Mandatory Duties Research Articles

Passive Consumers vs. The New Online Disclosure Rules of the Consumer Rights Directive

Despite the growing academic criticism of using mandatory information duties as one of the main consumer protection measures in consumer law, the recently adopted Consumer Rights Directive (hereafter, the “CRD”) maintains this trend in Europe. The long and detailed list of information duties provided for traders in Articles 5 and 6 of the CRD applies to any sale and services consumer contracts that falls under the scope of application of the CRD. For traders, however, fulfilling this obligation may seem to be an exercise in futility due to little evidence that consumers read these disclosures and actually benefit from them. Instead of understanding the duty to disclose as a duty to inform consumers we could see it as a duty to reach consumers with the disclosure, so that consumers possessed the information contained in it when they needed it for reference. With this in mind it is important to inquire what efforts traders must undertake to ascertain that the disclosure reaches consumers and whether they could rely on an, at least partially, active behaviour of consumers in obtaining this information. This conundrum plays a special role in online transactions. The Consumer Rights Directive was adopted, among others, to update the so-far existing rules on consumer distance selling contracts to the modern technologies, especially the Internet. Recital 5 CRD specifically recognizes the importance of the future increase in online trade and for the first time in European consumer law the Internet is clearly mentioned as one of the means of concluding distance selling contracts in Recital 20 CRD.

Medical confidentiality and patient safety: reporting procedures.

Medical confidentiality is of individual and of general interest. Medical confidentiality is not absolute. European countries differ in their legislative approaches of consent for data-sharing and lawful breaches of medical confidentiality. An increase of interference by the legislator with medical confidentiality is noticeable. In The Netherlands for instance this takes the form of new mandatory duties to report resp. of legislation providing for a release of medical confidentiality in specific situations, often under the condition that reporting takes place on the basis of a professional code that includes elements imposed by the legislator (e.g. (suspicion of) child abuse, domestic violence). Legislative interference must not result in the patient loosing trust in healthcare. To avoid erosion of medical confidentiality, (comparative) effectiveness studies and privacy impact assessments are necessary (European and national level). Medical confidentiality should be a subject of permanent education of health personnel.

Regulatory reform requirements to address diffuse source water quality problems in Australia: learning from US experiences

There is opportunity to learn from over 50 years' experience in the US to tackle diffuse source water quality pollution in Australia. This article considers the effectiveness of current regulations using the state of Victoria as an example, and identifies changes needed. Regulations could be amended to improve clarity of objectives and broaden scope. An effective water quality regime is impeded by lack of clarity of institutional powers and responsibilities at national, state and regional levels, over-reliance on ‘soft’ policy approaches and a culture of planning. Australian approaches would benefit from improvements in institutional clarity and power, (particularly regulatory enforcement), adoption of a source-based approach, creation of a legal mechanism for linking point and diffuse sources, and a mechanism for holding governments accountable when they fail to perform mandatory regulatory duties. Critical elements also include setting effective performance goals around specific assets and effective progress management. Targeting and policy efficiency also need to be considered as part of the reform process because regulations can have high administration and compliance costs. Overall institutional and regulatory reform, sustained political commitment and outcome-focused accountability are needed to address diffuse source water quality problems in Australia.

Can behavioral research advance mandatory law, information duties, standard terms and withdrawal rights?

Current European consumer law mainly acts on the assumption that people behave in line with the ‘rational man’ (homo oeconomicus), who has stable preferences and can absorb all available information and process as well as integrate it into her consumer decisions. This assumption has been challenged by findings of behavioral sciences such as behavioral economics, psychology and neurosciences. This article examines if and how findings from behavioral research are in a position to advance European consumer contract law (mandatory law in general as well as information duties, standard terms and rights to withdraw in specific). Fundstelle: Tscherner, Can behavioral research advance mandatory law, information duties, standard terms and withdrawal rights? ALJ 1/2014, 144-155

