bluuebunny/crossref_metadata_2025_split huggingface dataset:
Rediscovering the Principle of Comity in English Private International Law
Authors: Mitchenson Jason , Schultz Thomas 
Published: April 2022

Abstract: Academically speaking, comity is all but dead. Cold-shouldered by the literature, the principle has become known as little more than a useless relic of the past. But a review of the case law tells a very different story. Comity thrives in the judicial decisions of English courts, which suggests that, in particular areas of law, comity is alive and well. In light of the disjunct between the literature and judicial practice, this article seeks to shed new light on the role of comity in English private international law. Ultimately, it seeks to unbridle comity’s legal potential and reposition it as an important principle of English private international law worthy of further academic research. Résumé: Académiquement, le principe de la comity, ou courtoisie internationale, est presque morte. Ignoré par la doctrine, le principe est essentiellement perçu comme une relique inutile du passé. Mais si l’on porte un regard attentif à la jurisprudence, une histoire très différente émerge. La comity prospère dans les décisions des tribunaux anglais: à tout le moins dans des domaines particuliers du droit, la comity est résolument en vie. Partant de ce contraste entre doctrine et pratique judiciaire, les auteurs cherchent à apporter un nouvel éclairage sur le rôle de la comity dans le droit international privé anglais. A partir de là, il semble possible de débrider le potentiel juridique de la comity, en le repositionnant comme un principe important du droit international privé anglais méritant une attention soutenue de la doctrine.
Will Innovative Technology Result in Innovative Legal Frameworks?  Smart Contracts in China
Authors: Lei Chen , Wang Jia 
Published: April 2022

Abstract: This article explores whether the legal landscape will be fundamentally changed in view of the emergence of smart contracts in China. Beyond the phenomenon of bitcoin supported by blockchain technology, we examine the development of smart contracts on blockchain with a close scrutiny of their merits and limits, and the intrinsic legal uncertainties in their application. The main argument is that while the gaps between the regulatory framework and the business practice can be identified, for most parts, the current legal framework can accommodate or mitigate the legal risks brought about by smart contracts. Résumé: Cet article pose la question si le paysage juridique sera fondamentalement changé par l’émergence des contrats intelligents en Chine. À part du phénomène du Bitcoin qui s’appuie sur la technologie Blockchain, nous examinons le développement des contrats intelligents en Blockchain avec une étude approfondie de leurs mérites et limites ainsi que les incertitudes légales qui sont intrinsèques à leur application. L’argument principal est que, bien qu’on puisse identifier des différences entre le cadre réglementaire et la pratique d’affaires, le cadre juridique contemporain peut, pour la plupart, accommoder ou mitiger les risques légaux causés par les contrats intelligents.
Towards Civil Justice in the EU: The European Commission’s New Deal for Consumers. An Introduction to This Issue
Authors: Loos Marco B.M. 
Published: April 2022

In this special issue, a series of authors from all over Europe discuss aspects of both the proposal for a Representative Actions Directive and the proposal for a Modernization Directive. Both directives deal with better enforcement of EU consumer law and follow from the European Commission’s Communication on a New Deal for Consumers. In this introduction I will briefly introduce and discuss these papers in relation to one another.
New Deal, consumer law, Representative Action Directive, Modernization Directive
The Collective Interests of Consumers: New Definition, New Weaknesses
Authors: Misiak Hanna 
Published: April 2022

The definition of the collective interests of consumers present in European positive law is negative and limited to the statement that the collective interests of consumers mean interests which do not include the cumulation of the interests of individuals who have been harmed by an infringement. This notion has been criticized in legal doctrine. In April 2018, the European Commission presented a proposal for a new definition of the collective interests of consumers as part of ‘The New Deal for Consumers’. It is no longer negative but can cause similar problems as the currently binding one due to its lack of clarity. This feature will probably leave European consumers in a disadvantageous position.
The proposal transfers the notion of the collective interests of consumers to the domain of private law, keeping it beyond the scope of the activities of regulatory bodies. The notion of the collective interests of consumers is therefore losing its unique character of being ‘something more’ than a mere sum of individual interests – as designed in the injunctions directive – and a subject of special interest for administrative bodies. The new collective interests of consumers are to be strongly connected to representative actions, i.e. civil law claims regulated by the Member States, either in the codes of civil procedure or in other binding pieces of legislation. This could cause the need for a total change of the consumer protection system, particularly in the Member States that nowadays tend to separate the measures provided by the injunction directive, understood as regulatory means, from other types of collective redress sought in court.
Collective Redress in the Financial Sector and the New EU Deal for Consumers
Authors: Benöhr Iris 
Published: April 2022

