《环境污染强制责任保险管理办法(草案)》除外责任之探讨

除外责任具体内容的设计应考虑公益和私益的平衡,确保其在及时、有效分散与移转风险,削减社会管理成本的同时兼顾承保人、投保人、受害人三方的私益.《环境污染强制责任保险管理办法(草案)》中将"不可抗拒的自然灾害""环境污染犯罪"的除外责任限定于"致使第三者遭受的损害"不妥,保险公司不应为生态环境损害承担保险责任;将"环境污染...     

The self-selection of democracies into treaty design: insights from international environmental agreements

Generally, democratic regime type is positively associated with participating in international environmental agreements. In this context, this study focuses on the legal nature of an agreement, which is linked to audience costs primarily at the domestic level that occur in case of non-compliance and are felt especially by democracies. Eventually, more legalized (“hard-law”) treaties make compliance potentially more challenging and as democratic leaders may anticipate the corresponding audience costs, the likelihood that democracies select themselves into such treaties decreases. The empirical implication of our theory is that environmental agreements with a larger share of democratic members are less likely to be characterized by hard law. Results from quantitative analyses strongly support our argument, shed new light on the relationship between participation in international agreements and the form of government, and also have implications for the “words-deeds” debate in international environmental policy-making.     

The private sector and competition in health care markets

This paper reviews the historical trends in the regulatory and competitive approaches to containment of health care costs, covering efforts in both public and private sectors. The current interest in the potential of private-sector initiatives to stimulate competition in health care insurance and provider markets is highlighted. Since neither the workings of competition in health care nor the role and impact of the private sector in stimulating such competition are well understood, the concluding section discusses important research issues surrounding these topics.     

Using after-the-event insurance and conditional fee agreements in defending weak IP claims

Legal context: As the cost of IP litigation increases, the cost of defendinga claim can be prohibitive, even if the defendant is ultimatelysuccessful. In this article, the authors consider how after-the-event(‘ATE’) insurance and conditional fee agreements(‘CFA’) can be used in IP disputes. Key points: The authors describe a recent innovative ATE insurance product,explain how ATE insurance and CFAs can be applied to IP disputes,and explain how a combination of ATE insurance and a CFA canput the defendant in a very strong position, with a high degreeof certainty of costs. Practical significance: The fact that a party has obtained offers of ATE insurance and/ora CFA indicates to the other side that (i) its solicitors areconfident of succeeding, (ii) it has obtained a favourable counsel'sopinion; and (iii) there is likely to be a substantial disparityin each side's potential costs. This gives rise to a usefuladditional benefit of a tactical advantage given to the defendant,which may lead to an early settlement on terms favourable tothe defendant.     

Crime Reporting Decisions and the Costs of Crime

The paper develops a model of crime reporting based on an economic approach. It identifies the principal costs and benefits of reporting from the victim’s perspective, taking account of insurance provision and the risk of intimidation by an offender. It shows how a victim might use backward induction to infer a rational reporting strategy. The recording of crime by the police is a process that relies on victim reports, and is thus influenced by the reporting decisions made by victims. The paper uses empirical evidence from the British Crime Survey and from the International Crime Victims Survey to explore the hypotheses generated by the model. It finds support for the suggestion that the propensity to report a crime increases with the size of the loss entailed. The paper also explores the implications of the findings for the estimation of the costs of crime. Reporting and intimidation costs are generally excluded from bottom-up estimates of costs, an omission that may be quite serious in the context of offences such as domestic violence.     

Introducing Value Chain Stewardship (VCS)

After a decade of international negotiations to limit greenhouse gas (GHG) emissions, a sufficient number of countries have ratified the Kyoto agreement. However, even with this positive development there is a formidable challenge since, according to the World Resource Institute (WRI 2004), For the most part, developed nations have failed to attain the non-binding emission reductions they committed to in the original climate treaty in 1992. Ensuring adherence to the reductions stated in the treaty by these nations may become an immense managerial task, not to mention the enforcement of sanctions. Instead of national emission targets the approach of this paper is to focus on trade within selected industry sectors – i.e. housing and transport – responsible for most of the world’s GHG emissions. This paper shows that vehicle manufacturers – the design owners – may use their information advantages to influence customers to focus on other aspects of the vehicle than costs during use. Expanding the environmental responsibility of the design owners to coincide with the area of environmental impacts will convert emissions cost into a production cost. It is indicated in this paper that when applying the estimated costs for GHG emissions to the vehicle user, strong enough incentives are not given to drive technological change, but if the responsibility is allocated to the design owner the very same additional costs will be an incentive for the designer to use its information advantage to innovate away from those emissions-rendering technologies. A value chain stewardship (VCS) is, thus, established.     

