General Duty Research Articles

Liberalism and Tort Law: On the Content and Economic Efficiency of a Liberal Common Law of Torts

This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine the moral norm that any particular rights-based society is committed to using to derive moral-rights conclusions. It next provides an account of the liberal moral norm that I think our rights-based society is committed to instantiating. It argues that this norm commits us to treating all creatures that have the neurological prerequisites to lead a life of moral integrity (to take their moral obligations seriously and to take seriously as well the dialectical task of choosing a conception of the good and leading a life that is consonant with that conception) with appropriate, equal respect and to showing appropriate, equal concern for such creatures, in part for their as economists understand that concept but primarily for their having a meaningful opportunity to lead a life of moral integrity. Part I concludes by examining the implications of our society's liberal commitments for (1) the tort-related moral duties and rights of its members and participants and (2) the general tort-related duties of its governments and the more specific duties of our society's courts when adjudicating common-law tort cases. This account proceeds from a premise uncongenial to economics that, from the perspective of liberalism, not all effects are commensurable - viz., that any tendency of a choice to deprive moral-rights holders on balance of a meaningful opportunity to lead a life of moral integrity by killing them, depriving them of the neurological prerequisites for leading a life of moral integrity, subjecting them to life-dominating pain, or (perhaps) treating them in ways that substantially undercut their perception that they are the authors of their own lives cannot be offset by any tendency the choice has to increase mere utility or welfare as economists understand that term. Part I argues inter alia that (1) its claim that ours is a liberal, rights-based society and (2) its account of the implications of that fact for the obligations of our society's members, participants, and common-law judges provide a normative grounding both for something like the Hand formula for negligence and for the common law's treatment of ultrahazardous activities. More specifically, Part 1 argues that liberalism implies that (1) something like the Hand formula for negligence is the appropriate standard for determining tort liability for possibly-tortious choices made by individuals who knew or should have known that their choices should be expected to impose net equivalent-dollar on others that reflect mere-utility losses the relevant victims sustained, and (2) individuals who made possibly-tortious choices they knew or should have known should be expected to disserve the interests of some others in having a meaningful opportunity to lead a life of moral integrity are liable in tort unless their choices served the on-balance interests of the society's members and participants in having an opportunity to lead such a life. Part 2 then examines whether a common law of torts that seeks solely to secure liberal corrective-justice rights will be economically efficient. More specifically, Part 2 delineates and explores twelve reasons why the correct resolution of a liberal corrective-justice claim may not be economically efficient. Finally, Part 3 identifies and analyzes the moral status (inter alia, the moral legitimacy) and likely generic desirability (moral-rights considerations aside) of the various possible non-common-law components of the positive tort law of a liberal, rights-based State - i.e., of its relevant constitutional law, statutory law, administrative regulations, and truly-judge-made law.

Characterizing Heat Stress and Strain in Electric Utility Workers by Means of a Questionnaire