This article examines the role of collective redress in financial services, highlighting current obstacles for financial services users to access justice, and providing an overview of relevant EU measures and international best practices. Particular attention is devoted to various national dispute resolution models and major cases with the potential to affect a large number of financial services users across Member States. On the regulatory side, the article explores in detail the extent to which the New EU Deal for Consumers will introduce meaningful changes in the financial services sector. In particular, it will assess the new proposal for a Directive on representative actions, evaluating its advantages and weaknesses in light of the likely implications for consumer redress.
collective redress, financial consumer protection, access to justice.
More Efficient Collective Redress Mechanisms? Will the New Deal Directive on Representative Actions for Protecting the Collective Interests of Consumers Improve the Resolution of Mass Harm Situations in the Visegrad 4 Countries
Authors: Simon Rita 
Published: April 2022

Classic injunction actions before a court are very rarely used instruments in the Visegrad 4 countries; they are too expensive, too long proceedings, with uncertain results. On one hand, a lost court case can cause insolvency for the organization and on other hand a won case cannot ensure a direct compensation of the harmed consumer. Therefore, the Visegrad 4 consumer protection organizations tend to move to other redresses. After a short introduction to existing injunction actions and their shortcuts in the Visegrad 4 counties (1); the article explains why the way of amending representative actions, as recommended by the new Commission Proposal cannot provide more efficient or effective justice in the Visegrad 4 countries (2); and based on the best practices of the Visegrad 4 countries I will propose alternative instruments, such as public enforcement and more flexible enhanced consumer measures by administrative authorities, which have proved quite efficient in resolving mass harm situations (3).
Mass harms, injunction, collective redress mechanism, public enforcement, consumer compensation, Visegrad 4 countries, more flexible enhanced consumer measures, efficient enforcement
Mandatory Rules of Third States From Ole Lando to Contemporary European Private International
Authors: Siehr Kurt 
Published: April 2022

On 18 October 2016 the European Court of Justice, in the case Greece v. Nikiforidis, decided: ‘Article 9 (3) of the Regulation No. 503/2008 on the law applicable to contractual obligations must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the regulation’. Ole Lando already anticipated this development when he dealt with this problem arising under the Rome Convention of 1980 on the law applicable to contractual obligations still in force in Denmark.
Harmonization, contract law, European private law, restatements
The Equalisation of Benefits (Compensatio Lucri Cum Damno) in the Italian Law. A Possible Inspiration for Other European Member States?
Authors: Spada Carlotta 
Published: April 2022

The Compensatio Lucri Cum Damno concerns cases in which the behaviour of the wrongdoer caused both damages and advantages to the victim. The question is: when and under which conditions such advantages can be set-off against the liable person’s obligation of paying damages? On the contrary, should such mitigation of liability be denied?
In 2018 the Italian Highest Courts established principles with regard to these questions, but only with reference to the specific cases submitted to their attention. This article shows how the Italian Courts were inspired by the common principles of European private law and the comparative method with regard to: i) the impossibility of stating a general rule (thus, the necessity of proceeding for categories and classes of cases), and ii) the necessity of looking at the purpose of the benefit, rather than at the causal link between tort and advantages. The author believes that the criteria identified by the Italian case-law for the deductibility of benefits from damages might be of inspiration for other European Member States. Furthermore, it is here highlighted that the Italian Highest Courts made decisions on Compensatio Lucri Cum Damno using an argument explicitly based on the Soft Law and this could strength the effect of the moral suasion within the Draft Common Frame of Reference and the Principle of European Tort Law.
Due Diligence and Environmental Damages Under Rome II
Authors: Aldag Ole 
Published: April 2022

Within the European Union, the Rome II Regulation determines the applicable law on cross-border matters of non-contractual nature. The paper examines the applicable law on environmental-related tort claims against European multi-national companies utilizing production facilities in third countries, either based on active misconduct or on alleged omission of environment-related due diligence. As these types of claims are an expression of misconduct by multinational corporations conducting business abroad, particular notice will be given to the applicable law on compensation claims for environmental damages allegedly caused by negligent compliance for environmental standards of either independent or subsidiary production facilities. While doing so, its main point of interest will be whether claims against European-based companies may be governed by the law of the effective seat of the latter. Considering that Article 7 Rome II provides for a special connecting factor regarding environmental damages, the paper examines whether Rome II does justice for due diligence-related cases on the conflict of laws level and argues for a nuanced approach to localize the place of the event giving rise to such damages.
Private International Law, Environmental Damages, Civil Compensation, Torts, Corporate Social Responsibility, Rome II, Mandatory Rules, Public policy
I (Won’t) See You in Court Alternative Dispute Resolution for Medical Liability Conflicts: Examples from Europe
Authors: Lúcia Raposo Vera 
Published: April 2022

