Liability Regime Research Articles

Getting to yes: The role of creditor coordination in debt restructuring negotiations

How do indebted governments restructure their debts with private creditors? What explains variation in indebted states’ negotiating behavior? Existing explanations of debt restructuring have largely treated creditors as a profit-maximizing monolith; Yet creditors have different exposures, ties to borrowers, and roles in the international banking system. Inter-creditor disputes are common. In this paper, I argue that because institutional norms dictate burden sharing, the makeup of the creditor group matters for indebted states’ negotiating behavior. The requirement of near-consensus decision-making allows almost any creditor to hold up negotiations. It limits the outcome to what the most reluctant creditors will agree to. Debtor governments are aware of compositional issues and where coordination is most difficult ex-ante, they can use more coercive behaviors to bring reluctant creditors into the fold. I focus on publicly issued declarations of default as one such tool. Using existing data on public moratoriums alongside original data on creditor composition, I find that governments are more likely to publicly announce default as the number of creditors involved in a restructuring increases. The findings imply that who the government is bargaining against matters to how they choose to bargain.

Taking fundamental rights seriously in the Digital Services Act's platform liability regime

AbstractThis article highlights how the EU fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the reform of the E‐commerce directive by the Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well‐balanced and proportionate European legal instrument, this article addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Section 2 delves into the intricate landscape of online intermediary liability, interrogating how the E‐Commerce Directive and the emerging Digital Services Act grapple with the delicate equilibrium between shielding intermediaries and upholding the competing rights of other stakeholders. The article then navigates in Section 3 the fraught terrain of fundamental rights as articulated by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) under the aegis of the European Convention on Human Rights and the EU Charter. This section poses an urgent inquiry: can the DSA's foundational principles reconcile these legal frameworks in a manner that fuels democracy rather than stifles it through inadvertent censorship? Section 4 then delves into the intricate relationship between fundamental rights and the DSA reform. This section conducts a comprehensive analysis of the key provisions of the DSA, emphasising how they underscore the importance of fundamental rights. In addition to mapping out the strengths of the framework the section also identifies existing limitations within the DSA and suggests potential pathways for further refinement and improvement. This article concludes by outlining key avenues for achieving a balanced and fundamental rights‐compliant regulatory framework for platform liability within the EU.

Principle of Cumulative Concurrence of Tort and Contractual Liability in Polish Law

This article is dedicated to the relationship between tort and contractual liability in Polish law whereby if a breach of contract constitutes a tort at the same time, the victim-creditor may claim payment of damages under either of the two regimes. However, due to the principle of cumulative concurrence of tort and contractual liability, the damage be compensated only once. This article analyses the requirements for the application and exclusion of this so-called cumul principle, concentrating in particular on exclusion by contract and by mandatory law. The consequences of the permissibility of claiming payment of damages on the basis of the two liability regimes are also assessed, analysing in particular the possibility of redressing moral damage resulting from a breach of contract and the impact of contractual modifications of liability on the application of both regimes. It was also presented how the Polish model of cumulative concurrence of tort and contractual liability deals with the differences between both regimes, such as the burden of proof, the statute of limitations and the special rule concerning the set-off of tort claims.

Contractual and Tort Liability for Auxiliaries in the Historical and Comparative Legal Perspective

The article highlights the problems of contractual and tort liability for auxiliaries. In the light of historical and comparative legal approaches, the issues of the formation and development of the doctrine of liability for dependent assistants (accomplices) are considered, the conditions and grounds for its imposition are analyzed, and the specified liability regime in contract and tort law is compared. The author comes to the conclusion that at the moment there is no adequate dogmatic justification of liability for acts of others, and the differences between contractual and tort liability for auxiliaries are largely beginning to blur.

Veterinarian as an expert advisor: improving the quality of veterinary services and scientific research

Veterinary surgeons often provide professional veterinary advice to both their colleagues, scientists, and lay clients. A number of them give advice unwittingly, and are unaware of the legal consequences of their actions. This analysis investigates veterinary advisorship from a comparative perspective. Ethical and legal analysis, and interpretation is performed. Essential types of veterinary counseling are indicated: advice provided by a veterinarian to another veterinarian, and provided by a veterinarian to a lay client. Veterinary advice in scientific research is a mixed type. Legal and deontological relevant factors of counseling, and consultants’ liability are identified. The wide range of responsibility, and liability of veterinary consultants is demonstrated. A veterinary counselor may be subject to various types of civil liability in relation to the person seeking advice, as well as to third parties. It is argued that an explicit, or implicit advisory clause in a contract, or an independent consulting agreement may be concluded, with the special regime of liability for veterinary advisorship. The conclusion is that – despite the fact that scope and liability differ in the discussed types of advisorship – the connecting factors are: specialist knowledge, which as advice or information is provided by a specialist in relation to a non-specialist, as well as the obligation to respect professional veterinary ethics.