In recent field work we showed that the high physical demands combined with restrictions to heat loss due to protective work uniforms caused some electric utility workers to experience dangerous levels of hyperthermia (J Occup Environ Hyg. 2015;12:708). These findings indicate that heat stress in the electric utility industry may be detrimental to worker health and safety. In the present study, 414 workers in the power generation and delivery industry across 15 US states completed a two‐part on‐line questionnaire anonymously. Part 1 comprised 15 general questions on the worker's age, sex, role in the organization, general duties, workplace location, work shift duration, years of experience, level of physical activity, frequency of heat exposure, other. The second part consisted of a validated questionnaire for the assessment of heat stress at the workplace – the ‘Heat Strain Score Index (HSSI)’ (Int J Prev Med 2013; 4:631). It was composed of 18 questions which included key factors in heat stress evaluation (environmental parameters, work intensity, level of heat exposure, clothing insulation and permeability, etc.) and indicators of heat strain (sweat rate, fatigue, thirst, symptoms of heat‐related illness, etc.) with cut‐off scores as follows: ≤13.5, green zone or safe level; 13.6 to 18.0, yellow zone or alarm level; >18.0, red zone or danger level. The average (±SD) age of the respondents was 46(10) years and they reported being in their present position for 11(10) years. They typically performed 5(1) consecutive days of work lasting 10(6) hours each day. For all job types (all workers), 79% of respondents reported heat stress was a problem. This number was greater (93%) in those performing physically demanding jobs (e.g. linesman). Further, 30% and 67% of all workers indicated they were exposed to heat stress occasionally and daily, respectively. In contrast, 81% of linesman reported being exposed to heat stress on a daily basis with only 19% experiencing occasional exposure. Based on the HSSI, 43% of all workers and 68% of linesman were categorized in the red zone (danger level) and therefore at an elevated risk of a heat‐related injury (both p<0.01). Our findings demonstrate that electric utility workers are likely to experience excessive heat strain and research must be conducted to explore methods to effectively and efficiently manage heat stress and strain in these workers.Support or Funding InformationHuman and Environmental Physiology Research Unit (G.P. Kenny).This abstract is from the Experimental Biology 2018 Meeting. There is no full text article associated with this abstract published in The FASEB Journal.

Äußerung von Beamten im Konflikt mit Dienstpflichten

Summary Over the past decades, the adjudication handed down by the German administrative courts has consistently derived from the principles of the professional civil service (Grundsätze des Berufsbeamtentums) enshrined in Article 33 paragraph 5 of the Grundgesetz (GG, Basic Law) and in the blanket clauses of the Beamtenstatusgesetz (BeamtStG, Act on the Status of Civil Servants) as well as the Civil Servants Acts applicable at the Federal and the Land levels the duties of civil servants, judges, and soldiers to adhere to the German Constitution and to be loyal to it, to maintain their impartiality, and to protect the respect in which their employer is held, as well as the trust that their employer and the general public place in them, in any statements they may make as part of their service, but also outside of an official context. The present contribution sets out the historical developments and milestone decisions in this regard, such as the judgment handed down by the Bundesverfassungsgericht (Federal Constitutional Court) of May 22nd, 1975, which refused to grant employment as civil servants to applicants seeking such employment who were involved with the Deutsche Kommunistische Partei (DKP, German Communist Party). Furthermore, the contribution addresses the various consequences, based on their severity, which violations against the duty to adhere to the German Constitution, to remain neutral, and to exercise restraint will have, along with the consequences of violations of the duty to observe secrecy in all matters pertaining to the service. Based on the circumstances of the cases adjudicated by the courts, the requirements made on civil servants’ conduct and the „red lines“ constituting a dereliction of official duties when crossed are discussed. Where the punishment under disciplinary law of violations of said duties is concerned, the administrative courts premise their decisions on the assumption that civil servants, judges, and soldiers are aware of what is expected of them. However, the articles’ main focus is on how the duty of neutrality was derived, in terms of jurisprudence, in the court rulings most recently handed down on the „Lights out!“ call by the mayor of a city in North Rhine-Westphalia. The municipal leader had instructed all city-owned buildings to turn their lights off, on the evening of an assembly that had been previously registered with the city administration, in the interests of damaging the attractiveness of the demonstration and its overall impact. While the administrative courts have relied, in dealing with that particular call to action and with other statements made in the battle of public opinion, on the general duty of the state to remain objective and to adhere to the principle of neutrality where party politics are concerned, the present contribution highlights the fact that the duty of neutrality as stipulated by the laws governing civil servants must not be disregarded when this group of people voices religious or political sentiments, nor must the official duties subject to sanctions under disciplinary law be ignored.

