Duty Of Disclosure Research Articles

Environmental Law for the 21st Century

In this issue, Professors Elliott and Esty expand on their original proposal and respond to critics.2 They apply their perspectives as practitioners, as well as academics, to develop their vision for environmental law in the 21st century. They establish three legal duties that should apply to entities that release potentially harmful materials into the environment. Professors Elliott and Esty contend that such entities have a duty (1) of research and disclosure to assure the public that any environmental releases are not harmful, (2) to minimize harm if they fail to demonstrate the releases are harmless, and (3) to compensate those at risk of environmental harm financially. They point out that employees have all three of these elements in the workplace, and argue that the public should be no less protected.

The Disclosure Duty in Management Buy-outs: Focusing on XXX Co., Ltd. Self-Regulatory Rules on Disclosure of Merger and Acquisition Information, Template Version

The Disclosure Duty in Management Buy-outs: Focusing on XXX Co., Ltd. Self-Regulatory Rules on Disclosure of Merger and Acquisition Information, Template Version

The Interaction between Violation of the Duty of Disclosure and Medical Negligence

The Interaction between Violation of the Duty of Disclosure and Medical Negligence

2015년 영국보험법상 공정정보제공의무 적용에 관한 연구

As one of the important legal principles in the insurance act, the voluntary duty of disclosure under Marine Insurance Act 1906 has been replaced by the duty of fair presentation under Insurance Act 2015. In the recent case of Berkshire Assets Ltd. v AXA Insurance UK, the issues of materiality and inducement have been addressed as important points of the duty of fair presentation under Insurance Act 2015 for the first time.
 The insurer has denied the claim payment for the loss of flooding damage to the subject matter insured, alleging that there was a breach of duty of fair presentation by the insured. In the case, a director of the insured had been criminally charged by Malaysian attorney general. But the charge was not related to the insurance contract and later discharged by agreement. However, the court decided that the criminal charge on the director was a material circumstance that needed to be disclosed to the insurer before the conclusion of the contract. The court accepted the insurer’s argument that they would not have agreed to the contact if they had known about the criminal charge and treated the contract as if it had never been made.
 This case confirms that the laws regarding materiality before the Insurance Act 2015 are still applicable, despite the general expectation that the reformed act of 2015 would provide more favorable for the insured. The insured should be reminded that criminal charges are often considered material to a risk and that they are expected to know what should reasonably have been revealed by a reasonable search of information available to them. The decision also highlights the importance of having underwriting procedures in place to support any decision and will be persuasive in the court’s consideration of inducement.
 In the future, some points of reform in the UK statutory, such as duty to take reasonable care not to make misrepresentation, fall-back disclosure rule, and the proportionate payment reduction, may have meaningful implication to a Korean legislative principle on the duty of disclosure.

Exploring the factors impacting physicians’ attitudes toward health information exchange with patients in Jordanian hospitals

BackgroundThe uniqueness of the physician–patient relationship and the latter's lack of medical experience and knowledge necessitate providing patients with accurate and timely information necessary to engage them in treatment decision-making. Without detailed information from their physicians, patients cannot understand their medical condition, assess treatment options, and participate meaningfully in their care.ObjectivesThe present research determines the main factors influencing physicians' attitudes toward health information exchange with patients in Jordanian hospitals. The fundamental question addressed by this paper is why Jordanian physicians are reluctant to provide their patients with detailed health information about the potential risks, complications, and benefits of proposed treatments and other recognised alternative therapies.MethodThis study is qualitative in nature, adopting face-to-face interviews as the key instrument of data collection in two hospitals in Jordan. The chief consideration of the sampling process was to select direct informants whose input would generate accurate results that might be generalised or translated to other contexts or settings. Thematic analysis was then used, and all participants’ opinions, answers, and interactions were transcribed and then reduced into themes and patterns for research, as per similarities and relationships, through coding and representing the data.Key findingsThe findings show that most patients in government hospitals, especially those elderly, poorly educated, or inexperienced, choose practitioners based solely on medical service fees and costs rather than quality and convenience. On the other hand, the large number of patients attending public hospitals and the insufficiency of physicians' financial incentives in such hospitals may discourage physicians from providing patients with detailed health information. Matters, however, take a different turn in private hospitals, in which many physicians improve the patient experience to keep him and attract others by sharing information with patients about their health and treatment. However, it was noted that some physicians at such hospitals still rely heavily on their relations with health insurance companies to attract patients rather than on meaningful communication with their patients. Finally, the present findings reveal that the absence of a clear legal duty of medical disclosure negatively influences the amount of information received during the clinic visit.ConclusionsThe fact that the level of communication in Jordanian healthcare settings has not been determined in detail opens the door to unnecessary healthcare expenditure and creates uncertainty concerning the amount of information that patients need to know in order to be involved in their treatment decision-making. The lack of proper control and quality monitoring may also negatively affect the interests of patients and their rights to receive adequate information about their health status.

