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A Bank's Duty of Care
by Danny Busch Cees Van DamIn recent years, an increasing number of clients and third parties have filed claims against banks such as for mis-selling financial products, poor financial advice, insufficient disclosure of and warning about financial risks. The scope of a bank's duty of care seems to expand, not only to include protection of consumers against unclear risks of complicated products but also protection of professional parties against more obvious risks of relatively straightforward products. This topic raises many questions, both at a theoretical and practical level. This book provides a rich source of information about how various jurisdictions (Germany, Austria, France, Italy, Spain, the Netherlands, England and Wales, Ireland, and the United States of America) deal with these questions and how answers are found or embedded in their national legal systems. The book also contains a detailed chapter on the MiFID I and II conduct-of-business provisions. Finally, the book provides a thorough comparative analysis and perspective.
Regulating Risks in the European Union: The Co-production of Expert and Executive Power
by Maria Weimer Anniek De RuijterA growing body of EU law and regulation is preoccupied with the protection of EU citizens from health and environmental risks. Which chemicals are safe and should be allowed on the market? How should the EU respond to public health emergencies, such as Ebola and other infectious diseases? Regulatory responses to these questions confront deep uncertainty, limited knowledge and societal contestation. In a time where the use of scientific expertise in EU policy-making is particularly contested, this book offers a timely contribution to both the academic and policy debate on the role of specialised expertise in EU public decision-making on risk and technology as well as on its intertwinement with executive power. It draws on insights from law, governance, political sciences, and science and technology studies, bringing together leading scholars in this field. Contributions are drawn together by a shared theoretical perspective, namely by their use of co-production as an analytical lens to study the intricate interplay between techno-scientific expertise and EU executive power. By so doing, this collection produces highly original insights into the development of the EU administrative state, as well as into the role of regulatory science in its construction. This book will be useful to scholars, practitioners, and policy-makers working on risk regulation and the role of expertise in public decision-making.
A Critical Account of Article 106: Government Failure in Public Service Provision (Hart Studies in Competition Law)
by Jarleth BurkeA Critical Account of Article 106(2) TFEU: Government Failure in Public Service Provision offers a sceptical perspective on how EU law applies to public services. Article 106(2) provides that other Treaty rules may be disapplied in order to sustain a Service of General Economic Interest (SGEI). The rhetorical presentation of Article 106(2) is as a strict exception. As a result, Article 106(2) is often presented as a threat to Europe's public service tradition. This book challenges those shibboleths by using the concept of government failure. It is concerned with instances of government intervention that are unnecessary, generate avoidable inefficiencies, or that can be bettered so as to realise general interest goals more efficaciously. As an element of the government failure critique, a market feasibility test incorporating the concept of market failure is used to expose laxity in the review of general interests under Article 106(2). Complementing that, the process of disapplying other Treaty rules under Article 106(2) is shown to have evolved from being strict to being highly indulgent of SGEI providers, with a relatively recent but only partial correction post Altmark. Overall, the strict exception label for Article 106(2) does not hold. Moreover, it is contingent and presents no legitimate general interest related threat to the organisation and delivery of public services. A comprehensive re-orientation of Article 106(2) on issues of proof is required, as is greater reliance on market counterfactuals, and much more careful separation of objectives and means in SGEI operation and design. Through these measures, the toleration of government failure can be stemmed and Article 106(2)'s contingency reduced.
Illegality after Patel v Mirza (Hart Studies in Private Law)
by Sarah Green Alan BoggIn Patel v Mirza [2016] UKSC 42, nine justices of the Supreme Court of England and Wales decided in favour of a restitutionary award in response to an unjust enrichment, despite the illegal transaction on which that enrichment was based. Whilst the result was reached unanimously, the reasoning could be said to have divided the Court. Lord Toulson, Lady Hale, Lord Kerr, Lord Wilson, Lord Hodge and Lord Neuberger favoured a discretionary approach, but their mode of reasoning was described as 'revolutionary' by Lord Sumption (at [261]), who outlined in contrast a more rule-based means of dealing with the issue; a method with which Lord Mance and Lord Clarke broadly agreed. The decision is detailed and complex, and its implications for several areas of the law are considerable. Significantly, the reliance principle from Tinsley v Milligan [1994] 1 AC 340 has been discarded, as has the rule in Parkinson v College of Ambulance Ltd [1925] KB 1. Patel v Mirza, therefore, can fairly be described as one of the most important judgments in general private law for a generation, and it can be expected to have ramifications for the application of the illegality doctrine across a wide range of disciplinary areas. Unless there is legislative intervention, which does not seem likely at the present time, Patel v Mirza is set to be of enduring significance.This collection will provide a crucial set of theoretical and practical perspectives on the illegality defence in English private law. All of the authors are well established in their respective fields. The timing of the book means that it will be unusually well placed as the 'go to' work on this subject, for legal practitioners and for scholars.
