Liability Regime Research Articles

Multimodal Transport of Goods, CMR and the Effects on the Liability Regime of the Persons Involved in the Whole Carriage Operation

Multimodal Transport of Goods, CMR and the Effects on the Liability Regime of the Persons Involved in the Whole Carriage Operation

Risk Management And Liability For EnvironmentalL Harm Caused By GMOS – The South African Regulatory Framework

Biotechnology is still relatively new and as with any new technology, it carries some level of risk. This necessitates appropriate risk assessments and appropriate risk management. One element of risk management however, is taking into account that during the production, development, transport or release of a GMO it may cause injury to person, property or the environment, regardless of risk management procedures. This calls for the existence of a liability regime that will place some legal responsibility on the party responsible for the harm. 
 This paper assesses the South African regulatory framework of relevance to GMOs, which is composed of a fragmented set of laws that deals with risk assessment, risk management and liability for damage to the environment. It discusses the GMO Act as the principle legislation regulation GMOs and also the recent amendment thereof and also consider other legislation such as the ECA, NEMA and NEMA Biodiversity Act in an attempt to determine whether the regulatory framework addresses risk management and liability in an effective and adequate manner. It comes to the conclusion that South Africa does not as yet have a satisfactory legal regime that provides for risk management and liability in the context of GMOs. 
 

CUSTODIAM PRAESTARE - EWOLUCJA ZOBOWIĄZANIA DO STRZEŻENIA RZECZY W PRAWIE RZYMSKIM

‘Custodiam praestare’ - The Evolution of an Obligation to Guarantee the Safekeeping of an Object in the Roman LawSummaryThis article focuses on the evolution of an obligation to guarantee the safekeeping o f an object (custodiam praestare). This kind of a duty arose in all contracts in which the debtor received things for his own interest. The limits of liability were discussed by the earlier jurists (veteres) in the contract of loan for use (commodatum). In the first analyzed text (D. 13,6,5,6) the problem concerned the necessity of safekeeping of a slave loaned for use; the second case (D. 13,6,5,9) discussed the duty of safekeeping of a thing accompanying the main object of a contract. The argumentation adopted by the veteres proves that already for the early jurists the very obligation to keep safe o f an object in commodatum was unquestionable: they were rather to decide arising troublesome controversies.The meaning of custodiam praestare as an obligation to guarantee the safekeeping of an object and the problem when such an obligation arose was analyzed by Gaius in his commentary to the provincial edict (D. 19,2,40 and D. 4,9,5 pr.). The jurist laid down that the duty to keep an object safe is not a principal obligation in agreements contracted with the seamen, inn- and stable-keepers, they were liable for the safekeeping in the same way as fullers and tailors. The obligation custodiam praestare in case of fullo and sarcinator was clarified in Gaius’ Institutiones (G. 3,205­ -207): a party was liable for safekeeping of an object, when it received the object for its own interest.Custodiam praestare evolved by way of an interpretation o f the term custodia. The first concept of liability for safekeeping of an object was restricted to theft (D. 13,6,19) and it did not include damage induced by a third party. Subsequently, Marcellus introduced a wider interpretation of safekeeping: a party would be liable for not returning the object kept, as long as the activity of custodia would have been enough to avoid an unlawful damage (D. 19,2,41).This understanding broadened the limits of liability: eventually, towards the end of the classical period custodia apparently covered every loss but for the case of force majeure (D. 13,7,13,1). In the postclassical period there seems to have occurred a change in the regime of custodia liability. M any a text brings a new formulation: instead of custodiam praestare we find the expression diligentia in custodiendo, thus one could think that this kind of liability was then based on negligence. Nevertheless, this terminological alteration did not affect the limits of liability. The person under the obligation to keep an object safe remained liable for the loss thereof and could only be exonerated by proving that the loss was due to vis maior (D. 18,6,2,1).

Analysis and Critique of Intragroup Liability Under UK Company Law

The following LLM paper discusses the current liability regime in corporate groups under English law.

QE in the Fiscal Theory: A Risk-Based View

This paper explores the interactions between yield curve dynamics and nominal government debt maturity operations under fiscal stress in a New Keynesian model with endogenous bond risk premia. Open market debt maturity operations are non-neutral when the slope of the nominal yield curve is nonzero in a fiscally-led policy regime. When the risk profiles of government liabilities differ, rebalancing the maturity structure changes the government cost of capital. In the fiscal theory, changes in discount rates affect inflation through the intertemporal government budget equation. When the yield curve is upward-sloping (downward-sloping), the fiscal discount rate channel implies that shortening the maturity structure dampens (amplifies) the stimulative effects of quantitative easing policies.

