Liability Regime Research Articles

United States and Canada Transboundary Oil Spill Liability and Compensation Regimes: An Overview

Abstract # —1141278 — In 2018, the Canadian government purchased the Trans Mountain pipeline, running from Alberta to British Columbia, along with the plans for expansion. The expansion could triple the transport capacity from 300,000 to 890,000 barrels of oil per day, and would increase the tanker traffic in the inland waterways of the Salish Sea, an area known for its sensitive marine habitat, and narrow, difficult to navigate passages. The anticipated increase in tanker traffic in this busy waterway continues to raise concerns about the impact of an oil spill and the financial means to address related injuries, particularly to natural resources. The transboundary nature of any spill further complicates the situation vis-à-vis the applicable liability regimes and response resources. Under the Canada-United States Joint Marine Contingency Plan (“JCP”), the United States Coast Guard and Canadian Coast Guard acknowledge each country's responsibility to fund their own response actions and pursue reimbursement of those costs within their respective jurisdictions. The availability of funding for a response, and to compensate injured parties, however, including the limits of liability of the responsible party, differs under each regime, and could impact the nature and scope of a response. For spills into or posing a substantial threat to the navigable waters of the United States, the Oil Pollution Act of 1990 governs and a national fund, the Oil Spill Liability Trust Fund (“OSLTF”), is immediately available to address an incident, including emergency restoration to natural resources. Canada's Marine Liability Act enables the Ship-source Oil Pollution Fund (“SOPF”) to pay claimants who have incurred damages as a result of oil pollution. Both countries' funds operate under the same principal—the polluter pays—but the compensation structure, and claims processes and procedures are entirely different. This paper provides an overview of these funding sources and claims procedures, comparing and contrasting the different systems. The discussion is meant to provide an overall understanding of potential funding pools available for spill responses under each scheme in order to facilitate transboundary spill planning and discussion.

Compulsory civil liability insurance, financial security: An integral component of compensation for ship-source oil pollution damage

Oil pollution damage caused by oil spills at sea generally occurs on a large scale across numerous regions and countries, causing significant harm to marine ecosystems as well as worldwide economic loss. The costs are so severe in many instances that the owner of the ship responsible for the pollution cannot afford to pay compensation to those who have suffered loss. As a consequence, the need to cover oil pollution damages has given rise to compulsory liability insurance, which provides a financial guarantee against the costs of oil spills. Compulsory civil liability insurance has therefore become an indispensable part of the liability regime for owners of oil tankers and bunkers.

The Civil Liability Regime of the Polluter-Producer in Comparative Law: What Evolution?

لا تزال القواعد العامة للمسؤولية المدنية هي النظام المستأثر بأحكام مسؤولية المنتج الملوث في أغلب النظم القانونية لحد الساعة، وبالرغم من محاولات الانعتاق لنسج نظام خاص ومستقل، يستوعب خصوصية المضار التي ترتبها أفعال المنتوجات على البيئة، فمن التشريعات ما حاول الاستلهام من بعض مبادئ مسؤولية المنتج عن منتوجاته المعيبة المكتملة البناء نسبيًا، وأخرى تنبت مسار التطويع والإثراء لبعض مفاهيم قواعد المسؤولية التقصيرية أو أحكام المسؤولية العقدية. وفي ظل هذه المسارات بدا ضروريًا التساؤل عن حدود استجابة تلك القواعد ومدى قدرتها على التناسب مع خصوصيات الأضرار الأيكولوجية، ويستدعي مِنَّا البحث في ملامح نظام خاص ومستقل لمسؤولية المنتج الملوث، يستوعب مقوّمات وعناصر هذه المسؤولية، وبمقدوره الإيفاء بالإجابات الشافية لعديد الإشكالات التي يطرحها الموضوع هنا وهنالك.

