What are the implications of artificial intelligence (AI) for corporate law? In this essay, we consider the trajectory of AI’s evolution, analyze the effects of its application on business practice, and investigate the impact of these developments for corporate law. Overall, we claim that the increasing use of AI in corporations implies a shift from viewing the enterprise as primarily private and facilitative, towards a more public, and regulatory, conception of the law governing corporate activity. Today’s AI is dominated by machine learning applications which assist and augment human decision-making. These raise multiple challenges for business organization, the management of which we collectively term ‘data governance’. The impact of today’s AI on corporate law is coming to be felt along two margins. First, we expect a reduction across many standard dimensions of internal agency and coordination costs. Second, the oversight challenges — and liability risks — at the top of the firm will rise significantly. Tomorrow’s AI may permit humans to be replaced even at the apex of corporate decision-making. This is likely to happen first in what we call ‘self-driving subsidiaries’ performing very limited corporate functions. Replacing humans on corporate boards by machines implies a fundamental shift in focus: from controlling internal costs to the design of appropriate strategies for controlling ‘algorithmic failure’, i.e. unlawful acts by an algorithm with potentially severe negative effects (physical or financial harm) on external third parties. We discuss corporate goal-setting, which in the medium term is likely to become the center of gravity for debate on AI and corporate law. This will only intensify as technical progress moves toward the possibility of fully self-driving corporations. We outline potential regulatory strategies for their control. The potential for regulatory competition weakens lawmakers’ ability to respond, and so even though the self-driving corporation is not yet a reality, we believe the regulatory issues deserve attention well before tomorrow’s AI becomes today’s.
{"title":"Self-Driving Corporations?","authors":"J. Armour, Horst Eidenmueller","doi":"10.2139/ssrn.3442447","DOIUrl":"https://doi.org/10.2139/ssrn.3442447","url":null,"abstract":"What are the implications of artificial intelligence (AI) for corporate law? In this essay, we consider the trajectory of AI’s evolution, analyze the effects of its application on business practice, and investigate the impact of these developments for corporate law. Overall, we claim that the increasing use of AI in corporations implies a shift from viewing the enterprise as primarily private and facilitative, towards a more public, and regulatory, conception of the law governing corporate activity. Today’s AI is dominated by machine learning applications which assist and augment human decision-making. These raise multiple challenges for business organization, the management of which we collectively term ‘data governance’. The impact of today’s AI on corporate law is coming to be felt along two margins. First, we expect a reduction across many standard dimensions of internal agency and coordination costs. Second, the oversight challenges — and liability risks — at the top of the firm will rise significantly. Tomorrow’s AI may permit humans to be replaced even at the apex of corporate decision-making. This is likely to happen first in what we call ‘self-driving subsidiaries’ performing very limited corporate functions. Replacing humans on corporate boards by machines implies a fundamental shift in focus: from controlling internal costs to the design of appropriate strategies for controlling ‘algorithmic failure’, i.e. unlawful acts by an algorithm with potentially severe negative effects (physical or financial harm) on external third parties. We discuss corporate goal-setting, which in the medium term is likely to become the center of gravity for debate on AI and corporate law. This will only intensify as technical progress moves toward the possibility of fully self-driving corporations. We outline potential regulatory strategies for their control. The potential for regulatory competition weakens lawmakers’ ability to respond, and so even though the self-driving corporation is not yet a reality, we believe the regulatory issues deserve attention well before tomorrow’s AI becomes today’s.","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129234887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Considering that motor vehicles must comply with mandatory and mandatory uniform characteristics between the Member States of the European Union in order to eliminate or at least reduce the obstacles to the establishment and functioning of the common market , characteristics that starting from the year 1970 must be adopted both as a complement and in replacement of the current legislation of the member countries; whereas a check of compliance with the technical requirements has traditionally been carried out by the Member States before the vehicles to which they apply are applied and that this control covers the various types of vehicles, the EEC directive number 156 of 1970 defined the first rules of approval that the member Staes EU must adopt to allow the free movement of motor vehicles in safety. Considers vehicles for any motor vehicle designed to travel on the road, with or without a body, having at least four wheels and a maximum design speed exceeding 25 km / h, as well as its trailers, with the exception of vehicles moving on rails , tractors and agricultural machinery. In this publication (2018-19,06) research and studies are carried out in the field of legislation and vehicle type approval techniques with an interest in the evolution of the regulatory framework up to the year 2017. In the appendix the study of some analytical methods used for the construction and design of internal combustion engines with positive ignition (petrol engines) and compression ignition (diesel engines).