The Scope of the ‘Special Responsibility’ upon Vertically Integrated Dominant Firms after the Google Shopping Case: Is There a Duty to Treat Rivals Equally and Refrain from Favouring Own Rel

The Google Shopping case has brought into discussion the existence of a general duty upon vertically integrated dominant firms not to discriminate competitors in neighbouring markets and to treat them in the same way as own related business. Such general duty is nonsensical from an economic perspective and finds no support in the case law. A case-by-case analysis should therefore be applied. The case law has established that pure discrimination of competitors by a vertically integrated undertaking could amount to a discriminatory abuse of Article 102(c) TFEU instead of an exclusionary abuse of Article 102(b) TFEU. This seems to be the position taken by the Commission in the Google Shopping case. Exclusionary abuse framework, including refusal to deal principles, are not applicable to cases of ‘self-preferencing’. Exclusion of competitors is not the only plausible theory of harm, which does not imply lowering the legal standard to find an anticompetitive infringement. Although there is not a duty of equal treatment as a rule of thumb, there are strong reasons to suspect that the Commission pretends to establish the principle of ‘search neutrality’ in online services.

You Ought to Know Better: the Morality of Political Engagement

I argue that, from the liberal perspective, citizens have a pro tanto moral duty to cultivate and maintain a readiness to participate in politics when such an action is called for from the moral perspective—I will call it “the pro tanto duty of political engagement.” It requires a citizen to (i) monitor what the government is doing (or not doing), (ii) evaluate its actions, and (iii) learn what she can do to intervene politically. In Section 1, I will discuss some doubts on the pro tanto duty of political engagement. In Section 2, I will describe Alexander Guerrero’s account of culpable ignorance and argue from his account that the pro tanto duty of political engagement is derived from a general moral duty to properly manage one’s morally relevant beliefs. In Section 3, I will argue that to properly assess the moral significance of any government policy or policy proposal, one must learn about the lives and personal values of those who would be affected by the policy.

A Study to Assess the Program Management Factors, Services and Level of Performance of Reproductive Maternal Newborn Child Health and Adolescent plus Program (RMNCH+A) in Selected Block Primary Health Centers and Rural Hospitals of 24 Parganas (North), West Bengal

Introduction: A descriptive survey was done on assessment of the program management factors, services and level of performance of Reproductive Maternal Newborn Child Health and Adolescent Plus Program (RMNCH+A) at selected block primary health centers and rural hospitals in North 24 Parganas, West Bengal. The conceptual framework was based on the Chen’ Program Theory for program evaluation. Methods: The sample under the study consisted of eleven block primary health centers and rural hospitals of North 24 Parganas, West Bengal. A validated and reliable tool was used to collect data, e.g., the background data and data on the program management factor in terms of adequacy of human resources and their training status was collected by an interview schedule through interviewing health service providers, data on the program management factor in terms of infrastructural facilities, equipment, drugs, record maintenance and services of RMNCH+A Program was collected by observation checklist through observation by the investigator, and data on performance of services and referrals by block primary health centers and rural hospitals was collected by means of record analysis by Record Analysis Proforma. Results: The result showed that most of the community health centers are block primary health centers (64%). There are shortfalls in human resources like general duty medical officers (24.68%), obstetricians and pediatricians (90.90%), surgeons (100%), staff nurses (29.13%), laboratory technicians (42.86%), pharmacists AYUSH (47.82%), drivers (66.67%), GDA (51.25%). Lowest training of medical officers is found in CEmOC, F-IMNCI, LSAS (2.70%) and of nurses in RBSK (2.58%). Major non-availability of infrastructural facilities is separate ANC ward (45.45%), observation room and eclampsia room (100%), laboratory facility (63.63%), NRC (100%), etc. Non-availability of IEC displays found like SBA protocol on APH (18.18%); adult resuscitation kit (90.90%), pulse oximetry (81.81%), wall suction machine (100%), etc. were not available. Inj. Insulin (100%), Tab. Mifepristone (36.36%), Tab. Nevirapine (72.72%), Inj. Gentamycin (27.27%) drugs were not available. E mOC (90.90%), CAC service (36.36%), SNSU (63.63%) were not provided by the selected facilities. 81.81% of the facilities had referral transport and 18.18% facilities did not have any referral transport. There was significant difference between the number of medical officers and number of OPD attendance (‘t’=6.07; df (9), p<0.05), The number of trained medical officers on RTI/STI and number of RTI/STI case management of adolescent (‘t’=2.45; df (9), p<0.05), the number of trained doctors on NSV and the number of NSV cases. (‘t’=2.27; df (9), p<0.05), the number of SBA-trained nurses and the number of institutional delivery cases (‘t’=2.35; df (9), p<0.05). There is highly positive correlation among number of nurses, number of medical officers and postnatal checkup score of the facilities, which is statistically significant (‘r’=0.732; df (9), p<0.05).

