Equitable Considerations Research Articles

Sacred Land, Religious Land Use, and Sustainable Urban Development

ABSTRACT: The urban land question is undeniably a pressing societal problem. Criticisms of the financialization of urban land continue, much like the challenge to land grabbing. Questions about alternatives are relatively rare, so this article addresses the following questions: What does sacred land mean in the Thai Buddhist context? How has the belief in sacred land influenced the ethical considerations of religious land use in Thailand? Important in themselves, these questions also invite consideration of how religious land use addresses the challenge of sustainable urban development. Empirical data from interviews were gathered from Buddhist senior monks in five Thai cities and representatives from the Land Development Department and the National Office of Buddhism. Systematic and document analyses of these data show that the notion of sacred land in the Thai Buddhist context is contested. Nonetheless, the belief in sacred land has made Thai Buddhist temple land distinctive and, at the same time, influenced landowners and land users to follow ethical equitable considerations that have substantial ramifications for economy, society, and environment.

A Fair (?) Quantification of Damages in Investor-State Arbitration Proceedings: Reflections from the UNCITRAL Working Group III ISDS Reform Process

This paper considers the proposals advanced by some States in the context of the ISDS reform process at UNCITRAL’s Working Group III to curb a perceived tendency towards (too) “high”awards on damagesin investment arbitration proceedings and “inconsistent”approaches to valuation methodologies. Based on analysis of the arguments brought forward in that discussion, it is argued that while clear procedural guidelines on the application of the valuation methodologies used by arbitrators would be a commendable outcome of the reform process, other proposals aimed at capping damages based on equitable considerations or contextual factors, including the financial capacity of the host State, pose more questions and may be more properly addressed in other venues or through existing tools.

Redefining Compensation under International Law: the Methodology of the International Court of Justice in DRC v Uganda

In February 2022, the International Court of Justice handed down its decision in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) which determined claims against Uganda for its unlawful military activities in the territory of the Democratic Republic of the Congo. The decision is significant for the law of reparations, with the Court adopting a controversial ‘global sum’ methodology in fixing compensation which was guided by equitable considerations. Also at issue (which the Court did not decide) was whether claims for high‐level ‘macroeconomic’ loss are recoverable in principle under international law. This note argues that the Court's global sum methodology is a permissible (and welcome) use of equity to determine compensation where there are evidential difficulties. It also takes the view that macroeconomic loss should be recoverable in principle: a position which is consistent with the teleological design of compensation, and with the more flexible approach to economic loss which some international tribunals have taken.

Compensation in the jurisprudence of the International Court of Justice: towards an equitable approach

Abstract Article 36(2) of the International Law Commission’s Article on Responsibility of States for Internationally Wrongful Acts (ARSIWA) provides that the responsible state shall compensate for all financially assessable damage. However, ARSIWA provides no guidance as to how such a broad rule should be applied in practice, which creates significant ambiguities for adjudicators in charge of adjudicating compensation claims in international law. In the past decade, the International Court of Justice has adjudicated three important compensation cases wherein it has exhibited a visible turn to equitable considerations in compensation determination. This article conducts an analysis of such an emerging equitable approach to compensation and argues that it is a welcome development, given the flexibility it provides to the Court for balancing different factors, with the aim of achieving an equitable determination of compensation. This article also addresses the justifications and predictability concerns of this approach.

Burden or benefit: Is retail marijuana facility siting influenced by LULU- or gentrification-related neighbourhood characteristics?

