Liability Regime Research Articles

Subjective-objective standard of the director’s behavior

The article examines the standard of behavior of a director, with which the behavior of a director held liable for causing losses to a legal entity is compared. By drawing on comparative legal material (England, USA, France, and Germany), analysis of Russian legislation and judicial practice, it was concluded that the courts strive to introduce a subjective component even into a standard that is formulated at the legislative level as objective. This is explained by the activities of the director in the business environment, which now is impossible to fully understand and identify all cause-and-effect relationships (unlike the activities of other persons in relation to whom a special regime of liability has been established – medical workers, notaries, attorneys, appraisers). A set of measures is proposed (specification of the agreement with the director, exclusion of liability in crisis situations under the agreement, “nudging” to the standard at the level of judicial practice and best practices of corporate governance, use of information disclosure and qualification requirements), which will clarify and balance the standard of conduct of the director.

ANÁLISE DA RESPONSABILIDADE CIVIL NO DIREITO AGROAMBIENTAL

The objective of this article is to analyze the application and evolution of civil liability in the context of agro-environmental law, highlighting the particularities and challenges associated with environmental protection in the agricultural sector. The study aims to understand how civil liability can be used as a tool to ensure sustainability and environmental compliance in agricultural activities. The research adopts a literature review methodology. The analysis is based on a detailed review of the existing literature, including books, academic articles, legislation and case law relevant to agro- environmental law and civil liability. The approach allows for an in-depth understanding of the concepts and practices related to civil liability, as well as its implications for the agro-environmental sector. The article is expected to provide a clear overview of how civil liability is applied in agro- environmental law, highlighting the effectiveness of current regulations and suggesting areas for improvement. The study should identify gaps in current legislation and propose recommendations to strengthen the civil liability regime, contributing to greater environmental protection in the agricultural sector. The conclusion of the article should highlight that civil liability plays a crucial role in promoting sustainability and preventing environmental damage caused by agriculture and livestock farming. Although there have been significant advances in legislation and case law, there are still challenges to be addressed to ensure effective and fair accountability. Implementing stricter policies and adapting legal standards are essential to balance agricultural production with environmental preservation, ensuring that the sector contributes to sustainable development.

International legal mechanisms for ensuring the responsibility of the air carrier before the passenger

Liability to passengers and cargo owners for damage caused during international air transportation is primarily borne by the carrier. From the content of the Warsaw and Montreal Conventions, it follows that the carrier can be any natural or legal person who has concluded a contract of carriage with the passenger or the consignor of the cargo and carries out this carriage on a remuneration basis. Reasons are required for the carrier to be liable as a party performing the contract. The plaintiff, who demands compensation, must prove the fact of breach of obligation by his counterparty, the presence and amount of damage, as well as the cause-and- effect relationship between the offense and the damage. However, the defendant (carrier) has the right to prove the absence of his fault and refer to the limitation of his liability. The Warsaw (1929) and Montreal (2009) conventions contain relatively detailed and fairly clear instructions on the carrier’s liability, establishing the grounds for exemption from it and, in most cases, limiting its size by the so-called relaxations in the air carrier’s liability regime. Like the norms of the internal transport legislation of the states, the norms of the conventions are of an imperative nature, with equal protection of the interests of consumers of services provided by transport organizations, and even the complexity of transport operation technologies, the mass of operations and the risks associated with the use of vehicles. This article examines the question of the extent to which international conventions and rules determining the liability of air carrier passengers have been successfully harmonized at the international level and eliminated the conflict of law problem, as well as the degree of development and effectiveness of these international conventions and rules, norms for ensuring the liability of air carriers to air passengers. Summarizing, the author notes that the Montreal Convention improves the situation of passengers and cargo owners, eliminates complications with lengthy court processes, to the advantage of the Warsaw Convention, which is somewhat outdated and does not correspond to today’s realities. The new convention strengthens competition in the air transport market, increases the responsibility of airlines to passengers and removes restrictions on compensation for loss of baggage or damage to the life and health of passengers, significantly simplifying the mechanism of obtaining it.

Can We Transpose Articles 9(1) and 17(2) of the Competition Damages Directive into an Issuer Liability Regime?