Book Review: Public Health Crisis Management and Criminal Liability of Governments: A Comparative Study of the Covid-19 Pandemic

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Rethinking Tort Liability Regimes for AI-Related Claims in Canada and Europe: A Case Study of AI Applications in Disease Diagnosis

Rethinking Tort Liability Regimes for AI-Related Claims in Canada and Europe: A Case Study of AI Applications in Disease Diagnosis

General Medical Practitioners Acting as Geneticists, a Risky Business?

The availability of precision medicine tools and approaches has increased considerably over the past decades, propelled by rapid scientific advances in genomics and the popularity of direct-to-consumer genetic testing. Genetic specialists working within public healthcare systems are struggling to meet the growing demand for clinical genetic services. Some experts have suggested that doctors who are not specialized in genetics could take on some of the tasks performed by genetic specialists since they are regularly the first point of contact for people with a genetic predisposition to cancer. However, expanding doctors’ roles may heighten their standard of practice and concomitant medical liability risk to that of genetic specialists. This paper reviews the medical liability regime applicable to this situation through the lens of Canada’s unique bijural legal system. We then compare the state of the law in Canada to that of the United States. According to our findings, unless there is an improvement in the quality of genetic services provided by general practitioners, we could see a growing number of successful liability suits in clinical genetics and precision medicine in the coming years. To prevent this unsatisfactory outcome, additional professional training in core genetic tasks should be made increasingly available to general practitioners and the creation of communities of practice in genetics encouraged. Furthermore, courses introducing medical students to genetics, including its ethical and legal challenges, should be made available and actively promoted within medical curricula.

Evolution of Damage in Light of the Preventive Civil Liability Regime

The issue of the connection of civil liability in the classical system with the necessity of the existence of damage has become a transcendental issue in view of the current developments in the concept of civil liability in itself. Given that the incorporation of the principle of prevention into the liability system allows for the latter to be realized even in the absence of damage, rather the basis for preventive responsibility is to anticipate and prevent the realization of damage.

The Role of Liability Regime in Addressing Historical Contaminated Land Problems: A Comparative Perspective from England and China

The Role of Liability Regime in Addressing Historical Contaminated Land Problems: A Comparative Perspective from England and China

The impact of artificial intelligence on the current producer liability regime: a regime under review by the European authorities

O presente estudo tem o objetivo precípuo de analisar o Decreto-Lei n.o 383/89, de 06 de novembro, referente à responsabilidade objetiva do produtor decorrente da venda de produtos defeituosos, e que transpõe para a ordem jurídica interna a Diretiva n.o 85/374/CEE do Conselho, de 25 de julho de 1985, relativa à aproximação das disposições legislativas, regulamentares e administrativas dos Estados-Membros em matéria de responsabilidade decorrente dos produtos defeituosos. Por referência ao Decreto-Lei n.o 383/89, abordaremos os pontos essenciais do regime, começando pela análise dos conceitos de produtor (distinção entre produtor real e aparente), produto, defeito e dano, do regime da responsabilidade objetiva do produtor, da teoria da conditio sine qua non e da teoria da causalidade adequada (procurando evidenciar as insuficiências destas teorias tradicionais para efeitos da responsabilização do produtor) e as causas de exclusão da responsabilidade do produtor previstas no regime. Seguidamente serão analisadas as duas novas Propostas de Diretiva que relevam ao presente estudo. Em 28 de setembro de 2022, a Comissão Europeia divulgou duas propostas legislativas do pacote sobre responsabilidade civil. A Proposta de Diretiva sobre responsabilidade por produtos defeituosos (Revisão da diretiva sobre responsabilidade por produtos defeituosos) e a Proposta de Diretiva sobre a adaptação das regras de responsabilidade civil extracontratual à inteligência artificial (Diretiva sobre responsabilidade AI). Estas Propostas de Diretiva pretendem modernizar e reforçar, a nível europeu, a defesa dos consumidores, designadamente no que diz respeito à responsabilidade por danos causados por produtos novos, renovados e dotados de Inteligência Artificial. Concluímos que estas Propostas de Diretiva vêm reforçar e modernizar as regras de responsabilidade objetiva dos produtores conforme se demonstrará. Cremos, assim, que as Propostas de Diretiva de grau máximo de harmonização, a serem aprovadas, conferirão uma maior proteção jurídica dos consumidores em tempos de crescente desenvolvimento tecnológico.

