Margin Of Discretion Research Articles

Characterization of transport optimizers via graphs and applications to Stackelberg–Cournot–Nash equilibria

AbstractWe introduce graphs associated to transport problems between discrete marginals, that allow to characterize the set of all optimizers given one primal optimizer. In particular, we establish that connectivity of those graphs is a necessary and sufficient condition for uniqueness of the dual optimizers. Moreover, we provide an algorithm that can efficiently compute the dual optimizer that is the limit, as the regularization parameter goes to zero, of the dual entropic optimizers. Our results find an application in a Stackelberg–Cournot–Nash game, for which we obtain existence and characterization of the equilibria.

Agencification in the EU Energy Sector: A Case Study on Delegation and Margin of Discretion in EU Electricity Market Rule-making

The number and role of agencies in the EU has grown significantly, a process often referred to in the EU legal scholarship as agencification. The trend has intensified since the Lisbon Treaty, which codified agencies as part of the EU’s institutional machinery. A new type of independent EU agency, endowed with considerable powers, has emerged, especially in the energy sector. This article focuses on the agencification phenomenon in the EU energy sector and, more specifically, the delegation of power and the use of institutional margins of discretion in that context. While agencies have a margin of discretion within which they can make decisions that have general application, this discretion should be limited to scientific and technical questions; questions of a political nature should fall outside that margin. From a practical point of view, the challenge is that the divide between what is technical or scientific and what is political is not always clear. The article argues that the delegated rule-making by Agency for the Cooperation of Energy Regulator (ACER) in the EU energy sector stretches the boundaries of the Meroni doctrine by subsuming questions that are not solely technical in nature but may involve political discretion as well.

Contributory Fault in International Investment Arbitration

As a general rule, if a state commits a wrongful act, it is under an obligation to make full reparation for the injury caused. Yet, arbitral tribunals have used the doctrine of contributory fault to reduce the amount of damages awarded to the investor for the state’s breach of an investment treaty. This article analyses fifteen arbitration cases in which the respondent argued that the claimant contributed to its injury, either as a result of the investor’s bad business judgment or because the investor’s behaviour provoked the state’s wrongful conduct. The analysis shows that arbitral tribunals supported their decisions to reduce the amount of compensation by as much as 50% with strikingly brief reasoning and instead relied on their wide margin of discretion. The article discusses possible avenues to remedy deficiencies in arbitral practice dealing with contributory fault, both through the reform of investor-state dispute settlement and practical solutions that may be adopted by arbitral tribunals when considering allegations of contributory fault.

Administrative Contract in Administrative Matters

Administrative contracts are also known in Slovenian law, where they are mainly used as an instrument to regulate in more detail the (previously issued) administrative act, and generally cannot replace the issuance of an administrative act. Namely, the General Administrative Procedure Act only provides for settlement between parties with opposing (private law) interests. However, the elements of administrative contracts as an ADR mechanism can be found in other (sectoral) legislation, but are often very deficiently regulated, leading to the application of private law rules that govern contractual relations and which are not adapted to administrative law relations. Given all the advantages of alternative dispute resolution and shortcomings of the current legal framework, Slovenian law should also – while respecting all the specific features of administrative decision-making and following the example of selected comparative-law regimes – systematically regulate subordinate administrative contracts (replacing administrative acts), at least for some administrative matters. They should be limited only to those areas of administrative functioning where the administration has a certain margin of discretion in determining the content of the decision on the administrative matter. This means, on the other hand, that the possibility of a subordinate administrative contract should normally be excluded in the case of legally binding decision-making since the content of such a decision is predetermined and the administrative authority is bound by it (principle of legality). However, the administrative authority must have a specific power to conclude such a contract in a (sectoral) law – a general power to conclude subordinate administrative contracts is not sufficient due to the risk of infringing the principle of equality and legality.

OP v Commune d’Ans: Another Step in the Wrong Direction for Headscarf-Wearing Women

Abstract This article analyses and criticises the latest Court of Justice of the European Union (CJEU) case concerning the wearing of Muslim headscarves at work. OP was refused permission to wear a Muslim headscarf at work because her employer, a public authority, had a policy of exclusive neutrality, prohibiting employees from wearing any form of religious clothing or symbols. The CJEU judgment limits the employment opportunities of Muslim women who want to wear headscarves for religious reasons and allows member states and infra-state bodies a margin of discretion to decide whether to ban religious clothing and symbols for all employees, only for employees who come into contact with service users or not to ban such items at all; and, it ignores any possibility of the presence of gender, race or multiple discrimination. Prohibitions on religious clothing and symbols affect especially Muslim women, who are often from a non-European background and thus could amount to gender discrimination, race discrimination and to discrimination on a combination of religion or belief, gender and racial or ethnic origin.