Private Entities in Outer Space Activities: Liability Regime Reconsidered

This article discusses the current state of the law concerning the liability of private entities for damages caused with respect to space activities. A significant and continuous increase in the involvement of private companies in space activities risks damages being caused to other entities as multilateral treaties of international law, adopted between 1967 and 1979, are outdated and do not correspond well with contemporary reality. They do not comprehensively regulate the responsibility in relations between states and, even more so, with private entities. In general, these treaties regulate damages caused by private entities by giving responsibility to states, which seems unfounded in today's world.States can also conclude bilateral treaties on space projects that involve private entities. Usually, such agreements contain a standard third-party liability clause concerning the Liability Convention or mention of the possibility of commencing consultations on the apportionment of the liability between states as the parties to these treaties. These have no specific norms dedicated to the liability of private launchers toward potential victims of the damage caused by space objects or another harm related to space activities of such companies. Some bilateral treaties on the joint space projects of states also contain cross-waiver liability clauses, which release private companies from liability. Furthermore, there is a tendency in the domestic law of limiting the liability of private entities for space activities (e.g., in the United States, even state regulations require the exclusion of the liability of space launch operators for damages caused to third parties).

Rights of Passengers in the Event of Death and Personal Injury on Board a Cruise Ship Under the 1974 Athens Convention and its 2002 Protocol - the Implementation of the Convention and The 2002 Protocol

The rights of cruise ship passengers in the event of death and personal injury are dependent upon conditions under which carriers are liable and the extent of their liability. The development of the cruise industry necessitated the establishment of a regime of liability for loss suffered by passengers during voyage, that has been regulated by the Athens Convention and its 2002 Protocol. In the very beginnings of the cruise industry, transportation standards were much lower than today, with less attention paid to the needs of the passengers in terms of safety and legal standing. When the SOLAS Convention entered into force, a number of safety standards were designed to ensure passenger protection and safety, while the Athens Convention regulated and harmonized the legal status of passengers. Various other organizations also made a great contribution in this respect. In addition to the above, Regulation (EC) No 392/2009, the 2006 IMO Reservation and Guidelines, Directive 90/314/EEC and Directive (EU) 2015/2302, which contributed to the legal protection of passengers, need be mentioned. The rights granted under the Athens Convention will be compared with EU regulations and directives. The ratification process, the most important provisions, the progress achieved through the application of the Convention and the implementation process will be analysed. The development strategy and SWOT analysis can assist states with their decision on the ratification of the Convention and its Protocol. The aim is to draw conclusions about the legal effects of the implementation of the Convention in member states, based on a comprehensive analysis, and to provide passengers with information on their rights in international carriage

Barrick Gold Corporation: A New Source of Instability for the Secondary Market Liability Regime?

The secondary market statutory liability regime was integrated over fifteen years ago in Canadian securities legislation after a long a winding road that can be traced back to the 1980s. The statutory liability regime has proved elusive. From a doctrinal perspective, the arcane drafting of the provisions governing the regime have raised a host of questions with respect to its procedural and substantive dimensions. Further compounding the interpretative challenges, case law concerning the statutory regime has essentially resulted from decisions at the leave stage.From a policy perspective, the effectiveness of the regime remains debated in light of the low volume of cases filed over the last fifteen years, as well as the conservative stances taken by courts in their interpretation of the regime. Against this backdrop, the recent decision of the Ontario Court of Appeal in Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund v. Barrick Gold Corporation deserves particular attention. The decision is significant as it proposes a novel interpretation of the conditions to establish a cause of action under the regime that does away with the public correction requirement. As this comment argues, the Court of Appeal’s position does not accord with the statutory scheme and is susceptible of raising new difficulties at the leave stage. Also noteworthy in the decision is the Court of Appeal’s approach for assessing the existence of a public correction. This comment questions the criteria proposed to conduct the analysis – and used by prior case law – which departs from the concept of materiality as defined by the Supreme Court Canada in Sharbern Holding.