Disciplining Orders Under the National Financial Reporting Authority Framework: Stepping into a Strict Liability Regime

Disciplining Orders Under the National Financial Reporting Authority Framework: Stepping into a Strict Liability Regime

Contractual and Tortious Maritime Liability Regimes and the Introduction of Autonomous Vessels

Contractual and Tortious Maritime Liability Regimes and the Introduction of Autonomous Vessels

Suggestions for a Revision of the European Smart Robot Liability Regime

Suggestions for a Revision of the European Smart Robot Liability Regime

Liability for damages caused by artificial intelligence systems – main challenges to be addressed by the European Union conflict-of-laws regulations

This article discusses the main challenges related to the liability for damages caused by artificial intelligence (AI) systems that need to be properly addressed by the European Union (EU) conflict-of-laws regime. In the first part of the paper authors point out three main challenges, namely: 1) determination of responsible persons, 2) optimal liability regime for AI torts, and 3) determination of high – risk AI systems. In the second part of the paper the authors assess the application of the conflict-of-law provisions of the Rome II Regulation from this perspective. This article argues that a harmonised legal framework at EU level is necessary to avoid the risk of legal fragmentation in filling the gaps created by unprecedented technological advances caused by AI. This objective should also be pursued by the conflict-of-laws rules of private international law.

The Real Effects of Local Government Indebtedness: Evidence from Toxic Loans

The Real Effects of Local Government Indebtedness: Evidence from Toxic Loans

병원의 조직과실

As more and more medical service is provided by hospital, a new basis of medical liability, hospital’s organizational duty, has arisen. Hospital typically differentiates various parts of medical service and allocates them to different departments. The division of labor enhances the efficiency and professionality of the service and enables a service which could not have been provided otherwise. It poses, however, new risk that nobody in the organization has a comprehensive understanding of and control over the process. Patients might be unattended by anybody at some point of the process. This risk should be coped with or compensated by the new duty to organize the structure and cooperation in the hospital adequately. In many jurisdictions including Germany, France, the United States and South Korea, this new duty has been acknowledged by legislation and more importantly by jurisprudence. All those show similar landscapes: Hospital’s organizational duty has a function to enlarge hospital’s (civil) liability and/or concentrate medical (civil) liability to the hospital so as to provide the victim, the patient, a better way to be compensated and to preserve the rapport between the attending physician and the patient. It also has a function to lessen the burden of proof from the patient’s side, especially in the context of hospital contagion. It poses a new problem of the influence of the existence and weight of hospital’s own liability for the defective organization upon the individual physician’s medical liability. Last, but not least, there is the problem of the implication of the existence of organizational duty upon the medical criminal liability. This issue has not been addressed thus far perhaps because there are few cases in criminal justice practice. It’s theoretical importance can hardly be exaggerated, though, as it shows dramatically the structural transposition of modern medical service provision and its possible influence on the overall regime of modern medical liability. South Korea has already a few cases that show this issue can arise anytime in practice.

Artificial intelligence and civil liability—do we need a new regime?

Abstract Artificial intelligence (AI) is almost ubiquitous, featuring innumerable facets of daily life. For all its advantages, however, it carries risks of harm. In this article, we discuss how the law of tort should deal with these risks. We take account of the need for any proposed scheme of liability to protect the existing values of tort law without acting as a barrier to innovation. To this end, we propose a strict liability regime in respect of personal injury and death, and a bespoke fault-based regime for dignitary or reputational injuries. For other losses, we take the view that there is no justification for introducing any new regime, on the basis that AI applications do not introduce substantial added degrees of risk that would justify departing from the existing scheme of liability arising under the current law of tort.

Government Liability to Damages Due to Defective Provision of Health Services in Turkey

Health service is one of the essential public services offered by the Administration with a very comprehensive and expansive staff, and due to the comprehensive nature of the service provided and the fact that the beneficiaries of the service constitute almost every segment of society, many different appearances of defect that may include the compensation responsibility of the Administration may arise. Therefore, the study is mainly about the service defect and the compensation responsibility of the Administration in providing health services within the scope of the responsibility of the Administration based on service defect. In the study, the concept of the responsibility of the Administration and the concepts of defect liability and strict liability, which are the types of responsibility of the Administration, will be discussed first. All will examine the conditions of the responsibility of the Administration. Then, the concept of service defects and the different appearances of service defects, such as poor service, late service, non-operational service, and severe service defect, will be examined. Finally, the service defects specific to health services, which constitute the main framework of the study, will be discussed in light of the decisions of the Council of State on this issue.

La Infracapitalización Societaria y el Nuevo Paradigma del Derecho Comercial

The purpose of this paper is to develop and understand the complex phenomenon of corporate undercapitalization, and how it relates to corporate law and limited liability. We will briefly review the historical evolution of corporate law and limited liability, as well as the rules on Undercapitalization in the Uruguayan legal system and its doctrinal and jurisprudential development. In addition, a comparative law perspective will be developed. Finally, an assessment of how the limited liability regime and the phenomenon of Undercapitalization can be harmonized will be made.