From the testing to the deployment of self-driving cars: Legal challenges to policymakers on the road ahead

Self-driving cars and self-driving technology are tested on public roads in several countries on a large scale. With this development not only technical, but also legal questions arise. This article will give a brief overview of the legal developments in multiple jurisdictions – California (USA), United Kingdom, and the Netherlands – and will highlight several legal questions regarding the testing and deployment of self-driving cars.Policymakers are confronted with the question how the testing of self-driving cars can be regulated. The discussed jurisdictions all choose a different approach. Different legal instruments – binding regulation, non-binding regulation, granting exemptions – are used to regulate the testing of self-driving cars. Are these instruments suitable for the objectives the jurisdictions want to achieve?As technology matures, self-driving cars will at some point become available to the general public. Regarding this post-testing phase, two pressing problems arise: how to deal with the absence of a human driver and how does this affect liability and insurance? The Vienna Convention on Road Traffic 1968 and the Geneva Convention on Road Traffic 1949, as well as national traffic laws, are based on the notion that only a human can drive a car. To what extent a different interpretation of the term ‘driver’ in traffic laws and international Conventions can accommodate the deployment of self-driving cars without a human driver present will be discussed in this article.When the self-driving car becomes reality, current liability regimes can fall short. Liability for car accidents might shift from the driver or owner to the manufacturer of the car. This could have a negative effect on the development of self-driving cars. In this context, it will also be discussed to what extent insurance can affect this development.

Aspectos jurídicos del turismo rural en Uruguay

Rural tourism is now a growing modality in Uruguay and in the world.In the national legal norm that regulates this activity is Decree 371/2002, which established the characterization of rural tourism and the conditions of their providers.According to this rural tourism it is developed outside urban centers, with personalized service and spacious; uses natural, cultural, heritage, housing and services of the rural areas, it contributes to local development resources, diversification and tourism competitiveness.We intend to analyze the regulatory framework of the activity, with special emphasis on the categorization of the establishments and the set obligations for providers of rural tourism services, the liability regime established in the Law on Tourism and the application

Optimal Sovereign Debt for an Overdebted Country

In this study, the role of debt maturity is analysed in a framework that blends a number of key macro-economic factors with a process of estimating an optimal debt maturity maximising net present value. The purpose is to reduce the real value of government liabilities for a highly indebted country, as for example in the case of Greece, over a 35-year period. The conclusion that emerges is that management of debt maturity is an essential component of the equilibrium policy and, as such, it can play an important role both in implementing tax smoothing programmes and in reducing costs associated with debt financing.

From horizontal to vertical: an intermediary liability earthquake in Europe

As part of its Digital Single Market Strategy, the European Commission would like to introduce vertical regulations, replacing — or better conflicting with — the well-established eCommerce Directive horizontal intermediary liability regime. An upcoming revision of the Audio-visual Media Services Directive would ask platforms to put in place measures to protect minors from harmful content and to protect everyone from incitement to hatred. Meanwhile — under the assumption of closing a ‘value gap’ between rightholders and online platforms allegedly exploiting protected content — the Draft Directive on Copyright in the Digital Single Market would implement filtering obligations for intermediaries. Finally, the EU Digital Single Market Strategy has also endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. Each of these actions will erode the eCommerce intermediary liability arrangement by bringing in — in a way or another — proactive monitoring obligations and causing a systemic shift from a negligence-based to a strict liability regime for hosting providers. This systemic shift would apparently occur against public consensus and absent any justification based on empirical evidence. Nonetheless, it will bring about dire consequences by pushing privatization of enforcement online through algorithmic intelligence, based on murky, privately-enforced standards, rather than transparent legal obligations. This reform might cause a policy earthquake that will shake and crack EU law’s systemic consistency, due process and fundamental rights online.

Who (if Anyone) Should be Liable for Injuries from Generic Drugs?