The Duty to Be Transparent When Supporting Laws in Public Discourse

Political liberals on the left (e.g., Rawls) and right (e.g., Nozick) have long been concerned with the moral justification of coercive legal structures. I argue that anyone who publicly advocates a new coercive law is under a moral duty to those whom the law might negatively affect. The duty is to say that the law would be impactful and why its impacts (e.g., its coerciveness and welfare effects) are worth having all-things-considered. This is a defeasible duty of transparency and disclosure. By doing their duty, citizens would better respect each other and even transform public discourse as we know it.

How Does COVID-19 Affect Marine Insurance Cover Through the Requirement of Seaworthiness?

This paper addresses the legal implications of COVID-19 upon the procurement of marine cargo insurance cover. It clarifies the relationship between warranty of seaworthiness and duty of disclosure, both of which are imposed upon the insured cargo owner under contract of marine insurance. The paper discusses the effect of COVID-19 that the insured cargo owner may invoke to rebut the allegation of not satisfying the duty of disclosure in terms of the seaworthiness of a vessel, which may deprive the insured cargo owner of compensation. The study deploys qualitative and black letter approaches by analysing English and US law, and the relevant international documents. The authors suggest that US law should adopt the same approach as English law, so that the insured cargo owner will not be forced to prove the relation between the restrictions imposed under COVID-19 and its failure to disclose material facts related to seaworthiness.

The Intersection of Duty of Disclosure and Fraud: Breach of Duty of Disclosure and Fraud by Omission

The Intersection of Duty of Disclosure and Fraud: Breach of Duty of Disclosure and Fraud by Omission

The Intersection of Duty of Disclosure and Fraud: A Discussion of Fraud by Omission, Particularly-Focused on Informed Consent

The Intersection of Duty of Disclosure and Fraud: A Discussion of Fraud by Omission, Particularly-Focused on Informed Consent

신규 보험판매채널에 대한 고지수령권 인정 여부와 법적 쟁점

The insurance industry has undergone many changes due to the era of the 4th industrial revolution, which interconnects our digital and real worlds. Advances in big data have cleared the path for insurers to acquire the material information of the insured. New methods of collecting information about individual customers cause a need to reevaluate responsibilities and rights of both parties. In the current industry, the manufacturing and sales of insurance products is separate; the insurance company is in charge of the manufacturing of insurance products, and sales companies were established exclusively for the sale of insurance products. New types of sales channels such as Artificial Intelligence (AI) insurance solicitors have emerged. In April of 2021, Hanwha Life Financial Services, an insurance product sales company made by Hanwha Life Insurance company, launched, and immediately took the first place in the GA agency rankings. In general, large insurance agencies have larger capital and number of solicitors than small and medium-sized insurance companies. Therefore, it is necessary to emphasize responsibility at scale. According to Article 45 of the Financial Consumer Protection Act, it is not reasonable for an insurance company that entrusts sales to large general agencies, which are larger than small and medium-sized insurance companies, to assume primary responsibility for consumer damage caused by insurance sales. Through the amendment of the Act, major insurance agencies, which are classified as having 500 or more affiliated insurance solicitors, insurance companies specializing in insurance product sales such as Hanwha life financial services, and subsidiary-type insurance agencies are required to assume primary responsibility prior to the insurance company entrusting insurance sales. It is needed the size of the institution should make it possible to impose responsibilities that are reasonable. With the advent of the 4th industrial revolution, AI insurance solicitors are being introduced in addition to traditional insurance solicitors. It is necessary to revise the Insurance Business Act to allow to sale insurance products by solicits. It is necessary to grant the right to receive the duty of disclosure to exclusive insurance solicitors directly or indirectly under the influence of insurance companies, such as sales training from insurance companies and ethics training to prevent incomplete sales. It is necessary to protect insurance consumers who are trusted with the insurance company’s agent by granting the right to receive the duty of disclosure to the insurance solicitor in charge of explaining insurance products to the subject working as an insurance company’s exclusive solicitor.

