Tort Research Articles

Varieties of Consequentialism and Deontology in Theories of Tort Law

AbstractAn important contribution of Gregory Keating’s Reasonableness and Risk is to mount objections to law and economics whilst articulating an alternative deontological vision of tort law to that offered by corrective justice theorists. In this paper I offer two reservations about Keating’s account. One is that some forms of consequentialism can accommodate at least some aspects of his deontological theory, so we must be careful to distinguish between claims that strike at the heart of consequentialism and those that are only a problem for wealth maximisation. The second is that there are yet other varieties of deontology besides Kantianism and Keating’s alternative to it, and while I accept some of Keating’s claims, I think we should reject others. I will make the case for each of these reservations via discussion of three core features of Keating’s account: the harm/benefit asymmetry, the commitment to objective rather than subjective valuation, and his justification of strict liability.

Actual issues of administrative and tort law of Ukraine

Actual issues of administrative and tort law of Ukraine

Whose war is it anyway? Proportionate reparations in wars of aggression

Abstract This article proposes a hybrid legal framework combining jus ad bellum and jus in bello to govern the attribution of State responsibility for reparations at the end of a war of aggression. To this end, the article considers former international mass claims processes and proposes a complementary approach that, on the one hand, acknowledges the role of the aggressor State in waging the war, and on the other, takes a cautionary approach to prevent a disproportionate burden of compensation being imposed on the aggressor State as a form of collective punishment. The consequences of respective violations of the prohibition of the use of force and the law of war are blurred in a war of aggression, resulting in complexities around liability for aggressor States. In response, this article concludes with a nuanced proposal to calculate compensation based on (1) the aggressor party's capacity to comply with jus in bello; (2) the extent of damage caused by the war of aggression, factoring in jus ad bellum considerations if a party is found to be intentionally maximizing destruction; and (3) the incorporation of tort law principles for equitable attribution of responsibility.

The Role of Intention in the Law of Delict and Tort

The Role of Intention in the Law of Delict and Tort

Unfair competition law in Ghana: unravelling the scope, evolving jurisprudence, challenges and future directions

Abstract Despite its implications for businesses and consumer welfare, unfair competition law has received limited scholarly attention in Ghana. This article fills a significant research gap by examining Ghana’s legal framework for unfair competition, focusing on legislative measures and court decisions in an attempt to facilitate comprehensive academic inquiry into the subject. The article explores how Ghana addresses unfair competition in line with international standards, particularly Article 10bis of the Paris Convention and the Trade-Related Aspects of Intellectual Property Rights Agreement. It assesses how Ghanaian courts have developed unfair competition protection jurisprudence over time with co-existing statutory and common law regimes. Additionally, it highlights the challenges in applying the law and areas for improving it. The study demonstrates how Ghana adopts various approaches to unfair competition, comprising a single source statutory reference point which coexists with the common law tort of passing off. The statutory approach, alone or with the other approaches, meets Ghana’s international obligations. However, there is a need for coherence and effectiveness in the interaction between statutory law and common law principles. Understanding this interaction is essential for ensuring Ghana’s consistent and effective application of unfair competition laws.

Проблема правовой квалификации преддоговорной ответственности

One of the pressing questions within the institute of pre-contractual liability is its legal qualification. The speci-ficity of this institute allows for a variability of norms regulating this type of civil liability. Despite the fact that the Supreme Court of the Russian Federation has seemingly provided a definitive answer to this question by de-termining that norms of tort law apply to instances of pre-contractual liability arising from the breakdown of ne-gotiations, this approach has encountered criticism from scholars in the field. In the present work, the author endeavors to critique the position of those who reject the tortious qualification of pre-contractual liability within the framework of Russian law. It is demonstrated that the particularities of the institute in question do not pre-clude the construction of this type of liability based on the norms of tort law, without the necessity of employing the framework of regulatory contractual relations that arise between negotiating parties. Through a comprehen-sive analysis, this article seeks to clarify the legal nature of pre-contractual liability, arguing for a more nuanced understanding that aligns with the principles of tort law while addressing the complexities of negotiation pro-cesses in civil transactions. This exploration contributes to the broader discourse on the reform of legal stand-ards governing pre-contractual relationships, ultimately aiming for a more coherent and effective legal frame-work.

