Search

Insurance companies have always been at the forefront of developments in the processing of large volumes of data. This paper investigates in a comparative perspective the implications of the increasing reliance by insurers on automated quantification, examining developments of insurance law and technology in continental Europe, the common law (particularly the United States), and mainland China. The paper sheds light on the challenges brought by automated quantification in digital insurance, reviews the regulatory options that may address such challenges and inquires into the regulatory approaches pursued in different regions of the world. The comparative analysis of the strategies pursued will show that, when thinking about regulatory options for digital insurance, it is important to keep in mind that the shift to automated quantification, although global, raises different risks and opportunities depending on the contexts and the legal frameworks in which it takes place. The variance of contexts and legal frameworks explains why the impact of automated quantification in insurance is for the time being strong in the common law world, present but less intrusive in China, and proceeding at an even slower pace in continental Europe. [ABSTRACT FROM AUTHOR]

Turning the spotlight on the historical evolution of public authority liability in Europe shows us a movement from immunity to liability of increasing extent but, at the same time, opposite tendencies can be observed as well. Public authority liability evolves in waves, not always going in the same direction and, more than once, recurring to old solutions. These motions are partway prompted by policy considerations, interrelated with the special position of the state. This paper aims to set the right tone for answering the main question of the Ius Commune Workshop, entitled 'Public Authorities and Tort Law: a Difficult Marriage?'. Using a comparative perspective, this paper sets out to illustrate how policy orientation has an impact on public authority liability in Europe without giving a constant and lasting direction towards either expanding or limiting this liability. [ABSTRACT FROM AUTHOR]

Different Model Acts and national approaches to the Business Judgment Rule, some by means of its codification, others through the requirements to be considered when delimiting the directors' responsibilities, have tried to give a better orientation to the positions assumed by directors when they have to deal with business affairs on behalf of the company. Even in cases where there is not a specific section in internal law, the Business Judgment Rule is a common reference in many jurisdictions when the circumstances and elements of directors' decisionmaking are considered. In Spain, Law 31/2014, of December 3, to improve corporate governance, has codified the "protección de la discrecionalidad empresarial" in Article 226 of Ley de Sociedades de Capital, assuming the developments of the Business Judgment Rule in other jurisdictions. However, international principles and Model Acts, and other European jurisdictions, such as Germany, do not face codification of the Rule in the same way, and even consider differently requirements for its application. This paper discusses, through the approaches in Comparative law, particularly in other areas where the Business Judgment Rule has a greater tradition, the impact that the codification of the "protección de la discrecionalidad empresarial" may have in Spanish corporate governance. To this end, the paper focuses on the scope of this singular protection on directors' discretion, as well as on the requirements for its application, which shall serve at last to provide judges with a useful tool to decide on business matters where directors' responsibility is involved. Comparison with Common Law and more recently with other European approaches is a starting point to critically check whether Spanish systematization avails of the dynamics of the Rule in order to improve and properly coordinate the whole system of corporate governance. [ABSTRACT FROM AUTHOR]

The paper addresses the issues of admissibility of human embryo research and the legal protection to be recognized, in light of the growing importance that scientific research has been gaining in the clinical and biomedical fields of embryonic stem cells for therapeutic purposes. As for human embryo experimentation, particularly on cryopreserved supernumerary embryos, European legislation varies, since the European Court has granted member States a wide margin of appreciation. Some countries, including Italy, have strict legislation protecting embryos from the fertilisation stage, whereas others have taken permissive approaches, allowing experimentation until 14 days after fertilisation. Science, however, has shown that the 14-day limit can be moved. The author finds it necessary to achieve broad international consensus and shared regulations. Lawmakers, however, need to balance respect for the principle of life, represented by the embryo, against scientific needs, in order to devise sound regulations safeguarding both apparently conflicting fundamental values. [ABSTRACT FROM AUTHOR]

Background and aims Prohibitions on producing, distributing and selling cannabis are loosening in various jurisdictions around the world. This paper describes the diversification of cannabis supply laws and discusses the challenges to and opportunities for learning from these changes. Methods We document changes in cannabis supply laws that de jure legalized cannabis production for medical and/or non-medical purposes (excluding industrial hemp) in Australasia, Europe, North America and South America. We also highlight challenges to evaluating these legal changes based on our experiences studying cannabis laws and policies in the United States. Findings As of August 2016, two countries have passed laws to legalize large-scale cannabis production for non-medical purposes at the national (Uruguay) or subnational level (four US states). At least nine other countries legally allow (or will soon allow) cannabis to be supplied for medicinal purposes. Most of the changes in cannabis supply laws have occurred since 2010. The data available in most countries are inadequate for rigorously evaluating the changes in cannabis supply laws. Conclusion The evidence base for assessing changes in cannabis supply laws remains weak. Efforts should focus upon collecting information about quantities consumed and market transactions as well as validating self-report surveys. [ABSTRACT FROM AUTHOR]