The environmental challenges of AI in EU law: lessons learned from the Artificial Intelligence Act (AIA) with its drawbacks

PurposeThe paper aims to examine the environmental challenges of artificial intelligence (AI) in EU law that regard both illicit uses of the technology, i.e. overuse or misuse of AI and its possible underuses. The aim of the paper is to show how such regulatory efforts of legislators should be understood as a critical component of the Green Deal of the EU institutions, that is, to save our planet from impoverishment, plunder and destruction.Design/methodology/approachTo illustrate the different ways in which AI can represent a game-changer for our environmental challenges, attention is drawn to a multidisciplinary approach, which includes the analysis of the initiatives on the European Green Deal; the proposals for a new legal framework on data governance and AI; principles of environmental and constitutional law; the interaction of such principles and provisions of environmental and constitutional law with AI regulations; other sources of EU law and of its Member States.FindingsMost recent initiatives on AI, including the AI Act (AIA) of the European Commission, have insisted on a human-centric approach, whereas it seems obvious that the challenges of environmental law, including those triggered by AI, should be addressed in accordance with an ontocentric, rather than anthropocentric stance. The paper provides four recommendations for the legal consequences of this short-sighted view, including the lack of environmental concerns in the AIA.Research limitations/implicationsThe environmental challenges of AI suggest complementing current regulatory efforts of EU lawmakers with a new generation of eco-impact assessments; duties of care and disclosure of non-financial information; clearer parameters for the implementation of the integration principle in EU constitutional law; special policies for the risk of underusing AI for environmental purposes. Further research should examine these policies in connection with the principle of sustainability and the EU plan for a circular economy, as another crucial ingredient of the Green Deal.Practical implicationsThe paper provides a set of concrete measures to properly tackle both illicit uses of AI and the risk of its possible underuse for environmental purposes. Such measures do not only concern the “top down” efforts of legislators but also litigation and the role of courts. Current trends of climate change litigation and the transplant of class actions into several civil law jurisdictions shed new light on the ways in which we should address the environmental challenges of AI, even before a court.Social implicationsA more robust protection of people’s right to a high level of environmental protection and the improvement of the quality of the environment follows as a result of the analysis on the legal threats and opportunities brought forth by AI.Originality/valueThe paper explores a set of issues, often overlooked by scholars and institutions, that is nonetheless crucial for any Green Deal, such as the distinction between the human-centric approach of current proposals in the field of technological regulation and the traditional ontocentric stance of environmental law. The analysis considers for the first time the legal issues that follow this distinction in the field of AI regulation and how we should address them.

A Study on the Applicable Procedures for Matrimonial Property Distribution Cases and Duty of Disclosure

A Study on the Applicable Procedures for Matrimonial Property Distribution Cases and Duty of Disclosure

Disclosure requirements and their assessment by SMEs traded on alternative markets in Poland (NewConnect) and Germany (m:access)

Motivation: Financial access limitations are a main barrier to the development of SMEs. One of the methods of bridging the capital gap is SME access to the stock markets, in particular to an alternative market (MTF). Compared to regulated markets, MTFs offer more liberal entry conditions and in many cases prior to MAR implementation they proposed more liberal disclosure requirements.
 Aim: The aim of the article is to analyze the disclosure requirements resulting from MAR directive and to test their perception by issuers listed on the alternative markets in Poland (NewConnect) and Germany (m:access). The research focused on the assessment of difficulties in performing disclosure requirements and checking whether there is a difference in perceiving the scale of difficulties in fulfilling disclosure duties in both countries.
 Results: Analysed markets are subject to MAR, so as a rule, there are no differences in the reporting requirements. There is, however, a difference in perceiving them in both countries. The analysis of German issuers shows that, unlike Polish companies, most of them defined their disclosure obligations as simple. This may result from higher knowledge of the regulations than in Poland. The opinion on disclosure requirements by NewConnect issuers had an impact on the amount of time and human resources devoted to disclosure obligations. The research has also shown that issuers in both markets generally assess well the cooperation with authorized advisers who help them, inter alia, in disclosure obligations.

