Private Law Remedies Research Articles

Private Enforcement Under the Digital Markets Act: Rights and Remedies Revisited

The Digital Markets Act (DMA) is a new instrument of EU competition policy. It has been pointed out that although the DMA does not include any provisions on private enforcement, there should still be room for private enforcement of rights under the DMA. However, it has not been properly scrutinised to what extent the provisions of the DMA are suitable for such private enforcement. This article contributes to the literature by addressing this deficit and explaining the interwoven aspects of EU law and national law upon which private enforcement of the DMA will rely. The analysis is carried out in two main tiers. First, the core substantive provisions of the DMA are analysed. It is concluded in this stage that there are some rules in the DMA which may trigger private law sanctions when breached. Second, the system of judicial protection of rights conferred on individuals under EU law is explained and applied to the DMA. In this regard, it is concluded that it would be appropriate to extend any private law remedies that are available to claimants who have been victims of an infringement of Article 101 or 102 TFEU to claimants who have been victims of an infringement of protective provisions in the DMA.

Apologies as a Private Law Remedy: Emerging on the European Continent, and Beyond?

Apologies as a Private Law Remedy: Emerging on the European Continent, and Beyond?

Interaktion zwischen Antidiskriminierungs- und Zivilrecht in Bulgarien

Following its accession to the EU in 2007, Bulgaria amended its Law for Protection against Discrimination (originally adopted in 2003) to implement the relevant part of the acquis communautaire. The law takes account for indirect and direct discrimination and has a strong impact on private law. Victims of discriminatory practices can choose between administrative and private law remedies, but only private law remedies provide for compensation for damages (including for moral injury). There is some case law relating to consumer credits where customers have sued banks for age discrimination. The law contains specific guarantees against discrimination in working life. In addition, the Constitutional Court examined a case concerning the constitutionality of provisions prohibiting access to public office for persons formerly working for the state security services.

Judging the Party: Public Law Wrongs and Private Law Remedies

This article offers a case study of civil litigation in which the decision of a Party organ or the application of Party rules in a decision have allegedly infringed the private law rights of individuals. Party organs have always performed civil activities and engaged with a wide range of civil legal relations affecting the rights and interests of various individuals and entities, resulting in occasional legal disputes between a Party organ and the aggrieved individuals or entities. After failing to challenge a Party organ’s decision within the political system, the affected member brings a case to court to challenge the validity of the decision. In the court process, legal rules are used primarily to deal with issues involving insignificant players in employment disputes with Party organs. For matters involving the Party’s own officials and those matters regarded as internal, legal rules are largely limited, if not dispensed with entirely, confirming the prerogative state’s superior position in the hierarchy above the normative state. Freedom of contract is more relevant and recognized for claims by individuals at the lower end of the political ecosystem, while politics is reserved for the elites of society and for issues where the Party is determined to maintain direct, hands-on control.

The enforcement of cross-border competition law claims in Asia-pacific and choice of forum agreements: private litigation or arbitration?

Abstract A private plaintiff may bring an action against a defendant for the infringement of competition law. In Western countries, it is widely accepted that parties can subject to choice of forum agreements claims seeking private law remedies based on competition law infringements. Accordingly, parties are free to refer those claims to a foreign court or arbitral tribunal for their determination. In contrast, it remains an open question in most Asia-Pacific jurisdictions whether competition-related claims are subject to choice of forum agreements (in particular, an arbitration agreement). If the answer is affirmative, a number of incidental questions will arise. For instance, in what kinds of competition-related claims and under what circumstances will choice of forum agreements be applicable? With focus on international arbitration, this article will look into recent developments around the globe and then propose how states in the Asia-Pacific region should approach those issues.

Judicial Activism's Inadvertent Role in Diminishing Private Law Remedies in India

Judicial Activism's Inadvertent Role in Diminishing Private Law Remedies in India

Mixing old and new wisdom for the protection of image-based sexual abuse victims

Image-based sexual abuse, more popularly but inadequately referred to as ‘revenge porn’, has emerged as a prolific modern-day plague. This author asserts that, in light of its impact and severity, the criminal law, as opposed to private law remedies, is the preferable legal response to image-based sexual abuse (IBSA). Thus, it is commendable that South African lawmakers have responded to IBSA with criminal sanctions, specifically targeting this phenomenon through s 18F of the Films and Publications Amendment Act 11 of 2019 and s 16 of the Cybercrimes Act 19 of 2020. Despite having two acts responding to one problem, these new legislative additions mix admirably with the existing offence of crimen injuria in providing adequate protection for victims of IBSA in South Africa. Where the broadly defined offence of crimen injuria lacks detail, s 18F and s 16 provide more precision. Section 18F and s 16, although not without internal issues, clarify the extent of unlawful conduct, provide clear penalty guidelines, highlight the intolerable nature of IBSA and offer additional support measures to victims of IBSA through protective orders. However, while advantageous, these legislative additions may not respond effectively to all cases of IBSA, especially when s 18F and s 16 are overly restrictive in application. Where the perpetration of IBSA warrants a harsher penalty than what is stipulated in both Acts or where IBSA subtly evades the protection of both Acts, the offence of crimen injuria provides a flexible alternative. It is this mutually supportive interplay that validates the assertion that South African law does provide adequately for victims of IBSA.

