Financial Torts and Investor Protection: Is the Europeanisation of Third State Cases a Viable Solution?

Due to the growing globalisation of financial markets, non-EU market operators which act outside the EU are increasingly causing direct harm to European investors. This issue, and its relevant impact on investor protection, has already been considered by the European legislature at the substantive level. This article seeks to demonstrate that, at the private international law level, the Europeanisation of third state cases would increase both the degree of investor protection and investors’ equal access to justice. Focusing exclusively on financial torts, the advantages arising from the application of Brussels I bis heads of jurisdiction to non-EU defendants are assessed with regard to insider trading and Credit Rating Agency liability cases. The paper also examines the main critical elements related to such an extension of the Brussels I bis regime, especially from a systematic perspective, and suggests possible future approaches to this issue.

     

Strict Liability for Police Nonfeasance? The Kinghan Report on the Riot (Damages) Act 1886

The Riot (Damages) Act 1886 imposes a no‐fault obligation on police forces to compensate owners of property damaged in rioting. Following the riots across England in 2011 an independent Home Office review, the Kinghan Report, concluded that the fundamental principle of the Act should be retained, while the machinery should be modernised. The Report conceives of the Act as a useful, if highly unusual, compensation scheme that may ease socio‐economic problems in riot‐prone areas. This article questions that position. Strict liability offers potential advantages in contentious claims against public authorities, providing an incentive for the police to perform their duty to keep the peace while averting the questioning of police decision‐making that claims in negligence would inevitably require. The best alternative to negligence liability might not be ‘no liability’ (the general position now at common law), or liability based on ‘serious fault’ (as the Law Commission proposed in 2008), but liability without fault.     

What is the HMO Act and what is its impact on employers?

The explosion in health care costs has spurred the development of Health Maintenance Organizations (HMOS). It is predicted that $180 billion will be spent on health care this year. The search for more economical alternatives to the traditional fee-for-service type of care has naturally focused attention on HMOs. Evidence indicates that the cost of HMO services can be one-fourth to one-third less than the cost of traditional care. Such figures make HMOs one of the most important, and least understood, topics confronting employers today.     

Importing and exporting gametes and embryos under the Infertility Treatment Act 1995 (Vic): an unconstitutional restraint on free trade?

Since the introduction of the Infertility Treatment Act 1995 (Vic), it has been illegal to import into or export from Victoria a gamete or embryo outside the human body without the approval of the Infertility Treatment Authority. But is s 56 unconstitutional and therefore invalid by reason of contravening the freedom of interstate trade guarantee by s 92 of the Commonwealth Constitution? By exploring the nature and effect of s 56 this article demonstrates that s 56 may impose a "discriminatory" and "protectionist" burden that renders s 56 invalid.     

Positive obligations under the African Charter on Human and Peoples’ Rights: the duty of the Nigerian Government to enact a Freedom of Information Act

Beginning with the Independence Constitution of 1960, the right to freedom of information and other civil and political rights have been guaranteed by successive Nigerian Constitutions as fundamental human rights. The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, which incorporated the provisions of the African Charter on Human and People’s Right into Nigerian law in 1983 consolidated these and a plethora of other social, economic and cultural rights and imposed a positive duty on the government to adopt legislative and other measures to give them effect. This article develops this potentially revolutionary principle of positive obligations, which amazingly remains unsung and unused more than a quarter of a century after it became an integral part of Nigerian law. The first part of the article proposes the principle as the most effective basis to compel the enactment of a Freedom of Information legislation, which successive governments have refused to enact despite overwhelming public support and sustained lobbying for a Freedom of Information Bill first introduced in the National Assembly in 1997. The second part critically analyses the latest (2007) version of the Bill. It concludes that its provisions are inadequate to give effect to the right to freedom of information in view of the legal and bureaucratic environment under which it will operate, and suggests remedial measures.     

In what format and under what timeframe would China take on climate commitments? A roadmap to 2050

Balancing China’s energy needs to fuel its rapid economic growth with the resulting potential impacts of climate change presents an enormous climate policy dilemma, not simply for China but for the entire world. This is the major reason why the role of China is an issue of perennial concerns at international climate change negotiations. In response to these concerns and to put China in a positive position, this paper maps out a realistic roadmap for China’s specific climate commitments toward 2050. Taking many factors into consideration, the paper argues that China needs to take on absolute emissions caps around 2030. However, it is hard to imagine how China could apply the brakes so sharply as to switch from rapid emissions growth to immediate emissions cuts, without passing through several intermediate phases. To that end, the paper envisions that China needs the following three transitional periods of increasing climate obligations before taking on absolute emissions caps that will lead to the global convergence of per capita emissions by 2050: First, further credible energy conservation commitments starting in 2013 and aimed at cutting China’s carbon intensity by 46–50% by 2020; second, voluntary “no lose” emission targets starting in 2018; and third, binding carbon intensity targets as its international commitment starting in 2023. Overall, this proposal is a balanced reflection of respecting China’s rights to grow and recognizing China’s growing responsibility for increasing greenhouse gas emissions as China is on its way to becoming the world’s largest economy.     

