Liability Rules Research Articles

Regarding the issue of improvement of legislative regulation of unfair advertising of drugs

The article considers the issue of unfair competition in the field of drug advertising in Ukraine. The relevance of the chosen topic is proven, which is based not only on the problem of the availability and distribution of various drugs, but also on the emergence and spread of the acute respiratory disease COVID-19, which created demand for certain categories of drugs, which, in turn, are increasingly in violation of the rules of fair competition. The normative regulations are characterized and the separate provisions of the current legislation concerning unfair competition are analyzed. In particular, the concept of unfair competition is defined as any action in competition that contradicts trade and other fair practices in economic activity. The role of the Antimonopoly Committee in helping to solve the problem of unfair competition by creating the latest explanatory notes and monitoring the implementation of state control over compliance with fair competition in the field of advertising of medicines and medical services Particular attention is paid to the study of practical problems that arise in the field of drug advertising in Ukraine. It is noted that such actions as emphasis on unconfirmed rapid action, exaggeration of the properties of the drug, and indication of uncertain and vague characteristics of the quality of the drug and its price are violations and constitute illegal dissemination of information in advertising. The judicial practice of Ukraine on resolving disputes on issues of unfair competition in the field of advertising of medicines is analyzed. It is determined that courts do not always agree with the decisions of the Antimonopoly Committee and invalidate the decisions of the Antimonopoly Committee of Ukraine, as in some cases it is impossible to establish violations through the abstract text of advertising without specifying specific facts. Some of the circumstances of the case remain unproven and unsubstantiated by appropriate and admissible evidence. Practical recommendations for solving the problem in the field of unfair competition of medicines are offered. Among them are: standardization of advertising of medicines; creation of an effective mechanism for monitoring compliance with the rules of prescription drugs and liability for its violation; strict control over the content of advertising of drugs, which provides for the complete exclusion of duplicate text, abstract wording, misleading consumers, using unconfirmed statistics, etc.

Liability Rules for AI-Related Harm: Law and Economics Lessons for a European Approach

AbstractThe potential of artificial intelligence (AI) has grown exponentially in recent years, which not only generates value but also creates risks. AI systems are characterised by their complexity, opacity and autonomy in operation. Now and in the foreseeable future, AI systems will be operating in a manner that is not fully autonomous. This signifies that providing appropriate incentives to the human parties involved is still of great importance in reducing AI-related harm. Therefore, liability rules should be adapted in such a way to provide the relevant parties with incentives to efficiently reduce the social costs of potential accidents. Relying on a law and economics approach, we address the theoretical question of what kind of liability rules should be applied to different parties along the value chain related to AI. In addition, we critically analyse the ongoing policy debates in the European Union, discussing the risk that European policymakers will fail to determine efficient liability rules with regard to different stakeholders.

The Duty of Care in Company Law in Poland

The liability of directors for failure to perform their duties in a lawful manner is based on general rules of civil liability, however with some modifications making it suitable for corporate application. The duty of care is considered as one of the major directives that must be followed by directors while executing their corporate duties. Polish company law provides for similar rules of directors’ liability for violating duty of care in all types of companies. Over the last two decades, many judgements and authors have strived to determine the content of the duty of care and identify rules that could be useful to declare liability in certain cases. Currently, as amendments of applicable regulations are being processed, liability rules for violations of the duty of care in Polish company law shall become more unambiguous and effortless for application.

التعويض التلقائي عن الحوادث الطبية ودورها في بناء المواطنة

The harm that affects the right to physical integrity of the human being is considered one of the most severe types of harm because it affects the most sacred constitutional rights related to his physical entity. The sources of bodily harm are many and varied, which requires legislative intervention to organize and protect them and to ensure that the victims receive compensation for those damages. Otherwise the confidence of individuals in the state and its legal and health system will be shaken. Compensation for medical accidents that accompany the scientific and technological development of medical activity is one of the topics that need to be shed light on according to modern regulations and trends that depart from the traditional rules of civil liability due to their insufficiency or inadequacy in determining compensation through (the automatic compensation system). Through our research, we will try to show the content of the automatic compensation system in general, and then its role in compensating the injured for medical damage resulting from medical accidents in accordance with the legislation that adopted this system and its mandate in the medical field and specifically in the French legislation.