Fundamental Rights and Limited Possibilities: The Proviso of the Possible in European Fundamental Rights Doctrine

Abstract Fundamental rights to positive state action are costly. An allocation in favor of one individual rightsholder always results in lower allocations in favor of others. The dominant approach in fundamental rights doctrine assumes these conflicts can be resolved judicially by balancing competing rights and other public needs. In practice, carrying out an in-depth balancing in resource allocation cases proves challenging but constitutional courts developed different strategies and concepts to deal with costly rights. The European Court of Human Rights applies a “wide” margin of appreciation and requires that positive state obligations do “not impose an impossible or disproportionate burden on the authorities.” Following the German Federal Constitutional Court, several constitutional courts have applied a concept known as the “proviso of the possible.” The proviso of the possible constrains positive rights and results in a wide margin of discretion granted to political authorities. This article attempts to investigate the specific meaning of the “proviso of the possible” in the context of European fundamental rights law by comparing it against alternative doctrinal concepts. The investigation aims to identify common legal principles and methods to deal with fundamental rights conflicts over scarce public resources.

Modern Slavery in Liner Shipping: An Empirical Analysis of Corporate Statements

Forced labour is a widespread risk for workers in the shipping industry. Traditional approaches to tackling the problem rely on the rules of flag state and port state jurisdiction, leaving a significant margin of political discretion in dealing with violations of labour rights. This article examines whether private enforcement mechanisms in the form of tort actions can play a role in securing the labour rights of workers and providing them with access to remedies. Following recent case law, it examines the possibility of enforcing the duty of care as stated in the company materials, in particular the growing number of corporate annual reports. The article relies on empirical material, consisting of the statements published by shipping companies under the UK Modern Slavery Act [MSA]. In addition to the descriptive observations on compliance, the study carries out a content analysis of the statements, seeking to identify the patterns of reporting and industry best practices. The final part of the article examines whether corporate undertakings as laid down in modern slavery statements can serve as grounds for tort liability. Based on the empirical data, the study concludes that the statements provide insufficient grounds for holding companies liable for labour rights violations. Modern Slavery, Forced Labour, Liner Shipping, Annual Reports, Published Materials, Private Enforcement, Supply Chain Liability

КОМПЕНСАЦИЯ МОРАЛЬНОГО ВРЕДА КАК СПОСОБ ЗАЩИТЫ НАРУШЕННЫХ ЛИЧНЫХ НЕИМУЩЕСТВЕННЫХ ПРАВ И НЕМАТЕРИАЛЬНЫХ БЛАГ В ИНТЕРНЕТ-СРЕДЕ

The purpose of this article is to study the theoretical and legal aspects of compensation for moral damage as a mechanism for the prevention of offenses in the Internet environment. To achieve this goal, tasks such as the analysis of the content of the concept of «moral harm», the study of criteria for the systematization of personal non-property rights are set. The article uses modern methods of scientific cognition such as general scientific and private scientific research methods, which together made it possible to characterize compensation for moral damage as a mechanism for preventing offenses in the Internet environment.The results of the study include the formulation of scientific and practical proposals to improve the legal regulation of compensation for moral damage in the Internet environment in Russia, taking into account the established legal practice in foreign countries. The legal essence of moral damage as an evaluative concept and legal category is revealed in the fact that when determining the amount of the latter, judicial discretion is taken into account to the extent that it is allowed by Russian law, the model of civil procedure, the existing judicial system and established practice in courts. The article also touches upon the theoretical dilemma regarding the identification of a person in the digital space through the coverage of issues of the correctness of the use of personal data in the Internet environment. As a result, it is proposed to legislatively define the concept of «personal data» as «any information related to an identified individual or an individual who can be identified.» The analysis of the problem of tracking and recording the facts of offenses in the Internet environment, the problem of determining the amount and payment of compensation for moral damage caused in the Internet space is consistently given.The study is accompanied by conclusions arising from the analysis of the legislative regulation of compensation for moral damage caused on the Internet. As a result, the authors come to the conclusion that compensation for moral damage has certain features of manifestation on the Internet. Cases in this category have certain difficulties (the uncertainty of the defendant, the large volume of the information dissemination site, the defendant's ability to delete information, high costs for ensuring pre-trial fixation of evidence), which contributes to an increase in the marginal environment of the Internet environment. A proposal has been formulated on the need to catalog the amounts for causing moral suffering and provide the perpetrator with a wide margin of discretion, taking into account new approaches to determining the amount of compensation for moral harm on the Internet.