Smart Public Procurement and Labour Standards: Pushing the Discussion after RegioPost
by Albert Sánchez GraellsSmart procurement aims to leverage public buying power in pursuit of social, environmental and innovation goals. Socially-orientated smart procurement has been a controversial issue under EU law. The extent to which the Court of Justice (ECJ) has supported or rather constrained its development has been intensely debated by academics and practitioners alike. After the slow development of a seemingly permissive approach, the ECJ case law reached an apparent turning point a decade ago in the often criticised judgments in Rüffert and Laval, which left a number of open questions. The more recent judgments in Bundesdruckerei and RegioPost have furthered the ECJ case law on socially orientated smart procurement and aimed to clarify the limits within which Member States can use it to enforce labour standards. This case law opens up additional possibilities, but it also creates legal uncertainty concerning the interaction of the EU rules on the posting of workers, public procurement and fundamental internal market freedoms. These developments have been magnified by the reform of the EU public procurement rules in 2014. This book assesses the limits that the revised EU rules and the more recent ECJ case law impose on socially-orientated smart procurement and, more generally, critically reflects on potential future developments in this area of intersection of several strands of EU economic law.
Illegally Staying in the EU: An Analysis of Illegality in EU Migration Law (Modern Studies in European Law)
by Benedita Menezes QueirozPrincipally, this book comprises a conceptual analysis of the illegality of a third-country national's stay by examining the boundaries of the overarching concept of illegality at the EU level. Having found that the holistic conceptualisation of illegality, constructed through a combination of sources (both EU and national law) falls short of adequacy, the book moves on to consider situations that fall outside the traditional binary of legal and illegal under EU law. The cases of unlawfully staying EU citizens and of non-removable illegally staying third-country nationals are examples of groups of migrants who are categorised as atypical. By looking at these two examples the book reveals not only the fragmentation of legal statuses in EU migration law but also the more general ill-fitting and unsatisfactory categorisation of migrants.The potential conflation of illegality with criminality as a result of the way EU databases regulate the legal regime of illegality of a migrant's stay is the first trend identified by the book. Subsequently, the book considers the functions of accessing legality (both instrumental and corrective). In doing so it draws out another trend evident in the EU illegality regime: a two-tier regime which discriminates on the basis of wealth and the instrumentalisation of access to legality by Member States for mostly their own purposes.Finally, the book proposes a corrective rationale for the regulation of illegality through access to legality and provides a number of normative suggestions as a way of remedying current deficiencies that arise out of the present supranational framing of illegality.
From Violence to Peace: Theology, Law and Community
by Alex DeagonThis book contributes to the literature on jurisprudence and theology by arguing for the role of a theoretically robust Christian theology in a legal community dominated by secular and liberal ideology. It is not a doctrinal or empirical analysis, but a theoretical exposition of the way in which modern law has contingently drifted from its theological origins. As a result, the legal system and the ideal of individual and communal relationship it envisages is characterised by antagonism and alienation, or more broadly, violence. The book contends that the way to restore a legal community of peace is to return to a Christian theology which is informed by Trinitarian thinking or the notion of unity in diversity, and reunites faith with reason. Returning reason to its ground in being allows peaceful persuasion by the revelation of God's perfect being through the Trinity and Incarnation, which models and enables the peaceful coexistence of difference through self-sacrificing love. This in turn produces the law of love – to love your neighbour as yourself. Since love does no wrong to a neighbour, a legal community operating by the law of love can fulfil the obligations of law by going beyond merely what is required by law and love individuals as part of a community.
