite the fact that economic freedoms are currently prioritized over social interests, social responsibility of business is becoming increasingly important. The article focuses on the issues of determining the type, amount of liability and assessment of violations identified in the course of analyzing the case law in disputes on social responsibility of business in the presence of a negative impact on human rights and freedoms. The author analyzes the tort liability of legal entities for human rights violations, noting that it is characterized by pecuniary compensation. In the absence of actual damages, the tort liability of companies loses its meaning. The case law of the European Court of Human Rights and Ukrainian court practice does not provide for compensation for the mere fact of interference or the mere existence of a negative impact on human rights and freedoms by a business entity. This makes it necessary to find other approaches to respond to the negative consequences of companies’ activities. The problem is exacerbated by the fact that damage to human rights and freedoms is difficult to measure and evaluate: determining the equivalent value of a violation of the right to privacy, personal information, loss of comfort, etc. On the contrary, the practice of English courts is to award compensation to the claimants whose rights and freedoms have been violated, which distinguishes them from the tort liability of companies.

Interstate Lawsuits of Ukraine to the ECTHR: Is it Realistic to Achieve Final Judgments?

The article examines the problems and prospects of consideration of interstate applications of Ukraine against the Russian Federation by the ECtHR. The article analyzes that the ECtHR is currently considering five interstate cases initiated by Ukraine against the Russian Federation. However, the Russian Federation does not participate in the proceedings on the claims of Ukraine and does not intend to comply with the ECHR judgments. However, the ECHR will continue to consider the applications submitted to the ECtHR after Russia's withdrawal from the Council of Europe. The article proves that today there is no mechanism for enforcement of the ECtHR judgments on interstate claims of Ukraine by the Russian Federation. Since the Russian Federation does not intend to execute the decisions of the ECtHR voluntarily, there remains the option of either enforcing such judgments by the affected Ukrainians individually on the principle of reciprocity in other countries or creating a supranational mechanism for the execution of such decisions. It is indicated that in the future, the ECtHR will be able to consider and award compensation in all existing cases against the Russian Federation. Affected companies and individuals can file a claim for violation of property rights against the Russian Federation only in respect of actions or omissions before September 16, 2022. Nevertheless, even in light of the Russian Federation's withdrawal from the ECHR, all decisions taken before the exit from the ECHR and the CoE must be implemented. Although after the ECtHR has decided on the merits, it takes a long time to decide on just satisfaction. In conclusion, it is noted that the Russian Federation also does not comply with the interim measures demanded by the ECtHR to cease hostilities in Ukraine immediately. At the same time, this procedural decision is vital for considering the case "Ukraine v. Russia - X" on the merits from a historical perspective.

‘A perfect farce’: the practice of claiming damages for adultery in the late-Victorian divorce court

ABSTRACT For nearly three hundred years it was a British husband’s right to claim damages for the trespass of his wife. By the mid-nineteenth century the practice was considered morally questionable, yet still it entered the statute books under the Matrimonial Causes Act 1857 where it remained something of an embarrassment until 1969. Very few studies have considered what this meant in practice. This article offers a comprehensive examination of compensatory awards by analysing data from a sample of petitions filed with the divorce court between 1881 and 1900. It asks, who were the men who put a pecuniary value on their wife’s ‘ruin’ and considers why damages were more pertinent to middle-class petitioners than those above or beneath them. It explores the practical implications of how damages were calculated and applied and suggests reasons why juries frequently awarded lower sums than claimed. Finally, it considers the moral implications of a system that treated wives as chattel and continued to do so well into the twentieth century.