Udoskonalanie człowieka. Uwagi na marginesie przypadku udoskonalonego lekarza

The problem of human enhancement technologies (HET) is linked to Transhumanism, a trend which advocates the improvement of human beings and the possibility of taking control of ever larger areas of human activity. Using enhancers might appear desirable, but permitting (or perhaps making obligatory) the use of enhancers by certain professional groups raises important issues. Medical professionals in particular bear technical, moral and legal responsibilities for the lives and health of other people, and questions relating to the involvement of enhancers on the part of practitioners touch upon a number of concerns. Among them are agreement on the definition of 'enhancement and 'enhancers; the motivations for which a physician has decided to use HET, and not least, the consequences for safeguarding patient rights. These issues must be decided under the applicable standards and regimes of civil, criminal or professional liability. These regimes do not at present refer directly to the responsibility of an 'enhanced' physician. They propose, however a 'cautious' approach to the problems of the use of enhancers, indicating that use of technologies (that are not already specifically prohibited) might be permitted where there is no exposure to the possibility of harm or any threat to human life or health. The de lege ferenda proposal is to introduce legislative changes which would specifically and unequivocally refer to the situations under consideration.

Kontraktowe i pozakontraktowe elementy opieki medycznej w ramach powszechnego ubezpieczenia zdrowotnego

The aim of the study is to highlight the differences between contractual and tort liability regimes and their practical consequences for the parties and to analyse the relationship between medical legislation and the general rules contained in the civil law codes. The thesis is that this link is crucial for determining the position of the patient and the medical subject, and the independence of some specific regulations significantly modifies the content of obligations arising either as a result of the patient's consent to be taken care, or only as a result of causing him damage subject to the obligation to make good. The article analyzes the legal nature of the medical care relationship, its establishment, the rights and obligations of the entities involved and the issue of direct application of civil law norms, which raises systemic doubts. The basic directive of interpretation can be summarized in such a way that, when these relationships are regulated in an autonomous and self-sufficient way, the application of the general norms is not allowed, because it would mean ignoring the established priorities which are of a guarantee for the respect of the rights of the patient. The most important rights of the patient and the obligations of the medical party are defined by professional regulations, and the agreement of the parties may modify them to a very limited extent and in such a way that it does not contradict their essence and jurisdiction based on the full autonomy of the patient to decide on his own health. Therefore, it is a misunderstanding to impose on the patient the obligation to "co-operate”. There is formal equality between the parties, but the therapist has no autonomy of will, only legal obligations. Under the general health insurance, the patient has been given the bond entitlements resulting from the pactum in favorem tertii between the NFZ and the healthcare unit, except that they only concern access to contracted services. A more detailed definition of a medical activity, especially a surgical one, needs to be agreed on the basis of the collected history and test results. A critical review of the contractual and bond concepts leads to the conclusion that the parties' agreement is not a solution that would ensure an optimal balance of interests. There is no basis for it to be seen in relation to a patient who is covered by public health insurance, because for this purpose a consensual intention to contract (animus contrahendi) would have to be established at the outset. It can only be established in the area of above-standard services, because there the medical party offers to purchase a particular good and the patient consciously decides to bear its cost. It is an accessory contract to the insured benefit. Within its limits, it is also possible to indirectly ensure a certain effect of the therapy, especially as the diligence of certain activities is assessed in terms of the result. The hypothetical objective responsibility of the physician for defects of the medical device used is wrong, because it is disproportionate. Seeking a contract where there was no intention to conclude it is, in the light of the arguments given, an idle effort and unnecessary in terms of protecting the interests of the parties. From a material law perspective, the situation of the patient as a party to the contract is in no way better than the position of the beneficiary of the contract in favor of the third party. The factual and legal specificity of the relationship between the patient and the healthcare units allows the conclusion that it is a relationship of a caring nature.