Determining the educational impact of the introduction of practice-based small group learning within an intraprofessional group of doctors

IntroductionPractice-Based Small Group Learning (PBSGL) is a system for continuing professional development introduced into Wessex Region Defence Primary Healthcare (DPHC) as the Salisbury Plain PBSGL group in 2012. This is...

Liability in Polish law for infringement of the pre-contractual obligation to inform

In contemporary contract and consumer law, obligations to inform are an example of instruments (protective ones) which imposes on business entities a duty to make a statement of knowledge (a representation), the content of which is determined by regulations and the purpose of which is to aid the consumer in taking a well-informed, rational decision. Appropriate regulations referring to liability for failing to carry out this obligation to inform aim to maintain optimal trust between the contracting parties and, as a result, lead to a balance in the parties’ position, at the same time upholding the principle of the freedom of contract. In accordance with the fundamental assumption in European consumer law, one’s liability towards a consumer should meet the criteria of both efficiency and proportionality, which means that one should not strictly consider such liability purely formally, i.e., as maintaining an economic balance between the parties. The sanction the company shall incur is to serve the actual satisfaction of the interests of the consumer, and not only to make a profit. Additionally, the sanctions for neglecting the obligation to inform are expected to encourage companies to comply with them. Neglecting this obligation to inform in the pre-contractual phase may take the form of not providing information which is required and explicitly defined by law or providing incomplete information. A large amount of detail in determining a business’s responsibility is presumedto guarantee the consumer knowledge of his/her rights and to enable him/her to evaluate the risks resulting from entering into a particular transaction. One must not, however, ignore the fact that providing excessive, thus illegible, information must be treated equally to non-disclosure of such information, which may result in infringement of the aforementioned regulations. Neglecting the obligation to inform may also arise in such a case where the consumer is not provided with a particular piece of information, despite the lack of a definite legal basis in this regard – such as a detailed regulation contained in an act – but such a duty would result from a general loyalty duty between the contracting parties. In the beginning, it should be noted that the liability for an infringement of the pre-contractual obligation to inform is characterised by system heterogeneity. In particular, it refers to the distinct consumer protection regime. It is very often the case that depending on the contractor’s status (professional or nonprofessional) the legal consequences of failing to inform or improperly informing are framed in different ways. One must bear in mind the difference between solely the failure to inform or to improperly carry out the pre-contractual obligation to inform (pursued within pre-contractual liability, fundamentally according to an ex delicto regime) and the consequences arising from the content of the delivered information, i.e., the guarantee of definite elements in the legal relationship of an obligatory nature (assigned to the classic liability in an ex contractu regime). The subject of civil liability for the infringement of duties to inform can be analysed from two perspectives: firstly, from an economic point of view, i.e., whether for the aggrieved party and for the market at large it would be more favourable for the infringement of the duty to inform to be pursued within an ex contractu or ex delicto regime, and secondly, from the perspective of the theory of law, whether for the system of contract law it would be better for this liability to be pursued within an ex contractu or ex delicto regime. In response to the second question, the position of academics is that the liability for the violation of trust due to failing to properly inform the consumer should be pursued in an ex delicto system in order to maintain the internal cohesion of contract law.