医疗执业风险行业内分担机制的初步探讨

为有效规避和转移医疗执业风险、解除医疗机构和医务人员的后顾之忧,本文对设立与完善医疗执业风险行业内分担机制的必要性和可行性进行探讨。通过深人分析本文认为,通过整合社会各方面力量和医疗行业内的资源,建立医疗责任商业保险机制,可分担医疗执业风险,维护社会和谐与稳定。     

Border carbon adjustments, WTO-law and the principle of common but differentiated responsibilities

This paper considers unilateral border measures, as contemplated by a number of developed states in conjunction with domestic emissions reduction schemes, as they relate to international trade and international environmental law. Specifically, I argue that to the extent that WTO-compliance requires strict adherence to the principle of nondiscrimination, as embodied in the national treatment and most-favored nation provisions in the General Agreement on Trade and Tariffs, there is the potential for conflict with the principle of common but differentiated responsibilities (CBDR), both as a free-standing principle of customary international law and as set out in various multilateral environmental agreements and, in particular in the climate change context, the United Nations Framework Convention on Climate Change and the Kyoto Protocol. This is insofar as the unilateral imposition of BCAs by developed countries shifts costs of compliance with environmental legislation in developed economies onto the developing world. Such allocation may conflict with the principle of CBDR, which recognizes the unequal contribution to environmental degradation of developed countries as well as their enhanced ability to address the challenges presented by such degradation and, as a consequence, requires that they undertake more onerous obligations with respect to climate change mitigation. The paper concludes with a discussion of the extent to which this conflict is illustrative of a deeper tension between efficiency and equity considerations inherent in the intersection of international economic law and international environmental law.     

Insurance models and European climate change policies: an assessment

The paper outlines the role of insurance as an economic policy tool that can be used to address the issue of climate change. The magnitude of potential loss, the adverse social and economic consequences for millions of people and considerable fiscal strain imposed on government budgets by extreme weather events all indicate that governments can benefit significantly from the use of an insurance instrument capable not only of covering damage but also of providing an incentive for risk reduction behaviours. By examining the diverse insurance systems that exist in European countries and grouping them into five stylised models, natural hazards insurance is examined in terms of private and public involvement. The paper analyses the performance of different insurance models in relation to information imperfections (i.e. adverse selection and moral hazard) and market imperfections (i.e. charity hazard and transaction costs). In addition, the different models are examined in terms of the extent to which they incentivise mechanisms that facilitate the mitigation of greenhouse gas emissions, adaptation to the inevitable impacts of climate change and the development of climate risk finance management. Some concluding remarks are offered regarding the possible future development of a European insurance model as a means of developing an economically effective response to natural hazards caused by climate change.     

Should health authorities offer risk-sharing contracts to pharmaceutical firms? A theoretical approach

In this paper, we characterise the risk-sharing contracts that health authorities can design when they face a regulatory decision on drug pricing and reimbursement in a context of uncertainty. We focus on two types of contracts. On the one hand, the health authority can reimburse the firm for each treated patient regardless of health outcomes (non risk-sharing). Alternatively, the health authority can pay for the drug only when the patient is cured (risk-sharing contract). The optimal contract depends on the trade-off between the monitoring costs, the marginal production cost and the utility derived from treatment. A non-risk-sharing agreement will be preferred by the health authority, if patients who should not be treated impose a relatively low cost to the health system. When this cost is high, the health authority would prefer a risk-sharing agreement for relatively low monitoring costs.     

The Meaning of Champion Dyeing and Finishing: EIL Insurance Must Be Available in the Year That the Precise Risk Manifested Itself