Abstract: The EU Market Abuse Regulation (MAR) obliges issuers to inform the public of inside information that directly concerns those issuers. Liability for inside information misstatements is not harmonized in the EU, and Member States apply different civil liability provisions to inside information misstatements. MAR’s enforcement rests primarily on public enforcement. The situation is in contrast with EU competition law. The EU Competition Damages Directive (Damages Directive) sets the minimum standards of the right to full compensation and the cooperation of public and private enforcement in Member States. This contribution examines Articles 9(1) and 17(2) of the Damages Directive and considers whether similar provision could be applicable in MAR’s private enforcement. This contribution finds that Articles 9(1) and 17(2) of the Damages Directive could be transposed into an issuer liability regime if the EU legislator were to harmonize issuer liability for inside information misstatements. Such provision would increase deterrence and decrease investor plaintiffs’ litigation costs.Résumé: Le Règlement européen sur les abus de marché (MAR) oblige les émetteurs à rendre publiques les informations privilégiées qui concernent directement lesdits émetteurs. La responsabilité pour inexactitude d’informations privilégiées n’est pas harmonisée dans l’UE et les Etats membres appliquent différentes dispositions de responsabilité civile aux inexactitudes d’informations privilégiées. La mise en application du MAR repose principalement sur une application par les autorités publiques (public enforcement). La situation contraste avec la législation européenne sur la concurrence. La Directive de l’UE sur les dommages-intérêts en cas de violation du droit de la concurrence (Damages Directive) établit les normes minimales du droit à une entière indemnisation et la coopération entre l’action publique et l’action privée (public enforcement et private enforcement) dans les Etats membres. La présente contribution examine les articles 9(1) et 17(2) de la Directive de l’UE sur les dommages-intérêts en cas de violation du droit de la concurrence et examine si une disposition similaire pourrait s’appliquer à une action privée (private enforcement) du MAR. La présente contribution estime que les articles 9(1) et 17(2) de la Directive sur les dommagesintérêts en cas de violation du droit de la concurrence pourrait être transposée dans un régime de responsabilité de l’émetteur si le législateur de l’UE venait à harmoniser la responsabilité de l’émetteur en cas d’inexactitude d’informations privilégiées. Une telle disposition pourrait renforcer l’effet dissuasif et réduire les frais de procédure des plaignants investisseurs.Zusammenfassung: Die EU-Marktmissbrauchsverordnung (MAR) verpflichtet die Emittenten, die Öffentlichkeit über Insiderinformationen zu informieren, die sie unmittelbar betreffen. Die Haftung für Falschangaben bezüglich Insiderinformationen ist in der EU nicht harmonisiert und die Mitgliedstaaten wenden unterschiedliche zivilrechtliche Haftungsbestimmungen auf Falschangaben von Insiderinformationen an. Die Durchsetzung der MAR beruht in erster Linie auf der öffentlichen Durchsetzung. Anders hingegen sieht die Situation beim EU-Wettbewerbsrecht aus. Die EURichtlinie über Schadenersatz im Wettbewerb (Schadenersatzrichtlinie) legt die rechtlichen Mindeststandards auf vollen Schadenersatz und die Zusammenarbeit der öffentlichen und privaten Durchsetzung in den Mitgliedstaaten fest. Der vorliegende Beitrag untersucht Artikel 9(1) und 17(2) der Schadenersatzrichtlinie und prüft, ob eine ähnliche Bestimmung auf die private Durchsetzung der MAR anwendbar sein könnte. Der Beitrag kommt zu dem Ergebnis, dass Artikel 9(1) und 17(2) der Schadensersatzrichtlinie in ein Emittentenhaftungsregime umgesetzt warden könnten, wenn der EU-Gesetzgeber die Emittentenhaftung für Falschangaben von Insiderinformationen harmonisieren würde. Eine solche Bestimmung würde die Abschreckung erhöhen und die Prozesskosten für die klagenden Anleger senken.Resumen: El Reglamento sobre Abuso de Mercado (MAR) de la UE obliga a los emisores a informar al público sobre la información privilegiada que les concierne directamente. La responsabilidad por informaciones erróneas de información privilegiada no está armonizada en la UE, y los Estados Miembros aplican diferentes disposiciones de responsabilidad civil a las informaciones erróneas de información privilegiada. La aplicación del MAR depende principalmente de las autoridades. La situación contrasta con la legislación de competencia de la UE. La Directiva de Daños por infracciones al Derecho de la Competencia de la UE (Directiva de Daños) establece los estándares mínimos del derecho a una compensación íntegra y la cooperación de la aplicación pública y privada en los Estados miembros. Esta contribución examina los artículos 9(1) y 17(2) de la Directiva de Daños y considera si podría aplicarse una disposición similar en la ejecución privada del MAR. Esta contribución concluye que los artículos 9(1) y 17(2) de la Directiva sobre Daños podrían trasladarse a un régimen de responsabilidad del emisor si el legislador de la UE armonizara la responsabilidad del emisor por inexactitudes en la información privilegiada. Tal disposición aumentaría la disuasión y reduciría los costes de litigación de los inversores demandantes.