An approach to some EU initiatives on the regulation of liability for damage caused by AI-Systems

This paper deals with three of the current endeavours of the European Union regarding the regulation of artificial intelligence (AI). First, it briefly analyses the Draft Proposal of the “Artificial Intelligence Act” (AI Act), which puts fundamental rights at the core of Europe’s AI approach and establishes a risk regulation system of preventive character that proposes ex ante solutions but does not provide for liability rules. Then it refers briefly to the Resolution of European Parliament adopted in October 2020 which formulated recommendations to the Commission for the regulation of civil liability regarding the use of artificial intelligence, which included the full text of a Draft Regulation “on liability for the operation of artificial intelligence-systems”. Finally, the paper deals in more detail with the ongoing debate on how to adapt the Directive 85/374/EEC on liability for defective products to overcome the problems posed by AI, such as the openness of AI-systems, and other characteristics of AI that make it difficult to identify the potentially liable person, to prove the defect of a product, to prove causation and to apply other rules included in the Directive now in force.

Negligence rules coping with hidden precaution

This paper investigates the implementation of negligence rules when the negligent act constitutes a hidden action in the sense of principal–agent theory and where the available evidence is generated by a signal. Any liability rule exclusively based on the available evidence comes with an incentive threshold. Agents with cost savings from the negligent act above this threshold commit the negligent act whereas the others do not. In a first step, liability rules are examined that implement a given incentive threshold at minimum error costs. As this is a linear programming problem, the present paper makes heavy use of duality theory. The multiplier of the incentive constraint if understood as shadow price allows for an intuitive explanation of the results. As a second step, a comparative statics analysis with respect to the incentive threshold is provided. Surprisingly enough, the relation between the threshold and minimum error costs need not be monotonic.

EFFICIENT LIABILITY IN EXPERT MARKETS

AbstractWhen providing professional services, an expert may misbehave by either prescribing “wrong” treatment for consumer's problem or failing to exert proper effort to diagnose it. We show that under a range of liabilities the expert will recommend the appropriate treatment based on his private information if markups for alternative treatments are close enough; however, a well‐designed liability rule is essential for also motivating efficient diagnosis effort. We further demonstrate that unfettered price competition between experts may undermine the efficient role of liability, whereas either a minimum‐price constraint or an obligation‐to‐serve requirement can restore it.

Generální prevenční povinnost v systému deliktního práva

The paper at hand deals with role and function of the general prevention duty in tort law as introduced by the Czech Civil Code in 2014. The general prevention duty has been taken over from the former Civil Code with some minor legislative amendments. On the other hand, basic rules for tort liability have changed significantly. As opposed to the previous general tort law provision, the new tort law was modelled upon the German concept of liability. However, German tort law does not explicitly provide for a general prevention duty. As the paper points out, this creates a unique combination of rules that need to be examined and discussed thoroughly. The paper at hand strives to be part of the discussion and tackle the issue of whether the traditional understanding of the general prevention duty needs to be reassessed and if so, how. It poses major questions, which arise due to the aforementioned changes. It further evaluates existing opinions on the matter and elaborates on possible solutions to the problem.

Computational Complexity and Tort Deterrence

Standard formulations of the economic model of tort deterrence constitute the injurer as the unboundedly rational bad man. Unbounded rationality implies that the injurer can always compute the solution to his caretaking problem. This in turn implies that optimal liability rules can provide robust deterrence, for they can always induce the injurer to take socially optimal care. In this paper I examine the computational complexity of the injurer’s caretaking problem. I show that the injurer’s problem is computationally tractable when the precaution set is unidimensional or convex but that it is computationally intractable when the precaution set is multidimensional and discrete. One implication is that the standard assumptions of unidimensional and convex care, though seemingly innocuous, are pivotal to ensuring that tort law can provide robust deterrence. It is therefore important to recognize situations with multidimensional discrete care, where robust tort deterrence may not be possible.

Response of the European Law Institute to the Public Consultation on Civil Liability – Adapting Liability Rules to the Digital Age and Artificial Intelligence

Article Response of the European Law Institute to the Public Consultation on Civil Liability – Adapting Liability Rules to the Digital Age and Artificial Intelligence was published on April 1, 2022 in the journal Journal of European Tort Law (volume 13, issue 1).

