Liability Regime Research Articles

The Necessity of Laws on Third-Party and Civil Liability for Industrial Nuclear Damages Caused by Installations: Health Assurance Compensation

With the modern requisites of humankind, energy has become the most depleting resource due to waste and lack of sources. In the present world, nuclear energy sources play a vital role in producing energy by fueling radioactive elements. The most significant feature of atomic energy is that a small amount of radioactive substances can release a tremendous amount of energy. Most developed and developing countries use nuclear energy as a power-making resource for public and private purposes. Therefore, it is imperative that a developing country like Sri Lanka adopt nuclear power technologies and the laws governing nuclear operations. This research discusses international nuclear laws and the need for a legal framework to manage the liability of nuclear damages in terms of people's health and potential harm to health, past experiences of exposure to ionizing radiation are discussed with statistics to find out the necessity of laws on nuclear liability in terms of health compensation. The scrutiny supplies a directive authority to make domestic legislation without being dependent on international instruments, as the paper also discusses the drawbacks of international nuclear liability regimes against principles of nuclear law and the essentials of a nuclear liability regime. The primary objective of the study is to find out directive measures for a nuclear liability regime in terms of health assurance. In addition, this research also discusses directive principles to make equitable compensation liability schemes from the victims' perspective. The books, research papers, international conventions, and domestic legislation were the primary sources of the research. Sri Lanka's legal framework needs improvement as an independent law, aligning with the Vienna Convention on nuclear liability, as international law lacks equitable aspects.

Book Review: Three Liability Regimes for Artificial Intelligence. Algorithmic Actants, Hybrids, Crowds, Anna BECKERS & Gunther TEUBNER (ed.). 1st edition. Oxford:Hart Publishing

Book Review: Three Liability Regimes for Artificial Intelligence. Algorithmic Actants, Hybrids, Crowds, Anna BECKERS & Gunther TEUBNER (ed.). 1st edition. Oxford:Hart Publishing

Hello from the Other Side: Both Government Liabilities and Assets Matter for Sovereign Risk

AbstractWe provide evidence that for advanced economies' sovereign bond markets in recent decades, both sides of the government balance sheet matter: for explaining government borrowing cost empirically, (i) government assets are significant in addition to government liabilities, and (ii) it is government net worth (total financial and non‐financial assets less liabilities) rather than government liabilities that matters when both are included. The central country‐specific fiscal factor driving sovereign bond yields thus appears to be government net worth. The focus of policy and academic debates though has tended to be narrowly on government debt, even as government net worth has declined substantially in many OECD countries in recent decades.

The European Commission's approach to extra-contractual liability and AI – An evaluation of the AI liability directive and the revised product liability directive

The European Commission published two proposals that aim to adapt (tort) liability rules to the digital age, the circular economy and the impact of the global value chain. The ‘AI Liability Directive’ contains rules on the disclosure of information and the alleviation of the burden of proof in relation to damage caused by AI systems. The ‘revised Product Liability Directive’ substantially modifies the current product liability regime by broadening the scope, integrating new circumstances to assess the product's defectiveness and introducing provisions regarding presumptions of defectiveness and causation. In this article, we evaluate how both proposals provide some answers to major technological developments – in particular AI – in view of the issues they raise as identified in the legal literature. To do so, we also provide a clear understanding of the major provisions in both proposals, supported by visuals. Although we welcome both proposals for several reasons outlined in the article, different unclarities and inconsistencies need to be resolved. These inter alia relate to the unclarity of terms, the position of claimants, the uncertain interaction with other supranational initiatives and the many interpretation issues with regard to the fault-based liability regime. A more fundamental objection relates to the choice of the revised Product Liability Directive to capture all liability issues with AI systems, which comes at the cost of losing the connection to ‘product’ as a grounding concept. Our findings can be used by policymakers in further adapting and refining both proposals to the digital reality.