Compliance politics and international investment disputes: a new dataset

Abstract The ability to ensure compliance with investor-state arbitral awards is often regarded as one of the strengths of the international investment regime. Yet, there have been few systematic studies of compliance to assess the extent to which states have actually complied with adverse investor-state compensation awards. This paper presents a new dataset that enables empirical research on compliance with these decisions; it is the first publicly available dataset to focus on what happens after awards are handed down, and in this way complements other databases on international investment law. This paper explains the data collection process (and its associated challenges), discusses the design choices made in selecting inputs and variables, presents a descriptive overview of the data, and examines how variables can be used in future research. Moreover, various cases are used as illustrations of the challenges of collecting and coding data on post-award processes and we explore what missing data can tell us about compliance dynamics.

Assessment of Claimants’ Attitudes towards Compulsory Land Acquisition and Compensation in Osogbo, Nigeria

Comprehending the attitudes of claimants towards compulsory land acquisition and compensation is crucial in assessing the overall efficacy of the process. This exploration aids not only in gauging public sentiment but also in shaping policies and approaches that foster cooperation and equitable outcomes. This study focused on the assessment of claimants’ attitudes towards compulsory land acquisition in Osogbo, Osun State, Nigeria. Data on claimants were obtained from 244 landholders whose lands were compulsorily acquired for rail track construction at Phase I, Osogbo. Frequency distribution, weighted mean scores, and factor analysis were employed to analyze the collected data in order to examine the behaviors exhibited by claimants and the factors contributing to those behaviors. The study revealed that the lack of a resettlement plan, inadequate time given for relocation, and insufficient compensation award to replace assets were triggers for the various behaviors exhibited by claimants. Factor analysis was used to analyse a 14-item factor instrument employed to examine the factors influencing claimants' behavioral attitudes toward compulsory land acquisition and compensation in the study area. The result yielded four distinct factors which include “Preliminary Factors leading to Inadequate Compensation” as Factor 1, "Factors Leading to Resistance by Claimants," as Factor 2, "Factors Leading to Inadequate Relay of Notices," and "Inadequacies in the provisions of the Land Use Act on Valuation Methods for Compulsory Land Acquisition and Compensation," as Factors 3 and 4 respectively. The study recommended that the Land Use Act be amended to align with present-day realities, incorporating considerations for land values and associated impacts, including the costs of claimants' relocation. This would alleviate the stress and social challenges faced by those affected by land acquisition, dousing the society tensions associated with it.

Valuation of Stock-Based Compensation Awards and SPAC Founder Shares Subject to Moving Average Vesting Conditions: A Closed-Form Approximation

Valuation of Stock-Based Compensation Awards and SPAC Founder Shares Subject to Moving Average Vesting Conditions: A Closed-Form Approximation

Compensation Assessment for Personal Injury Owing to Extra-Contractual Liability: Case Study on Selected Courts

Assessment of compensation for personal injury is an intricate part of the law of extra-contractual liability (torts) since such kind of injury results in loss of a job, part of a body, total permanent disability or death. As personal injury may involve irreparable harm, it challenges courts in quantifying reasonable expenses a victim incurs and determining the amount of disability indemnity. By using decisions of the SNNP and Sidama regional courts together with selected Federal Cassation decisions, this article aims to explore practices of compensation assessment for personal injury. The Civil Code, which applies in federal and state courts, requires assessment of damage and award compensation based on a rule of equivalency. Given the generality of this, courts are facing difficulties in making compensation assessments for extra-contractual wrongs that result in personal injury. The problems are related to quantifying reasonable expenses for treatment, determining the amount of disability indemnity, or deciding which kinds of pecuniary losses are included in and excluded from compensation assessment. These problems have caused arbitrary decisions of the courts for personal injury. Variation also exists among court decisions at various levels in determining the extent of harm a claimant sustains and its corresponding compensation. Lack of detailed provisions contributes to such variation, and this calls for legal reform.