What are the health consequences associated with differences in medical malpractice liability laws? An instrumental variable analysis of surgery effects on health outcomes for proximal humeral facture across states with different liability rules

BackgroundStates enacted tort reforms to lower medical malpractice liability, which are associated with higher surgery rates among Medicare patients with shoulder conditions. Surgery in this group often entails tradeoffs between improved health and increased risk of morbidity and mortality. We assessed whether differences in surgery rates across states with different liability rules are associated with surgical outcomes among Medicare patients with proximal humeral fracture.MethodsWe obtained data for 67,966 Medicare beneficiaries with a diagnosis of proximal humeral fracture in 2011. Outcome measures included adverse events, mortality, and treatment success rates, defined as surviving the treatment period with < $300 in shoulder-related expenditures. We used existing state-level tort reform rules as instruments for surgical treatment and separately as predictors to answer our research question, both for the full cohort and for stratified subgroups based on age and general health status measured by Charlson Comorbidity Index and Function-Related Indicators.ResultsWe found a 0.32 percentage-point increase (p < 0.05) in treatment success and a 0.21 percentage-point increase (p < 0.01) in mortality for every 1 percentage-point increase in surgery rates among patients in states with lower liability risk. In subgroup analyses, mortality increased among more vulnerable patients, by 0.29 percentage-point (p < 0.01) for patients with Charlson Comorbidity Index > = 2 and by 0.45 percentage-point (p < 0.01) among those patients with Function-Related Indicator scores > = 2. On the other hand, treatment success increased in patients with lower Function-Related Index scores (< 2) by 0.54 percentage-point (p < 0.001). However, younger Medicare patients (< 80 years) experienced an increase in both mortality (0.28 percentage-point, p < 0.01) and treatment success (0.89 percentage-point, p < 0.01). The reduced-form estimates are consistent with our instrumental variable results.ConclusionsA tradeoff exists between increased mortality risk and increased treatment success across states with different malpractice risk levels. These results varied across patient subgroups, with more vulnerable patients generally bearing the brunt of the increased mortality and less vulnerable patients enjoying increased success rates. These findings highlight the important risk-reward scenario associated with different liability environments, especially among patients with different health status.

Open-Source Clinical Machine Learning Models: Critical Appraisal of Feasibility, Advantages, and Challenges.

Machine learning applications promise to augment clinical capabilities and at least 64 models have already been approved by the US Food and Drug Administration. These tools are developed, shared, and used in an environment in which regulations and market forces remain immature. An important consideration when evaluating this environment is the introduction of open-source solutions in which innovations are freely shared; such solutions have long been a facet of digital culture. We discuss the feasibility and implications of open-source machine learning in a health care infrastructure built upon proprietary information. The decreased cost of development as compared to drugs and devices, a longstanding culture of open-source products in other industries, and the beginnings of machine learning–friendly regulatory pathways together allow for the development and deployment of open-source machine learning models. Such tools have distinct advantages including enhanced product integrity, customizability, and lower cost, leading to increased access. However, significant questions regarding engineering concerns about implementation infrastructure and model safety, a lack of incentives from intellectual property protection, and nebulous liability rules significantly complicate the ability to develop such open-source models. Ultimately, the reconciliation of open-source machine learning and the proprietary information–driven health care environment requires that policymakers, regulators, and health care organizations actively craft a conducive market in which innovative developers will continue to both work and collaborate.

Do presumptions of negligence incentivize optimal precautions?

In most jurisdictions, the burden of producing evidence on a contested issue traditionally falls on plaintiffs. In a tort claim, this de facto creates a presumption of non-negligence in favor of injurers. Some legal systems in Europe placed renewed attention on “presumed liability” rules, which instead create a presumption of negligence against injurers. In this paper, we analyze the effects of alternative legal presumptions on parties’ care incentives in the presence of discovery errors. Differently from what was suggested in prior research, we show that legal presumptions do affect primary behavior: presuming that the injurer was (not) negligent strengthens (weakens) his care incentives in situations where the plaintiff faces probatory difficulties. We analyze how these effects should inform the choice of evidence regimes to improve the robustness of liability rules, and to minimize the dilutive effect of imperfect discovery on individuals’ care incentives.