Lies, liability, and lawful content: Critiquing the approaches to online disinformation in the EU

This article considers legislative approaches to online disinformation in the European Union (EU) and identifies how shifting approaches could undermine applicable fundamental rights standards in the disinformation field. The problem of online disinformation – and its disruptive effects on European elections – has attracted extensive scrutiny at the EU institutional and Member State level. Since 2018, Union institutions have pursued self-regulatory measures for disinformation and have explicitly refrained from including this content in the EU’s intermediary liability regime. A key justification for this approach has been that disinformation generally includes lawful content and that restrictions on lawful content may undermine the right to freedom of expression. As this article maps, however, standards are shifting in the EU legal context regarding online intermediary responsibilities to limit the dissemination of content containing disinformation. This is not only evidenced by a diverse set of Member State laws designed to address misleading electoral communications, but also in several provisions of the Digital Services Act (DSA) which have potential applications in this area. Drawing from relevant case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), this article provides a distillation of key European standards regarding how EU and Member State laws to combat disinformation must ensure compatibility with the right to freedom of expression. This article further considers whether – in light of these standards – divergent legislative approaches to online disinformation in the EU could undermine fundamental rights. Disinformation, Freedom of Expression, CFR, Free Elections, Democracy

Government Liability for Errors in National Exam Questions - Focused on Supreme Court Decision 2017Da233061 Decided April 28, 2022 -

Government Liability for Errors in National Exam Questions - Focused on Supreme Court Decision 2017Da233061 Decided April 28, 2022 -

Weapon against Civil Aircraft

The use of weapons against civilian aircraft, in view of the ethical and legal dilemmas, endangers human life, society and its stability, and has legal and economic consequences; it is one of the most serious legal cases of our time. Even if the problem is analysed and interpreted in the light of the available legal concepts and instruments, and the legality or otherwise of the use of weapons is not established, the problem cannot be dealt with in a way that is beyond doubt and reassuring, since it certainly involves a violation of the right to life of the passengers on board the aircraft and of the international obligations of the State such as general rules of international law or humanitarian law. The purpose of this paper is to present the international legal liability regime for the use of weapons against civil aircraft in peacetime and in armed conflict, as well as its human rights and ethical responsibilities.

PROTECTION OF THE SPACE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT AS A PARADIGM FOR THE DEVELOPMENT OF SPACE LEGISLATION

Managing human activity in outer space requires a mixture of tools, including technology, economics, and law. Though technology and economics are of prime importance, the space sector needs a clear, coherent, and adequately granular regulatory environment that ensures its sustainable development and also serves sustainability on Earth. No doubt the law can be a tool for introducing sustainability into the space sector’s daily life. To serve as such, law should be almost as dynamic and agile as the space activity and space environment. The space law should not only be descriptive, but it should also address new concepts such as in-orbit servicing, asteroid mining, etc. By doing so, it should also embrace the technical aspects of space activities even if they are not mandatory by international law. The lawmakers, especially national legislators, must also not be afraid to tackle new areas. The primary duty of national governments is to enhance safety and minimize risk in all, traditional and emerging space ventures, both in material and financial contexts that do not only directly affect their citizens and their assets, but also the environment, which obviously serve the entire society in an inclusive way and on a long-term basis. The purpose of this paper is to provide a voice in the discussion on the concept of sustainable development of space activities and suitability of the existing space regulatory framework. In order to draw some conclusions, it seems necessary to analyse the notion of sustainability against the existing legal framework, so as to state whether it is still up to date in this respect and whether it may contribute to materializing the sustainable development of the space sector. In particular, it is interesting to consider whether the liability regime, including the notion of damage and prerequisites of claims for compensation as adopted in the Liability Convention may still serve its purpose and answer the needs of the shift in the priorities of space exploration. Finally, I intend to consider the possibility of drawing on principles from other branches of law, including in particular, environmental law and insurance law and practice, in order to build legal mechanisms to implement the demands of sustainable development of space. Thus, among other issues, the topic of space environmentalism as well as the coherence of space and earth sustainability instruments will be analysed.