OS FUNDAMENTOS DA PRESUNÇÃO DE RELEVÂNCIA E TRANSCENDÊNCIA PARA O RECURSO ESPECIAL EM AÇÕES DE IMPROBIDADE ADMINISTRATIVA E A EFETIVIDADE DOS DIREITOS FUNDAMENTAIS

After the promulgation of Constitutional Amendment No. 125/2022, which introduced the relevance filter for the special appeal, it started a debate regarding the concept and scope of this institute, especially when considering the hypotheses of presumption of transcendence inserted in the constitutional text itself. In this research, we seek to address the concept of the relevance filter, focusing on a specific presumption hypothesis addressed in the constitutional text: the presumption of relevance in administrative improbity actions. In this area, using the method of bibliographic and documentary review and an interdisciplinary approach, the aim is, then, to justify the presumption of relevance in this specific hypothesis, proposing the recognition, also, of a presumption of transcendence. In this way, an alternative is proposed to support the possibility of setting precedents of a binding nature in administrative improbity actions, as a general rule, as a way of giving greater effectiveness to a liability regime with outstanding importance in the legal system, aiming to achieve fundamental rights.

The Carrier’s Defence to Liability for Delay under the Montreal Convention and EU Regulation 261/2004

This paper analyses the specific defence to liability for delay available to carriers, comparing its features under the Montreal Convention (MC99) and EU Regulation 261/2004 (Regulation 261). The relationship between these legal instruments has never been an easy one, whereas recent case law of the Court of Justice of the European Union on the socalled ‘extraordinary circumstances defence’ invites to explore similarities and differences between the international and the European approaches. The scope of application of the defence is clearer in Regulation 261 than in MC99. The former will only affect cancellations and delays – not cases of denied boarding, and its impact remains limited to the lump-sum compensation set out in Article 7 of Regulation 261. In turn, MC99 covers delays, but it is uncertain whether it also encompasses cancellations and situations of denied boarding – particularly when the passengers concerned are provided alternate transportation. Moreover, the defence laid down in MC99 applies to damage occasioned by delay, but the definition of ‘damage’ is left to domestic law. This situation gives rise to diverging decisions by national courts. Regarding the conceptualization of the defence, the wording of the relevant provisions might lead to think that both instruments share a regime of liability for presumed culpability. However, the extraordinary circumstances defence is much more complex. As a consequence, there is no alignment between MC99 and Regulation 261, although points of convergence are highlighted.

Options for a Liability Framework for Commercial Low-Earth Orbit Destinations

Commercial Low-Earth Orbit destinations (CLDs) are the next milestone in the development of commercial space transportation, but the legal responsibilities of spaceflight providers, personnel, and spaceflight participants (SFPs) on board are not easily discernible. This article describes the purpose and goals of CLDs; assesses current regulations enforced against private companies’ activities in space; and proposes different liability frameworks for application to CLD activity. Development of a comprehensive liability regime is crucial to promoting innovation in commercial space, while also protecting the safety interests of all personnel and participants on board.