Pharmaceutical Product Liability, Litigation Regimes, and the Propensity to Patent: An Empirical Firm-Level Investigation

Do different pharmaceutical product liability regimes in different countries induce propensity to patent? We exploit the variation in pharmaceutical liability and litigation rules across firms in the pharmaceutical industry and countries to explain the firm-level propensity to patent. Drawing on a large dataset from European Patent Office (EPO) covering over 9,950 pharmaceutical patents from 63 countries over the period 1991–2015, we compute the conditional probabilities of individual pharmaceutical firms to acquire a valid-based patent on the validation outcomes and examine whether different liability regimes encourage or deter firm-level propensity to patent. Our empirical strategy addresses firm-level idiosyncrasies, country-level unobserved effects, and common technology shocks that potentially invoke omitted variable bias in the effects of liability regimes on the propensity to patent. Our investigation reveals that liability regimes combined with damage caps, broad statutory excuses, and reversed burden of proof have a strong positive effect on the firm-level patent stock and a negative effect upon EPO patent validation rate. The evidence suggests that not all liability rules and related litigation procedures are created equal. Firms are systematically more likely to hold (firm-level patent stock) valid patents at the EPO when the liability and litigation rules are not complex and when the damage cap, broad statutory excuses, and reversed burden of proof are introduced.

De-Risking the Hydrogen-CCS Value Chain Through Law

The integration of hydrogen (H2) and carbon capture and storage (CCS) technologies within common value chains can contribute to the effective decarbonization of the energy system and hard-toabate sectors where electrification may not be possible or cost-effective. The H2-CCS chain is taken as an example of strategic value chains in the process towards a low carbon and increasingly integrated energy system. The successful realization of H2-CCS integrated chains requires the mobilization of vast quantities of domestic and international private capital. This article looks at how legislation and contracts, separately and in combination, can be used to manage and mitigate risks and incentivise private sector investment along the H2-CCS value chain in Europe. First, it discusses the role of national governments and the EU in developing legislative measures such as climate change targets, market design, liability regimes and how those could remove some of the risks preventing private sector investments. Second, it considers how the design and standardization of contracts can mitigate risks faced by the private sector by allocating, transferring and sharing risks between private and public parties. The article concludes that the law has an important role in de-risking investments and that further policy steps are necessary to refine the legislative and contractual regimes needed for the successful deployment of such strategic value chains. CCS, climate change, hydrogen, de-risking, legislation, contract, risk mitigation, risk allocation, risk transfer, public-private partnerships.

AI Strict Liability Vis-À-Vis AI Monopolization

Some argue that applying a strict liability regime on AI-inflicted damages may allow well-financed big AI companies to monopolize the industry. They hypothesize that a strict liability regime would expose AI companies to significant legal liability. Since small AI companies lack the necessary resources to pay for damages inflicted by their AI technology, a strict liability regime could erect barriers to entry for these small companies. Ultimately, the argument continues, such a regime would give a small group of companies a virtual monopoly on the AI industry. Thus, some conclude that strict liability inherently stifles innovation and should not be applied to emerging technologies, such as AI.
 This Article maintains that legislators should adopt a strict liability regime, and it rejects the above argument for two reasons. First, there is no substantial connection between a strict liability regime and the AI monopolization that is already underway. Second, insurance policies could mitigate the effects a strict liability regime may have on the capabilities of small AI companies to enter and compete in this important market. Therefore, the ongoing process of monopolization of the AI market should not by itself render strict liability a non-viable regime when AI-inflicted damages occur.

VAT E-Commerce Package: Customs Bugs in the System?

The VAT e-commerce package heavily reforms rules applying to imports of small consignment goods. Yet, import VAT literature strictly focuses on a VAT perspective only. Vice versa, this article, favouring a customs law point of view, underlines issues that might undermine the effective enforcement of the new import VAT platform collecting model. The author reaches three main conclusions. Firstly, article 14(4)(2) would either fail to cover current business models or lead to uneven application among Member States. This would emerge from a cumulative interpretation of Directive (EU) 2017/2455 and Council Implementing Regulation (EU) (2019/2026). Secondly, since the introduced measures fail to take into account customs shortages and to coordinate with customs rules, they increase complexity rather than enhancing simplicity. Thirdly, the liability regime introduced by the reform might end up being stricter than intended. This, on the one hand, would shift liability from customs, posts and non-European suppliers to import platforms borne under an uncertain liability regime, which might require platforms to meet higher standards of proof, and, on the other, could prove to lead to indirect discrimination between EU and non-EU goods.