FROM THE SECTORAL ANGLE TO THE GENERAL RULES OR HOW THE CONVENTION ON INTERNATIONAL LIABILITY FOR DAMAGES CAUSED BY SPACE OBJECTS INFLUENCED THE DEVELOPMENT OF THE INTERNATIONAL LAW OF STATE RESPONSIBILITY AND LIABILITY?

This article discusses the impact the 1972 Liability Convention exerted upon the further discussion on state responsibility and liability rules within the UN International Law Commission. The question it seeks to answer is the issue of how, and to what extent, its provisions influenced the development of international law on the responsibility of states and international organizations and the institution of international liability of states. Most notably, the present article demonstrates how the Liability Convention served as a reference point for the International Law Commission’s works struggling to codify the general rules of states’ liability. It also examines the factors that, from the mid- 1990s onward, have steadily diminished its role in the ongoing debate and how it finally informed the final shape of the 2006 Draft principles on the allocation of loss in the case of transboundary harm arising from hazardous activities. Furthermore, it analyses the 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and the 2011 Articles on Responsibility of International Organizations (ARIO). With this in mind, it is put forward that the differences mandate strict differentiation between international responsibility and international liability at the theoretical level. Nonetheless, the Liability Convention could furnish patterns based on which, notably, the institution of joint and several responsibility of states and international organizations, respectively, have been modelled. Therefore, it is concluded that the lex specialis and the self-contained character of the regime established under this Convention effectively limit its impact on the development of international regimes of responsibility and liability of states and international organizations. However, they do not eliminate them altogether. Ironically, in practical terms, the Convention marked the 2001 ARSIWA and, indirectly, the 2011 ARIO more decisively than the 2006 Draft Principles, even though the Convention – similar to the DP 2006 – addresses states’ liability, not their responsibility.

Questions of fault liability: A case study analysis of in-orbit collisions with debris

In 1972, the international community established a regime of liability for damages occurring in outer space based on ‘fault’. Fifty years later, the congested and polluted reality of the space environment has limited dramatically its effectiveness. Only in very few instances, filing a claim under such regime can reasonably ensure compensation to an injured satellite operator. The present paper describes different study cases where resorting to a fault-based liability claim appears problematic. Based on real conjunction assessment alerts, the authors look into various hypothetical scenarios from the perspective of a fictitious satellite operator, whose spacecraft was damaged by an accidental collision in orbit. The aim is to analyse the effective observability over orbital collisions involving small satellites and space debris (attributable or not) and to evaluate the real chances of obtaining compensation, from the operational and legal points of view. At the centre of this study, therefore, is the evaluation, in fact and in law, of the solidity of a potential claim against the perpetrator of the harm. To that end, the discourse takes into consideration the legal difficulties that are generally connected to fault-based liabilities in international law.The definitional vagueness of the term ‘fault’, the necessity to identify a fault-standard, the proof of failure in the performance of a duty of care, are all elements to consider for filing a claim under the liability regime of 1972.However, next to them, the space environment poses additional hurdles with regard to facts and evidence. Satellite operators do not always have the technological instruments to retrieve all the information related to orbital events, such as collisions. Moreover, a complete observability over in-orbit events can be hard to reach for several classes of spacecraft (e.g. small, nano- or pico-satellites). This is especially troublesome for establishing one of the essential elements of ‘fault’: the so-called “chain of causation”. The authors will present their views on how the uncertainties posed by the liability regime of 1972 can be dealt with from a legal and from a technical perspective. In addition, several possible legal solutions and recommendations for the upcoming years of in-orbit operations and space traffic management will be proposed at the end.