In many jurisdictions, courts and the related tort liability rules have failed to adequately address conflicts arising from healthcare delivery that has caused harm. The litigation model – the classic model used to deal with medical liability – must be, if not replaced, at least supplemented by another model, and alternative dispute resolution is best suited to this task. Because conflicts are resolved in a less adversarial environment than a courtroom and led by people with knowledge of both medicine and law, alternative dispute resolution promotes a congenial procedure, is faster and cheaper than traditional litigation and can provide more satisfactory outcomes for all parties. This paper reviews some of the failures of litigation as a means of resolving disputes related to medical liability and considers how alternative dispute resolution methods can address these failures, providing some examples from civil law jurisdictions in Europe.
alternative dispute resolution, doctor-patient relationship, litigation, medical liability Motsclés: résolution alternative des conflits, relation médecin-patient, contentieux, responsabilité médicale Schlüsselwörter: alternative Streitbeilegung, Arzt-Patient-Beziehung, Gerichtsverfahren, Arzthaftung
Legal Ignorance in Belgian Private Law
Authors: Samoy Ilse , Terryn Evelyne , Peeraer Frederik , Auvray Françoise , Verbiest Pauline 
Published: April 2022

Legal ignorance typically refers to a situation where one is ignorant of the existence of a certain legal prescript or is ignorant of the precise understanding of a prescript or its consequences.
In Belgian law, there is no general provision dealing with legal ignorance or its effects. In principle, one cannot escape the application of law based on the mere fact that one does not know the law or its consequences. However, in specific situations Belgian law and case law deviate from this basic principle, provided that strict conditions are fulfilled.
The authors of this article report on the application of the concept of legal ignorance in the areas of contract law, tort law and prescription.
As for contract law, the article examines whether a mistake as to the law may qualify as an excusable error leading to the nullification of a contract. Although the Cour de Cassation applies a very strict interpretation and states that mere legal ignorance cannot be an excusable error, some lower courts seem to apply a more lenient interpretation. In tort law, the starting point remains that mere legal ignorance is not excusable. To escape liability despite the infringement of a specific rule, one will have to overcome the difficult task of proving that the mistake was ‘unavoidable’. Lastly, the general provision for prescription periods does not deal explicitly with the issue of legal ignorance. In principle it is not necessary that the person subject to prescription is aware of the fact that the prescription started to run. In specific situations, some statues and case law deviate from this principle.
Arbitration in Denmark: The Parties’ Influence on a Danish Arbitration Case
Authors: Werlauff Erik 
Published: April 2022

Having lagged behind in its arbitration rules for 30 years, Denmark has become an attractive country in which to conduct arbitration. Denmark now has one of Europe’s most modern and streamlined arbitration acts, and if they so wish, the parties can exert a substantial influence on how the case is handled.
The author, who often acts as arbitrator in Danish and International arbitration cases, will analyse the options which the parties have under the new Danish arbitration act (hereinafter called the AA) for influencing how their case is handled, and thus for making this process more efficient. This article thus analyses the degree of party autonomy associated with the choice of arbitration in Denmark.
It will be shown that the AA provides a very broad framework for autonomy, and the article will seek to balance the parties’ desire for efficiency in the handling of an arbitration case against the fundamental protection of legal rights. The article concludes by listing 18 specific areas in which autonomy can be used to advantage when pursuing arbitration in Denmark.
The law is of course often a balance (jus) between opposing interests. In this case the opposing interests can be defined as 1) the desire for an efficient case handling, and also 2) the desire to protect the parties’ legal rights. By opting for arbitration, the parties must be said to have expressed a desire for streamlining and speedy handling which implies that justice delayed is justice denied, and which therefore often also implies the waiving of certain guaranteed legal rights – although the parties and their representatives may not directly experience this as a waiving of rights.
The following is an attempt to define the point of balance between the two opposing interests in more detail, and the article concludes at the practical level with an overview of arbitration areas to which party autonomy applies.
A Disadvantageous Dichotomy in Product Safety Law – Some Reflections on Sense and Nonsense of the Distinction Food–Nonfood in European Product Safety Law
Authors: Brack Antoni 
Published: April 2022