Современное состояние и тенденции развития международного деликтного права

The purpose of this article is to examine current state and main trends in the development of international tort law as a part of private international law. It is argued that Russian legislation on private international law generally takes into account modern trends in the development of legal regulation of torts obligations in foreign States and, to a certain extent, can serve as a starting point for the development of model legislation of the Commonwealth of Independent States.

Jednostranná nebo konkludentní? Problematické aspekty volby práva (nejen) v zajišťovacích instrumentech ve světle aktuální judikatury

This article deals with cases of <i>unilateral</i> and <i>tacit</i> choice of law, as less common examples of choice of law. These are entirely separate categories. Unilateral choice reflects the fact that it is the result of the will of only one person, and typically appears in unilateral legal acts (such as a financial guarantee in Czech law). Tacit choice, on the other hand, indicates that the intent to choose the law was expressed in a non-explicit way. Choice of law can be at the same time both unilateral and tacit, although this will not occur very often in practice. In the case of unilateral legal acts in the field of contract and tort law, there is a debate whether their conflict of laws regime falls under the EU’s unified conflict of laws rules (Rome I or Rome II Regulation) or under national law. There is no clear decision on the issue by the CJEU. The Czech Supreme Court has recently been given the opportunity to comment on this and some other issues of unilateral and implied choice of law. However, the Court rather missed this opportunity. It avoided the question of whether the national law or the Rome I Regulation applies to unilateral legal acts similar to a declaration of guarantee by (unfortunately incorrectly) applying the Rome Convention. The Court also applied the rules for a bilateral choice of law to an apparently unilateral choice of law in a rather complex manner. Moreover, its conclusion that the choice subjecting the declaration in question to “Danish statutes” is only an implied choice and not an express one is at least questionable. The article critically assesses this decision and shows in what respects a different (and more correct) course of action should be followed.

A difficult puzzle: the duty of care in Member States’ tort law and the GDPR

A difficult puzzle: the duty of care in Member States’ tort law and the GDPR

Whether Wrongful Death from Law and Economics View Could Satisfy Pareto Efficiency Criterion under US Law

The development of economics has had a significant impact on the research of legal scholars, as analyzing legal principles from an economic perspective has become increasingly prevalent. It also has particularly influenced the field of tort law. Supporters of the economic analysis of tort law argue that it should be as efficient as possible in balancing the rights and duties between tortfeasors and victims. This essay provides a brief discussion of wrongful death from a legal and economic perspective. It begins with an introduction to traditional tort law and its elements, followed by an examination of the economic theory regarding compensation for wrongful death. The essay then explores whether the wrongful death rule could satisfy the Pareto Efficiency Criterion, which is a fundamental concept in welfare economics that evaluates the desirability of a change in allocation based on the principle that no individual should be made worse off. By applying an economic lens to the analysis of wrongful death cases, this essay aims to contribute to the ongoing dialogue between law and economics and to shed light on how economic principles can inform and potentially enhance the understanding and application of tort law.

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.

Book Review Mauro Bassanini, Antony J. Sebok, Marta Infantino, Common Law and Civil Law Perspectives on Tort Law, New York, NY: Oxford University Press, 2022.

The work by Bassanini, Sebok and Infantino, published by Oxford University Press, is an interesting and in-depth analysis of the law of civil liability, in five legal systems: England, the United States, France, Germany and Italy. The analysis starts from the identification of this area of law, as named in the different legal systems as “tort law”, “responsabilité civile”, “Deliktsrecht”, “responsabilità civile” The work contains a lucid, wide-ranging and detailed comparison between the Common Law and Civil Law systems selected with specific reference to the «civil liability for injuries arising outside of contract»

Business, Human Rights and Climate Change: The Gradual Expansion of the Duty of Care

Abstract This article investigates how human rights considerations are increasingly shaping tort law by focusing on the gradual expansion of the duty of care in business and human rights cases. For decades, victims have attempted to hold parent companies to account for extraterritorial human rights abuses committed by their foreign subsidiaries. Recently, the Supreme Court ruled that UK courts have jurisdiction over such business and human rights cases. These cases are not only jurisdictional. They also contributed to developing the duty of care case law on parental liability. But how much can human rights considerations stretch the boundaries of tort law? The article analyses the case of climate change litigation to assess whether a further development in tort law jurisprudence would be necessary to hold corporations accountable for their contribution to climate change.