Two recent Supreme Court decisions (PLIVA, Inc. v. Mensing (2011), and Mutual Pharmaceutical v. Bartlett (2013)), have essentially removed the threat of liability from generic drug manufacturers. In this paper, we consider four possible liability regimes in a simple model of drug market competition and safety research. Specifically, we compare a baseline regime of No Liability (NL) with the Everyone Liable (EL) regime (generics face the same liability as branded manufacturers), the No Liability for Generics (NLG) regime, resulting from PLIVA and Mutual (generics face no liability), and a novel Brand Fully Liable (BFL) regime (branded developer faces liability from injuries caused by a generic version of a drug it has developed). We find that the BFL regime typically provides the most efficient incentives to identify side effects and develop an efficient warning. However, the BFL regime can lead to overconsumption of the generic drug by patients who should not take the drug at all. For this reason, the EL regime may be preferable for a drug where the danger of side effects may outweigh the clinical value, as was alleged in Mutual Pharmaceutical v. Bartlett . We find that the NLG regime that resulted from the recent Supreme Court decisions is unlikely to be optimal, because it is dominated by BFL when the consumption decision is not important, and inferior to EL when it is very important.

An analytical approach to new Keynesian models under the fiscal theory

This article illustrates a widely applicable frequency-domain methodology to solving multivariate linear rational expectations models. As an example, we solve a prototypical new Keynesian model under the assumption that primary surpluses evolve independently of government liabilities, a regime in which the fiscal theory of the price level is valid. The resulting analytical solution is useful in characterizing the cross-equation restrictions and illustrating the complex interaction between the fiscal theory and price rigidity. We also highlight some useful by-products of such method which are not easily obtainable for more sophisticated models using time-domain methods.

An Impact Assessment of Negative Interest Rates of Central Banks

The central bank community has been split into those who started to employ negative interest rates (NIR) and those who do not intend to do so, irrespective of the similarity of the economic situation. Moreover, while five central banks have applied negative policy rates from 2012, the launch time, scope and motives behind differ significantly. The fact that central banks have simultaneously pursued NIR at a time when the global financial system is not in a crisis is unprecedented and is a consequence of several fundamental and mutual factors. So, the purpose of this paper is to find out the motivation behind employing negative policy rates and assess how NIR affect different economic sectors. The statistical analysis reveals that the overall outcome is highly controversial, depending on the weight assigned to each economic sector as well as to short- and long-term goals. On the one hand, NIR lead to an overall positive impact on aggregate consumption, increased well-being of net borrower, investing NFCs, indebted governments and even financial institutions in the short run. On the other hand, savers and banks with high excess reserves and less room to reduce net interest margins are the most negatively affected. The impulse-response functions of created vector autoregression model for the euro area confirms these results: an interest rate reduction shock decreased borrowing and deposit rates, net interest margins but positively affected confidence, bond and equity prices, leading to somewhat higher expectations of economic growth and inflation in the longer term. While the lower bound of NIR remains uncrossed, further rate cuts in the negative territory or keeping them for a prolonged period of time might alter negative externalities. If expectations start looming over the material policy change or materialization of financial systematic vulnerabilities, positive effects of NIR could become more muted in the longer term.

The best way to the protection of the marine environment from oil spills impacts is the strengthening of available oil spill liability and compensation regimes or the funding of oil spill preparedness and strengthening of oil spill combat capabilities

The total volume of oil spilled and the number of spills has declined significantly over the past forty years. However, oil spills are no longer considered as an unavoidable. The ship source oil pollution still remains a potentially important risk to the local economies and the marine environment which can cause major economic loss and severe damages to the coastal and marine environment. The international regulatory framework to deal with liability and compensation in the event of ship source oil pollution has evolved over the past three decades. The available international legal regime for oil pollution liability and compensation is playing a great role in governing a discharge of oil into the sea by ensuring liability for polluters and compensation for victims of pollution. Despite the fact that the total cost of the oil spill cannot be compensated through the available international civil liability regime and entire damages caused to the marine environment cannot be compensated or recovered. This paper examined the application and limitations of available liability and compensation mechanism for the protection marine pollution and compare the benefit of the establishment of a funding mechanism for the strengthening of the level of oil spill preparedness and the civil liability regime for the protection of the coastal and marine environment. In addition, this paper reviews the funding mechanism adopted by the countries to the strengthening the level of oil spill preparedness taken into account the polluter pays principle without a putting extra burden for the general taxpayers. The establishment of a system for the funding of oil spill preparedness using the polluter pay principle has immensely helped to improve the oil spill response capabilities and protection of the marine environment of coastal states which adopted a unique funding mechanism by applying the polluter pay principle. This paper recommends the among other thing review the available compensation and liability regime for the protection of the marine environment and recommend to adopt and apply a uniform funding mechanism for the strengthening of the level of oil spill preparedness taken into account the polluter pay principle for the protection of the marine environment and improve the status quo.