Regulatory Agencies and Private Damages in the EU: Bridging the Gap between Theory and Practice

Abstract Regulatory agencies have traditionally been concerned with deterring unlawful conduct in the public interest. This article explores the emerging role of agencies in securing compensation for individuals in mass damage situations resulting from violations of EU private law. It identifies three main models of the relationship between administrative enforcement and private law remedies, notably damages, within the agencies’ operation: (1) separation, (2) complementarity, and (3) integration. These models reflect elements of the current legislative and agency practices in a variety of jurisdictions across different areas of EU private law and provide an analytical framework for assessing such practices in terms of their potential to reconcile the pursuit of the public interest with a concern to ensure justice between private parties. The analysis points to the need to systematically rethink the prevailing regulatory theory concerning the tasks of regulatory agencies along the lines of a holistic approach to deterrence and compensation.

Two Sides of the Same Coin: EU Financial Regulation and Private Law

Today, legislators, courts, financial regulators and other actors at the EU and national level face major new challenges in safeguarding public and private interests in an increasingly digital and sustainability-minded environment surrounding financial markets. Innovative ways of addressing tensions between the common good and the individual preferences of market actors are needed to address these challenges. However, at present, the efforts to develop workable solutions are seriously hampered by the gap between the two areas of law that profoundly shape the financial markets—financial regulation and private law—in the current European policy discourse and legal scholarship. This article is an attempt to systematically rethink the role of private law in the regulatory and enforcement landscape for financial markets and its relationship with public regulation more generally. It argues that financial regulation and private law are not two parallel universes, but rather two sides of the same coin, each of which has a critical role to play in safeguarding public and private interests. Examining EU financial regulation through the ‘private law’ lens would enable us to unveil a complex interplay between the regulatory dimension, contractual settings and private law remedies that we need to better understand in order to be able to better regulate financial markets. Conversely, examining national private law through the European ‘regulatory’ lens would allow us to unpack the potential of traditional private law to contribute to the objectives of EU financial regulation, while at the same time realising justice between private parties.

Breach of the Mandatory Bid Rule: Minority Shareholders’ Protection in the Public vs. Private Enforcement Debate

The mandatory takeover bid has been broadly investigated in the literature. The economics of such control acquisition and the pros and cons of the mandatory bid rule are nowadays well-established. Uncertainty still reigns with respect to the fundamental question whether private law remedies are available to minority shareholders in the case of a breach of the duty to make a takeover bid. Statutory law across Member States is essentially silent on this matter, and at a supranational level the CJEU’s case law does not offer valid precedents. European policymakers rely on public enforcement mechanisms, while an action for damages against the bidder is not made available or only reluctantly accepted by the courts. Italy is an outlier, allowing today – after the consolidation of the principles expressed in the leading case Fondiaria-SAI – the recourse to private enforcement remedies. This article shows that, for the purpose of good functioning and competitiveness of capital markets, private enforcement plays an important role against violations of the mandatory bid rules. Thus, public enforcement, which often proved to be ineffective or bypassed especially in cases of acting in concert, should be complemented by the recognition of civil liability of the bidder for breach of the duty to launch a takeover bid. Furthermore, the legal regime of such liability is outlined, thereby investigating the (contractual or tortious) nature of the bidder’s liability and the operativeness of such a regime (e. g., amount of damages, application of compensatio lucro cum damno rule).

Remedies, Analysed †

Abstract While an extensive literature exists on the nature and justification of particular remedies, such as compensation or restitution, the nature and justification of remedies in general is less well explored. This article reviews Stephen Smith’s Rights, Wrongs, and Injustices: The Structure of Remedial Law, which offers an account of the nature of remedies, why courts award them, and a taxonomy of the grounds of private law remedies. The article considers the following questions addressed or raised by the book: (i) What is a remedy? (ii) Why do courts grant remedies? (iii) What are the grounds of remedies? and (iv) Should remedial law be considered an area of law? Each section sets out and analyses Smith’s answers and some alternative views are outlined. For example, I sketch a different account of the concept of a remedy which is not restricted to rulings, refine the book’s account of the distinction between substantive and remedial law, and offer reasons to doubt that the grounds of remedies are fully reducible to wrongs, injustices and Right threats.