A retrospective evaluation of the determination of reparations for nonpecuniary loss: a comment on Lucien Ikili Rashidi v Tanzania

The African Court on Human and Peoples’ Rights is a distinct body that protects human rights and develops jurisprudence in international and regional law. It is on this basis that it often awards compensation for human rights violations. However, while the Court gives reasons for compensation for pecuniary loss, it does not do so for nonpecuniary loss. With the aid of a conceptual approach, the contribution evaluates the argument that the Court’s failure to give reasons for compensation fornonpecuniary loss indicates a lack of clarity. With the aid of Lucien Ikili Rashidi v Tanzania (2015), Mtikila v Tanzania (2011), Norbert Zongo v Burkina Faso (2015), Lohe Issa Konate v Burkina Faso (2016) and Armand Guehi v Tanzania (2015) this contribution evaluates the Court’s approach to the grant of compensation for nonpecuniary loss. The Court’s failure to givereasons in instances of nonpecuniary loss affects the application of the rule of law in the adjudication of cases. This contribution argues that the Court’s jurisprudence presents an inconsistent approach to this problem. To substantiate this argument, this case discussion gives the facts and holding in Lucien Ikili Rashidi and identifies the lack of clarity by the African Court in dealing with non-pecuniary loss. This is followed with a close evaluation of the four earlier cases of Mtikila, Zongo, Konate and Guehi. A two-stage approach in dealing with compensation for the non-monetary loss is proposed. First, a finding of the existence of a human rights violation should be presumed sufficient to warrant the award of compensation for nonpecuniary loss. Second, the Court should then evaluate the amounts claimed against the principles of equity and the circumstances of the case.

THE DEVELOPMENT OF NEIGHBOR LAW IN INDONESIA

Neighbor law was born in the midst of community life to regulate and limit rights and obligations in neighborly relationships. One of the developments in neighbor law is the concept of servitude or property easement. Issues related to servitude right in Indonesia are still frequently encountered, often resulting in illegal actions that lead to losses for others. Therefore, based on several court decisions in Indonesia, it is necessary to conduct an in-depth study of property easements as a limitation on property rights and legal protection for those who are harmed in cases involving property rights restrictions. This research is a legal study that employs three approaches: legislative approach, conceptual approach, and case approach. The results reveal that servitude right is a restriction on property rights over land that is still applicable according to civil law provisions and is based on the social function found in agrarian law. Legal protection provided through the judicial system in Indonesia regarding cases involving property rights restrictions and violations of servitude right involves filing lawsuits by the injured party based on illegal actions. If it is proven that the defendant has committed an illegal act, the judge will issue a court order (aanmaning) to perform or cease a certain action, as well as award compensation to the harmed party for actions that violate the servitude right.

Compensation Scheme of Former Political Prisoners in Albania, as a Matter of Transitional (in) Justice

The change of the political and legal system in Albania gave birth to the great hope, not only of the triumph of dignity, but also of the correction of injustices towards former political prisoners. In Albania, from 1991 to 2008, a series of legal measures addressed the issue of former political prisoners. Their purpose was not only to legally consider punishment for crimes of a political nature as unjust, but also to award compensation. But, in the span of 17 years they remained a formal statement on paper, an inadequate legal solution that in very few cases became effective. At the beginning of 2008, with the entry into force of the law on the compensation of former political convicts, an administrative compensation process was sanctioned that offered a reasonable solution in terms of time and amount of compensation. However, the subsequent legal changes recognized the right of the state to carry out a compensation process based on budgetary possibilities and did not condition the realization of this process in terms of time. The paper aims to analyze the concept of transitional justice in international and domestic law, highlighting its main instruments, as well as focusing on compensation for former political prisoners in Albania. The work through the analytical and comparative method supports the hypothesis that the compensation of political prisoners designed as an effective tool for correcting the injustice caused during the years of communism is bringing back new injustices, which are incompatible with the principle of the rule of law and human rights. The compensation scheme for political convicts in Albania has created not only legal uncertainty regarding the time of compensation, but also such a duration can lead to inequality and discrimination. The paper recommends the need for immediate legal changes to build a fair, fast and effective compensation mechanism.
 