The European AI liability directives – Critique of a half-hearted approach and lessons for the future

The optimal liability framework for AI systems remains an unsolved problem across the globe. With ChatGPT and other large generative models taking the technology to the next level, solutions are urgently needed. In a much-anticipated move, the European Commission advanced two proposals outlining the European approach to AI liability in September 2022: a novel AI Liability Directive (AILD) and a revision of the Product Liability Directive (PLD). They constitute the final cornerstone of AI regulation in the EU. Crucially, the liability proposals and the proposed EU AI Act are inherently intertwined: the latter does not contain any individual rights of affected persons, and the former lack specific, substantive rules on AI development and deployment. Taken together, these acts may well trigger a “Brussels effect” in AI regulation, with significant consequences for the US and other countries.Against this background, this paper makes three novel contributions. First, it examines in detail the liability proposals and shows that, while making steps in the right direction, they ultimately represent a half-hearted approach: if enacted as foreseen, AI liability in the EU will primarily rest on disclosure of evidence mechanisms and a set of narrowly defined presumptions concerning fault, defectiveness and causality.Hence, second, the article suggests amendments to the proposed AI liability framework. They are collected in a concise Annex at the end of the paper. I argue, inter alia, that the dichotomy between the fault-based AILD Proposal and the supposedly strict liability PLD Proposal is fictional and should be abandoned; that an EU framework for AI liability should comprise one fully harmonizing regulation instead of two insufficiently coordinated directives; and that the current proposals unjustifiably collapse fundamental distinctions between social and individual risk by equating high-risk AI systems in the AI Act with those under the liability framework.Third, based on an analysis of the key risks AI poses, the final part of the paper maps out a road for the future of AI liability and regulation, in the EU and beyond. More specifically, I make four key proposals. Effective compensation should be ensured by combining truly strict liability for certain high-risk AI systems with general presumptions of defectiveness, fault and causality in cases involving SMEs or non-high-risk AI systems. The paper introduces a novel distinction between illegitimate- and legitimate-harm models to delineate strict liability's scope. Truly strict liability should be reserved for high-risk AI systems that, from a social perspective, should not cause harm (illegitimate-harm models, e.g., autonomous vehicles or medical AI). Models meant to cause some unavoidable harm by ranking and rejecting individuals (legitimate-harm models, e.g., credit scoring or insurance scoring) may merely face rebuttable presumptions of defectiveness and causality. General-purpose AI systems and Foundation Models should only be subjected to high-risk regulation, including liability for high-risk AI systems, in specific high-risk use cases for which they are deployed. Consumers, in turn, ought to be liable based on regular fault, in general.Furthermore, innovation and legal certainty should be fostered through a comprehensive regime of safe harbours, defined quantitatively to the best extent possible. Moreover, trustworthy AI remains an important goal for AI regulation. Hence, the liability framework must specifically extend to non-discrimination cases and provide for clear rules concerning explainability (XAI).Finally, awareness for the climate effects of AI, and digital technology more broadly, is rapidly growing in computer science. In diametrical opposition to this shift in discourse and understanding, however, EU legislators have long neglected environmental sustainability in both the draft AI Act and the proposed liability regime. To counter this, I propose to jump-start sustainable AI regulation via sustainability impact assessments in the AI Act and sustainable design defects in the liability regime. In this way, the law may help spur not only fair AI and XAI, but also sustainable AI (SAI).

Auditor's professional judgment, audit efficiency and interplay between legal liability and regulatory oversight

This paper analyzes the impact of two enforcement mechanisms – regulatory oversight (inspection by the Public Accounting Oversight Board – PCAOB) and legal liability – on audit effectiveness and audit efficiency, when auditor's professional judgment is at stake. Professional judgment is a double-edged sword: used wisely, it enables efficient audit performance, but can also be used as an excuse to put in an insufficient effort, leading to an ineffective audit. The model shows that regulatory oversight is better at enforcing audit effectiveness, while legal liability is better at inducing efficiency. Moreover, switching from a pure legal liability regime to a joint regime that includes both enforcement mechanisms is found to improve audit effectiveness, limit auditor's professional judgment, and worsen efficiency. The study provides insights into the effects of the creation of the PCAOB and offers policy implications for regulators.

Video-Based AAL and Intimate Pictures - Criminal Liability in European, Irish, and Polish Law.