{"title":"Legislative Framework up to the Year 2017. Vehicle Type-Approval.","authors":"Vito Gnazzo","doi":"10.2139/ssrn.3621503","DOIUrl":"https://doi.org/10.2139/ssrn.3621503","url":null,"abstract":"Considering that motor vehicles must comply with mandatory and mandatory uniform characteristics between the Member States of the European Union in order to eliminate or at least reduce the obstacles to the establishment and functioning of the common market , characteristics that starting from the year 1970 must be adopted both as a complement and in replacement of the current legislation of the member countries; whereas a check of compliance with the technical requirements has traditionally been carried out by the Member States before the vehicles to which they apply are applied and that this control covers the various types of vehicles, the EEC directive number 156 of 1970 defined the first rules of approval that the member Staes EU must adopt to allow the free movement of motor vehicles in safety. Considers vehicles for any motor vehicle designed to travel on the road, with or without a body, having at least four wheels and a maximum design speed exceeding 25 km / h, as well as its trailers, with the exception of vehicles moving on rails , tractors and agricultural machinery. In this publication (2018-19,06) research and studies are carried out in the field of legislation and vehicle type approval techniques with an interest in the evolution of the regulatory framework up to the year 2017. In the appendix the study of some analytical methods used for the construction and design of internal combustion engines with positive ignition (petrol engines) and compression ignition (diesel engines).","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116525918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this research paper, researcher has attempted to examine national and international legal instruments and policies relating to climate change and sustainable development through the lense of livelihood challenges for farmers. Researcher has also attempted to explore the farmers concern in different national and international legal instruments, declarations and policies. This paper also finds out an impact of climate change on farmers and agricultural sector, which is the backbone of economy for many South Asian countries. Despite of the efforts of different international organizations, still problems like, climate change induced livelihood challenges for farmers, food security problems etc. in South Asian countries including Bangladesh, China and India, are persisting. Besides, in this paper researcher has vigorously argued that concern of farmers is only the missing link between climate change induced problems and sustainable development. Sustainable development will be a reality when livelihood challenges of farmers and especially agricultural sector will be addressed in the climate change related legal and policy documents. This paper takes a broader view and explores the multiple effects that climate change can have on farmers, food production and food security. It also tries to explore an adaptation and mitigation measures, especially in the agricultural sector with reference to farmers of South Asian countries.
{"title":"Livelihood Challenges of Farmers in South Asian Countries: Bridging the Gap between International and National Legal Instruments and Policies for Climate Change and Sustainable Development","authors":"Dr. Azimkhan Pathan","doi":"10.2139/ssrn.2900792","DOIUrl":"https://doi.org/10.2139/ssrn.2900792","url":null,"abstract":"In this research paper, researcher has attempted to examine national and international legal instruments and policies relating to climate change and sustainable development through the lense of livelihood challenges for farmers. Researcher has also attempted to explore the farmers concern in different national and international legal instruments, declarations and policies. This paper also finds out an impact of climate change on farmers and agricultural sector, which is the backbone of economy for many South Asian countries. Despite of the efforts of different international organizations, still problems like, climate change induced livelihood challenges for farmers, food security problems etc. in South Asian countries including Bangladesh, China and India, are persisting. Besides, in this paper researcher has vigorously argued that concern of farmers is only the missing link between climate change induced problems and sustainable development. Sustainable development will be a reality when livelihood challenges of farmers and especially agricultural sector will be addressed in the climate change related legal and policy documents. This paper takes a broader view and explores the multiple effects that climate change can have on farmers, food production and food security. It also tries to explore an adaptation and mitigation measures, especially in the agricultural sector with reference to farmers of South Asian countries.","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133718123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-05-06DOI: 10.1163/18786561-00601013
M. Peeters
The European Union is the only party to the UNFCCC that is a regional organization. The European Union’s Intended Nationally Determined Contribution, submitted on behalf of itself and its member states, contains a pledge to reduce domestic greenhouse gas emissions by at least 40 per cent by 2030 compared with 1990 levels, in pursuit of the general objective to keep the global average temperature increase below 2°C. Given, however, that the Paris Agreement aims not only to hold the increase ‘well below’ 2°C, but also to ‘pursue efforts’ to limit the increase to 1.5°C, one wonders whether the outcome of cop 21 may lead the European Union to a reconsideration — with possibly a strengthening — of the mitigation effort proposed in its INDC.