 Received: 05 May 2022 / Accepted: 16 May 2023 / Published: 20 May 2023

О проблемах, возникающих при разрешении судами общей юрисдикции дел о присуждении компенсации за отсутствие горячего водоснабжения в камерных помещениях исправительных учреждений, следственных изоляторов уголовно-исполнительной системы Российской Федерации

В статье анализируется практика рассмотрения судами административных исковых заявлений о присуждении компенсации за нарушение условий содержания под стражей, содержания в исправительном учреждении в части отсутствия горячего водоснабжения в камерных помещениях исправительных учреждений, следственных изоляторов в порядке, предусмотренном ст. 227.1 КАС РФ. Обозначены основные проблемы, возникающие при решении названной категории дел, сформулировано предложение о внесении дополнений в кодекс. The article analyzes the practice of courts’ consideration of administrative claims for the award of compensation for violation of conditions of detention, keeping in a correctional facility in terms of the lack of hot water supply in the cells of correctional institutions, pre-trial detention facilities in a row provided for in Article 227.1 of the Code of Administrative Offences of the Russian Federation. The authors identify key problems that arise when solving this category of cases and formulate proposals to make amendments to the code.

Economic Determinants and Consequences of Performance Target Difficulty

ABSTRACT Using data on earnings targets in annual bonus plans, we construct and validate an empirical measure of beginning-of-year target difficulty and show that it is negatively associated with market uncertainty, retention concerns, and Chief Executive Officer (CEO) entrenchment. We then present several findings about the effect of target difficulty on performance and CEO compensation. First, greater target difficulty in annual bonus plans is associated with significantly lower CEO cash compensation as well as with decreases in other compensation awards. Second, moderately challenging targets (neither too easy nor too difficult to achieve) are associated with abnormal reversals in fourth-quarter performance, particularly reductions in fourth-quarter performance after abnormally favorable third-quarter performance. Third, greater target difficulty is associated with higher same-year abnormal earnings but at the same time with lower next-year earnings and stock returns. Combined, our findings suggest that target difficulty is an important incentive design choice that affects performance and executive compensation. Data Availability: Data used in this study are publicly available.

Consideration for the establishment of the so-called compulsory easement

The article is devoted to the analysis of the nature of consideration which may be due when a property owner (or, in the case of the so-called “transmission easement”, an entrepreneur) may demand the establishment of a special type of easement, i.e., the so-called “compulsory easement”. The establishment of a compulsory easement may be claimed in court and is always associated with the obligation to grant an equivalent thereof in the form of an appropriate consideration. It may take the form of a one-off benefit, although it need not have to be expressed in money. The consideration is not a form of compensation for damage, but in fact it is a kind of price paid in exchange for the acquisition of a limited right in rem. Due to the nature and duration of the encumbrance, a judicial award of a periodic compensation would have been more reasonable, but it is de lege lata inadmissible. In this regard, it would be advisable to make appropriate modifications to the Civil Code, including the restoration of the institution of real burdens.

Unjust enrichment in investor–State arbitration: A principled limit on compensation for future income from fossil fuels

AbstractIf States take seriously the Paris Agreement's mitigation goal by phasing out the use of fossil fuels in energy production, investor–State arbitration could allow claimants to recoup lost value. In awards of compensation, tribunals typically apply forward‐looking, income‐based valuation methods to quantify future cash flows. But such methods may lead to upward redistribution of wealth and expansion of fossil fuel production. This article recalls the prohibition against unjust enrichment as a general principle of law that complements the obligation to make full reparation by ensuring that any compensation does not undermine some legally recognized allocation of benefits and burdens. The Paris Agreement's distributive scheme may thus impose a principled limit on compensation for future income from stranded fossil fuel assets when a tribunal determines the appropriate method of valuation, thereby ensuring that investor–State arbitration does not enrich claimants to the detriment of State capacity in climate mitigation and adaptation.