Designing a System of Contractual Liability: Jacques Cujas Inspired by Roman Law

Abstract Jacques Cujas is one of the most respected and esteemed jurists in Western legal tradition. According to prevailing views, he was primarily focused on the interpretation of Roman law. However, this perception does not take fully into account the diversity of his contributions. Preliminary results arising from this research article indicate that under the veil of the reconstruction of ancient Roman law, Cujas presented new ideas and challenged traditional ways of approaching risk and liability. His innovative interpretation of a crucial classical text about liability rules was not limited to historical explanations of Roman law, but instead was intended to find practical solutions. The result was the first coherent liability system based on an improved reading of the Digest. This pilot study focuses on the process of designing a system of contractual liability. The research is based on the analysis of Cujas’s creative interpretation of a cornerstone text about Roman liability rules. It shows how recourse to the humanist method led to a profound change in the interpretation of fundamental legal concepts. In his commentary on classical liability standards (D.50.17.23), Cujas added several contracts that were unknown to Roman law (eg the contract of divorce). Moreover, he held that a group of four legal relationships (mandate, managing of others’ affairs, loan for use, and guardianship) should include an extremely high standard of liability. The author also redefined remaining liability criteria and allocated them to particular contracts. Thus the study argues that one of the most respected members of the historical school of French legal humanism was at the same time an ingenious liability system designer. Further research will determine if and how consistently Cujas applied this system throughout his work.

The Application of Strict Liability Rule in Rylands V Fletcher to Oil Spills in Nigeria

The Research Paper ‘Application of the Strict Liability Rule in Rylands v Fletcher to Oil Spills in Nigeria’, is a robust and timely evaluation of the legal concept of Strict Liability as it applies to the recurrent problem of oil spillage in Nigeria. For several decades now, crude oil production sites have regularly spilled oil and other petroleum-related chemicals, into the riverine communities of the Niger-Delta region of Nigeria. This has sometimes devastated the fishing and farming livelihoods of the poor villages within the vicinity of such spillages, and agricultural productivity is greatly reduced. This is in addition to air pollution, wildlife decline and overall environmental degradation. This paper looks at efforts to hold accountable those responsible for such degradation using the concept of Strict Liability. In order to obtain justice and compensation for the riverine communities, it must be proven that the offending oil companies were guilty of nuisance and negligence, as described by the Rule in Rylands v Fletcher. The companies are expected to know that their activities are reasonably likely to cause far-reaching destruction to the environment. Concluding, the paper makes recommendations to further tackle the problem of oil spillage in Nigeria.

European rules of liability for inherited debts experience for Ukraine

This research examines the procedure for establishing liability for inherited debts of the testator. It is noted that the inheritance law of some European countries is undergoing transformation. Discussions on the future of inheritance law in Europe have not yet been completed, and it remains to be seen whether it has begun at all. One of the key issues is the area of ​​liability for inheritance debts, which is present in any system of inheritance law and occupies an important place.&#x0D; The article highlights the main problems of European practice on the basis of Polish law and suggests that this may be the starting point for resolving this issue on a wider European scale. Modern problems are caused by the fact that most of the principles of settlement of inheritance law were borrowed from Roman private law. Daily practice shows that the solutions developed by the legislator are not always able to satisfy modern realities. Disputes over the settlement of inheritance relations are particularly noticeable in countries that have historically been part of the so-called Eastern bloc. In the light of the ever-growing demand for the unification of substantive law, inheritance in the European Union, as well as the entry into force of Regulation (EC) № 650/2012 of the European Union and the creation of a European Certificate of Inheritance, it is interesting to study. Debt inheritance research is currently lacking in a study by scholars.&#x0D; We state the fact that inheritance law is a branch of civil law. In some countries, there is a principle that no one should maintain an inheritance against their own. Legislators create opportunities for potential heirs in different ways. Therefore, we propose to create a mechanism in legal systems that uphold the principle of universal succession, according to which the passive attitude to the inheritance of any heirs is equated to the submission of an application for acceptance of the inheritance. In fact, this is natural, as renunciation of inheritance is less common in practice than acceptance.

The economics of platform liability.