Public Procurement and Multilateral Development Banks: Law, Practice and Problems
by Sope Williams-ElegbeThe multilateral development banks cumulatively channel billions of dollars annually in development assistance to borrower countries. This finance is usually spent through processes that incorporate the public procurement regulations of the banks and it is often a condition of this finance that the funds must be spent using the procurement regulations of the lender institution. This book examines the issues and challenges raised by procurement regulation in the multilateral development banks. The book examines the history of procurement regulation in the banks; the tripartite relationship created between the banks, borrowers and contractors in funded procurements; the procurement documents and procurement cycle; as well as how the banks ensure competition and value for money in funded procurements. The book also examines the banks' approach to sustainability concerns in public procurement such as environmental, social or industrial concerns; as well as how the banks address the issue of corruption and fraud in funded contracts. Another issue that is addressed by this book is how the banks have implemented the aid effectiveness agenda. It will be seen that the development banks have undertaken steps to harmonise their policies and practices, increased borrower procurement capacity, taken steps to reduce the tying of aid, and play an important role in the reform of borrower procurement systems, all in an effort to improve the effectiveness of development finance. The book also considers the contractual and other remedies that are available to parties that may be aggrieved as a result of a funded procurement. The book analyses, compares and contrasts the legal, practical and institutional approaches to procurement regulation in the World Bank, the Inter-American Development Bank, the African Development Bank, the Asian Development Bank and the European Bank for Reconstruction and Development.
Tort Law and Human Rights (Hart Studies in Private Law)
by Jane WrightThis is a completely revised and expanded second edition, building on the first edition with two principal aims: to elucidate the role that domestic tort principles play in securing to citizens the human rights standards laid down in the European Convention on Human Rights, including the new 'remedy' under the Human Rights Act 1998; and to evaluate tort principles for compliance with those standards. The first edition was written when the Human Rights Act 1998 was newly enacted and many questions existed as to its potential impact on tort law. Answers to many of the questions, which were raised at that time, are only now emerging. Therefore, the text has been updated to reflect these developments. Whether it is appropriate to attribute particular goals and functions to tort law is highly contested and the analysis begins by locating the discussion within these contemporary debates. The author goes on to examine the extent to which the action against public authorities under section 7 of the Act has impacted on the development of common law principles, as well as the issue of horizontal effect of the Act between non-state actors. New chapters include: 'A Human Rights Based Approach to Tort Law' and 'Public Authority Liability and Privacy – From Misuse of Private Information to Autonomy.'
Revolution and Evolution in Private Law
by Sarah Worthington Andrew Robertson Graham VirgoThe development of private law across the common law world is typically portrayed as a series of incremental steps, each one delivered as a result of judges dealing with marginally different factual circumstances presented to them for determination. This is said to be the common law method. According to this process, change might be assumed to be gradual, almost imperceptible. If this were true, however, then even Darwinian-style evolution – which is subject to major change-inducing pressures, such as the death of the dinosaurs – would seem unlikely in the law, and radical and revolutionary paradigms shifts perhaps impossible. And yet the history of the common law is to the contrary. The legal landscape is littered with quite remarkable revolutionary and evolutionary changes in the shape of the common law.The essays in this volume explore some of the highlights in this fascinating revolutionary and evolutionary development of private law. The contributors expose the nature of the changes undergone and their significance for the future direction of travel. They identify the circumstances and the contexts which might have provided an impetus for these significant changes.The essays range across all areas of private law, including contract, tort, unjust enrichment and property. No area has been immune from development. That fact itself is unsurprising, but an extended examination of the particular circumstances and contexts which delivered some of private law's most important developments has its own special significance for what it might indicate about the shape, and the shaping, of private law regimes in the future.
Die Kompetenzen des Vermittlungsausschusses im parlamentarischen Gesetzgebungsverfahren
by Jan ElsnerJan Elsner weist nach, dass die Kompetenzen des Vermittlungsausschusses eindeutig aus dem Grundgesetz ableitbar und vom Bundesverfassungsgericht heute klar umrissen sind. Der Autor greift konkrete Beispiele aus der Staatspraxis auf, in denen diese verfassungsrechtlichen Befugnisse überschritten sein könnten, und setzt sich mit den rechtlichen Konsequenzen auseinander, die im Falle einer Verletzung des Dispositionsrahmens zu ziehen sind.