As legal marijuana is emerging as an important component of cities across the United States, it is important to understand the factors that contribute to legal marijuana facility siting. Although land use and zoning are expected to determine where commercial marijuana facilities are located, if residential characteristics also enter siting considerations, some neighbourhoods may either bear the burden of undesired facilities or reap the benefits of legal marijuana, underscoring equitable considerations in marijuana facility siting. Thus, this study examines how neighbourhood change associated with locally unwanted land uses and gentrification influences the amount of retail marijuana facilities across three US cities: Denver, Colorado; Portland, Oregon; and Seattle, Washington. Using a series of Poisson-related regressions, this study finds that neighbourhood residential characteristics influence retail marijuana facilities in ways exceeding siting restrictions alone, like zoning. Notably, quantitative results suggest that there are fewer retail marijuana facilities in neighbourhoods experiencing locally unwanted land use-related change than non-locally unwanted land use neighbourhoods in Denver and Seattle; and more retail marijuana facilities in gentrified compared to non-gentrified neighbourhoods in Denver. Overall, these findings advance understanding of the connection between legal marijuana and neighbourhood changes and aim to influence guidelines for integrating legal marijuana facilities into communities.

Fact-Finding by Trade-off: Questions of Evidence and Its Interactions with Valuation in Compensation Cases before the International Court of Justice

Abstract This article discusses the evidentiary issues that arise at the compensation phase of the proceedings in the International Court of Justice (‘the Court’), with special reference to the intersection of the rules of evidence and the law of State responsibility concerning reparations. It identifies a sequence of interactions between the two sets of norms throughout the compensation phase and even the prior merits stage. Various notions and approaches indicated by the Court that fall into either of the two sets of rules, such as the reversal of the burden of proof, lowering the standards of proof, equitable considerations and the global sum, should thus be read in conjunction with each other and not in isolation. Such an interplay aims ultimately to bring about a financial outcome that may afford minimum satisfaction to both parties in a dispute, even at the sacrifice of the coherence of judicial reasoning to some extent. In particular, the trade-off between the questions of proof and the reduction of the amount of compensation is seen as a practical adjustment of the financial outcome that could otherwise be unacceptable for the responsible State in the situation of evidentiary uncertainties. The remedies brought to the injured party might be minimal, but an invented alternative to nothing, which could have been the case had the rules of evidence and compensation been ordinarily applied.

The Demarcation of Malaysia-Indonesia Maritime Boundaries: A Review

This research paper analyses the convention underpinning delimitation of Malaysia-Indonesia maritime boundaries. The study analyses international legal frameworks and customary international law, and their application to maritime boundary disputes. The research reveals that 1982 UNCLOS provides general principles and guidelines for delimitating maritime boundaries but does not offer a definitive solution to the complex disputes between states. The research concludes that delimiting maritime boundaries between Malaysia and Indonesia requires a comprehensive and context-specific approach considering legal, historical, and equitable considerations. The study recommends that Malaysia and Indonesia engage in a constructive and cooperative dialogue based on mutual respect, good faith, and pacifistic settlement of disputes. The study also highlights the significance of supporting the rule of law and obeying international law principles in fostering regional political stability. The normative juridical method of research provides a valuable contribution to understanding the legal principles governing the delimitation of maritime boundaries. It offers practical recommendations for resolving disputes between Malaysia and Indonesia in a manner that upholds international law and promotes regional cooperation.

Evaluation of Damage to Wetland Ecosystems in International Compensation: Compensability, Quantification and Equitable Considerations

Abstract Wetlands are among the most productive and sensitive ecosystems of particular importance and harm to this type of environment should be treated with a high degree of seriousness. The obligation to protect wetland ecosystems can be derived both from treaties and from general international law, and damage to wetland ecosystems entails an obligation to make reparation in an adequate form. Where appropriate, compensation should be provided in order to ensure full reparation. However, no specific method of valuation is prescribed by international law for the purpose of compensation for environmental damage, and the need to have operable guidelines for valuing environmental damage thus arises. This article aims to contemplate the approach for evaluating damages to wetland ecosystems, that is, how to decide on the amount of compensation due for damages to wetland ecosystem services. At the outset, the sources of an international obligation to protect wetland ecosystems and the compensability of damage to wetland ecosystems, notably ecosystem services, are analyzed. After explaining the difficulties concerning the quantification of wetland ecosystem services, the article introduces a range of valuation techniques relating to valuing wetland services. Then it outlines the key considerations that facilitate the choice among competing techniques and approaches in international judicial proceedings. In the end, it points out that under certain circumstances, equitable considerations may be drawn upon to determine the quantum of compensation. The ultimate goal is to facilitate the development of a legal framework for evaluating damages to wetland ecosystems.