This paper researches a number of similarities and differences between European legal regimens with regard to food and non–food product safety, based on the assumption that these regimens may have overly diverged. A tentative conclusion is that there are enough similarities to justify an effort to reconcile the two regimens. The point of departure for this research (Section 1) is an overview of sources of law laid down in the EC Treaty for drawing up legislation in the area of product safety (food and non–food). In Section 2, the Product Safety Law acquis is presented; this is the cumulative body of European law implemented so far, based on these sources. EC–Treaty articles constitute the legal basis for the Product Safety Law acquis, which in turn forms the legal basis for policies. Therefore, Section 3 deals with the Commission’s current policy intentions: indications of what can be expected in this area in years to come.
A core characteristic of the Product Safety Law acquis is the precautionary principle (Section 4), which refers to safety risk management, intended to prevent the marketing of defective products. Should preventive risk management measures fail, the producer’s ability to trace already marketed hazardous products is crucial in order to limit liability, as explained in Section 5. Section 6 highlights an important legal presumption in non–food safety law. The safety of non–food products is presumed if production took place according to standardised norms. A long term European law–reform programme is introduced in Section 7. This so–called Better Regulation programme is a perfect opportunity to adjust the Product Safety Law acquis to new insights. Section 8 summarizes our observations and findings. Section 9 discusses the utility of the Confident Consumer concept. Because it seems disadvantageous to focus on the differences between food and non–food safety rules, the possible advantages of a policy and law reform are assessed. Therefore Section 10 concludes to attune both parts of product safety law to the similarities instead of focusing on differences. Maintaining the dichotomy is disadvantageous to progress.
Ownership Restrictions, Risk and Team Considerations in Family-owned Businesses
Authors: Bjuggren Per-Olof , Sund Lars-Göran 
Published: April 2022

At the start of a new business both team and risk aspects have to be considered in the choice of business form. The partnership form offers advantages in terms of team considerations while the corporate form provides limited liability which provides a way to handle the risk problems associated with owning a firm. The advantage of having a well synchronized team is important for many new firms and especially for cases where family relations are considered important. Seen from that angle the partnership form should be opted for. But risk is high up in the mind of founders. Events might unfold in an unexpected way and in the process the economy and well being of the family is at stake. The corporate form with limited liability is in this sense a very attractive choice that is commonly chosen. But with the corporate form comes transferability of ownership of shares without consent of other owners. The shareholder team might therefore change in an unexpected and unwelcome way. Therefore it is important to consider different types of transfer restrictions when a new corporate form of business is started. This aspect has not been much considered in practice and in the entrepreneurship literature. An accountant or a lawyer often has to remind an entrepreneur of the importance of stability in ownership positions.

In the paper we attempt to ascertain whether it is possible to foresee future complications and thus prepare already at the start of the business. The paper combines law and economics analysis of the different transfer restrictions found in various legal systems.

The paper was presented at the Seventh AGSE International Entrepreneurship Research Exchange, Feb. 2-5 2010, University of the Sunshine Coast.
EUs Monitoring of Chinas Compliance with WTO Obligations
Authors: Kong Qingjiang 
Published: April 2022

To World Trade Organization (WTO) members, admitting a country with a rapidly expanding economy into the WTO was a great experiment as the country would make significant decisions concerning resource allocation. In the history of the world trading system, never has a country of such trading importance and system incompatibility with WTO norms been admitted. Given China's trade weight, its anticipated gigantic trade surge would disrupt the market of its trading partners, and the rule-based multilateral trading system would be endangered if China opted to ignore the WTO rules.
To safeguard itself, the European Union (EU), like the United States, imposed upon China a comprehensive protocol which has more far-reaching obligations beyond the WTO. The EU also kept a close watch on China's behaviour in the WTO. With no task forces to monitor China's compliance, the EU has taken full advantage of the built-in mechanisms in the WTO, i.e., Trade Policy Review Mechanism and the Dispute Settlement Mechanism, as well as other measures (including bilateral channels and unilateral measures). This is pursued in the broader context of China's rise and with a broader vision of integrating a rising China into the existing global economic order. After all, a WTO-adhering China is conducive to cementing China's place in the global economy, buttressing the internal reform process, and strengthening the rule of law, which is in the interest of the world.
For the EU, the real question is how to encourage China to change its economy into one that relies more on domestic demand than on export on one hand, and one that allows market access to more imports and protects IPRs on the other hand. Therefore, monitoring shall be conducted to facilitate a smooth and thus healthy China-EU trade relation, which will .nally hinge on EU's patience and skills in dealing with a rising China.