IMPLEMENTATION OF MUNICIPAL LAND CONTROL IN VOLGOGRAD

Identifying the main land legislation violations in Volgograd is a prerequisite for the preservation and rational use of the territory. The measures system development aimed at improving the effectiveness and efficiency of the municipal land control implementation will contribute to the city district main wealth preservation. The article presents the activities of specially authorized organizations and bodies for the land legislation observance. The average workload per 1 specialist in municipal land control carrying out amounted to 1.4 of inspections carried out for legal entities. The sequence of actions during the scheduled and out-of-scheduled inspections is given here. The report on the municipal land control carrying out in Volgograd for 2016-2017 is submitted. According to the land control results in 2016, from the total number of carried out inspections, 16.5% of them were revealed with violations, and in 2017 - 25.7%. Amount of the prescribed fines in 2017 increased by more than twice in relation to 2016. Violations of land legislation in Volgograd occurred on the unauthorized occupation of land plots and their parts, the failure to comply with legal regulations on the violations elimination, the use of land not in accordance with its permitted use. Municipal land control was carried out in compliance with the general principles, duties, restrictions and prohibitions in carrying out control measures, as well as the requirements for processing the results of inspections. On the basis of the material reviewed, suggestions were made to improve the effectiveness and efficiency of the municipal and state land control implementation.

Identifying and characterising the physical demands for an Australian specialist policing unit

Many police organisations incorporate specialist policing roles where incumbents are tasked with providing operational response capabilities above and beyond the general duties policing role. The current research utilised subjective job task analysis methods to identify and characterise the physically demanding, frequently occurring, and operationally important tasks, as well as the dominant fitness component for each task, inherent to specialist policing roles in an Australian policing organisation. This was achieved through engagement with subject matter experts and online survey responses from specialist police incumbents. In total, 11 criterion tasks were identified, which covered a range of physical capacities including muscular strength, muscular endurance, and aerobic power. The most physically demanding tasks included those with an arrest component, requiring high muscular strength and power capacities. Having identified the criterion tasks, three operational scenarios were constructed, which incorporated each of the 11 tasks in different operational contexts. The criterion tasks and composite scenarios will allow practitioners within specialised police units to develop evidence-based strategies, including physical selection procedures and physical training programs, specific to the demands of their work.

MiFID II: Stricter Conduct of Business Rules for Investment Firms

The article offers a detailed account of the new MiFID II conduct of business rules applicable to investment firms providing investment services. In each case, the new rules are compared with the existing MiFID I regime. The article addresses the following topics: (i) the definition of ‘investment firm’; (ii) the reclassification of certain cases of dealing on own account to dealing on behalf of the client; (iii) client classification; (iv) the general duty of loyalty; (v) information obligations; (vi) know your customer rules; (vii) best execution; (viii) client order handling; (ix) conflicts of interest; (x) inducements; and (xi) obligations to record telephone conversations and electronic communications. The article shows that conduct of business rules are tightened, clarified and expanded in various respects. For investment firms and their advisers, the devil is well and truly in the detail. The stricter rules will in any event make it necessary to modify many aspects of the standard contracts and other documentation used in contacts with clients.