기후변화 대응에 대한 국가의 책임 - 프랑스 기후소송 판결의 함의(含意)

Climate change lawsuits are increasing. In the process of Constitutional complaints by the Constitutional Court, judgments on climate change lawsuits in European countries are expected to have an impact. The French Administrative Court also recognized the existence of “ecological damage” caused by climate change and the state's responsibility for it. In this paper, we reviewed ‘Grande-Synthe’ Community case of Council of State(Conseil d’Etat) where local governments are held accountable for the failure of government actions to comply with the climate change agreement of Paris(2015). And administrative tribunal of Paris, in the case of ‘Affair of the Century(l’affaire du siècle)’, recognized the occurrence of ecological damage caused by climate change and the government's liability for it. We reviewed it in detail with the following: Ⅰ. Climate change litigation 1. Administrative Justice courts 2. Constitutional Court Ⅱ. Implication towads Korean Court of Justice 1. Future generation fundmental right 2. Ecological responsability

Product liability in modern conditions: European reform experience

At the end of September 2022, the European Commission presented two notable documents designed to fundamentally change the current system of product liability in Europe. In part, these projects were a response to the challenges posed by digitalization and modern technology. The first document is designed to regulate liability for harm caused by artificial intelligence systems, while the second is aimed at adapting the EU Council Directive of July 25, 1985 No. 85/374/EEC to contemporary conditions. The present article sets out to review the key developments in the field of product liability in Europe. To this end, a review of the existing system of product liability in Europe is carried out. The existing product liability system is comprised of two parts: norms enshrined in national laws, as well as harmonized liability under the EU Council Directive of July 25, 1985 No. 85/374/EEC 1985. However, there is no consensus in European doctrine and practice regarding the regime of harmonized liability. While on the one hand, this regime is based on the idea of strict liability, on the other hand, there is also a reasoned opinion that the Directive factually establishes a regime of liability based on fault. On the example of German law, it is revealed that, despite the strict liability regime approved by special law, courts often focus in practice on a manufacturer’s breach of the duty of care, which once again testifies to liability based on fault. Possible factors behind the decision on the part of the European regulator to reform the existing liability system include: the increasing complexity of the goods themselves; the expansion of intermediary chains and emergence of new potential subjects of liability, including owners of aggregators; difficulties in proving the existence of a product defect and a causal link between such a defect and the resulting harm; the concept of harm in the digital age and the special role of data; providers’ liability for goods equipped with artificial intelligence technology.

Solving Investors’ Problems with Access to Evidence in Damages Litigation: Suggestions for a Future Issuer Liability Regime

AbstractPrivate enforcement’s role in the European secondary securities market is narrow. Issuer companies’ civil liability for violations of the inside information disclosure obligation is no exception. While trying to avoid the shadow of the US class action institution, European scholarship has long explored ways to increase the role of private enforcement in the securities market. Harmonising issuer liability is one of the suggestions to create a more prominent role for private enforcement. Even though harmonising issuer liability would be a welcome option for legal certainty and investor protection, it seems unlikely to happen in the near future. As an initial step towards potential harmonisation, this article analyses credit rating agencies’ (CRAs) liability and liability for competition law violations from the viewpoint of information asymmetry in litigation. It evaluates whether the legislative solutions in the CRA III Regulation and the Competition Damages Directive regarding plaintiffs’ access to evidence could be used as models for a potential issuer liability regime. The article finds that the choices made in the Competition Damages Directive could serve as viable models for issuer liability. The provisions in that Directive solve the information asymmetry between the plaintiff and the defendant by granting the plaintiff access to evidence in litigation through a court order.

Government Liability in Infrastructure Construction Contract with Foreign Parties

Government Liability in Infrastructure Construction Contract with Foreign Parties

Next Generation EU Product Liability – For Digital and Other Products

Abstract The new Directive on Product Liability is hard to overestimate, as it is nothing less than a complete overhaul of the 1985 Product Liability Directive (PLD), which still lies at the heart of EU tort law. One focus of the reform act is the challenge posed by digital transformation. To accommodate the new category of digital devices, the concept of product is widened so as to include software and related services, and the strict ex ante perspective for the finding of product defect is attenuated to account for continued control of the manufacturer post-marketing. Further to broadening the scope of application, the protective perimeter of the Directive is expanded, namely to include data used for private purposes. The second focus of the reform act, of at least equal importance, are changes to the liability regime for products of any kind, regardless of their digital nature or elements. Thus, e-commerce intermediaries such as platforms are ushered into the scope of the Directive as new defendants, alongside manufacturers, importers, and distributors. With a view to quantum, the € 500 retention for property damage had to go, together with the authority of the Member States to impose a cap on liability under the Directive. Unfortunately, there was no time to revisit the foundations of product liability. Thus, the new Directive holds on to the consumer protection gospel of product liability and excludes commercial property from the scope of protection, even though there is no good reason to discriminate against business interests. As before, national law must and will step in to fill in the gaps in Union law, perpetuating the double-track liability systems that the 1985 Directive helped to create.