Liability rules for autonomous vehicles

PurposeThe coming use of autonomous vehicles has kindled an extensive debate over the choice of a desirable liability regime. This article contributes to that debate by explaining how rules for liability and damages ought to be constructed to deal first with stranger (including highway) cases and then with consensual cases (like medical malpractice). It concludes that an output regime based on events as they unfold is applicable in the former but not in the latter. It then argues that this legal regime carries over without a hitch to autonomous vehicles. It then further notes that in private disputes there are no fixed rules for deciding how to mix rules for injunctions and liabilities for threatened harms, and further notes that the regulatory regime for IoT will face those same difficulties, which are best solved by trying to minimize the sum of Type I and Type II errors, as in other cases.Design/methodology/approachLegal reasoning/analysis.FindingsOne salient point is that the rules of the road should change in response to technical innovation, but liability rules should not. The sound approach for dealing with damages for past incidents ought to be constructed to deal first with stranger (including highway) cases in which there is a dichotomous decision on compliance or not. That regime is based on events as they unfold, and carries over without a hitch to autonomous vehicles. For dealing with the prevention of future harms from violation of these rules, by contrast, there are no fixed rules for deciding how to mix damages with injunction, and the substitution of a system of direct state enforcement faces the same difficulties of implementation. In both settings, the rules of the road should be held constant, after which the ideal remedial mix follows the traditional approach of trying to minimize the sum of Type I and Type II errors, relating to over and underenforcement. The basic rules of tort liability stand in contrast to the different standards of liability that arise in consensual situations, and in all cases, they must necessarily be supplemented by rules of vicarious and product liability. Overall, the bottom line is this: autonomous vehicle innovations are relevant to designing regulations for future and uncertain harms, but irrelevant to liability for past harms.Originality/valueThis is an original legal analysis on the topic of Autonomous Vehicles.

Liability for Violation of Environmental Legislation in the EU

The purpose of this study is to determine the ratio of the legislative mechanisms of administrative and criminal liability for violation of environmental legislation in the legal system of the European Union. Using the methods of political and legal analysis, the comparative legal method and the structure designmethod, the study examines the features of the formation and structure of EU legislative mechanisms in the field of legal regulation of liability for violations of environmental legislation. At the same time, existing problems faced by legislators from the point of view of law enforcement practice in different countries of the European Union are also considered. In the EU, considerable attention is paid to the vector of environmental protection at the supranational level, as well as to the implementation of the acquis communautaire of the environmental legislation into national legislative norms. Nevertheless, the institutions of the European Union have not yet been able to fully achieve complete uniformity with regard to the established environmental liability regime and, accordingly, overcome the difficulties associated with the effective interaction of EU legislation and the realities of national legal systems. At the same time, in European law enforcement practice, administrative measures in matters of environmental responsibility are given preference over measures of criminal responsibility. To date, as evidenced by the study, EU legislators adhere to the position regarding the assignment of criminal prosecution obligations to the national authorities, which is due to the flexibility of law enforcement measures. environmental damage, environmental law, environmental legislation, environmental protection, environmental responsibility, European Union, supranational policy

¿Es la libertad el presupuesto sobre el que se construye el edificio de la responsabilidad civil?

This article deals with the idea of free will, from the constitutive philosophical bases, in the field of tort law. When exploring in the idea of free will the basis of the regime are found and freedom underlies in the idea of free will. From its foundations in Aristotle and then referring to the historical tradition, it is explained how the idea of free will was established in modern dogmatics, based on Kantian (and, in short, neo-naturalist) ideas. As a consequence of this conception, the differences in liability regimes are explored, explaining them from their bases and the impact that such conception has had on the idea of the functions of the regime.