AI and We in the Future in the Light of the Ouroboros Model: A Plea for Plurality

Artificial Intelligence (AI) is set to play an ever more important role in our lives and societies. Here, some boundary conditions and possibilities for shaping and using AI as well as advantageously embedding it in daily life are sketched. On the basis of a recently proposed cognitive architecture that claims to deliver a general layout for both natural intelligence and general AI, a coarse but broad perspective is developed and an emphasis is put on AI ethics. A number of findings, requirements, and recommendations are derived that can transparently be traced to the hypothesized structure and the procedural operation of efficient cognitive agents according to the Ouroboros Model. Including all of the available and possibly relevant information for any action and respecting a “negative imperative” are the most important resulting recommendations. Self-consistency, continual monitoring, equitable considerations, accountability, flexibility, and pragmatic adaptations are highlighted as foundations and, at the same time, mandatory consequences for timely answers to the most relevant questions concerning the embedding of AI in society and ethical rules for this.

Leveling Down Gender Equality

The U.S. Supreme Court in Sessions v. Morales-Santana (2017) revived its decades old jurisprudence of -- that is, curing an equal protection violation by denying the requested benefit to all rather than extending the benefit to the excluded class. This article challenges that continuation of the conventional acceptance of leveling down or the mean remedy and the assumption that leveling down is an equally legitimate remedial option as leveling up for gender discrimination. Instead, it argues for the adoption of an alternative remedial calculus of a strong presumption of leveling up remedies, overcome only rarely by limited equitable considerations. Such a presumption better effectuates the substantive right of gender equality as well as the correlative due process right to a meaningful remedy.

An alternative assessment of global climate policies

This paper analyzes alternative pricing schemes for funding investment in climate policies. This paper proposes a new policy scenario, explicitly disentangling the issue of burden sharing of financing new investments from the issue of taxation energy consumption and therefor emissions. We compare traditional allocation schemes with an optimal Ramsey pricing by applying demand elasticity values, derived from empirical estimations of household behavior for the 106 leading countries in the world, representing around 90% of total world energy consumption and carbon emissions in 2014. We calculate country-specific alternative taxation options: uniform, equitable and Ramsey pricing schemes, applied to households, assessing the related welfare effects. Our results show that the optimal pricing scheme, for a given investment need, can improve world welfare at the expenses of equitable considerations. In addition, the aggregate societal benefit outweighs the losses associated with specific group of countries, paving the way for easier political agreement, using compensation schemes to redistribute the proceeds.

A Protocol to Develop Practice Guidelines for Primary Care Medical Service Trips

BackgroundNorth American clinicians are increasingly participating in medical service trips (MSTs) that provide primary healthcare in Latin America and the Caribbean. Literature reviews have shown that the existence and use of evidence-based guidelines by these groups are limited, which presents potential for harm. ObjectiveThis paper proposes a 5-step methodology to develop protocols for diagnosis and treatment of conditions encountered by MST clinicians. MethodsWe reviewed the 2010 American College of Physicians guidance statement on guidelines development and developed our own adaptation. Ancestry search of the American College of Physicians statement identified specific publications that provided additional detail on key steps in the guideline development process, with additional focus given to evidence, equity, and local adaptation considerations. FindingsOur adaptation produced a 5-step process for developing locally optimized protocols for diagnosis and treatment of common conditions seen in MSTs. For specified conditions, this process includes: 1) a focused environmental scan of current practices based on grey literature protocols from MST sending organizations; 2) a review of relevant practice guidelines; 3) a literature review assessing the epidemiology, diagnosis, and treatment of the specified condition; 4) an eDelphi process with experts representing MST and Latin American and the Caribbean partner organizations assessing identified guidelines; and 5) external peer review and summary. ConclusionsThis protocol will enable the creation of practice guidelines that are based on best available evidence, local knowledge, and equitable considerations. The development of guidelines using this process could optimize the conduct of MSTs, while prioritizing input from local community partners.