Informed consent to clinical research in India: A private law remedy

There is a well-established common law doctrine for ascertaining information disclosure in informed consent claims within the treatment context that governs the doctor–patient relationship. But there is no such doctrine in clinical research governing the researcher–participant relationship in India. India, however, is not exceptional in this regard. Common law countries like the United States and Canada at most have sparse, non-systematised, criteria for such cases; arguably, a doctrine for research is at its nascent stage. But the adequacy of the existing criteria for settling informed consent claims in research has hardly ever been discussed. Furthermore, a specific discussion on the applicability of this ‘nascent doctrine’ to India is non-existent. This article discusses both. The article examines case law from India and other common law jurisdictions that hint at developments in this area. It suggests that Indian courts need to move abreast with other jurisdictions to better protect India’s patients and research participants.

Private Law Duties Deriving From EU Banking Regulation and its Individual Protection Goals

AbstractEU regulation both affects private law and increasingly relies on private law mechanisms to ensure its proper enforcement. Prominent examples are competition and capital markets regulation. In contrast, EU prudential regulation of commercial banking predominantly relies on public enforcement via supervisory authorities. This is astonishing given that the protection of individual bank customers emerges as a leitmotiv of EU banking regulation. CRD IV and CRR as the main legislative acts of EU commercial banking regulation strongly promote the goals of depositor and investor protection. More explicitly, the Consumer Credit Directive and the Consumer Mortgage Credit Directive introduced the duty of responsible lending towards consumers. Where the individual bank customer enjoys regulatory attention, but is not protected by public supervisory authorities, private law is best placed to fill the enforcement gap. In light of CJEU guidance, this contribution argues that the current EU banking regulation is open for and even requires private law remedies to enforce individual protection goals. Suitable instruments are contract interpretation, contract nullity and damages.

Reconciling legal certainty in corporate divisions with respect for civil law remedies: Case C-394/18 I.G.I. Srl v. Maria Grazia Cicenia

On 30 January 2020, the Court of Justice of the European Union (CJEU) delivered its judgment in the Case C 394/18 I.G.I. Srl v. Maria Grazia Cicenia et al. The case offers an interpretation of the Directive on corporate divisions in a case that fell outside its scope, and a delicate balancing act between the need to protect legal certainty in corporate divisions, and the need to respect Private Law remedies enshrined in domestic civil codes. The CJEU ruled that the rules of the Sixth Council Directive 82/891/EEC did not preclude the creditors of a company being divided from bringing an actio pauliana against the corporate division, in order to obtain a declaration that the division does not have effects against them, nor did it preclude them from bringing enforcement proceedings against the assets transferred to the newly formed company.

Recalibrating the Debate on MiFID’s Private Enforceability: Why the EU Charter of Fundamental Rights is the Elephant in the Room

The genesis of MiFID I initiated a fierce scholarly debate on the following question: does MiFID dictate private enforceability of the rules embedded in the directive? More specifically, under a general reference to the effet utile doctrine, certain authors have argued that MiFID requires member states to provide private law remedies for infringements of certain (investor protecting) MiFID provisions. However, another strand in legal scholarship has sternly denounced this idea. In their reading, member states might equally achieve an effet utile in light of the investor protection objective by solely providing administrative enforcement mechanisms. According to this vision, it is thus for the member states to decide whether, and if so under what conditions, private law remedies are made available. This debate has never resulted in a widely endorsed consensus and persists in the MiFID II era. My thesis, somewhat provocatively, is the following: legal scholarship has erroneously overlooked the EU Charter of Fundamental Rights when assessing the private enforceability of MiFID. As the Charter requires effective judicial remedies for violations of rights conferred upon individuals by EU law, I contend that its omission in the debate on MiFID’s private enforceability has led to serious misconceptions about the enforcement of MiFID. Furthermore, in light of my article’s central thesis, I extend existing scholarship on MiFID II’s controversial paragraph about remedial action in a new direction. I present two fresh textual arguments that might shed light on the meaning of this paragraph. The arguments, which—to the best of my knowledge—have not been advanced in legal scholarship before, draw upon an integrated and coherent reading of the text of MiFID II. More precisely, the novel arguments are based on the relation between the contested paragraph and the structure and wording of MiFID II as a whole.

Proprietary Estoppel in Australia: Two Options for Exercising Remedial Discretion

According to Giumelli v Giumelli (1999) 196 CLR 101, where A successfully makes out a proprietary estoppel claim, courts must positively exercise two sets of remedial discretion. The first concerns whether expectation relief is a disproportionate remedy in view of the detriment A suffers. If expectation relief is held to be justified, a second set of discretion obliges judges ‘to consider all the circumstances of the case’, including ‘the impact upon relevant third parties’, to decide whether to enforce A’s expectations in specie or to provide a monetary award. This article discusses the problems with Giumelli, both as to the principle it propounds and as to its application on the facts. It then introduces a fundamental analytical proposition, concerning the relationship between different types of private law remedies and discretion, and explores the two options available for the future development of proprietary estoppel in Australia.