{"title":"An EU Law Perspective on the Paris Agreement: Will the EU Consider Strengthening Its Mitigation Effort?","authors":"M. Peeters","doi":"10.1163/18786561-00601013","DOIUrl":"https://doi.org/10.1163/18786561-00601013","url":null,"abstract":"The European Union is the only party to the UNFCCC that is a regional organization. The European Union’s Intended Nationally Determined Contribution, submitted on behalf of itself and its member states, contains a pledge to reduce domestic greenhouse gas emissions by at least 40 per cent by 2030 compared with 1990 levels, in pursuit of the general objective to keep the global average temperature increase below 2°C. Given, however, that the Paris Agreement aims not only to hold the increase ‘well below’ 2°C, but also to ‘pursue efforts’ to limit the increase to 1.5°C, one wonders whether the outcome of cop 21 may lead the European Union to a reconsideration — with possibly a strengthening — of the mitigation effort proposed in its INDC.","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"52 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132399538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since 2011, the negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) have slowly but steadily built a foundation for a new climate agreement that parties hope will carry the Convention forward more progressively and more universally than ever before. This article endeavors to illustrate the major legal issues that will need to be resolved in Paris, France before the new climate agreement can be judged on its merits. The resolution of these legal questions will have significant ramifications for the breadth of participation and how parties may meet their obligations under the new agreement. This article provides a brief background of the UNFCCC, highlighting key shifts in the global community’s strategies to address climate change and considers the key lessons learned by parties over 23 years of experience regarding the legal form and rigor of climate agreements, differentiation, ambition, transparency and compliance, adaptation, and means of implementation. It then explores some of the legal issues that will need to be decided in Paris, particularly the legal form of the core agreement, which will influence U.S. President Barack Obama’s choice among given options for U.S. acceptance. The Paris agreement is a rare opportunity to bolster international environmental law, strengthening individual climate efforts over time and reinforcing international climate cooperation.
{"title":"The 2015 Climate Agreement: Key Lessons Learned and Legal Issues on the Road to Paris","authors":"Jennifer Huang","doi":"10.2139/SSRN.2724109","DOIUrl":"https://doi.org/10.2139/SSRN.2724109","url":null,"abstract":"Since 2011, the negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) have slowly but steadily built a foundation for a new climate agreement that parties hope will carry the Convention forward more progressively and more universally than ever before. This article endeavors to illustrate the major legal issues that will need to be resolved in Paris, France before the new climate agreement can be judged on its merits. The resolution of these legal questions will have significant ramifications for the breadth of participation and how parties may meet their obligations under the new agreement. This article provides a brief background of the UNFCCC, highlighting key shifts in the global community’s strategies to address climate change and considers the key lessons learned by parties over 23 years of experience regarding the legal form and rigor of climate agreements, differentiation, ambition, transparency and compliance, adaptation, and means of implementation. It then explores some of the legal issues that will need to be decided in Paris, particularly the legal form of the core agreement, which will influence U.S. President Barack Obama’s choice among given options for U.S. acceptance. The Paris agreement is a rare opportunity to bolster international environmental law, strengthening individual climate efforts over time and reinforcing international climate cooperation.","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"111 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126252251","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Improving personal effectiveness has been a popular subject for many decades in the business world. However, in transitional justice and rule of law, effectiveness has only relatively recently been a topic of interest, as researchers investigate reasons why international legal interventions succeed and why they fail. This paper examines the issue of effectiveness of rule of law and transitional justice interventions from the perspective of the actors themselves – the international lawyers – especially as they work with their national counterparts to achieve their objectives. The report analyses the barriers to intercultural effectiveness at the individual level for international lawyers. The main part of this paper then focuses on the specific knowledge, skills and values through which an international lawyer may be able to optimise their own intercultural effectiveness. In particular, we highlight the desirability of a full factual briefing before starting work in a different country, the need for effective intercultural communication and organisational skills and the importance of adopting a flexible attitude and an understanding of one’s personal and professional limitations. We will also discuss how institutions hiring international lawyers can take also concrete practical steps to improve the success of interventions, by helping their staff and consultants to become more interculturally effective.The methodology for this paper is qualitative and more than fifty lawyers with experience working in international interventions were surveyed for their personal reflections on effectiveness in their workplace. The author of the paper has also drawn on his own experiences and discussions with both international and national colleagues, having spent more than ten years working in the field of international criminal law, transitional justice and rule of law development.This report was commissioned as part of the Lawyers, Conflict & Transition project – a three-year initiative funded by the Economic & Social Research Council that is run in partnership between the School of Law, Queen’s University Belfast and the Transitional Justice Institute.