Public authorities in many jurisdictions are concerned about the proliferation of illegal content and products on online platforms. One often discussed solution is to make the platform liable for third parties’ misconduct. In this paper, we first identify platform incentives to stop online misconduct in the absence of liability. Then, we provide an economic appraisal of platform liability that highlights the intended and unintended effects of a more stringent liability rule on several key variables such as prices, terms and conditions, business models, and investments. Specifically, we discuss the impact of the liability regime applying to online platforms on competition between them and the incentives of third parties relying on them. Finally, we analyze the potential costs and benefits of measures that have received much attention in recent policy discussions.

Odpowiedzialność cywilna za szkody wyrządzone w związku z zastosowaniem sztucznej inteligencji w medycynie

Artificial intelligence (AI) has recently become an integral part of a health care system. AI algorithms improve the work of doctors by shortening the time of diagnosis and treatment, solving difficult therapeutic problems, performing surgeries. The patients benefit from modern AI technologies as well – they do not wait long for a proper diagnosis, they’re treated quicklier and as result – may recover easier and come back to work. However, using the AI devices is risky since the bodily injuries may occur. It is so because artificial intelligence systems are complicated, autonomous and unpredictable to quite a high degree. Therefore, it is necessary for the doctrine and – in the long run – for the legislator as well to determine the rules of liability and the persons obliged to indemnify the injured. The idea is that the current provisions on tort liability may be applied per analogiam, in particular the strict product liability regulations. The provisions of Article 4491 and the following of the Civil Code may de lege lata constitute an optimal and adequate regime of redressing the damage caused to patients. Notwithstanding there is no need to recognize artificial intelligence as a legal entity (robot personhood) and to burden it with the obligation to pay damages.

Konkurencija ugovorne i vanugovorne odgovornosti za štetu u pravu Srbije - s osvrtom na mađarski Građanski zakonik iz 2013. godine i Projekat reforme francuskog Građanskog zakonika iz 2017. godine

In the Serbian literature the issue of the overlap between contractual and liability in tort has been thoroughly discussed. The majority of references state that the differences between the two regimes of liability outweigh their common features, thus separate sets of rules should exist governing each. There are authors who claim that differences are not of such significance so as make the integral concept of liability for damage senseless, hence they support the idea of regulating both regimes of liability by a single set of rules. The effective Obligations Act of 1978 is in line with the majority opinion, since it envisages different sets of rules for each regime of liability. Taking into account the existing duality of the rules in the Act, which significantly differ on major points, the key issue is the overlap of contractual and tortious liability, namely rules of which system of liability should apply if the injured party may base their claim on both (so-called concurrency of claims). Lacking an explicit rule in the Obligations Act, the majority asserts that the regime more favorable to the injured party should apply, which corresponds to the German solution. The inspiration for this paper is found in the new Hungarian Civil Code from 2013 which, in contrast to its predecessor, the 1959 Civil Code, and the Serbian Obligations Act, contains an explicit rule on the concurrency of claims in contract and tort. It prescribes a mandatory application of the rules of contractual liability even when the inflicted damage supports the application of the rules of the liability in tort. Such an approach is in line with the French non-cumul doctrine. The aim of this paper is, on the one hand, to initiate a discussion whether it would be reasonable to have a statutory rule in the Serbian law regulating explicitly the issue of concurrency of claims in contract and tort. On the other hand, the paper highlights the reasons that led the legislator in Hungary to prohibit the concurrency of claims. The solution of the new Turkish Code of Obligations from 2011 is mentioned in the paper, as well, which also contains an explicit rule on this subject matter. However, it took a diametrically opposite standpoint as the Hungarian Civil Code: it explicitly enables competing claims not only in contract and tort, but according to any set of rules granting redress to the injured party. Finally, the paper gives a review of the Project of the Reform of the French Code Civil concerning the rules of the liability for damage from 2017. The Project envisaged a rule that would codify the traditional standpoint of the case law and doctrine on the exclusion of the concurrence of claims and mandates the application of the rules on contractual liability. The Project specifies, however, some major exceptions, when regardless of the existence of a contract between the parties, the rules of tortious liability apply. For the time being, however, it seems that a genuine will of the legislature is lacking to embody the Project in the amendments of the Code civil.

Derivative Action- An Impartial Right given to Minority Shareholders under Pakistan’s Legislation

Derivative Action- An Impartial Right given to Minority Shareholders under Pakistan’s Legislation