Private Law Remedies and Public Law Standards: An Awkward Statutory Intrusion into Tort Liability of Public Authorities

Private Law Remedies and Public Law Standards: An Awkward Statutory Intrusion into Tort Liability of Public Authorities

Proprietary Estoppel in Australia: Two Options for Exercising Remedial Discretion

Giumelli v Giumelli (1999) 196 CLR 101 indicates that, where A successfully makes out a proprietary estoppel claim, courts must positively exercise two distinct sets of remedial discretion. The first concerns whether expectation relief is appropriate or whether it is a disproportionate remedy in view of the detriment A suffers. If expectation relief is held to be justified, a second set of discretion obliges judges ‘to consider all the circumstances of the case’, including ‘the impact upon relevant third parties’, to decide whether to enforce A’s expectations in specie or to provide a monetary award (whether or not coupled with a charge or lien). Upon closer inspection, the decision in Giumelli and the principle it propounds are deeply ambiguous. This article notes the problems with that judgment, both as to principle and as to its application on the facts. It then introduces a fundamental analytical proposition, concerning the relationship between different types of private law remedies and discretion. In the light of this discussion, the article explores the two options available for the future development of proprietary estoppel in Australia. Ultimately, the present state of the law in relation to the exercise of remedial discretion is unsustainable, and a choice of approach urgently needs to be made.

Calculating Compensation Sums for Private Law Wrongs: Underlying Imprecisions, Necessary Questions, and Toward a Plausible Account of Damages for Lost Years of Life

The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context, it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first task. Next, the Article focuses on the imprecision that the law must grapple with whose implications are most salient: how to aggregate happiness across years of a life. This imprecision becomes significant in the context of torts that shorten a person’s life. The Article explores the appropriate measure of damages (under a corrective-justice theory) in cases in which a victim has her expected future shortened by a tort (e.g., medical malpractice or exposure to carcinogens), but in which she has not yet died. The fact that the victim is still alive makes it possible to compensate the victim herself directly for the value of life-years. Should she be compensated? The question, already critical in a number of cases, will substantially increase in prevalence with developments in science and technology in the coming years. This Article argues, contra current law in most states, that the law should take these types of cases seriously and that victims should be compensated if their loss of life-years constitutes a loss of happiness. The contrary position is in great tension with the commonsense intuition that losing life-years is one of the most (if not the most) serious harms that one can incur. But is our commonsense intuition correct? The Article proposes a three-step framework that can be used for addressing these questions of loss and getting to the appropriate measure of monetary compensation: (1) Determine which “happiness aggregation function” to espouse, (2) determine how much happiness (if any), according to one’s happiness aggregation function of choice, a plaintiff lost as a result of the harm; and (3) determine how much monetary compensation will bring about a transfer of happiness to the plaintiff that will equal the amount that she lost (according to one’s happiness aggregation function of choice).

Recalibrating the Debate on MIFID’S Private Enforceability: Why the EU Charter of Fundamental Rights is the Elephant in the Room

The genesis of MiFID I initiated a fierce scholarly debate on the following question: does MiFID dictate private enforceability of the rules embedded in the directive? More specifically, under general reference to the effet utile doctrine, certain authors have argued that MiFID requires member states to provide private law remedies for infringements of certain (investor protecting) MiFID-provisions. However, another strand in legal scholarship has sternly denounced this idea. In their reading, member states might equally achieve an effet utile in light of the investor protection objective by solely providing administrative enforcement mechanisms. According to this vision, it is thus for the member states to decide whether, and if so under what conditions, private law remedies are made available. This debate has never resulted in a widely endorsed consensus and persists in the MiFID II era. My thesis, somewhat provocatively, is the following: legal scholarship has erroneously overlooked the EU Charter of Fundamental Rights when assessing the private enforceability of MiFID. As the Charter requires effective judicial remedies for violations of rights conferred upon individuals by EU law, I contend that its omission in the debate on MiFID’s private enforceability has led to serious misconceptions about the enforcement of MiFID. Furthermore, in light of my paper’s central thesis, I extend existing scholarship on MiFID II’s controversial paragraph about remedial action in a new direction. More specifically, I present two fresh textual arguments that might shed light on the meaning of this paragraph. The arguments, which – to the best of my knowledge – have not been advanced in legal scholarship before, draw upon an integrated and coherent reading of the text of MiFID II. More precisely, the novel arguments are based on the relation between the contested paragraph and the structure and wording of MiFID II as a whole.