The crime of domestic violence and the crime of child abuse. Link, probation standard

The significant increase in the number of crimes of domestic violence, maltreatment of a child, particularly and unfortunately in general and especially during the SARSCOV-2 pandemic, affecting one in three women in the European Union (Explanatory Memorandum to the Proposal for a Directive of the European Parliament and of the Council on combating violence against women and domestic violence, COM(2022) 105 final[1], requires these types of crimes to be tackled from different perspectives. The same is true of child abuse offences, which in practice often raises the question of the standard of probation and the judge's margin of discretion. From this perspective, this study aims to analyse the link between these offences, as well as the fulfilment of the condition of proving the offence “beyond any resonable doubt”, within the meaning of criminal procedural law and the requirements of the European Convention on Human Rights and Fundamental Freedoms, without dealing with this standard of proof in particular, the concept being the subject of future studies.
 
 [1] https://eur-lex.europa.eu/legal-content/RO/TXT/HTML/?uri=CELEX:52022PC0105

Book Review: The Margins of Discretion in Transnational Administrative Acts: Expulsion Decisions and Entry Bans Following a Criminal Conviction, by Kathrin Hamenstädt. (Oxford: Hart Publishing, 2022)

Book Review: <i>The Margins of Discretion in Transnational Administrative Acts: Expulsion Decisions and Entry Bans Following a Criminal Conviction</i>, by Kathrin Hamenstädt. (Oxford: Hart Publishing, 2022)

Discretion and Strategies for Investigating Child Abuse: Social Workers’ Conceptions of Child Abuse Investigations and Police Reporting

Abstract Understanding the capacity of child welfare (CW) organisations to deal with child abuse is complex, and dependent on the specific CW context. Sweden occupies a unique position in trying to balance high demands for CW and protection with a strong family support focus, which carries a risk of overlooking children who need protection. Drawing on an understanding of social service organisations as street-level bureaucracies, this article explores discretion in child abuse cases by examining conditions affecting discretion and strategies for investigating child abuse, including police reporting. Thematic analysis of interviews with Swedish supervising social workers showed that staff’s conceptions of the CW system influenced the exercise of discretion, leading to different strategies for dealing with child abuse. This resulted in different practices and potentially unequal access to child protection and support, highlighting the wide margin of discretion. This article concludes that the interplay between knowledge and governance is central to equal child protection. This article contributes to the discussion of discretion in CW organisations by underlining the importance of being particularly vigilant about discretion when both children and parents are considered clients, as the child risks being lost as a subject with individual needs and rights.

Ultra-Widefield–Guided Swept-Source OCT Findings of Peripheral Vitreoretinal Abnormality in Young Myopes

To evaluate the ultra-widefield fundus photography (UWF-FP)-guided swept-source OCT (SS-OCT) images of peripheral vitreoretinal abnormality (PVRA) in young asymptomatic myopes. Cross-sectional, single-center study. A total of 1966 eyes of 983 consecutive patients aged 18 to 42 years with refractive error in the spherical equivalent of < 0 diopters (D) who visited KEYE Eye Center, Seoul, Republic of Korea, for refractive surgery. The prevalence of PVRA and their characteristics, including shape, location, presence of pigmentation, membrane, retinal breaks, and detachment, were evaluated. A logistic regression analysis was done to evaluate the risk factors of PVRA and the risk of retinal breaks or detachment among eyes with PVRA. Among 1966 eyes, 317 (16.1%) had PVRA, and 182 (57.4%) and 135 (42.6%) had focal and linear lesions, respectively. The risk of PVRA was increased with axial length of the eyes (odds ratio [OR], 1.238, 95% confidence interval [CI], 1.112-1.379, P < 0.001), corneal astigmatism (OR, 1.320, 95% CI, 1.148-1.519, P < 0.001), presence of discrete margins of different retinal reflectivity (DMDRR; indicating outer retinal disruption from abnormal vitreoretinal traction) (OR, 1.751, 95% CI, 1.334-2.300, P < 0.001), and posterior vitreous detachment (PVD) at the posterior pole of the retina (OR, 1.833, 95% CI, 1.352-2.485, P < 0.001). Among eyes with PVRA, patient age (OR, 1.063, 95% CI, 1.008-1.121, P= 0.025), linear lesions (OR, 15.234, 95% CI, 7.891-29.407, P < 0.001), and multiple lesions (OR, 3.432, 95% CI, 1.780-6.620, P < 0.001) were independently associated with the presence of retinal breaks or detachment. The follow-up for PVRA among young myopes should be personalized on the basis of their ocular characteristics, including asymmetric ocular expansion (axial length and astigmatism) and vitreoretinal interface status. The treatment plan for PVRA eyes should emphasize the greater risk of retinal breaks and detachment with increasing age and the presence of linear and multiple lesions. Proprietary or commercial disclosure may be found in the Footnotes and Disclosures at the end of this article.