Self-placement of Complex Financial Instruments by Banks to Retail Clients and Civil Liability Issues – An Overview of Greek Case-Law

Abstract This study focuses on self-placement of complex financial instruments to retail clients which is often associated with mis-selling practices. Recent case law in Greece concerning distribution Of “Coco” bonds by a Cypriot bank to its clients reveals, on the one hand, the stand Of Greek Courts concerning the interpretation of certain ambiguous MiFID I Conduct of Business (COB) rules and, on the other, their interplay with civil law duties and the intricacies that arise in order to substantiate a civil liability claim for breach of the COB rules, such as the difficulty to prove causation in securities litigation. The study further evaluates the new MiFID II/MiFIR provisions that relate to the practice of self-placement and supports the adoption of a civil liability regime at the EU level, as well as other alternatives to further enhance retail investor protection.

Property and Intellectual Property in Vaccine Markets

As biopharmaceutical forms of technology, vaccines constitute one of the most important tools for the promotion and maintenance of public health. Tolstoy famously wrote that “[h]appy families are all alike; every unhappy family is unhappy in its own way.” Vaccine markets offer perhaps one of the most extreme embodiments of Tolstoy’s principle in the field of biopharmaceutical innovation. Vaccines are often described as one of the most unprofitable types of biopharmaceutical goods, under-incentivized from a research and development (“R&D”) perspective, and routinely failing to attract sufficient investment from traditional funders in biopharma. In this sense, and despite the scientifically well-established value of vaccines from a public health perspective, vaccine markets are often portrayed as a collection of unhappy families. Yet, at least throughout the developed world, there are plenty of examples of steadily profitable vaccine markets, as is the case of recently developed vaccines targeting the human papilloma virus (“HPV”). This Essay begins by mapping the dualism in vaccine R&D and commercialization, describing both “happy” and “unhappy” markets. It then connects the development of new vaccines with the default legal regime to promote innovation in the biopharmaceutical arena: the patent system. In exploring possible solutions for transactional problems arising in connection with the development of vaccine technology, this Essay asks whether the rights covering vaccine technologies are best understood as property rights or as something else. This inquiry is of course but a fragment of a much larger interrogation of the nature and mechanics of intellectual property systems: are intellectual property rights—and rights arising out of the grant of patents in particular—more like property or akin to something else? Arguing that under the current noncommittal position of the Supreme Court there is room for understandings of patent rights that are not property-centric,6 this Essay concludes by exploring how less property-like protection—in the form of a liability regime for critical components of vaccine technology—can remove some of the most salient transactional obstacles to the development and commercialization of new and better vaccines.

El impacto de la COVID-19 sobre la responsabilidad de los administradores

Este artículo analiza el potencial impacto de la COVID-19 sobre las acciones de responsabilidad contra los administradores y, en concreto, la responsabilidad por incumplimiento del deber de previsión.

Cargo Carrier’s Liability in National Maritime Laws – a Comparative Review

The aim of the article is to compare selected national maritime laws, in the area of the cargo carrier’s liability. The author has analyzed the liability regime in the several most important parts of this regime. The connection between the national maritime regulations and the international maritime conventions regulating the carrier’s liability is an important issue. The reason is that the national provisions are often constructed following the example of the international conventions. However, national regulations usually have their legal solutions. This is the reason why the liability regimes which apply to maritime cargo carriers have a lot of differences, even if they have been enacted by states which are parties to the same maritime conventions. In this article, the author attempts to analyze which maritime conventions have had the most significant influence in each maritime law and also to compare each regulation in the selected parts of the liability regime.

La responsabilidad de las plataformas de economía colaborativa a la luz de la Ley 34/2002 de Servicios de la Sociedad de la Información

Collaborative economy platforms now play a fundamental role in the development of digital commercial relations and with the birth of this model of exchange, a series of legal questions have arisen that national and international legislators have preferred to approach cautiously. This paper examines the debate surrounding the liability of intermediaries through an analysis of the Law on Information Society Services and the dichotomy between the digital intermediary and the service provider, analysing the difficulties that exist in distinguishing between them and graduating their liability regime. With a view to the proposed Digital Services Regulation, the lack of current international legislation covering this casuistry means that it must be resolved by means of Private International Law rules to be subsumed in the domestic legislation of each country, although there are some “general” regimes of contractual and non-contractual liability, which will be the subject of study in this article.