{"title":"Alex Batesmith, Improving the Effectiveness of International Lawyers in Rule of Law and Transitional Justice Projects","authors":"Louise Mallinder","doi":"10.2139/SSRN.2665677","DOIUrl":"https://doi.org/10.2139/SSRN.2665677","url":null,"abstract":"Improving personal effectiveness has been a popular subject for many decades in the business world. However, in transitional justice and rule of law, effectiveness has only relatively recently been a topic of interest, as researchers investigate reasons why international legal interventions succeed and why they fail. This paper examines the issue of effectiveness of rule of law and transitional justice interventions from the perspective of the actors themselves – the international lawyers – especially as they work with their national counterparts to achieve their objectives. The report analyses the barriers to intercultural effectiveness at the individual level for international lawyers. The main part of this paper then focuses on the specific knowledge, skills and values through which an international lawyer may be able to optimise their own intercultural effectiveness. In particular, we highlight the desirability of a full factual briefing before starting work in a different country, the need for effective intercultural communication and organisational skills and the importance of adopting a flexible attitude and an understanding of one’s personal and professional limitations. We will also discuss how institutions hiring international lawyers can take also concrete practical steps to improve the success of interventions, by helping their staff and consultants to become more interculturally effective.The methodology for this paper is qualitative and more than fifty lawyers with experience working in international interventions were surveyed for their personal reflections on effectiveness in their workplace. The author of the paper has also drawn on his own experiences and discussions with both international and national colleagues, having spent more than ten years working in the field of international criminal law, transitional justice and rule of law development.This report was commissioned as part of the Lawyers, Conflict & Transition project – a three-year initiative funded by the Economic & Social Research Council that is run in partnership between the School of Law, Queen’s University Belfast and the Transitional Justice Institute.","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127070872","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-03-01DOI: 10.1163/9789004305663_004
J. Gilbert, N. Bernaz
Control over natural resources is a highly controversial issue. Natural resources can be said to belong to the State as part of its sovereignty, but under human rights law, peoples have the right to freely dispose of their own natural resources. Hence, sovereignty over natural resources is defined both as a State and peoples’ right, turning it into a multifaceted and even ambiguous legal concept. In analysing this ambiguity, the chapter examines whether international human rights law and soft law standards on business and human rights may influence the way natural resources are exploited, and notably how the rights of local communities could be better protected in that context. In analysing the role of the State, the rights of indigenous peoples, and the responsibilities of corporations, this chapter aims at exploring the extent to which the international human rights legal framework encourages the consolidation of a triangular relationship between States, indigenous peoples and corporations when it comes to the exploitation of natural resources.