Perbandingan Pengaturan Tata Hukum Antara Indonesia dan Amerika Serikat

Perhaps the most important development in patients' rights has been that in Indonesia and the United States regarding the doctrine of informed consent. Embracing the Continental European legal system, the doctrine of informed consent in Indonesia is articulated in Law No. 36 of 2009 on Health, Government Regulation No.32 of 1996 on Health Worker, Law No.29 of 2004 on Medical Practice, and Law No. 8 of 1999 on Consumer Protection. It is also specifically regulated by Health Ministerial Decree No. 29 of 2008 regarding Medical Action Approval. This doctrine requires physicians to share certain information with patients before asking for their consent to treatment. The Court in the United States of America used the term of informed consent to describe the physicians obligations to provide information. The legal consequences if informed consent is not given, it is considered as an act of abuse (intentionally) to the patient. According to Rule of law in the United States that physicians have to open all the information about all the necessary facts, so that patients can determine appropriate treatment options. Tort Law in Anglo-Saxon legal system, similar to "act against the law" in the Continental European legal system. This article examines a comparative study of informed consent in the Indonesian Health Laws and regulations and those of the United States.

The Importance of Legal Accountability in Negligence and Mental Health Care

Legal accountability in mental health care is increasingly gaining recognition in human rights discourse. Negligence is one accountability mechanism that can provide compensation, but has been criticised for failing to deliver justice. The Mental Health and Wellbeing Act 2022 (Vic), along with immunity provisions for clinicians who act in good faith, have shone the spotlight on whether current mechanisms are effective accountability measures. Analysis of authorities suggests that clinicians and health authorities will ordinarily be protected from liability when clinical decisions are made that are consistent with mental health legislation. Yet clinicians often misunderstand the concept of ‘duty of care’ and use it as an extra-legal power to control. Using a fictional vignette, this article addresses the tensions and dilemmas that exist in tort law and mental health care. Our analysis lends itself to two solutions: the need for effective training and the promise of no-fault insurance schemes.

Об историко-цивилизационной и культурной роли философии в современном мире: Россия и Европа

When considering the relationship of history and cultural and civilizational processes with philosophy, a typology of two types of philosophy is proposed. More precisely, there are two types of philosophy of justice – “equivalence” and “qualification”. The first, unfortunately, is the most common in politics, especially European, Euro-Atlantic or rather Western, is one of the most significant causes of crises and wars, both in history and in modern times. It is the equivalence that, in fact, is synonymous with blood feud (talion), in which retribution becomes equivalent to a crime. In this case, each of the conflicting parties acts as a subject of law and considers itself an injured party. At the same time, one of the parties (as can be seen from the example of Europe when studying its history, especially the last 500 years of colonial history) considers itself to be the only source of rulemaking in the contractual coordinate system. Which in fact leads, without any exceptions, in the history and, most importantly, in the present, to the multiplication of conflicts and the rejection of peace negotiations in principle. Both the past and the present of the political, historical, civilizational, and cultural development of mankind testify to this. This is the philosophy of political solipsism. The qualification, or as it is called in Roman law – “humane justice in favor of freedom”, is more appropriate, as the experience of history in general and the historical development of Russia, in particular, with its multinational composition of statehood, which has preserved about 190 nations and nationalities during its centuries-old development, proceeds from the fact that the norm is not relative and it is not conventional, but has apodictic characteristic and it involves a long process of public-legal coordination of representative databases in the form of various socio-political relations (including conflict ones) in their correlation with the interests of conflicting subjects. And norms, the recognition of the universality and necessity of which on the part of the contracting parties is an indispensable condition for overcoming any crisis. This is the philosophy of political symphonism and synergy. When comparing the relationship between philosophy and history, philosophy and culture, it should be born in mind that it (philosophy) primarily carries the educational function, and at the same time the function of strategic planning, but not a predictive function. Otherwise, we get what can be called “parallel” or, as they say now, “block thinking”, unable to distinguish in the long term, medium-term, and even in the short term, the true and false types of progress, with all their consequences in the history of cultures and civilizations. Or what could be recognized as political solipsism, incapable of any interaction of cultures and negotiation processes in domestic affairs and international relations.