This paper aims to make a comparative analysis of regulation of deposit contract based on the regulation of this type of contract in our Civil Code, in other European legislation and the DCFR (Draft Common Frame of References – the Project for a European Civil Code). The purpose of this analysis is to highlight commonalities and differences in the legislations of EU member states and our civil law on the deposit contract. Special attention will be given to the proposed regulation of the deposit contract in the DCFR, based on the idea that this Project for an European Civil Code is an academic work of real value, which includes model regulations created by renowned experts in law throughout the European Union while it is also adapted to the latest changes in the economic and social life. The result of this comparative analysis envisages a better knowledge of other European legislations and the way how the regulation of the deposit contract is provided at European level. At the same time, the analysis of DCFR rules underlines the compatibility between the current regulation of the deposit contract in our Civil Code and the existing regulation in the proposed European Civil Code, highlighting how the adoption of a common European legislation, according to the current model of the DCFR, will influence our internal regulation. [ABSTRACT FROM AUTHOR]

Copyright of Collected Papers of the Faculty of Law in Split / Zbornik Radova Pravnog Fakulteta u Splitu is the property of Split Faculty of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Should willful breach be sanctioned more severely than inadvertent breach? Strikingly, there is sharp disagreement on this matter within American legal doctrine, in legal theory, and in comparative law. Within law-and-economics, the standard answer is "no"--breach should be subject to strict liability. Fault should not raise the magnitude of liability in the same way that no fault does not immune the breaching party from liability. In this paper, we develop an alternative law-and-economics account, which justifies supercompensatory damages for willful breach. Willful breach, we argue, reveals information about the "true nature" of the breaching party--that he is more likely than average to be a "nasty" type who readily chisels and acts in dishonest ways, and may have acted in other self-serving, counterproductive ways, which went undetected and unpunished. Willful breach triggers extra resentment for what underlies it--for all the other bad things that the breaching party likely did, or, more basically, for the ex ante choice he made to engage in such pattern of behavior. Thus, when the party is caught in the act of willful breach, he is punished not merely for this act, but for the (probabilistically) inferred mesh of bad conduct. This account provides a concrete foundation for the notion that willful breach violates the "sanctity of contract." We show that some remedial doctrines are consistent with the information-based account. [ABSTRACT FROM AUTHOR]

The rising number of people "just living together", people who are neither married nor in registered partnerships, clearly demonstrates that non-marital unions can no longer be ignored. To obtain an accurate picture of the situation of non-marital partners it was essential to conduct comparative research of multiple legal orders. This analysis threw a new light (at least from the Polish standpoint) on possible solutions to the problem of the regulation of legal aspects of "living together". It appears that three different legal attitudes towards non-marital cohabitation may be distinguished in Europe. Firstly, there are legal orders in which by virtue of an explicit reference by the legislator - the regulations on marriage are applied to cohabitation (quasi-marriage cohabitation). Secondly, there also exist countries in which a law was adopted regulating selected aspects of actual cohabitation (implied model of cohabitation). And thirdly, there are legal orders in which any cohabitant-oriented legal regime exists. [ABSTRACT FROM AUTHOR]

Corporate organisational constructs facilitating social enterprise have proliferated for the last decade across Europe. This article investigates this phenomenon, and provides an initial analytical framework through which the social enterprise company can be understood, both on its own terms and with respect to the traditional business organisation. The article begins by laying out policymakers' collective intentions for creating the social enterprise company. The discussion then turns to theorising the social enterprise company's organisational architecture. The social enterprise company is a hybrid organisational construct designed to generate social value. For this reason it operates according to the principle of publicness. The intention was also for the social enterprise company to be resource flexible and attract altruistic investors and managers. The article then further extends the theoretical discussion by mapping early stage and later stage investor involvement with reference to the current state of the impact investment landscape, and investigates how these considerations relate to the jurisdictions' isomorphic prevention mechanisms, which encourage impact fidelity in the context of a conversion or a winding up. [ABSTRACT FROM AUTHOR]