{"title":"Resources Grabbing and Human Rights: Building a Triangular Relationship between States, Indigenous Peoples and Corporations","authors":"J. Gilbert, N. Bernaz","doi":"10.1163/9789004305663_004","DOIUrl":"https://doi.org/10.1163/9789004305663_004","url":null,"abstract":"Control over natural resources is a highly controversial issue. Natural resources can be said to belong to the State as part of its sovereignty, but under human rights law, peoples have the right to freely dispose of their own natural resources. Hence, sovereignty over natural resources is defined both as a State and peoples’ right, turning it into a multifaceted and even ambiguous legal concept. In analysing this ambiguity, the chapter examines whether international human rights law and soft law standards on business and human rights may influence the way natural resources are exploited, and notably how the rights of local communities could be better protected in that context. In analysing the role of the State, the rights of indigenous peoples, and the responsibilities of corporations, this chapter aims at exploring the extent to which the international human rights legal framework encourages the consolidation of a triangular relationship between States, indigenous peoples and corporations when it comes to the exploitation of natural resources.","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115227305","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This posting outlines the concept of "environmental justice" as I recently described it for an encyclopedia entry in the field of "Action Research". In this discipline, the term "environmental justice" describes more than a fair outcome. It is a social movement, and a theoretical lens, that is focused on fairness in the distribution of environmental benefits and burdens, and in the processes that determine those distributions. In both cases, an attention to environmental justice means amplifying the voices of poor, racialized and Indigenous communities in environmental and natural resource policy-making venues -- places that have typically produced decisions resulting in those communities bearing more than their "fair share" of environmental harms. It also means, increasingly, paying attention to the manner through which disadvantaged and historically oppressed peoples within those communities will often be disproportionately harmed, often along familiar social gradients of gender, class, sexuality, caste, and (dis)ability. Effective research in the environmental justice framework has tended to involve robust partnerships between local communities, organizations and/or groups of activists seeking to achieve environmental justice, and university-based researchers employing participatory-action methodologies. These collaborative efforts have proven to be very fruitful in many cases, but should not be understood as easy or straightforward to implement. New models are emerging that seek to combine and enhance the expertise, capacities and perspectives of the partners in order to meet primarily, the needs of communities, and secondarily, the aims of researchers.
{"title":"What is Environmental Justice?","authors":"D. Scott","doi":"10.2139/ssrn.2513834","DOIUrl":"https://doi.org/10.2139/ssrn.2513834","url":null,"abstract":"This posting outlines the concept of \"environmental justice\" as I recently described it for an encyclopedia entry in the field of \"Action Research\". In this discipline, the term \"environmental justice\" describes more than a fair outcome. It is a social movement, and a theoretical lens, that is focused on fairness in the distribution of environmental benefits and burdens, and in the processes that determine those distributions. In both cases, an attention to environmental justice means amplifying the voices of poor, racialized and Indigenous communities in environmental and natural resource policy-making venues -- places that have typically produced decisions resulting in those communities bearing more than their \"fair share\" of environmental harms. It also means, increasingly, paying attention to the manner through which disadvantaged and historically oppressed peoples within those communities will often be disproportionately harmed, often along familiar social gradients of gender, class, sexuality, caste, and (dis)ability. Effective research in the environmental justice framework has tended to involve robust partnerships between local communities, organizations and/or groups of activists seeking to achieve environmental justice, and university-based researchers employing participatory-action methodologies. These collaborative efforts have proven to be very fruitful in many cases, but should not be understood as easy or straightforward to implement. New models are emerging that seek to combine and enhance the expertise, capacities and perspectives of the partners in order to meet primarily, the needs of communities, and secondarily, the aims of researchers.","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"389 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116079215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
European human rights law is superior to the national laws of damages. The case law of the European Court of Human Rights now provides a sufficient reason for national lawmakers to rethink their concept of non-pecuniary damage. The fact remains that the ECtHR in its case law finds a breach of a fundamental right and remedies that breach, whereas the national law of damages affords the possibility of awarding compensation for non-pecuniary loss if the aggrieved party is injured. A conflict results: on the European level a rights-based approach is applied, and on the national level a damage/injury-based approach prevails. In this article we advocate a change in the national law of damages in order to ensure that the law of damages remains durable and consistent when confronted with judgments of the ECtHR: we advocate accepting and incorporating a rights-based approach. The clash between European human rights law and the national law of damages is clearly expressed in the different approaches regarding bereavement damage. Under Dutch law a proposal aimed at introducing a legal basis for compensation for this type of loss was rejected a few years ago, whereas the ECtHR, starting from its rights-based approach, has found that compensation for non-pecuniary loss should be available as part of the range of redress mechanisms when a government body has infringed a family member’s right to life. An specific argument in the Dutch discussion, i.e. the moral aversion towards compensating and determining grief and suffering, can be overcome by not making a link with grief and suffering but instead taking one’s legal position as a starting point, e.g. the breach of the right to life. A rights-based approach not only supports the idea that any rights infringed should be remedied, but also implies a moral dismissal.