Active and Assisted Living (AAL) technologies offer solutions for addressing healthcare challenges associated with ageing societies and a shortage of care personnel. At the same time, these technologies raise significant privacy issues, which may constitute a barrier to the sustainable adoption and acceptance of AAL. In particular, concerns arise from the presence of cameras in intimate situations, including nudity, and the potential production and dissemination of intimate pictures, which constitutes a risk for AAL users. The paper compares the regimes of criminal liability for making and disseminating intimate pictures under EU, Irish, and Polish law. The study aims to help AAL users understand their legal protection, and give providers and developers more insight into their legal responsibilities. The paper first presents different understandings of an intimate picture in each jurisdiction, followed by a discussion of what the crime entails and who may be liable for it. The conclusion includes a checklist of rules concerning criminal liability, which may be useful for AAL users and providers, and conclusions de lege ferenda.

Prospectus Liability in Europe: The Relevant Breach of Duties

Abstract This article focuses on the relevant breach of duties under art 11 of the Prospectus Regulation (EU) 1129/2017, which provides only few elements of the private enforcement model, leaving the specific choices of the civil liability regime to the Member States. The main purpose of this paper is to underline the contradiction that exists between (i) a rigid formalism in the Prospectus Regulation and the extensive administrative rulebook and related soft law, which imposes binding formats and contents of prospectuses in order to enhance maximum harmonised investor protection and reduce issuers’ costs in Europe, and (ii) the existing different prospectus liability regimes among the European Member States, which undermine the effectiveness of Union law on prospectuses. In order to highlight this contradiction, the contribution analyses the different legal bases of prospectus liability provided in a sample of Member States, focusing on the different (and sometimes conflicting) methods of defining, from the defendant’s side, the persons responsible and liable for the incompleteness or the incorrectness of the prospectus, and, from the plaintiff’s side, the persons who can sue for damages. In this scenario, the Court of Justice of the European Union (CJEU) has recently brought some clarity as regards the potential scope of prospectus liability claims, thus revealing how important it is to solve the above-mentioned contradiction soon.

Influencing Companies’ Green Governance Through the System of Legal Liability for Environmental Infractions in China and Brazil: Lighting the Way Toward BRICS Cooperation

As a platform of cooperation among its member states, questions of whether or how the BRICS alliance can influence and shape the global governance system and improve their internal governance systems have often been raised. In the process of exploring the role that the law can play in this context, comparative studies on the laws of the BRICS member states, particularly in the defined areas of cooperation, are an important perspective to be addressed in order to be able to contribute to the improvement of their internal governance systems. However, much work remains to be done on this perspective. This article partially fills this gap by conducting a comparative study related to one of the BRICS areas of cooperation – sustainable development – between two of its members: China and Brazil. Specifically, it compares how both states, as stakeholders, use the legal regime of liability for environmental infractions to influence the green governance of companies. The article, therefore, uses comparative legal methodology, using as its objects of research relevant legal provisions on legal liability for environmental infractions gathered from the legal systems of China and Brazil. The adoption of strict civil liability, liability for environmental damages per se and the extension of criminal liability to legal persons are among the similarities found. As for the differences, it finds that, as a principle, Chinese law shields directors and senior officers from liability toward third parties, while Brazilian law fully extends such liability to these entities; additionally, in the Chinese legal system, the burden of disproving causality between the harm and the activity that caused it falls upon the actor, while the Brazilian legal system adopts a double-standard approach for collective suits and individual suits; and finally, the Chinese law imposes a legal obligation to adopt what, in effect, is close to a corporate environmental management system, while the Brazilian legal system lacks a similar mandate.