Fiscal Reaction Functions Augmented with Bespoke Debt Indicators: Evidence from Small Island States

Developing countries have a higher propensity for debt distress than their developed counterparts and small economies are more vulnerable to external shocks than larger ones. We examine the primary balances of two economies at the intersection of developing and smallness classifications – so-called small island developing states (SIDS) – Trinidad and Tobago (T&T) and Mauritius. These countries have comparable characteristics (smallness, openness, populations, and are former plantation economies with similar colonial histories) but differ in their natural resource wealth status (the former is resource-rich and the latter is resource-poor). Given the myopic insights provided by single metrics of government indebtedness, such as the debt-to-GDP ratio, we augment standard fiscal reaction functions with purpose-built debt sustainability measures that use principal component analysis to consolidate the information content imbedded in a comprehensive range of country-relevant fiscal ratios. Our results show while debt is sustainable in both countries, fiscal policy is procyclical. We also find that debt volatility is positive and significant for T&T’s primary balance but is insignificant for Mauritius, which we attribute to the differing degrees of export-diversification between the countries. Policy recommendations include greater commitments to counter-cyclical fiscal policy in both SIDS and greater export-diversification initiatives in T&T.

AI liability in Europe: How does it complement risk regulation and deal with the problem of human oversight?

Who should compensate you if you get hit by a car in “autopilot” mode: the safety driver or the car manufacturer? What about if you find out you were unfairly discriminated against by an AI decision-making tool that was being supervised by an HR professional? Should the developer compensate you, the company that procured the software, or the (employer of the) HR professional that was “supervising” the system's output?These questions do not have easy answers. In the European Union and elsewhere around the world, AI governance is turning towards risk regulation. Risk regulation alone is, however, rarely optimal. The situations above all involve the liability for harms that are caused by or with an AI system. While risk regulations like the AI Act regulate some aspects of these human and machine interactions, they do not offer those impacted by AI systems any rights and little avenues to seek redress. From a corrective justice perspective risk regulation must also be complemented by liability law because when harms do occur, harmed individuals should be compensated. From a risk-prevention perspective, risk regulation may still fall short of creating optimal incentives for all parties to take precautions.Because risk regulation is not enough, scholars and regulators around the world have highlighted that AI regulations should be complemented by liability rules to address AI harms when they occur. Using a law and economics framework this Article examines how the recently proposed AI liability regime in the EU – a revision of the Product Liability Directive, and an AI Liability effectively complement the AI Act and how they address the particularities of AI-human interactions.

Japan Introduced Full VAT Liability Regime to Digital Platforms

In this article, the author discusses a new Japanese tax reform named the “Platform Taxation” regime, which is, in effect, the long-awaited Japanese adoption of the full VAT/GST liability regime that is recommended in the OECD’s 2019 report.

Contractual Limitations of Liability and their Impact on Tort Claims

Abstract By concluding a contract, parties intend to allocate the contractual risk between them. This means that parties must anticipate any future adverse result and determine whether a party will have to cover any loss incurred by the other party as a result of performance or, more often, bad performance. In sales contracts, for example, parties may decide to exclude any liability for defects of goods, especially when selling used goods or for other reasons, or at least to limit liability for some defects or to limit types of possible claims. Similarly, in mergers and acquisitions, parties very strictly determine what is known by the seller in a disclosure letter and give the buyer access to some information in a data room prior to the conclusion of the contract to limit liability to the unknown and the non-disclosed. CA Hill/BJM Quinn/SD Sollomon, Mergers and Acquisitions, Law, Theory, and Practice (2019) 372–403; R Tschäni/H-J Diem/M Wolf (eds), M&A-Transaktionen nach Schweizer Recht (3rd edn 2021) 209–215 (paras 420–431); O Duys/K Henrich in: W Hölters (ed), Handbuch Unternehmenskauf (8th edn 2015) ch 16, paras 16.108–16.116. For each party, much of contractual drafting boils down to limiting risk to the greatest extent possible, or at least to ensure compensation for any risk incurred. If parties are on an equal footing, this may lead to an equitable allocation of risk and a balanced contractual liability regime. Contractual limitations of liability are, therefore, part of this process of adequate allocation of risks. In this contribution, I will briefly address three issues. First, I will look at which principles are applicable to the validity of limitations of contractual liability (I) and then determine to what extent these principles apply to tort claims (II). This will finally lead me to determine whether the Principles of European Tort Law (PETL) need to be supplemented by a further rule dealing with the validity of contractual clauses limiting liability in tort (III).