This article explores the civilian tradition of the European law of delict. Part 1 tells the story of the birth of modern civil law of delict in the 19th century codifications in continental Europe, rooted in Roman law and Enlightenment Natural Law. Examples are the French and German codes, and the Japanese as a legal transplant. Fault, unlawfulness (Rechtswidrigkeit), damage, and causation are the central categories. Part 2 focuses on the challenges of industrialisation: enterprises as new actors, industrial accidents, technical risks, insurance. This part discusses the changes the civil law of delict and the common law of torts underwent to cope with these challenges. Part 3 draws some consequences from these developments. It outlines the basic structures of a postmodern civil law of delict, explicitly differentiating it from the law of torts, and as a basis for further developments in 21st century. This structure has three main features: liability for personal fault, liability for defective business activities, and Gefährdungshaftung. [ABSTRACT FROM AUTHOR]

Copyright of European Review of Contract Law is the property of De Gruyter and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Among theorists, there are rather strong differences in opinion whether communicative planning theory helps to fight or advances neo-liberalism. This article takes some distance to the debate concerning the role of communication in planning and analyses it from the point of view of different legal cultures in different European countries. It is argued in the article that the sources of legitimacy of public planning might be fundamentally different outside the Anglo-American context, in which communicative planning theory has largely been developed. Planning works in different ways in different national contexts; this is why it is not obvious that communicative planning theory would help to fight neo-liberalism in planning. The article explores the topic from the Finnish perspective, and draws on writings about legal mentality and comparative law. [ABSTRACT FROM AUTHOR]

The conversation between Islamic and secular scholars of law has been going on for a long time. Publications in European languages are flooding the market on almost any conceivable topic related to Islam. Yet, there is still little evidence of a proper dialogue, but merely of an exchange of monologues. Both sides are wary of engaging in open-ended discussion. For the Muslims, the divine origins of their religion, and consequently their attitude to the foundations of law-making, would seem non-negotiable; any addition based on secular thinking is likely to be viewed as forbidden innovation and watering-down of Islam and, in extreme cases, as an attack on the very identity of Islam. The secularists will consider some core Muslim teachings as being in breach of the fundamental freedoms for which people in the 'West' have fought for generations and with great sacrifice. This article advocates the use of the maqā?id al-shari?ah as a tool for advancing the debate. [ABSTRACT FROM AUTHOR]

The implementation of Article 20, paragraph 2, of the ICCPR has become one of the major issues of international law. This article presents an analysis of major trends in national legislation, case law and policy relating to the prohibition of incitement to hatred in Europe. This article aims to take a new look at the practical questions raised by these conditions and provisions, thus helping to restore the effectiveness of fundamental rights. [ABSTRACT FROM AUTHOR]

This comparative analysis of Luxembourg’s early school (law) system reveals the extent to which European school systems reflect “national-cultural idiosyncrasies” apart from “structural isomorphism”. It first examines the legal soil into which the Luxembourg school system was implanted. Legislative pendular swings, reflecting shifts in power relations, cultural–linguistic affinities and so on, determined the direction in which the school system would develop. Indeed, these oscillatory motions had unexpected results, which the second section reveals by presenting similarities with laws that provided inspiration for the Luxembourg law. Despite criticism of Belgian policy, the Grand Duchy’s first school law system was very similar to it. The article then focuses on some key components of the Luxembourg system and identifies a pattern of borrowings: in more strictly administrative and pedagogical matters, the French and Dutch school laws served, while the Belgian school law constituted the reference for matters intersecting with religious interests. This synchronic analysis is extended by a diachronic analysis of the historical evidence for the selective borrowing of key components of the law. The final section suggests that incipient national–cultural particularities are perhaps to be found only on the level of “inner activities” of a school system’s organisation, and that they are the products of national historiography rather than historical features observable from a comparative–perspectivist viewpoint. [ABSTRACT FROM PUBLISHER]

This article examines the legal protection of individuals from listening, disclosure or transmission of private conversations or confidential or personal audio-visual information, and comparatively analyzes regulations in matters of private life from different European criminal codes. Regulating the offense of private life violation was absolutely necessary, both to complete the criminal protection framework of the values guaranteed by Article 8 of the (European) Convention on Human Rights and Fundamental Freedoms, as the offense is not known in Romania, and to achieve interference between the concept of private life and personal privacy in the context of excessive public dissemination of private life. [ABSTRACT FROM AUTHOR]