Champion Dyeing & Finishing Co., Inc. v. Centennial Insurance Company and North River Insurance Company, decided in November 2002, represents a decisive victory for policy holders in environmental coverage litigation involving the availability of EIL insurance after 1985 or 1986. EIL coverage was generally unavailable after 1985 and until 1995, particularly for old leaking underground storage tanks (UST's). The availability issue arises in environmental coverage cases where the court adopts a prorata rather than joint and several theory of allocating responsibility for cleanup costs, and when in such cases there are periods of no insurance, because, for example of the insertion of the absolute pollution exclusion in commercial general liability (CGL) policies. In those circumstances, the courts apply the “willing self-insurer” rule and allocate responsibility to the insured who willingly decided to retain the risk. Until Champion Dyeing, there was little guidance about how to determine availability in the context of site-specific environmental pollution. The case was part of a 1998 declaratory judgment action by a small manufacturing company seeking reimbursement for cleanup costs attributable to pollution from two fuel oil storage tanks found leaking in November 1997. Reversing the trial court's decision, the New Jersey appellate court found that defendants failed to prove insurance available to the insured in 1997 and that therefore the duty to indemnify should have been apportioned solely among the insurers. In doing so, it stressed the necessity of demonstrating that insurance could have been purchased covering the precise risk that manifested, not simply that EIL insurance covering undefined risks was available. Its rationale was based on a recognition of the two essential differences between EIL and CGL insurance: claims made trigger of coverage and coverage of specific pollution conditions rather than generalized occurrences. In addition, testimony at trial failed to demonstrate the availability in 1997 of insurance providing coverage for the risk at issue because the testimony at the insurer's expert lacked foundation. This decision indicates that, in order to prove or disprove availability, the parties must first hire a competent environmental insurance expert and then must ask and answer three questions: What policies were being issued in the market that applied to the particular type of risk during the relevant time period, and especially in the year that the risk manifested? Would the insured have been able to purchase one of these policies or endorsements for its particular risk? Would the policy terms have provided coverage for the specific manifested risk in question? After applying these three questions to a number of hypotheticals with typical fact patterns, it is evident how impossible it is to prove coverage available for UST risks such as in the Champion case and how extremely difficult it will be to do so for non-UST, generally-site specific risks.     

Negotiating Effective International Environmental Agreements: Is an Objective Approach to Differential Treatment Possible?

The negotiation of international environmental agreements is rendered less effective and more costly than necessary on account of the incentives for rent seeking. This article argues that the problem of rent seeking in this context is complicated by the legitimate demand for the differential treatment of relevant heterogeneity, when insufficient information is available to distinguish between demands based on legitimate differences and rent-seeking. In order to reduce the overall costliness of the totality of international resource agreements, the general rule should be that differential treatment should be provided only in exceptional circumstances. A corollary to this rule is that differences that do not affect future negotiating costs may be considered in current negotiations. This points to differences that are exogenous to the bargaining process, such as a country's physical location. It is argued that development status of a country is another such factor, since the incentives to pursue development are unlikely to be affected by its recognition in current negotiations. Furthermore, the failure to recognise development status as a legitimate basis for differentiated treatment implicitly rewards the early identification and exploitation of unmanaged resources. Restriction of differential treatment to a small number of such differences enables the focusing of negotiations, and the structuring of discussions. A case study of the Montreal Protocol illustrates how the differential impacts of a uniform standard may be estimated, once the range of impacts is delimited.     

Approaches to Reduce Conflict when Insuring the Environmental Cleanup of Closed Military Bases Intended for Redevelopment

Base Realignment and Closure (“BRAC”) of military bases has occurred in waves over the last few decades. Many of these properties were operational through World War I, World War II, the Korean War, the Vietnam conflict, and into the modern Cold War. As part of the United States military's transfer of these properties to the local municipalities, which includes significant funds to cleanup remaining chemicals of concern, contract terms of the transfer typically require insurance policies that have the intention of mitigating the risk of additional future cleanup costs. As a result, numerous BRAC sites have established contracts with environmental consultants who have provided guaranteed fixed price contracts for cleanup of the site. To mitigate additional future cleanup costs, the environmental contractor is required to purchase a stop loss or cost cap insurance policy for their guaranteed fixed price contract to share the risk that there will be cost overruns in the cleanup of the known pollution. The redeveloper is required to purchase Premises Pollution or Environmental Liability insurance to share the risk that any newly discovered contamination will not result in additional cleanup costs for the redeveloper. This paper will discuss some of the recent lessons learned regarding (1) the terms of the initial cleanup transfer agreement, (2) efforts for project scoping/set-up, and (3) subsequent implementation dynamics of the relationships between the US Military, local municipality, redeveloper, and environmental contractor.     