Presentation of the SSM guide to the method of setting administrative pecuniary penalties

Article 18 of the SSM Regulation and Article 132 of the SSM Framework Regulation set out the basis for the ECB’s administrative pecuniary penalties’ regime. Under Article 18(1) and (7) of SSM Regulation, the ECB (via its decision making body, Governing Council) may, impose administrative pecuniary penalties on supervised entities, in case of an intentional or negligent breach of (i) a requirement established by directly-applicable acts of Union law where administrative pecuniary penalties are available to competent authorities or (ii) a requirement provided for in ECB regulations and decisions. Within the exercise of its power to impose such penalties, the ECB enjoys a wide margin of discretion within the limits set by SSM Regulation and Regulation (EC) No. 2532/98. In this respect, the penalties applied must meet the criteria set out in Article 18(3) of SSM Regulation: they must be therefore “effective, proportionate and dissuasive”. Furthermore, the ECB may not exceed the limits specified in Article 18(1) of SSM Regulation and Article 4a (1) (a) of Regulation (EC) No 2532/98. The ECB may impose penalties of up to 10% of a bank’s total annual turnover in the preceding business year, or twice the amount of profits gained or losses avoided as a result of the breach, where those can be determined, as set in Article 18 of the SSM Regulation.

Mixture copulas with discrete margins and their application to imbalanced data

Mixture copulas with discrete margins and their application to imbalanced data

The EU’s Stringent Jurisdictional Protection of Its Surface Waters

Abstract In 2000, the European Parliament and the Council adopted the Water Framework Directive, whose ultimate objective was to attain a good ecological status for all surface, transitional, coastal and groundwaters in the Union by the end of 2015. The directive gave Member States a large margin of discretion in the implementation of its provisions. However, the quality of European waters remains largely mediocre. In that context, two judgments delivered by the Court of Justice, one in 2015 and one in 2022, provide a strict interpretation of the directive’s provisions in the domain of surface waters. The first establishes that any deterioration of the ecological status, even if small, is prohibited. The second specifies that, except for derogation, temporary, short-term degradations are not allowed either. The conclusions of those cases are applicable to other types of water bodies and may lead to an improvement in their management.

P-389 "Time is the nurse and breeder of all good": storage periods for embryos and gametes across Europe

Abstract Study question What are the justifications, advantages and disadvantages of contrasting storage regimes for embryos and gametes across Europe? Summary answer Permitted storage periods vary significantly between countries, often lack justification for the limitations they impose, and may compromise individual rights. What is known already Storage periods for gametes and embryos vary significantly across Europe, as does the margin of discretion to grant extensions and adjustments to such periods. This fragmented regulatory landscape adds significant complexity to how cryobanks, clinics and patients are able to plan future treatment options. In addition, it creates an effect which may negatively impact on stakeholders' ability to freely choose where in Europe services are obtained, as well as when: when treatment is delayed because of personal health issues, the clock may not stop ticking on the maximum storage period. Study design, size, duration We have analysed and reviewed the regulation of storage periods in a number of European countries, and have put a particular focus on states which have strongly diverging periods. This assessment examined the policy underpinning the relevant rules, and the consequences of the regime for stakeholders. Our review considered both the legal and ethical aspects of each system and its consequences. Participants/materials, setting, methods Information about storage periods was obtained from legislation, policy documents and publications from national regulators. We also looked at case-law regarding storage issues in certain states. Main results and the role of chance Storage periods for gametes and embryos vary significantly across Europe, as does the margin of discretion to grant extensions and adjustments to such periods. This fragmented regulatory landscape adds significant complexity to how cryobanks, clinics and patients are able to plan future treatment options. In addition, it creates an effect which may negatively impact on stakeholders' ability to freely choose where in Europe services are obtained, as well as when: when treatment is delayed because of personal health issues, such as concurrent cancer treatment, the clock may not stop ticking on the maximum storage period. A regulatory field which so clearly impacts EU Freedom of movement rights, as well as human rights contained both within EU law and the Council of Europe's Convention on Human Rights, should be capable of justification based on robust scientific and clinical evidence. This appears to be inconsistent with the variation we have identified in storage periods across the jurisdictions we have considered. Limitations, reasons for caution The assessment of domestic legal approaches requires an appropriate understanding of the language, as well as of the legal system. Whilst an informative assessment is possible based on policy overviews, a robust assessment of jurisdictions where the official language is not English or German is outwith the paper's scope. Wider implications of the findings The paper's conclusion is that the fragmentation of legal requirements in relation to the storage of embryos and gametes is neither ethically sound nor appropriately legally justified. It impacts negatively on individuals' rights and on commercial interests. More harmonisation is desirable in this field. Trial registration number Not applicable

Myeloid Sarcoma of the Breast: A Diagnostic Dilemma With Pathologic Correlation.