ОСОБЛИВОСТІ ЗАЛІСНЕННЯ ПІВНІЧНО-ЗАХІДНОГО ПРИАЗОВ’Я

Features of afforestation in Northwest Priazovye in the 19th century are covered in article. Separately Johann and David Kornis's activity who have based unique forest plantations in the steppe is considered. Attention is paid to emergence and development of the Berdyansk, Altagirsky and Dzhekenlynsky forest dachas. Important aspect is educational function of forest areas. At them there was a school where boys were taught forestry. Since 1846 in forest area study of boys to forest business has begun. At the beginning study lasted 5 years, later the term of study has been increased up to 6 years. For this period they not only gained knowledge and skills on afforestation, but also on agriculture, gardening, silkworm breeding, tobacco growing, truck farming. In the winter they learned to write, read and consider. The first pupils were from continental counties of the Taurian province. Further for study began to take boys and from the Crimean Counties (uezdov). Pupils represented different nationalities: Russians, Ukrainians, the Crimean Tatars (for example, in 1851 for study the Crimean Tatar from the village of Karagurt of the Evpatoriysky County of Asanas Selyamiyev, Nogais (in 1848 – Shemeredin Sakalov from the village Burkut of the Berdyansk County (uezd) has arrived). Besides, in forest areas there passed alternative forest service Mennonites. Introduction in 1874 of the general military duty has met sharp rejection of Mennonites whose dogma forbade to hold weapon in hand, and has caused their mass emigration to North America. As a result of negotiations between the government of the Russian Empire and leaders of the Mennonite communities there was a reached compromise according to which the general military duty for Mennonites has been replaced with alternative civil service in so-called forest teams. Fundamental obligations of the Mennonites called on service and rules of an internal order in divisions regulated the Rules of service of Mennonites in forest area approved on July 14, 1880. Agricultural works which were performed in forest areas – clearing of young growth, extermination of wreckers, collecting seeds, irrigation, repair of agricultural tools are analyzed. For 1868-1917 different exhibitions - agricultural and forest, World and All-Russian, periodic, industrial and handicraft Fairs were organized. Demonstration of the achieved success in the field of agriculture and forestry of the Berdyansk forest area was their purpose. The commissions on drawing up collections for the Parisian World Fair which has taken place in 1867 were organized. The international jury at this exhibition to the Berdyansk educational steppe forest area has awarded a bronze medal and to her the diploma for a collection of samples of tree species is given.

The Morality of Divestment

Divestment from companies that produce or heavily utilize fossil fuels has become one of the biggest issues in the contemporary moral debate surrounding climate change. Universities and other institutions are being asked to divest themselves of their fossil fuel–related investments. In this article I argue that, while the case for divestment is morally strong, not all of the arguments used to support divestment are equally strong. Moreover, which of these arguments is employed matters a great deal for the strength of the conclusions regarding divestment. There are two major groups of arguments: what I call positive arguments for divestment, which stem from the claim that divestment is a response to general duties to take action to prevent dangerous climate change, and what I call negative arguments, which stem from a duty not to cause harm. In this article I will briefly characterize what divestment means and to whom it applies. I will then look at negative and positive duty accounts of the duty to divest before looking at the standard objections to both. Objections have tended to cohere around the claims that divesting is inconsistent, useless and/or harmful, or should be abandoned for better options to avoid dangerous climate change.

From knowing silence to curious engagement: The role of general practitioners to discuss and refer to complementary and alternative medicine

Abstract In many OECD countries up to half of the population uses complementary and alternative medicines (CAM). CAM refers to the diverse medical and health care systems, practices, and products that are not presently considered to be part of conventional medicine. In those countries nearly all patients will also consult their General Practitioner (GP), and it is therefore important to consider how treatment from these different practitioners might affect the patient-doctor relationship. Despite goodwill on both sides to engage, there may be a mutual reluctance between both patients and GPs to communicate about CAM. To date research has predominately focused upon how GPs perceive CAM with limited studies on the ethical and legal concerns over this necessary dialogue. Drawing upon the data from OECD countries, particularly New Zealand, this paper suggests that, from an ethical standpoint, GPs have a responsibility to discuss CAM with their patients, and potentially refer to, complementary practitioners. Such a responsibility is grounded upon the ethical norms of beneficence (the physician's general duty of care) and the patient's rights of autonomous and informed choices. It encourages effective communication to develop mutual understanding and provide better care to the patient.