ESD and community participation: the Strategic Assessment of the proposed Kimberley LNG Precinct, 2007–2013

The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 seeks to promote ecologically sustainable development (ESD), in part by espousing the principle that ‘decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations’. Strategic assessments of proposals for major industrial developments constitute a key part of the act's machinery for pursuing this principle. The article considers the extent to which Strategic Assessments are effective in this regard, drawing on a case study, the Commonwealth – Western Australia Strategic Assessment of the proposed Kimberley Liquefied Natural Gas Precinct. It shows that while the early stages of the Strategic Assessment did reflect sustained efforts to adhere to ESD principles, as the Assessment proceeded, party political, bureaucratic and commercial pressures made it increasingly difficult to do so. Of particular importance was the impact of these factors on the time lines and processes applied to project approvals and the Strategic Assessment, which ultimately meant that critical ESD principles could not be achieved.

Inter Partes Review by Hatch-Waxman Competitors Will Likely Increase Because of the Effect of IPR Decisions on the 30-Month Stay

Arecent Goldman Sachs research note revealed that the top four generic biopharmaceutical companies now receive less than a third of the total generic prescriptions. Less than ten years ago, by contrast, those four companies could count on more than half of all prescriptions. This trend confirms that there are more generic competitors challenging patents under Hatch-Waxman and that challenges are being lodged against a wider array of drugs. Now, these companies have a new tool in their arsenal of patent challenges to branded pharma: inter partes review (IPR). This approach is faster and less expensive than a typical Hatch-Waxman action, which can cost at least $3–$6 million in legal fees and costs. Thus, IPR may be a sensible alternative to district court litigation for both parties. Recent case law indicates that IPR may give generic drug companies another advantage. As discussed below, it is possible that an IPR victory adopted by a district court or a decision by the Federal Circuit in a generic’s favor could lead to lifting of the mandatory Hatch-Waxman 30-month stay of FDA approval, exactly the same result that would occur with a district court ruling after trial. Thus, IPR could become an even more significant battleground for Hatch-Waxman litigants. Biopharmaceutical companies, brand-name and generic, should consider carefully the implications of IPR—and appeals from IPR decisions—in their larger strategies. The 30-month stay is a core part of the compromise that led to the creation of the Hatch-Waxman Act. When a patentee (the ‘‘brand’’) files suit under the applicable provision of the Act, 35 USC x271(e)(2)(A), against a generic company (the ‘‘generic’’) that has submitted an ANDA with a paragraph IV certification, the FDA cannot approve the generic’s ANDA for 30 months from the date of the patentee’s receipt of the notice letter. 21 USC x355(j)(5)(B)(iii). Significantly, the court can lengthen or shorten the stay as a result of the lack of cooperation by the generic or the brand or the entry of a preliminary injunction against the generic. Id. Thus, the length of the stay is not absolute, but is subject to equitable considerations, just like any equitable remedy, e.g., an injunction. A generic will often seek to prevail early in a litigation and thereby end the 30-month stay and obtain marketing approval for its product. The Act explicitly addresses the effect of a generic’s win in district court action on the 30-month stay:

Reclaiming the Equitable Heritage of Habeas

Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court — the Court of King’s Bench — but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules — and particularly the five gatekeeping doctrines that preclude consideration of claims — produce unfair results. But in fact four of these five bars exhibit significant equitable characteristics. The only outlier is the Court’s retroactivity bar, which prohibits relief whenever an applicant relies on a new rule of constitutional procedure. Taking no account of the blamelessness of the applicant’s conduct or the nature of the claim, the law of retroactivity applies in a wooden fashion that is at odds with principles of equity. The nonequitable nature of the retroactivity bar causes both individual and institutional harms. Of particular importance, because it operates irrespective of how compelling the individual claim of error may be, it blocks the opportunity to secure relief on claims in approximately one quarter of all capital cases. The nonretroactivity rule also thwarts the efforts of courts to recognize new rights applicable to collateral proceedings, no matter how sound such new rights might be. This Article argues that the Court should modify its nonretroactivity doctrine to reflect equity’s traditions. In particular, the Court should adopt three individualized equitable exceptions to the now-absolute retroactivity bar that take account of applicants’ conduct in pursuing claims, the merits of the claim and the stakes involved, and the unavailability of alternative remedies. These exceptions might not alleviate all of the inequities created by the nonretroactivity rule. They would, however, bring it more in line with its four companion habeas bars, providing a measure of coherence to these gatekeeping doctrines and reconnecting the nonretroactivity rule with the writ’s deep equitable roots.

The Province of Subrogation Determined: Some Corrections—A Functional Analysis of the Guarantor's Right to Derivative Recourse, Comprising a Critique of the Restitutionary Thesis

Abstract: The doctrine of subrogation is a creature of English equity jurisprudence. It permits a surety to obtain the creditor's rights (securities, claims, and remedies) against the principal debtor for recourse purposes. The guarantor derives his position vis-à-vis the principal from the creditor. Why is subrogation granted? There are different answers. According to the traditional view in the English case law, the purpose of subrogation is that equity will correct a decision of the creditor who of his debtors to exact payment from. If the surety as the party liable secondarily is forced to pay, equity will allocate the creditor's rights against the party primarily liable to him. Derivative recourse is the technical means of correction. Subsequent correction of the result of the inequitable choice of the creditor is the function of subrogation. Lately, it has been argued that subrogation is a remedy directed against the unjust enrichment of the principal debtor gained at the guarantor's expense. Derivative recourse is also known in civil law jurisdictions. A comparative survey shows a very peculiar phenomenon: The two prominent English explanations do not find an equivalent in the civil law, and the explanations in civil law jurisdictions do not find an equivalent in English law either. This discrepancy is good enough a reason to have a closer look at the doctrine of subrogation and its province. The article critically discusses the different arguments advanced. As a result of the analytical and comparative discussion, the article determines the justification and the province of the guarantor's right to derivative recourse. The article refutes the restitutionary thesis on subrogation. Its stress on the relationship between guarantor and principal debtor is incompatible with the fact that the case law sees the basis of subrogation in the suretyship relationship. The rights afforded to the surety by subrogation are all directed against the creditor. The creditor comes under an obligation to the guarantor. This is overlooked by the enrichment theorists. Several important details of the law of subrogation cannot be explained in terms of restitution (e.g., the full payment rule, the rule of discharge through loss of securities, and right to pay off and sue). A theory that does not include these rules is not capable of giving a proper qualification of derivative recourse. Only a functional analysis of subrogation renders determination of its province possible. Derivative recourse gives easier and more effective recourse to a guarantor, enabling him to get indemnification for his loss. It supports a contractual claim to reimbursement. Derivative recourse is based on equitable considerations, taking into account the interests of the involved persons (principal, creditor, and surety). By making judgments available, the efficacy of the legal system is supported. The facilitating of recourse is beneficial to the guarantor, without prejudicing the interests of the creditor. The guarantee is upheld as an effective personal security, by withholding the principal an incentive not to pay himself. Neither the principal nor his other creditors are affected. The subsidiarity of the guarantee is restored. Equity corrects the creditor's decision to burden the subsidiary debtor and thus orders the ranks of liability.