보험약관 설명의무 관련 법제 현황 및 개선방안 - 약관규제법상 편입통제를 중심으로

The legislation concerning the duty to explain insurance terms and conditions has undergone significant refinement through various stages: the enactment of the Act on Regulation of Terms and Conditions in 1986, the amendment of the Commercial Act in 1991, the global financial crisis in 2008, the amendment of the Insurance Business Act in 2010, and the enactment of the Financial Consumer Protection Act in 2020. Currently, violations of the duty to explain are subject to multiple regulatory layers, including the control of incorporation under the Act on Regulation of Terms and Conditions, contract termination, indemnification for damages, administrative sanctions under the Financial Consumer Protection Act, and contract cancellation under the Commercial Act. The duty to explain aims to resolve information asymmetry and ensure the substantial autonomy and initiative of consumers in contract formation. However, detailed discussions are required regarding its rationale and requirements. The rationale for the duty to explain has been examined from the perspectives of contract law, tort law, and insurance law. Specific requirements may include information requirements (importance and asymmetry of information), obligor requirements (expertise and bargaining power of the obligor), and relational requirements (conflicts of interest and potential for abuse). These could serve as preliminary standards in legislative policy-making and judicial decisions related to the duty to explain. The control of incorporation under the Act on Regulation of Terms and Conditions is one of the most stringent measures for regulating violations of the duty to explain. However, when applied to statutory obligations, such as the duty of disclosure included in the terms and conditions, it results in issues where the applicability of statutory obligations differs based on whether they were explained. For standard terms in mandatory insurance like auto insurance, it is inequitable for the content to vary among customers based on whether explanations were given. Furthermore, excluding only disadvantageous clauses from the contract by applying incorporation control and thereby providing benefits that customers could not have obtained at the time of contract formation is also unfair. These problems arise from the application of incorporation control to violations of the duty to explain. Therefore, it is necessary to consider excluding or limiting the scope of incorporation control for violations of the duty to explain insurance terms. Discussions on the duty to explain have traditionally focused on consumer protection. Moving forward, there needs to be comprehensive consideration of consumer protection, the rationality of regulation, the principles of insurance, and equity in discussions on policy improvement.

Addressing Corporate Human Rights Violations and Environmental Harm: Advancing a Holistic Remedial Framework through Tort Law and the EU Corporate Sustainability Due Diligence Directive (CSDDD)

Addressing Corporate Human Rights Violations and Environmental Harm: Advancing a Holistic Remedial Framework through Tort Law and the EU Corporate Sustainability Due Diligence Directive (CSDDD)

Standing for Climate Change Litigation: A Tort Law Approach and the Way Forward

Standing for Climate Change Litigation: A Tort Law Approach and the Way Forward

Smith v Fonterra and the Climatisation of Tort Law

How should tort law respond to climate change? In Smith v Fonterra, New Zealand's Supreme Court provided some important answers. This note summarises the decision, and situates it within broader debates about the function of tort law and its necessary evolution in response to climate change. The Supreme Court's decision hints at possibilities for the ‘climatisation’ of tort law, and highlights the double life of tort law as both a backward‐looking mechanism of corrective justice, and a forward‐looking mechanism of risk regulation. As climate‐related harms intensify, the question will be how, rather than if, tort law evolves to meet the challenge. Smith v Fonterra may be one of the first cases to ask that question, but it will not be the last.