{"title":"Damages in Wrongful Death Cases in the Light of European Human Rights Law: Towards a Rights-Based Approach to the Law of Damages","authors":"R. Rijnhout, J. Emaus","doi":"10.18352/ULR.286","DOIUrl":"https://doi.org/10.18352/ULR.286","url":null,"abstract":"European human rights law is superior to the national laws of damages. The case law of the European Court of Human Rights now provides a sufficient reason for national lawmakers to rethink their concept of non-pecuniary damage. The fact remains that the ECtHR in its case law finds a breach of a fundamental right and remedies that breach, whereas the national law of damages affords the possibility of awarding compensation for non-pecuniary loss if the aggrieved party is injured. A conflict results: on the European level a rights-based approach is applied, and on the national level a damage/injury-based approach prevails. In this article we advocate a change in the national law of damages in order to ensure that the law of damages remains durable and consistent when confronted with judgments of the ECtHR: we advocate accepting and incorporating a rights-based approach. The clash between European human rights law and the national law of damages is clearly expressed in the different approaches regarding bereavement damage. Under Dutch law a proposal aimed at introducing a legal basis for compensation for this type of loss was rejected a few years ago, whereas the ECtHR, starting from its rights-based approach, has found that compensation for non-pecuniary loss should be available as part of the range of redress mechanisms when a government body has infringed a family member’s right to life. An specific argument in the Dutch discussion, i.e. the moral aversion towards compensating and determining grief and suffering, can be overcome by not making a link with grief and suffering but instead taking one’s legal position as a starting point, e.g. the breach of the right to life. A rights-based approach not only supports the idea that any rights infringed should be remedied, but also implies a moral dismissal.","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124718735","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper asks two questions. The first is an analytical one: Does the reconstruction of the sovereign activity of law-making and legal reform as a competitive bid have an analytical benefit on which doctrinal insights in particular can build? The second question is a normative one: Should the competitive paradigm serve as a normative guideline for the legislator?The first question is answered with a "yes, but …". The reconstruction of legal reform as "competition" on a market opens up a new perspective. A variety of different law-selection mechanisms are at work in the tripolar relationship between persons subject to law ("customers") and competing legal systems (or orders). But the competitive cycle is often interrupted by weak selection pressure and selection inaccuracy.The answer to the second, normative question is developed with a view to five legal principles: liberty, equality, democracy, the social principle, and the public interest. The competition between legal systems partly undermines those principles. This finding suggests that this competition must be adequately framed by a legal meta order. That meta order should, inter alia, ban unfair regulatory practices, establish rules of international cooperation, harmonise some procedures, and it should guarantee respect for some inalienable principles.
{"title":"The Competition between Legal Orders","authors":"Anne Peters","doi":"10.5539/ILR.V3N1P45","DOIUrl":"https://doi.org/10.5539/ILR.V3N1P45","url":null,"abstract":"This paper asks two questions. The first is an analytical one: Does the reconstruction of the sovereign activity of law-making and legal reform as a competitive bid have an analytical benefit on which doctrinal insights in particular can build? The second question is a normative one: Should the competitive paradigm serve as a normative guideline for the legislator?The first question is answered with a \"yes, but …\". The reconstruction of legal reform as \"competition\" on a market opens up a new perspective. A variety of different law-selection mechanisms are at work in the tripolar relationship between persons subject to law (\"customers\") and competing legal systems (or orders). But the competitive cycle is often interrupted by weak selection pressure and selection inaccuracy.The answer to the second, normative question is developed with a view to five legal principles: liberty, equality, democracy, the social principle, and the public interest. The competition between legal systems partly undermines those principles. This finding suggests that this competition must be adequately framed by a legal meta order. That meta order should, inter alia, ban unfair regulatory practices, establish rules of international cooperation, harmonise some procedures, and it should guarantee respect for some inalienable principles.","PeriodicalId":202713,"journal":{"name":"SRPN: Legal Issues (Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124492494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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