论风险预防原则的适用要件——以国际环境法为背景

作为国际环境法的基本原则之一,风险预防原则已经在许多国际环境协定中得到了直接的规定或间接的反映。在适用风险预防原则的过程中,需要遵循以下三个方面的要件:1.适用风险预防原则的前提条件,包括风险阀值和科学不确定性的确定;2.依据风险预防原则进行决策的过程中需遵循的要件,包括成本效益分析以及根据不同的风险水平采取适当的预防措施;3.执行风险预防措施的过程中需遵循的要件,包括对措施的后期审查及相关科学信息的收集。     

Patient Protection and Affordable Care Act; standards related to reinsurance, risk corridors, and risk adjustment. Final rule

This final rule implements standards for States related to reinsurance and risk adjustment, and for health insurance issuers related to reinsurance, risk corridors, and risk adjustment consistent with title I of the Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act of 2010, referred to collectively as the Affordable Care Act. These programs will mitigate the impact of potential adverse selection and stabilize premiums in the individual and small group markets as insurance reforms and the Affordable Insurance Exchanges ("Exchanges") are implemented, starting in 2014. The transitional State-based reinsurance program serves to reduce uncertainty by sharing risk in the individual market through making payments for high claims costs for enrollees. The temporary Federally administered risk corridors program serves to protect against uncertainty in rate setting by qualified health plans sharing risk in losses and gains with the Federal government. The permanent State-based risk adjustment program provides payments to health insurance issuers that disproportionately attract high-risk populations (such as individuals with chronic conditions).     

Privacy Remedies and Costs in the UK: Uncertainties in Access and Relief

Due to the global and pervasive nature of the Internet, the increasingly intrusive nature of reporting by tabloids, the high cost of bringing privacy actions, and the difficulty and complexity involved in removing private information from the World Wide Web, privacy costs and remedies are under scrutiny in the United Kingdom. This article examines some of the proposed changes in this area including the availability of injunctions, pre-publication notification, levels of damage awards, opportunities for alternative dispute resolution, conditional fee agreements/success fees, and potential global solutions that may have an impact on the United States. The article argues that due to the nature of privacy claims initiated from information on the Internet, damage fee levels should be increased as well as the use of mediation and conditional fee agreements.     

Will International Investment Rules Obstruct Climate Protection Policies? An Examination of the Clean Development Mechanism

Rules governing the global environment and the international economy are currently decided in separate arenas. Yet, environmental agreements can have strong economic implications, particularly with the growing use of market mechanisms. Economic liberalization rules, meanwhile, may limit the effectiveness of environmental agreements. This paper assesses the potential interaction between one important market-based environmental mechanism – the Clean Development Mechanism of the Kyoto Protocol on climate change – and the framework of international investment law.     

Relative importance of external R&D: Trends and motivations

This paper reports the findings of our survey study of the methods firms use to generate new basic and applied research and development (R&D). By far, the most important source of new R&D are the firms' in-house programs. This finding holds for firms of all sizes. External R&D arrangements are most common for basic research, although most firms indicated that in the future they expect to increase their reliance on external sources for applied R&D. Small firms tend to acquire technology from the provider, whereas larger firms seem to utilize licensing agreements for gaining access to the results of R&D. Large firms may also be using more of a portfolio approach to external R&D in that they often use several different sources. They also appear to form their outside R&D ventures not only for traditional cost/risk-sharing reasons but also for strategic and competitive reasons. Their attempts to diversify their sources of technology are just as important as the traditional cost- and risk-sharing motivation. Finally, although some collaborative R&D ventures are in response to foreign competition, this appears to be of more concern to mid-sized firms than small or large ones.     

新冠肺炎等传染病与法医学鉴定评述

新冠肺炎致死或引发的其他法律纠纷可能涉及法医学病理解剖或者法医临床学鉴定。在日常法医学解剖中时有遇到因传染性疾病死亡患者的尸体,法医鉴定机构及鉴定人应当有风险识别意识,充分认识到在解剖、检查这类尸体时的被传染风险。法医鉴定人需要采取充分有效的防护措施。由于新冠肺炎属于新型传染性疾病,相关研究成果、信息资料更新快,鉴定中的信息参考要慎重选择。同时本文对因传染性疾病死亡患者的尸体解剖中常见的职业伦理、知情同意、保险理赔和环境保护等问题进行讨论。     

Flexibility in the implementation of intellectual property rights in agricultural biotechnology

In this paper I discuss the fact that economists define optimal IP rights as a continuum of options in three dimensions: height, breadth and length. At the operational level we see the impossibility of multiplying rights indefinitely (due to prohibitive transaction costs), as well as the use of a limited number of IP tools which have led to the implementation of flexibilities. These flexibilities are designed to limit certain perverse effects of rights ill-adjusted to the characteristics of some economic sectors (agricultural biotechnologies, pharmacy, etc.). In this context, I analyse how these flexibilities are implemented in TRIPS and TRIPS+ agreements and I study the consequences for Developing Countries.