Nachhaltiges Business Development Management: Strategien für die Transformation (essentials)
by Lutz BeckerLutz Becker stellt in diesem essential sowohl Strategien und Organisation als auch Rolle und Aufgaben des Business Development Managements strukturiert und verständlich vor. Zudem vermittelt der Autor praxiserprobte Methoden des Business Developments. Dabei lenkt er insbesondere den Blick auf Strategien für die beiden großen gesellschaftlichen und wirtschaftlichen Transformationen, die digitale und die ökologische Transformation.
Law's Judgement
by William LucyLaw's Judgement elucidates and defends a feature of contemporary law that is currently either overlooked or too glibly dismissed as morally troublesome or historically anachronistic. That feature is the abstract nature of law's judgement and its three components show that, when law judges us, it often does so in ignorance of our particular characters and abilities, on the one hand, and in ignorance of our context and circumstances, on the other. Law's judgement is thus insensitive to all or much that makes us the particular people we are. The book explores various connections between this mode of judgement and some of our most important legal and political values. It shows that law's abstract judgement is closely related to important juristic conceptions of personhood, responsibility and impartiality, and that these notions are not without moral significance. The book also examines the connections between modern law's judgement and three of our most important political values, namely, dignity, equality and community. It argues that, if we value particular conceptions of dignity, equality and community, then we must also value law's judgement. Illuminating these connections therefore serves a double purpose: first, it makes a case against those who counsel liberation from law's abstract judgement and, second, it redirects attention to the task of morally evaluating law's abstract judgement in its own terms.
Consumer Vulnerability and Welfare in Mortgage Contracts
by Irina DomurathThis book advocates a new way of thinking about mortgage contracts. This claim is based on the assumption that we currently live in a political economy in which consumer debt fulfils a social function. In the field of housing this is evidenced by the expansion of mortgage credit through which consumers are to purchase residential property as a means of social inclusion and personal welfare. It is suggested that contract law needs to adjust to this new social function in order to avoid welfare losses in terms of default, over-indebtedness, and possibly eviction. To this end, this book analyses theoretical contract law frameworks and makes concrete proposals for contract law in the EU legal order.
The Idea of a Pure Theory of Law: An Interpretation and Defence
by Christoph KletzerMost contemporary legal philosophers tend to take force to be an accessory to the law. According to this prevalent view the law primarily consists of a series of demands made on us; force, conversely, comes into play only when these demands fail to be satisfied. This book claims that this model should be jettisoned in favour of a radically different one: according to the proposed view, force is not an accessory to the law but rather its attribute. The law is not simply a set of rules incidentally guaranteed by force, but it should be understood as essentially rules about force. The book explores in detail the nature of this claim and develops its corollaries. It then provides an overview of the contemporary jurisprudential debates relating to force and violence, and defends its claims against well-known counter-arguments by Hart, Raz and others.This book offers an innovative insight into the concept of Pure Theory. In contrast to what was claimed by Hans Kelsen, the most eminent contributor to this theory, the author argues that the core insight of the Pure Theory is not to be found in the concept of a basic norm, or in the supposed absence of a conceptual relation between law and morality, but rather in the fundamental and comprehensive reformulation of how to model the functioning of the law intended as an ordering of force and violence.
The Division of Competences between the EU and the Member States: Reflections on the Past, the Present and the Future (Modern Studies in European Law)
by Sacha Garben Inge GovaereThe issue of competence division is of fundamental importance as it reflects the 'power bargain' struck between the Member States and their Union, determining the limits of the authority of the EU as well as the limits of the authority of the Member States. It defines the nature of the EU as a polity, as well as the identity of the Member States. After over six years since the entry into force of the Lisbon Treaty, it is high time to take stock of whether the reforms that were adopted to make the Union's system of division of competences between the EU Member States clearer, more coherent, and better at containing European integration, have been successful. This book asks whether 'the competence problem' has finally been solved. Given the fundamental importance of this question, this publication will be of interest to a wide audience, from constitutional and substantive EU law scholars to practitioners in the EU institutions and EU legal practice more generally.