Antitrust and the Movement of Technology

Patents create strong incentives for collaborative development. For many technologies fixed costs are extremely high in relation to variable costs. A second feature of technology that encourages collaborative development is the need for interoperability or common standards. Third, in contrast to traditional commons, intellectual property commons are almost always nonrivalrous on the supply side. If ten producers all own the rights to make a product covered by a patent, each one can make as many units as it pleases without limiting the number that others can make. That might seem to be a good thing, but considered ex ante it may not give producers the correct incentive to develop the patented technology in the first place. In any event, product differentiation in the output market will typically be sufficient to eliminate the problem of returns that are driven to short run marginal cost. In its Bement and General Electric decisions the Supreme Court permitted the members of a patent pool to set the product price, reasoning that the protections given by the patent laws are intended to meter the correct amount of innovation, and an explicit cartel selects the same output and price as a single firm. This reasoning confuses patent value with the value of collusion in the product market. Permitting the firms to collude on product price incorrectly predicates the value of the entire cartel markup to the patents.Often patents are pooled because the problem of identifying and defending boundaries is so significant that the patents are worthless or may even have negative value. The Supreme Court alluded to this problem without specifically addressing it in its March, 2012, Mayo Clinic v. Prometheus decision. A firm will pool when the cost of identifying and defending individual boundaries exceeds the cost of forming an IP commons. Nevertheless, the social cost of using pooling to reverse the effects of worthless patents is substantial. First are the significant costs of operating an economically useless system for acquiring the patent rights in the first place. Then are the significant costs of creating and operating a pool that is designed to reverse the consequences of worthless patent grants.Under United States antitrust law no firm has a general duty to deal with rivals. One difference between refusals to share ordinary productive assets and refusals to share IP rights is that ordinary productive assets can typically be replicated by others. But a patent gives a right to the technology that it covers and makes it unlawful for rivals to duplicate that technology, even if they do so on their own.

On the Interpretation of the General Duty of “Due Regard”

This paper is a study of the interpretation of open-textured international treaty terms and a doctrinal analysis of the undefined, open-textured term “due regard” under the United Nations Convention on the Law of the Sea (UNCLOS). The focus is on UNCLOS Articles 87(2), 56(2) and 58(3) under which a state is to have “due regard” to — or, to balance — the rights, duties and freedoms of other states when it exercises its own rights, duties and freedoms. Relevant rules of international treaty interpretation set out in the Vienna Convention on the Law of Treaties are considered with emphasis on doctrinal debates as to when and how preparatory work (travaux preparatoires, a treaty’s negotiation record, or legislative history) may be used as a treaty interpretive aid. An exhaustive examination of judicial interpretations of the UNCLOS on this point confirms that recourse to preparatory work is prevalent in the judicial interpretation of open-textured terms under the UNCLOS. Next, “due regard” is interpreted with reference to the term’s ordinary meaning and context and in light of the UNCLOS’s object and purpose — and, on the basis that “due regard” is an open-textured, ambiguous or obscure UNCLOS term, using legislative history to inform and confirm an understanding of its meaning. Finally, judicial interpretations and applications of “due regard” are examined. The interpretive conclusions are that the duty of “due regard” signifies (a) a relationship based on legal equality, and (b) the shift from traditional laissez-faire freedoms of the seas to a comprehensive, more heavily normative legal order under the UNCLOS. The practical consequence of the first is that no state enjoys priority in any ocean use conflict beyond the territorial sea simply on the basis of its interests being either sovereign or based on freedoms of the high seas. The practical consequences of the second are that “due regard” is a more heavily normative and narrower standard than its predecessor “reasonable regard”, and, because it encompasses obligations to the interests of the international community, any specific application of “due regard” must always include ecological considerations, howsoever to be weighted.

MiFID II: Stricter conduct of business rules for investment firms

The article offers a detailed account of the new MiFID II conduct of business rules applicable to investment firms providing investment services. In each case, the new rules are compared with the existing MiFID I regime. The article addresses the following topics: (i) the definition of ‘investment firm’; (ii) the reclassification of certain cases of dealing on own account to dealing on behalf of the client; (iii) client classification; (iv) the general duty of loyalty; (v) information obligations; (vi) know your customer rules; (vii) best execution; (viii) client order handling; (ix) conflicts of interest; (x) inducements; and (xi) obligations to record telephone conversations and electronic communications. The article shows that conduct of business rules are tightened, clarified and expanded in various respects. For investment firms and their advisers, the devil is well and truly in the detail. The stricter rules will in any event make it necessary to modify many aspects of the standard contracts and other documentation used in contacts with clients.