In Search of Equitable Considerations: Redefining Attorney-Fee-Shifting Liability Under the Lanham Act to Deter Trademark Infringement and Better Protect Small Business Owners

Attorney-fee shifting under the Lanham Act is analyzed under a variety of different standards; practically every circuit has its own method. A major underlying difference between the circuits is whether bad faith is a prerequisite to attorney-fee shifting. A bad-faith standard is problematic because Congress intended for the courts to govern attorney-fee shifting with equitable considerations. A lack of equitable considerations can lead to oppressive litigation and negligent infringement that may not be covered by a bad-faith attorney-fee shifting standard. Congress is legitimately concerned that these abusive trademark litigation practices are often directed at small businesses, which are vital for innovation and the growth of the U.S. economy. This Note argues that the Circuit Courts should adopt an objective “abuse of process” standard from the Seventh Circuit. This standard will expand the range of culpability by allowing equitable considerations, thereby deterring infringement and bringing the Lanham Act’s attorney-fee shifting provision back in line with Congressional intent. As an ancillary benefit to a universal adoption of an objective standard, forum-shopping incentives will be eliminated.

SUBROGATION AND INDEMNITY

A Ford employee named Roberts carelessly drove a forklift truck into Morris, a person employed by Ford's cleaning contractor, Cameron. Morris sued Ford. Ford admitted vicarious liability for Roberts' negligence, and claimed against Cameron under a clause in the cleaning contract whereby Cameron had agreed to indemnify Ford against any loss or liability arising out of the cleaning operation. Cameron conceded liability to Ford under this clause and now sought an indemnity from Roberts, the careless employee of Ford: Morris v Ford Motor Co. [1973] 2 W.L.R. 843. The trial judge upheld Cameron's claim, but the Court of Appeal (Stamp L.J. dissenting) allowed Roberts' appeal on the ground that an implied term in the indemnity clause (or, per Lord Denning M.R., equitable considerations) excluded Cameron's normal right, as indemnitor, to be subrogated to Ford's right of recourse against Roberts, their careless employee, this right of recourse having been held by the House of Lords in Lister v Romford Ice & Cold Storage Co. [1957] A.C. 555 to enure even to the insured employer. Cameron has been granted leave to appeal, so the House of Lords has a good opportunity to reconsider Lister. While, at the technical level, Morris turns on the implications of a contract of indemnity and Lister deals with the implications in a contract of employment, the situation underlying both cases raises basic questions about the interaction of tort and that most familiar of indemnity contracts, insurance.

Equity-Based Decision-Making and the Fair and Equitable Treatment Standard: Lessons From the Argentine Investment Disputes – Part I

In Part I of this two-part article the author examines the foundations for equity-based decision-making under international law and their relevance to resolving contemporary investment disputes based on the Fair and Equitable Treatment standard (FET standard). He contends that equity-based decision-making in the past has been rare, and in such instances adjudicators have been extremely restrained because of the propensity for subjective judgments. However, in the modern day application of equitable considerations in a large number of investments disputes before the International Centre for Settlement of Investment Disputes (ICSID) seeking relief based on the FET standard, the decisions have mostly been inconsistent and conflicting, leading often to inexplicable and excessive remedies. In no other line of cases has this trend been more demonstrated than in the investment disputes following the Argentine economic crisis. They point more to the serious anomalies and omissions and interpretive issues in International Investment Agreements (mostly BITs) which require remedial measures if international investment law itself is to advance.

Assessing the Content of Contracts: Implied Terms from a Comparative Perspective

The doctrine of implied terms is a useful device used by English courts to fill gaps that may have been left in a written contract. French law has not identified a similar doctrine and the process of implication mostly operates on the basis of statutes, equitable considerations, or through a distortion of the principles of interpretation. Therefore, introducing the concept of implied terms in French law could help to solve some inconsistencies and be an opportunity to establish clearer divisions between interpretation and incorporation of clauses, thereby bringing more certainty and transparency to this judicial practice concerned with the assessment of the content of contracts.