A study on the prerequistiese for the passive duty of disclosure

보험계약 체결 시 보험자와 보험소비자간 정보 비대칭의 문제를 해결하기 위해 보험계약 체결에 영향을 미치는 중요한 사항을 보험소비자에게 고지하도록 의무를 부과하고 있다. 다수의 보험선진국에서는 보험자의 질문에 대해 수동적으로 응답하기만 하면 보험소비자가 고지의무를 모두 이행하였다고 보는 고지의무 수동화가 법제화 되어 있으나, 우리나라는 보험회사에서 질문한 사항 이외에도 보험회사의 입장에서 볼 때 중요하다고 생각되는 내용을 보험소비자에게 추가로 고지하도록 하여 소비자 보호에 미흡하다는 지적이 있다. 중요한 사항의 판단은 보험회사의 입장인 것은 분명하지만 어떤 것이 중요한 사항인지에 대해서는 다툼의 여지가 존재한다. 다수의 보험선진국에서 실시하고 있는 고지의무 수동화의 취지는 보험자에 비해 보험에 대한 전문지식이 부족한 보험소비자를 보호하기 위해 실시되었으나, 보험자의 질문이 과도하게 많아 도리어 보험소비자 보호에 미흡하고 이로 인한 분쟁이 많이 발생하고 있는 문제점을 내포하고 있다. 우리나라도 고지의무 수동화로 법제화 된다면 다수의 보험선진국의 사례와 같이 보험자의 면책용 질문이 현재 보다 많아 질 개연성을 충분히 예상할 수 있다. 따라서 보험소비자 보호라는 취지를 살려 고지의무 수동화로 전환하기 위한 선결과제로 현재 실시하고 있는 보험약관이해도평가를 참고하여 적정 질문 문항수와 구성 등을 보험회사의 자율사항으로 맡겨 두는 것이 아니라 외부평가기관을 선정하여 질문표를 주기적으로 평가하되, 평가는 보험전문인 뿐만 아니라 일반인의 이해도평가를 실시할 필요가 있다. 보험소비자를 두텁게 보호하기 위한 고지의무 수동화의 안정적인 정착을 위한 제도적인 틀을 마련할 것을 제안한다.

Addressing the Elephant in the Room: the non-intervention principle and fiduciary duties of full and frank disclosure following Lehtimäki v Cooper

Addressing the Elephant in the Room: the non-intervention principle and fiduciary duties of full and frank disclosure following <i>Lehtimäki v Cooper</i>

Prosecutorial and Police Disclosure Ethics in Criminal Evidence Review in the UK and the US. A Comparative Account

This article offers a comparative analysis of the phenomenon of pre-trial non-disclosure of criminal evidence, as exhibited by police and prosecution authorities in the US and English legal systems. The majority of literature that focuses on the subject of disclosure and specifically non-disclosure when it comes to criminal evidence review, explores the challenges and experiences of the US and English disclosure systems in isolation. This article considers disclosure ethics in the context of systemic cultural patterns exhibited by prosecution and police authorities in both jurisdictions. Thus, by conducting a step-by-step appreciation of the culture and operative practices experienced in both common-law systems, the article aims to offer a better understanding of the causes that lie behind police and prosecutorial ethical violations of disclosure duties. Specifically, I conclude that both police officials and prosecutors in England and the US enjoy a significant number of incentives that encourage unethical behavior and set low standards for performing one’s ethical and legal duty to disclose. At the same time, both criminal justice systems do not appear to put enough measures in place in order to punish and deter such occurrences.