Should Alibaba be liable for the counterfeiting activities of online stores? On the secondary liability of internet service providers in Chinese trade mark, copyright and tort law

According to Chinese copyright law, internet service providers (ISPs) are jointly liable for the piracy of internet service users (ISUs) if they are aware of or have reason to know the latter's illegal acts, while the Trade Mark Law imposes joint liability on ISPs only if it is aware of the infringing acts of ISUs. As for the tort law, which is of general applicability, it provides that ISPs are jointly liable if they know of an ISU's tortious behaviour, but what constitutes this knowledge is quite controversial. A transversal study between these three laws shows that the term ‘have reason to know’ or ‘know’ in related rules should be interpreted as encompassing constructive knowledge and negligence, in order to conform with Chinese judicial practice. The divergence between these laws, other legal texts and judicial practice has given rise to disorder in the interpretation and application of Chinese law, and has broadened the scope of applicability of liability exemption clauses. The fundamental conditions for the determination of an ISP's liability are twofold: the ISP must have actual knowledge or constructive knowledge of the infringing act, or be negligent regarding the facts or circumstances related to the ISU's tort; and the illegal nature of the ISU's behaviour must be obvious or easy to recognize by a reasonably diligent person. The negligence of an ISP should be identified by the lack of appropriate and effective measures taken to prevent an ISU's torts. A general duty of care for ISPs has been introduced and developed by Chinese courts despite the fact that ISPs are generally regarded as not being subject to a general obligation to monitor the activities of ISUs.

Studying chemotherapy toxicity levels in district cancer care delivery model.

e18003 Background: To increase the access to cancer care an innovative delivery model has been initiated in 77 district general hospitals of India , empowering general duty medical officers and offering 24x7 technology based backup. All the districts along with other care also offer chemotherapy services. Major concerns raised by medical community were of toxicity associated with administration of chemotherapy. Methods: Data from chemotherapy patients undergoing chemotherapy over short period of three months in one of the district hospital was collected using proforma and common terminology criteria for adverse events(CTCAE v. 4).Data was recorded in all patients by personal interview and clinical examination when patient reported for next c0urse of chemotherapy and during the administration. Results: Total number of 196 patients (136 female and 60 male) taking chemotherapy in district were evaluated. Majority of them had breast( 92), lung (24) head and neck cancer(18).A total number of 285 cycle in all lines –first, second, etc were administered. In breast cancer majority cycles were of adjuvant chemotherapy. Chemotherapy regimens in use included all standard combinations of Doxorubicin cyclophosphamide, docetaxel ,carboplatin , 5FU, paclitaxel . Commonest toxicity included nausea , vomiting, fatigue, diarrhea and anemia. Nausea was commonest (181 events)followed by vomiting (179) diarrhea (122) fatigue, anemia and neutropenia. Most toxicity was grade 1 and 2 only. Only 3 cases of febrile neutropenia were reported and there were 3 emergency admissions for vomiting ,diarrhea. No patient had to be shifted out for medical emergency to higher center. Conclusions: The level of toxicity in peripheral center matches that of standard toxicity levels reported in literature .It is feasible to safely manage chemotherapy at peripheral centers with training generalist and offering distant supervised care. For achieving universal health core goals, with extreme shortage of oncology personnel and services specially in in LMIC only such models appear to be feasible and practicable.

A moral basis for prohibiting performance enhancing drug use in competitive sport

A strong moral reason for prohibiting doping in sport is to be found in the bad choices that would be faced by clean athletes in a sporting world that tolerated doping. The case against doping is not, however, to be grounded in the concept of coercion. Instead, it is grounded in a general duty of sport to afford fair opportunity to the goods that are distinctively within sport's sphere of control. The moral reason to prohibit doping need not be balanced against any autonomy claim of athletes who would prefer to dope because, upon closer examination, such claims have no force. The moral reason to prohibit doping does, however, need to be balanced against the enforcement costs imposed on all athletes by effective prohibition.