From Horizontal to Vertical: An Intermediary Liability Earthquake in Europe

As part of its Digital Single Market Strategy, the European Commission would like to introduce vertical regulations, replacing — or better conflicting with — the well-established eCommerce Directive horizontal intermediary liability regime. An upcoming revision of the Audio-visual Media Services Directive would ask platforms to put in place measures to protect minors from harmful content and to protect everyone from incitement to hatred. Meanwhile — under the assumption of closing a ‘value gap’ between rightholders and online platforms allegedly exploiting protected content — the Draft Directive on Copyright in the Digital Single Market would implement filtering obligations for intermediaries. Finally, the EU Digital Single Market Strategy has also endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. Each of these actions will erode the eCommerce intermediary liability arrangement by bringing in — in a way or another — proactive monitoring obligations and causing a systemic shift from a negligence-based to a strict liability regime for hosting providers. This systemic shift would apparently occur against public consensus and absent any justification based on empirical evidence. Nonetheless, it will bring about dire consequences by pushing privatization of enforcement online through algorithmic intelligence, based on murky, privately-enforced standards, rather than transparent legal obligations. This reform might cause a policy earthquake that will shake and crack EU law’s systemic consistency, due process and fundamental rights online.

Tying Up the Loose Ends: The Determinants of Active Labour Market Policy in the Western Countries 1985-2013

Knowledge on the determinants of Active Labour Market Policy (ALMP) spending accumulated during the 2000s. Despite these advances, the current research lacks a systematic approach to the relevant determinants. This article fills the research gaps by analysing simultaneously the 14 most frequently used determinants for the first time. In addition to these variables, this study introduces a new factor, namely the impact of economic crises. Through the analysis of the longest data period yet investigated of 20 Western countries and a comparison of methodological alternatives, this study both challenges and reinforces previous findings, as well as produces new ones. For example, it is the first investigation to reveal the positive effect of government indebtedness and economic crises on ALMP expenditure. However, the rivalry between the “usual suspects” continues, as the negative effects of budget deficits, foreign trade, and population ageing, and the positive effects of trade union density and GDP growth, were rediscovered in this analysis.

Tying Up the Loose Ends: The Determinants of Active Labour Market Policy in the Western Countries 1985-2013

Knowledge on the determinants of Active Labour Market Policy (ALMP) spending accumulated during the 2000s. Despite these advances, the current research lacks a systematic approach to the relevant determinants. This article fills the research gaps by analysing simultaneously the 14 most frequently used determinants for the first time. In addition to these variables, this study introduces a new factor, namely the impact of economic crises. Through the analysis of the longest data period yet investigated of 20 Western countries and a comparison of methodological alternatives, this study both challenges and reinforces previous findings, as well as produces new ones. For example, it is the first investigation to reveal the positive effect of government indebtedness and economic crises on ALMP expenditure. However, the rivalry between the “usual suspects” continues, as the negative effects of budget deficits, foreign trade, and population ageing, and the positive effects of trade union density and GDP growth, were rediscovered in this analysis.

The Limits of Gatekeeper Liability

Gatekeeper liability – the framework under which actors such as law firms, investment banks and accountants face liability for the wrongs committed by their corporate clients – is one of the most widely used strategies for controlling corporate wrongdoing. It nevertheless faces well-recognized flaws: gatekeepers often depend financially on the clients whose conduct they monitor; to carry out their gatekeeping function, gatekeepers rely on individuals – often their employees – whose interests diverge from their own; and major transactions typically involve multiple gatekeepers, each with specific areas of expertise and information, which produces both gaps and overlaps in the gatekeeping net. In this paper, I assess a recently proposed strategy intended to address the core challenges that afflict gatekeeper liability. Proposed by Professor Stavros Gadinis and Mr. Colby Mangels in Collaborative Gatekeepers, 73 Wash. & Lee L. Rev. 797 (2016), the strategy would require gatekeepers to report their suspicions of wrongdoing by their clients to regulators – a duty that is analogous to rules that have proven effective in anti-money laundering regulation. I assess the proposal’s likely effectiveness by, first, distinguishing it from conventional gatekeeping regimes. I argue in favor of the proposal but suggest that its success is likely to depend on the particular ways in which it interacts with conventional gatekeeper regimes – because the proposal would be overlaid on these existing regimes, rather than amending or replacing them. I also examine the basic difficulty in justifying any gatekeeper liability regime that stems from the need to establish its superiority over more direct forms of liability – namely, individual and enterprise liability – a task that hinges on the satisfaction of numerous complex conditions that cannot be established – easily, or at all (at least to the satisfaction of those inclined to oppose new liability regimes). Arguing that the Gadinis–Mangels proposal nevertheless holds strong promise, I suggest an extension designed to overcome defects associated with the fragmentation of the gatekeeping net that results from the presence of multiple gatekeepers in major business transactions.