Reimagining Clinical Legal Education
by Linden Thomas Steven Vaughan Bharat Malkani Theresa LynchClinical Legal Education (CLE) can be defined in broad terms as the study of law through real, or simulated, casework. It enables students to experience the law in action and to reflect on those experiences. CLE offers an alternative learning experience to the traditional lecture/seminar method and allows participants to take the study of law beyond the lecture theatre and library. CLE has been a part of English law schools for several decades and is becoming an increasingly popular component of a number of programmes. It is also well established in North America, Australia and many other countries around the globe. In some law schools, CLE is credit-bearing; in others, it is an extracurricular activity. Some CLE schemes focus on social-welfare law, whilst others are commercially orientated. A number are run in conjunction with third-sector organisations and many are supported by private practice law firms. This edited collection brings together academics, lawyers, third-sector organisations and students to discuss the present experience and potential of CLE. As such, it will be of interest to a wide and diverse audience, both within and outside the UK.
Gerechter Frieden als Orientierungswissen: Grundsatzfragen • Band 1 (Gerechter Frieden)
by Ines-Jacqueline Werkner Christina SchüesDer Begriff der Orientierung ist sowohl in politischen Debatten als auch in philosophischen und ethischen Kontexten allgegenwärtig. Auch von der Friedensdenkschrift der EKD wird Orientierung zu aktuellen Fragen von Gewalt, Krieg und Frieden eingefordert; diese bisweilen auch enttäuscht. Dabei lässt sich die ethische Grundfrage „Was soll ich tun?“, die sich auch für die Friedensethik stellt, zweifelsohne als eine Frage nach Handlungsorientierung verstehen. Aber lässt sich allein schon durch eine ethische Normenreflexion Orientierungswissen generieren? Die Antwort auf diese Frage ist essenziell, hat sie doch unmittelbare Auswirkungen auf die konkrete Anwendbarkeit der Friedensdenkschrift auf aktuelle Konflikte sowie auf die Funktion der Kirche als gesellschaftliches Korrektiv bzw., theologisch formuliert, auf die Wahrnehmung des politischen Wächteramtes der Kirche.
Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review
by Paul YowellThe decisions courts make in constitutional rights cases pervade our political life and touch on our most basic interests and values. The spread of judicial review of legislation around the world means that courts are increasingly called on to settle matters of moral and political controversy, including assisted suicide, data privacy, anti-terrorism measures, marriage, and abortion. But doubts regarding the institutional capacities of courts for deciding such questions are growing. Judges now regularly review social science research to assess whether a law will effectively achieve its aim, and at what cost to other interests. They cite studies and statistical information from psychology, sociology, medicine, and other disciplines in which they are rarely trained. This empirical reasoning proceeds alongside open-ended moral reasoning, with judges employing terms such as equality, liberty, and autonomy, then determining what these require in concrete circumstances. This book shows that courts were not designed for this kind of moral and empirical reasoning. It argues that in comparison to legislatures, the institutional capacities of courts are deficient. Legislatures are better equipped than courts for deliberating and decision-making in regard to the kinds of factual and moral issues that arise in constitutional rights cases. The book concludes by considering the implications of comparative institutional capacity for constitutional design. Is a system of judicial review of legislation something that constitutional framers should choose to adopt? If so, in what form? For countries with systems of judicial review, practical proposals are made to remedy deficiencies in the institutional capacities of courts.
State Aid and the Energy Sector
by Leigh Hancher Adrien De Hauteclocque Francesco Maria SalernoThis important new work offers a comprehensive and compelling account of State aid law and policy and its application to the energy sector. Clearly structured and offering meticulous detail and robust analysis, it is required reading for all practitioners in the field. The volume explores general questions from the definition of State aid to its application in Member States by national courts. It also examines questions of procedure, questions of compatibility, and State aid and the EEA. It is an invaluable tool for lawyers, policymakers and tax professionals specialising in State aid law and energy law, written by a team of leading practitioners and academics in the field.
Environmental Crime in Europe (Modern Studies in European Law)
by Andrew Farmer Michael Faure Grazia Maria Vagliasindi"Environmental crime is a growing challenge for policy makers and law enforcers. This is an important and timely study which examines in depth how environmental crime is treated at national level within the European Union and the impact of the 2008 EU Directive on environmental crime on national systems. It will be required reading by anyone concerned with making environmental law more effective."Richard Macrory, Emeritus Professor, University College LondonThe aim of this important new collection is to explore how environmental crime is controlled and environmental criminal law is shaped and implemented within the European Union and its Member States. It examines the legal framework, looking in particular at Directive 2008/99/EC, and the specific competences of the EU in this domain. In addition, it provides a detailed analysis of environmental criminal law in seven Member States, focusing inter alia on the basic legislation, the way in which environmental pollution is criminalised and the main actors in place to enforce environmental criminal law. In so doing, it provides a much needed explanation of the evolution of environmental criminal law in Europe at Union level and how this is implemented in selected Member States.