The Extension of Disclosure Duties in EU Private International Law: A Comparative Perspective

The Extension of Disclosure Duties in EU Private International Law: A Comparative Perspective

Apparent bias. The arbitrator’s duty of disclosure when accepting multiple appointments in related arbitrations with only one common party. Duty of disclosure and confidentiality The United Kingdom Supreme Court. Halliburton Company v. Chubb Bermuda Insurance Ltd (Formerly Known as Ace Bermuda Insurance Ltd) [2020] UKSC 48, J. 27.11.2020. Lord Reed, Lord Hodge, Lady Black, Lord Lloyd-Jones and Lady Arden

View Apparent bias. The arbitrator’s duty of disclosure when accepting multiple appointments in related arbitrations with only one common party. Duty of disclosure and confidentiality The United Kingdom Supreme Court. Halliburton Company v. Chubb Bermuda Insurance Ltd (Formerly Known as Ace Bermuda Insurance Ltd) [2020] UKSC 48, J. 27.11.2020. Lord Reed, Lord Hodge, Lady Black, Lord Lloyd-Jones and Lady Arden by Ana Paula Montans,Cherie Blair - Revista Brasileira de Arbitragem

Algorithmic disclosure rules

During the past decade, a small but rapidly growing number of Law&Tech scholars have been applying algorithmic methods in their legal research. This Article does it too, for the sake of saving disclosure regulation failure: a normative strategy that has long been considered dead by legal scholars, but conspicuously abused by rule-makers. Existing proposals to revive disclosure duties, however, either focus on the industry policies (e.g. seeking to reduce consumers’ costs of reading) or on rulemaking (e.g. by simplifying linguistic intricacies). But failure may well depend on both. Therefore, this Article develops a `comprehensive approach', suggesting to use computational tools to cope with linguistic and behavioral failures at both the enactment and implementation phases of disclosure duties, thus filling a void in the Law & Tech scholarship. Specifically, it outlines how algorithmic tools can be used in a holistic manner to address the many failures of disclosures from the rulemaking in parliament to consumer screens. It suggests a multi-layered design where lawmakers deploy three tools in order to produce optimal disclosure rules: machine learning, natural language processing, and behavioral experimentation through regulatory sandboxes. To clarify how and why these tasks should be performed, disclosures in the contexts of online contract terms and privacy online are taken as examples. Because algorithmic rulemaking is frequently met with well-justified skepticism, problems of its compatibility with legitimacy, efficacy and proportionality are also discussed.

특허권의 기망적 취득과 그 특허권의 효력 - 정보공개의 원칙과 실시가능기재요건을 중심으로 -

최근 공정거래위원회는 대웅제약이 알비스D 특허출원 당시 데이터 를 조작해 특허를 출원한 후 경쟁약품회사의 제네릭 판매를 방해한 행위에 대하여 특허권의 남용을 인정하고 과징금을 부과했다. 특허제도는 특허권자와 사회와의 계약이라는 계약법적 사고하에 실 시가능기재요건(enablement requirement) 등 특허권자에게 특허발명에 대한 정보를 제공할 것을 요구하는 개시의무(the duty of disclosure)와 신의성실의 원칙을 발전시켜 왔다. 특허출원과 유지를 함에 있어서 특 허취득에 중요한 영향을 미치는 정보에 대하여 제출하지 않거나 허위 의 자료를 제출하는 행위는 특허제도의 본질을 위협하는 불공정한 행 위(inequitable conduct)이다. 특허출원과 특허권의 행사에 있어서 불공정한 행위에 대해서 특허법 과 공정거래법은 대응법리를 발전시켜왔다. 실시가능기재요건을 결여 한 경우에는 그 특허를 무효로 해왔고 기망등에 의해서 특허를 취득한 경우에는 그 특허권의 행사는 불공정한 행위로서 그 특허권의 효력을 부인해왔다. 뿐만 아니라 그러한 특허권의 행사는 특허권의 남용으로서 공정거래법 위반으로서 손해배상책임을 부과해왔다. 그런데, 우리 특허법 제42조 제3항은 실시가능기재요건에 대하여 분 명하게 규정하지 않았고, 그로 인하여 취득한 특허에 대해서도 무효심판을 제기할 수 없도록 했다. 우리 특허법에도 실시가능기재요건을 분명히 하고, 이에 대하여 특허무효심판을 제기할 수 있도록 하는 것이 필요하다.