China's Golden Tax Project: A Technological Strategy for Reducing VAT Fraud

Unlike the United States, where sales tax is a common form of indirect tax, almost all countries around the world - both developed and developing alike - now impose a value added tax (VAT). In the early 1990s, as part of its comprehensive economic reform program initiated over 30 years ago, the People’s Republic of China implemented a VAT. Monitoring compliance with VAT is a serious challenge in developing countries, however, and China is no exception in that regard. To address this challenge, China launched a major fiscal reform project called the “Golden Tax Project” (GTP) which mandates the use of specific sophisticated information technologies to improve compliance with China’s VAT laws. Although the Chinese GTP requires the use of information technology and so can be considered a form of “e-invoicing,” the focus is on creating a centralized matching system under the control of the tax authorities to reduce the incidence of fraud. In the EU, by contrast, the 2009 Report by the Expert Group on e-Invoicing focused on strategies for increasing the voluntary adoption of e-invoicing technologies among taxpayers in order to make EU businesses more competitive. The Chinese policy requires the use of stronger central controls than the EU policy, and includes stringent, new mandatory taxpayer duties, so it would not be suitable for use in developed economies with relatively high rates of voluntary compliance. The Chinese GTP strategy might provide a useful model for other developing countries struggling with large-scale, widespread VAT compliance problems, however.

Fiduciary Duties in the LLC: Mandatory Core Duties to Protect the Interests of Others Beyond the Contracting Parties

Fiduciary Duties in the LLC: Mandatory Core Duties to Protect the Interests of Others Beyond the Contracting Parties

Legislating Against Climate Change: A UK Perspective on a Sisyphean Challenge

The UK's Climate Change Act offers a framework for civil society to achieve ‘low carbon’ realignment through to 2050. The Act is reviewed for its coherence as a mechanism for directing future policy. The legislation establishes a carbon budgetary process, mandates greenhouse gas reduction targets and strategies, and imposes a novel range of duties supported by processes for ensuring transparency concerning progress. Following an overview of climate change risks and likely economic consequences, the analysis identifies selected regulatory strategies. It explores the main statutory features, with an emphasis upon the implications of imposing mandatory duties on decision makers. An evaluation of the key policy choice of emissions trading is informed by perspectives of environmental justice, in particular as to questions of equitable burden‐sharing in relation to impacts of climate change and related policies. A concluding section summarises reasonable expectations and ongoing challenges.

The ethicality of altruistic corporate social responsibility

This commentary questions commonly held assumptions about corporate social responsibility (CSR). It discusses the morality of altruistic CSR – philanthropic CSR activities that are not necessarily beneficial to the firm’s financial position. Evaluating altruistic CSR from all major ethical perspectives – utilitarianism, rights, justice and care – leads to the conclusion that, for publicly held corporations, such activity is immoral. This is because altruistic CSR violates shareholder property rights, unjustly seizing stockholder wealth, and it bestows benefits for the general welfare at the expense of those for whom the firm should care in close relationships. The paper also determines that what are often considered mandatory ethical and social corporate duties are actually optional activities that should only be undertaken when it appears that they can enhance the value of the firm, i.e. when they are used as strategic CSR. However, using ideas taken from secular and Judaeo‐Christian authors on the meaning of work, the article also concludes that altruistic activities are appropriate and commendable for private firms and individuals. It offers suggestions for practitioners of CSR and for future academic research.

Multi-Occupied Housing Standards: the application of discretionary powers by local authorities

The paper describes how local authorities use discretionary powers to enforce standards in houses in multiple occupation and examines the case for mandatory duties. Evidence is presented about substandard conditions in multi-occupied houses and their changing place in the housing market. The results of a recent survey showing increasing, planned use of discretionary powers are discussed. The case for mandatory enforcement of standards is examined in the light of this evidence, academic literature about administrative discretion and the politics of the policy itself. Recommendations are made for changes to legislation and practice.