Myeloid sarcoma (MS) is a rare extramedullary solid tumor arising most often in patients with current or subsequent acute myeloid leukemia (AML). Patients of all ages may present with involvement of the skin, lymph nodes, intestinal tract, bone, and/or central nervous system. Isolated involvement of the breast is rare, and only a small number of cases have been described in the literature. Breast MS may present as a palpable mass on clinical evaluation. In this broad literature review from 2010 to 2022, the most common findings on mammography are either solitary or multiple masses, followed by architectural distortion and, less commonly, no discrete findings. Sonography may demonstrate hypoechoic or mixed echogenicity mass(es) with circumscribed or indistinct, not discrete margins. Myeloid sarcoma may present as an enhancing mass or nonmass enhancement on breast MRI and is typically moderately radiotracer avid on 18F-fluorodeoxyglucose-PET. At histopathology, MS is characterized by myeloid blasts in varying stages of granulocytic or neutrophilic maturation; diagnosis typically requires immunophenotyping. There is no consensus for treatment of MS, although systemic chemotherapy for AML is often used as MS is considered the tissue equivalent of AML. This article will discuss and illustrate imaging and pathology findings when the breast is involved by MS.

Eosinophilic enteritis requiring differentiation from chronic enteropathy associated with SLCO2A1 gene: A case report

Eosinophilic gastrointestinal disease (EGID) is a disorder characterized by infiltration of eosinophils causing mucosal damage and dysfunction of the gastrointestinal tract. The endoscopic findings of eosinophilic enteritis (EoN), an EGID variant, are nonspecific and occasionally difficult to diagnose. In contrast, chronic enteropathy associated with SLCO2A1 (CEAS) is a chronic persistent small intestinal disorder characterized by endoscopic findings such as multiple oblique and circular ulcers. We report the case of a 10-year-old boy who had suffered abdominal pain and fatigue for the preceding 6 mo. He was referred to our institute for investigation of suspected gastrointestinal bleeding because of severe anemia with hypoproteinemia and positive fecal human hemoglobin. The upper and lower gastrointestinal endoscopic findings were normal; however, double-balloon small bowel endoscopy showed multiple oblique and circular ulcers with discrete margins and mild constriction of the intestinal lumen in the ileum. The findings were highly consistent with CEAS, but urine prostaglandin metabolites were within normal limits, and no previously reported mutations in the SLCO2A1 gene were identified. Histological evaluation demonstrated moderate to severe eosinophilic infiltration localized to the small intestine suggesting a diagnosis of EoN. Clinical remission was maintained with montelukast and a partial elemental diet, but emergent surgery for bowel obstruction due to small intestinal stenosis was performed two years after the initial treatment. EoN should be considered in the differential diagnosis of CEAS-like small intestinal ulcerative lesions and normal urinary prostaglandin metabolite levels.

Choosing Spanish arbitration law to apply the group of companies doctrine

Abstract This note revisits the status of the Group of Companies doctrine’s application under Spanish arbitration law. It starts with analysing the judgments in ThyssenKrupp AG et al. v Ros Casares Group to develop further questions yet left unresolved. Particularly, what is the scope of extending the effects of an international arbitration agreement and what is the state of party autonomy in regulating the application of the GoC-doctrine, for example, by expressly choosing the applicable law thereto. The latter will determine both the legal standard required to establish implied consent as well as the margin of discretion of decision-makers.

Tax and Legal Anthropology and Modernity

This article analyzes the anthropological characteristics of an individual in the context of tax and legal regulation. It is emphasized that the specifics of the sphere of tax and legal regulation allow us to consider an individual as a taxpayer with the following characteristics: he/she has a margin of discretion limited to the limit; is in an antagonistic-contradictory relationship with the state; is poorly aware of the logic of legal conduct according to the law; bears structurally the maximum permissible property encumbrance; often acquires public condemnation as a tax non-patriot. The possibilities of equalizing the emotional and psychological states of an individual within the boundaries of tax law are considered.