On the Award of Compensation for Violation of the Conditions of Detention and Detention in a Correctional Institution in Civil and Administrative Proceedings

The article deals with compensation for violations of conditions of detention and in a correctional institution. The relevance of this problem is due to the fact that a new rule has been introduced into the Code of Administrative Procedure of the Russian Federation that protects the constitutional rights of persons limited by law in freedom from illegal actions of state authorities. The authors analyzed Russian law and judicial practice on the issues of awarding compensation to persons limited in freedom, according to the rules of administrative proceedings and civil proceedings. In conclusion, it is concluded that the material norms of civil law on compensation for moral damage for violation of conditions of detention are general in relation to Art. 227.1 of the Code of Administrative Procedure of the Russian Federation.

ACCESS TO JUSTICE

ACCESS TO JUSTICE

When Women Do “Men’s Work”: Hybrid Femininity and Within-Gender Inequality in Job Search

We introduce a novel theory of hybrid femininity, a mechanism by which women who engage in stereotypically masculine behaviors or activities gain status advantages relative to women without such experiences. We argue that external hiring managers evaluate women with career experiences in hypermasculine occupations more highly than women with career experiences in hyperfeminine occupations. This relative advantage is greatest when transitioning into a male-dominated occupation. Leveraging data from two online experiments (N = 3,003), we test and find strong support for our theory. External evaluators hiring for a male-dominated occupation award women candidates with hypermasculine occupational histories higher compensation than equally qualified women with hyperfeminine occupational histories. Evaluators also assess these “hybrid women” as more masculine, more competent, and better leaders than highly gender-congruent women candidates. These differences in perceived masculinity and status largely mediate the compensation award differences. A similar advantage for hybrid women is observed for job offers in a gender-neutral occupation. When moving into a female-dominated occupation, compensation differences are indistinguishable across women candidates, regardless of their gendered occupational backgrounds. Findings shed light on how gender inequality is maintained—even between women—through the privileging of masculinity over femininity, with important implications for labor markets and society at large.

Can you put a price on 14 years of life? Examining predictors of monetary compensation for exonerees

ABSTRACT Compensation is one of the few resources available to exonerees, as they do not qualify for many of the same re-entry services available to parolees. Past research has shown public support for exoneree compensation; however, little is known about what factors influence perceptions of exonerees receiving compensation. The current study investigated the role of the contributing factor in an exoneree’s wrongful conviction case, participant characteristics, and perceptions of an exoneree and wrongful convictions, on perceptions of monetary compensation awards. Student participants were randomly assigned to read one of three fictitious news articles that varied in terms of the factor that led to an exoneree’s wrongful conviction (i.e. false confession, eyewitness misidentification, or police misconduct), and afterwards answered a series of questions assessing perceptions of assistance, of the exoneree, and of wrongful convictions. Results indicated that contributing factor (police misconduct), participant characteristics (men), and perceptions of the exoneree (more innocent than guilty, exoneree ‘Black’ or ‘Hispanic’) and of wrongful convictions (supportive of other forms of assistance) were significant predictors of monetary compensation awards.

Privacy breaches and electronic communication: Lessons for practitioners and researchers.

In the era of socially distanced clinical andmedical research practices, the use of electronic communication has flourished. The Australian Information Commissioner recently ordered a Victorian general practice to pay $16,400 in compensation following a breach of privacy. This is the largest award of compensation made by the Commissioner in the context of a medical or healthcare privacy matter. The practice had inadvertently sent an email containing sensitive information to an incorrect email address. The email included information concerning the human immunodeficiency virus status ofthe complainants. The aim of this article is to provide anoverview of this important case in Australian information and privacy law, which relates to the operation of an Australian general practice and research activity undertaken within thepractice context. In an era marked by a great increase in the use of electronic communication inthe medical setting, it is essential thatpractices both manage electronic communication well and respond appropriately when an error arises.