The Implementation of the Antitrust Damages Directive in Slovenia: Tensions with the (Lurking) Preventive Character of Liability in Damages?

In December 2016, Member States need to implement the Antitrust Damages Directive. The Directive adopts the full compensation principle and expressly prohibits overcompensation. I will embark on an enquiry whether such an approach departs from the Slovene general regime of civil liability, in particular liability in damages. At face value, one might argue that the Slovene civil liability regime prohibits non-compensatory rationales for awarding damages. This article challenges this perception. It argues that there is a space for interpreting the rationale for damages in the Slovene private law, when this is justified with dissuasiveness and sufficient reasons are given, as well as embracing non-compensatory considerations, prevention and deterrence in particular. Regrettably, the judiciary does not necessarily keep in step with such an interpretation. However, there are tendencies in the legal scholarship to change the established case law. In this setting, the special liability regime based on the Directive, which prohibits overcompensation, can be seen as an exception to the general regime for damages awards in certain contexts. This approach is contrasted with damages awards regime in the labour law context, which is also based on the EU regulation. In this context, the Slovene legislator expressly embraced prevention and deterrence as rationales for the award of damages. Thus, legislation which is based on or influenced by EU law can lead to different outcomes in practice. It can either reinforce preventive tendencies of the general regime of civil liability or, as it is seen in the competition law context, undermine them. Nevertheless, the (proposed) Slovene implementing legislation opts for a solution that accommodates both the Antitrust Damages Directive and the general regime of civil liability.

The effects of catastrophic drug plan deductibles on older women's use of cardiovascular medicines: a retrospective cohort study.

In recent years, some provinces have implemented income-based catastrophic drug coverage in an effort to provide universal drug coverage while limiting government liability for the escalating costs of medicines needed for an aging population. We sought to examine the effects of income-based deductibles under British Columbia's Fair PharmaCare system on older patients' use of cardiovascular medicines in 2013, 10 years after the province's policy change. Using linked administrative databases, we studied rates of hypertension and cholesterol medication used by 2 cohorts of older, married women who had different levels of public drug subsidy based solely on their spouses' ages. We compare measures of 2013 medication use by study cohorts using statistical models that controlled for age, general health status, indicators of need for specific drug classes, ethnicity, rural residence and household income. Among members of our study cohorts, the odds of filling cardiovascular prescriptions in 2013 were influenced by patient age, general health status, drug-specific diagnoses, ethnicity, place of residence and household income. For women with household incomes less than $50 000 (42% of our study population), having preferential public drug coverage by way of spousal age was associated with a 15% increase in the adjusted odds of filling 1 or more prescription for hypertension treatment (adjusted odds ratio [OR] 1.15, 95% confidence interval [CI] 1.06 to 1.24) and a 13% increase in the adjusted odds of filling 1 or more prescription for cholesterol treatments (adjusted OR 1.13, 95% CI 1.06 to 1.21). There were no statistically significant effects on the number of days of therapy purchased per user of these cardiovascular medicines. We have found that the level of income-based deductibles under catastrophic drug benefi t plans can affect the use of cardiovascular drug treatments, even long after deductibles are put in place. These results add to the body of evidence in support of the idea that public drug coverage design can affect access to necessary medications.

The uk Liability Framework for the Transport of CO2 for Offshore Carbon Capture and Storage Operations

Carbon (dioxide) capture and storage (ccs) is one of the solutions for decarbonising society whereby CO2 is captured, transported, and injected into geological formations. It can be transported to offshore locations through pipelines or ships. Which method provides for a better deal for investors depends to an extent on the financial risk associated with these two methods, which in turn is linked with exposure to liability. This paper compares the potential liability arising from the carriage of CO2 by ships and by pipelines in the uk offshore context. The two modes of transport are governed by significantly different regimes, even though they concern the same material. It is argued that the transport of CO2 by ships and by pipelines poses similar risks and therefore they should have a similar liability regime. This would afford pipeline operators the economic advantages available to shipowners and incentivise investment in the transport phase of ccs.