The revision of the product liability directive: a key piece in the artificial intelligence liability puzzle

The revision of the Product Liability Directive plays a key role in the policy strategy of resolving what might be called the artificial intelligence liability jigsaw puzzle. By accommodating the Product Liability Directive to the challenges of artificial intelligence systems, several policy quandaries have been aptly addressed and frontally solved. Two bridges have been built. First, a bridge between the Artificial Intelligence Act and the national fault-based liability rules (draft Artificial Intelligence Liability Directive), and secondly, a complementariness bridge between the Product Liability Directive and fault-based liability rules (draft Revised Product Liability Directive). The second interplay largely revolves around a generously expanded and invigorated product liability regime. These policy choices do not ensure that the jigsaw puzzle produces a fully harmonised image of liability in respect of artificial intelligence, insofar as the system of liability is still partially dependent upon national laws on fault-based liability. Nonetheless, the new measures signal in a pragmatic way a desirable and expected trend towards an increasing unification of liability regimes.

Strengthening the Environment for Islamic Finance in Hong Kong – A Regulatory Analysis

This contribution deals with fiscal sustainability understood as “avoiding an excessive increase in government liabilities – a burden on future generations – while ensuring that the government can deliver the necessary public services, including the necessary safety net in times of hardship, and to adjust policy in response to new challenges”. The article aims the analysis of the legal framework for fiscal rules at the level of the EU and the national level in France and Poland. The research problem is to answer the question of how and whether the French and Polish regulations meet the international regulations in the field of fiscal sustainability. According to the research hypothesis, both countries only partially meet the EU requirements. The article is based on the detailed desk research method requiring analysis of the literature, statistical data, and EU and national legal regulations. The general conclusion is that both countries do not fully comply with EU commitments regarding fiscal rules.

France and Poland’s Compliance with European Commitments Regarding Fiscal Rules

This contribution deals with fiscal sustainability understood as “avoiding an excessive increase in government liabilities – a burden on future generations – while ensuring that the government can deliver the necessary public services, including the necessary safety net in times of hardship, and to adjust policy in response to new challenges”. The article aims the analysis of the legal framework for fiscal rules at the level of the EU and the national level in France and Poland. The research problem is to answer the question of how and whether the French and Polish regulations meet the international regulations in the field of fiscal sustainability. According to the research hypothesis, both countries only partially meet the EU requirements. The article is based on the detailed desk research method requiring analysis of the literature, statistical data, and EU and national legal regulations. The general conclusion is that both countries do not fully comply with EU commitments regarding fiscal rules.

The New Orleans Adopt-A-Catch Basin Program and Citizen Involvement

The New Orleans Adopt-A-Catch Basin Program is the city’s first experiment that puts democratic concepts into practice concerning water management. The program as codified in city ordinance Section 66–287 requires adoptive citizens to be responsible for maintaining the catch basin and the area extending 18 inches off the curb line. This paper examines the adoption of co-production of services between the city and its citizens and analyzes how efficient the program has been in solving the city’s perennial challenges of street flooding. The researchers collated data through surveys issued to stakeholders. Data obtained was analyzed using specific themes to create narratives that answer the questions of the study. The study identified that the primary issues affecting the New Orleans Adopt-A-Catch Basin Program includes ineffective communication, recruitment, risks, liability, and distrust of government. A well-planned program would create better synergy between government and the people, while achieving the program’s objectives.

Fiscal multipliers within the euro area in the context of sovereign risk and bank fragility

This work quantifies the size of fiscal multipliers in an economy with sovereign and bank default risks. The paper presents an estimated two-region dynamic stochastic general equilibrium model with financial frictions for the euro area, where the interplay of corporate, bank, and sovereign solvency risk affects the transmission of government spending. Sovereign bonds carry a credit risk premium that is particularly sensitive to government indebtedness in some regions of the currency union. The banking system is fragile due to its direct and indirect exposure to sovereign risk and limited loss absorption capacity. By calibrating the model on sovereign and bank riskiness reminiscent of the euro area Sovereign Debt Crisis, we show that adverse financial channels may significantly depress the transmission of expansionary government spending shocks. The modeling approach also enables assessing the scope for monetary and regulatory policies to mitigate financial setbacks and restore the effectiveness of fiscal interventions.