The recent evolution of European Union equality law, and the equality law of single European countries, is marked by the increased attention given to the procedural and institutional preconditions for the effective protection against discrimination. In this context, the creation of public bodies specially tasked with the promotion of equal treatment (equality institutions), which used to be a specific feature of only some European countries, such as the United Kingdom and the Netherlands, as well as some non-European countries such as the United States, is now common all over Europe. The immediate reason for this development is that equality institutions have been imposed on all EU Member States by means of a series of EU directives in the early years of this century. From a comparative law perspective, we can observe here an interesting example of legal transfer which leaves much room for bricolage at the national level, and has given rise to a hybrid legal regime which combines legal rights with softer mechanisms of governance. [ABSTRACT FROM AUTHOR]

International investment law is rushing to stake out the high ground of democratic theory. It has been claimed that the interests of foreign investors ordinarily will not be represented within a host state's political processes and so investors deserve heightened protection from policy decisions that adversely affect investment interests. I argue in the present article that this smuggling of democratic theory and constitutional postulates into international investment law is inapt and, as an empirical matter, inaccurate. By looking to the us origins of political process doctrine, I argue that its invocation by international investment tribunals is inapposite given the doctrine's concern with relegating ordinary economic regulation to relaxed scrutiny. Nor is reference to the European experience all that helpful - representation reinforcement review has not been a hallmark of European jurisprudence. I claim that this worry over democratic processes masks an attempt at legitimating controversial review by investment tribunals of high public-policy matters. Moreover, as empirical studies suggest, this solicitude offered to investors by political process review is mostly unwarranted as foreign corporate actors can and do shape host domestic policy. [ABSTRACT FROM AUTHOR]

The article discusses the future of family contracts and comparative law in Europe as of 2010. It says that the law no longer serves as history's notary because it is now considered rules that promote social development in the Member States of the European Union (EU). The author adds that European Commission (EC) law aims to create rules that will govern property and personal relations relating to the fundamental freedoms of people within the EU. The theme of the European Community family law and the family as a natural association are also discussed.

Copyright of Studia Universitatis Babes-Bolyai, Iurisprudentia is the property of Babes-Bolyai University, Cluj-Napoca, Romania and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The European Association for Health Law has ambitious objectives. Two of them are “to encourage and facilitate co-operation among health lawyers throughout Europe” and “to encourage and support the development of health law in European and international relations”. Comparative legal research will be an important means to reach these objectives. In this contribution the author takes a closer look at this Convention as an object but also as a stimulus for comparative research in health law. To this end relevant articles have been analyzed that have been published in this journal from its creation in 1994 until the end of 2007. [ABSTRACT FROM AUTHOR]

The idea of creating a European Code for contract law, though recent, has gathered pace. Although most work towards this goal has so far assumed that the principles should be constructed through critical comparative law studies of the existing contract laws of Member States, it is argued here that theacquis communautaireprovides a modern and democratically endorsed collection of principles, which can be quite well systematised, that should provide the starting-point for scholarly endeavours towards the construction of a code of contract law. [ABSTRACT FROM AUTHOR]

What role can the criminal law play in the battle against child sexual abuse? Should sexual relations of, and with, persons under a certain age be criminalized regardless of the circumstances, even if they are consensual ("age of consent", "minimum age")'? Where should such a minimum age-limit be fixed? Should there be a special, higher age-limit for particular conditions (e.g., "seduction", "corruption")? Should sexual contacts with minors within a relationship of authority be criminalized generally or just if authority is abused? Should criminal proceedings be instituted ex officio or upon complaint only? Should authorities be provided with a power of discretion or should they be obliged to prosecute and sentence in each case? In answering these important questions, it is highly beneficial to have a look across the borders to the solutions other countries have reached in this area. This analysis will provide an overview on the criminal law governing the sexual behavior of, and with, children and adolescents in all European jurisdictions and in selected jurisdictions outside of Europe. It will show which categories of offenses exist and from which age onward young people can effectively consent to various kinds of sexual behavior and relations in the different countries. It turns out that all states in Europe and all of the studied jurisdictions overseas do have minimum age limits for sexual relations, do punish sexual relations with persons under a certain age. Nowhere is this age set lower than 12 years. In Europe in one-half of the jurisdictions, consensual "sexual relations with 14-year-old adolescents are legal; in two-thirds with 15-year-olds; in a majority, this is also the case when the older partner has started the initiative (and also when the initiative contains an offer of remuneration). In nearly all jurisdictions, such relations are legal from the age of 16 onwards. Nearly all European jurisdictions set the same age limit in the criminal law for... [ABSTRACT FROM AUTHOR]

Discusses the comparative medical law and the harmonization of patients' rights in Europe. Common approach to the right to health care and to individual rights of patients; Informed consent principle; Right of patients in France to refuse life-saving treatment; Need for comparative medical law on a case law basis.