Good Faith in International Law
by Robert KolbThere is a great degree of controversy on the proper complexion and role of general principles of law in the international legal order. Opinions range from total rejection of some types of principles to the most enthusiastic endorsement of principles as the necessary oil for the many complex wheels of the legal order. In this book one of the leading public lawyers of his generation explores the concept of good faith and its role in international law. Rather than offer a detailed, comprehensive examination, Kolb aims to map the true points of gravity of the principle of good faith in the international legal order. In so doing, he illustrates how the various legal institutions who operate in the sphere of public international law allow the principle of good faith to unfold.
The Future of Contract Law in Latin America: The Principles of Latin American Contract Law (Studies of the Oxford Institute of European and Comparative Law)
by Rodrigo Momberg Stefan VogenauerThis book presents, analyses and evaluates the Principles of Latin American Contract Law (PLACL), a recent set of provisions aiming at the harmonisation of contract law at a regional level. As such, the PLACL are the most recent exponent of the many proposals for transnational sets of 'principles of contract law' that were drafted or published over the past 20 years, either at the global or the regional level. These include the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, the (European) Draft Common Frame of Reference and the Principles of Asian Contract Law.The PLACL are the product of a working group comprising legal academics from Argentina, Brazil, Colombia, Chile, Paraguay, Uruguay and Venezuela. The 111 articles of the instrument deal with problems of general contract law, such as formation, interpretation and performance of contracts, as well as remedies for breach.The book aims to introduce the PLACL to an international audience by putting them in their historical and comparative context, including other transnational harmonisation measures and initiatives. The contributions are authored by drafters of the PLACL and contract law experts from Europe and Latin America.
Shaping the Corporate Landscape: Towards Corporate Reform and Enterprise Diversity
by Nina Boeger Charlotte VilliersCurrently, there exists a distrust of corporate activity in the continuing aftermath of the financial crisis and with increasing recognition of the threats of climate change and global, as well as national, inequalities. Despite efforts in the arena of corporate governance to address these, we are still beset with corporate scandals and witness companies facing large fines for their environmental and cost-cutting misdemeanours. Recognising that the usual responses to dealing with these corporate problems are not effective, this book asks whether the traditional form of the joint stock corporation itself lies at the heart of these problems. What are the features of the corporate form and how does its current regulation underscore these problems? Identifying such features provides a basis for the discussion to develop towards suggesting more progressive regulatory developments around the corporate form.More fundamentally, this book investigates a diverse range of corporate governance models that are emerging as alternatives to the shareholder corporation, including employee-owned, cooperative and social enterprises. The contributors are leading scholars from various backgrounds including law, management and organisation studies, finance and accounting, as well as experienced professionals and policy makers with expertise in social and cooperative business models and the role of employees in the corporation.
Cross-border Transfer and Collateralisation of Receivables: A Comparative Analysis of Multiple Legal Systems
by Woo-Jung JonLegal systems around the world vary widely in terms of how they deal with the transfer of and security interests in receivables. The aim of this book is to help international financiers and lawyers in relevant markets in their practice of international receivables financing. Substantively, this book analyses three types of receivables financing transactions, ie outright transfer, security transfer and security interests. This book covers comprehensive comparison and analysis of the laws on the transfer of and security interests in receivables of fifteen major jurisdictions, encompassing common law jurisdictions, Roman–Germanic jurisdictions and French–Napoleonic jurisdictions, as well as relevant EU Directives. To be more specific, this book compares and analyses the relevant legal systems of the US, Canada, New Zealand, Australia, Korea, Japan, France, Belgium, England, Hong Kong, Singapore, China, Germany, Austria and the Netherlands. Furthermore, in order to analyse those legal systems from the international perspective, this book compares relevant international conventions; it also proposes to establish an international registration system for the transfer of and security interests in receivables.