Artificial Intelligence in the French Law of 2024

The use of artificial intelligence in France is growing and intensifying in many areas, particularly in the field of justice. French President Macron has made it one of his government’s priorities to build on these assets and make France a world leader in AI. In parallel, the French government has deployed some efforts towards anticipating the regulatory challenges related to AI, the “National Strategy for Artificial Intelligence” launched as part of «France 2030» . As an illustration of the developments in artificial intelligence and its specific regulation, the French parliament passed a law to ensure the proper conduct of the 2024 Olympic and Paralympic Games (Law N° 2023-380 of 19.05.2023). The law permits the use of the experimental “augmented video-protection” technology, which uses cameras equipped with AI systems to detect and report specific events in real time. French regulations begin already now in the area of justice and must continue in the fields of AI liability and intellectual property. AI is a source of fears, particularly for the respect of human rights, and requires a very elaborate legal and ethical environment that is flexible enough to avoid slowing down the development of AI. The AI Liability EU Directive complements the Artificial Intelligence Act by introducing a new liability regime that ensures legal certainty, enhances consumer trust in AI, and assists consumers’ liability claims for damage caused by AI-enabled products and services. But the new European AI Act does not resolve all issues that therefore need to be addressed nationally.

The Constitutional Complaint in Kosovo from the Perspective of State Liability and Constitutional Certainty

Abstract This article analyses the constitutional complaint in Kosovo through the lens of governmental liability and constitutional certainty. Although it is one of the most significant legal mechanisms for the protection of human rights in Kosovo, the remedial impact of a constitutional complaint does not appear to be appropriate for granting ‘just satisfaction’ and holding a public authority accountable for a violation of constitutional rights. To make the state’s constitutional liability for human rights violations a reality, additional legislative reforms are necessary. The introduction of ‘constitutional damage’ award in the context of the Kosovan constitutional judiciary is therefore especially pertinent to this end. Such a remedy would hold the state accountable for abuses of human rights originating from the unconstitutional behavior of government officials. It would finally provide victims of constitutional rights violations with appropriate means of legal redress, which is the ultimate end of constitutional justice. The constitutional principle of ‘legitimate expectation’ is also not unimportant in this context. By offering a critical perspective on the Constitutional Court’s case-law, this article argues for the significance of adhering to the ‘legitimate expectations’ principle to ensure equality of the parties in constitutional litigation proceedings and a constant development of constitutional jurisprudence that is vital for the Kosovan democracy.

Umowa ze skutkiem ochronnym na rzecz osoby trzeciej - konstrukcja i dopuszczalność

Can a third party acquire rights by contract, even though there is no relevant contractual provision? The article analyzes a German contract law institution: the contract protective of third parties which establishes a debtor's special obligation to protect certain third parties whose legal situation may be affected by the performance of the contract between the debtor and the creditor. In the event of a breach of contract due to the debtor's fault that causes damage to a third party, the debtor is obliged to compensate the third party for the damage caused under the regime of contract liability and not under tort liability. The possibility of applying this construction under Polish law, although controversial, is not excluded. Areas of application may however include the outsourcing of services and banking law.

Weapon against Civil Aircraft: Legal and Ethical Aspects of the Use of Force against Civil Aircraft

Using weapons against civil aircraft is interconnected with several areas: international legal responsibility, prohibition of force, right to self-defense, ethical dilemmas, and the protection of human rights. The arguments presented in this study emphasize that while self-defense provides a theoretical possibility for using weapons against aircraft, there are still ethical challenges and unavoidable rules of international law. Therefore, using weapons against civil aircraft poses several challenges that must be considered in both legal and moral aspects. This paper presents the international legal liability regime for the use of weapons against civil aircraft, as well as its human rights and ethical responsibilities.