The Housing and Planning Act 2016: Rewarding the Aspiration of Homeownership?

In May 2016 the Housing and Planning Act 2016 became law, the first purely Conservative government intervention on housing in England since the 1990s. This article examines the Act's key provisions pertaining to social housing and the government's stated aim of increasing rates of homeownership. The Act, through the Starter Homes Scheme, extension of the right to buy to housing association tenants and changes to security of tenure in the social sector, has been heralded as a ‘landmark’ piece of legislation. This article scrutinises these policy measures and assesses their effectiveness and likely impact. It is contended that the Act exposes the government's promotion of homeownership above all other housing tenures. The article further explores the deep moralisation at the heart of the homeownership narrative and the intensification in the residualisation of social housing in England which, it is argued, is the inevitable consequence of the reforms.     

DNA analysis and the Freedom of Information Act: information or invasion?

This note explores the possibility of release of an individual's DNA analysis to any person who requests it through the Freedom of Information Act (FOIA), after an individual's post-aircraft accident DNA profile has been developed by the Federal Aviation Administration's (FAA) Civil Aerospace Medical Institute (CAMI). It analyzes whether the request would fall under the FOIA's 552(b)(6) exemption, which weighs a person's privacy interest against any public interest in such information, or if the release would constitute a "clearly unwarranted invasion of personal privacy."     

Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?

Recently there has been much discussion of the prospect of replacing, or supplementing, the Human Rights Act 1998 (HRA) with a British bill of rights. The Government, opposition Conservative Party and others have published detailed plans and research reports. Whilst there has been some limited examination of the alleged failures of the HRA in providing effective legal protection for human rights, the debate has not been accompanied by a thorough examination of these types of problems with the HRA, free from political criticisms. Drawing on research concerning aspects of the HRA carried out over the past ten years, it is possible to identify concrete problems which have prevented the HRA from meeting the objectives originally set for it. But given the limitations of the present debate, future plans do not adequately address many of these problems making it uncertain how effective any new bill of rights will actually be.     

The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety: An analysis and implementation challenges

The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress was finally adopted on 15 October 2010 at Nagoya, Japan. It was negotiated pursuant to a mandate established by the First Conference of the Parties serving as the Meeting of the Parties in 2004 under an enabling provision in the Cartagena Biosafety Protocol. The Supplementary Protocol seeks to deal with damage to biodiversity as well as ‘associated’ traditional material or personal damage. It delineates two pathways to dealing with such damage: the administrative approach that empowers a competent authority to deal with the matter administratively, without initial recourse to courts; and a civil liability approach that requires litigants to seek private law remedies through national legal systems. However, while the Supplementary Protocol has elaborate and comprehensive provisions implementing the administrative approach, it incorporates only a single article on civil liability which does little more than exhort parties to continue to apply their existing domestic law on the subject or establish rules to deal specifically with the matter. This was not the outcome anticipated when the negotiations started. It was the expectation, primarily of developing countries then, that the prospective protocol would deal essentially with civil liability and set out substantive and procedural rules on liability and redress. This article traces how and why all this came to pass. It also analyses the provisions, and the implications, relating to the administrative approach and the single enabling article on civil liability. It deals also with the challenges in implementing the administrative approach, novel to most countries. Finally, it examines the prospect for the emergence in the future of a more elaborate international civil liability regime.     

An organization's waiver of the attorney-client privilege and/ or the attorney work product protection to obtain leniency in federal court sentencing: what is the brouhaha all about?

The guidelines controlling the sentencing of organizations provide for the reduction in an entity's culpability score for self-reporting, cooperation, and acceptance of responsibility. What an organization must do in order to receive the reduction in culpability score changed dramatically in 2004 when additional language was added to Application Note 12 of the U.S. Sentencing Guidelines Manual Section 8C2.5(g) stating that "waiver of the attorney-client privilege and of work product protections is not a prerequisite to a reduction. ... However, in some circumstances waiver of the attorney-client privilege and of work product protections may be required in order to satisfy the requirements of cooperation." Following months of hearings and public comment, the United States Sentencing Commission reversed its position on whether a sentencing court should consider an organization's waiver of the attorney-client privilege and/or of the attorney work product protection in evaluating the organization's "cooperation" as a sentencing factor by proposing to retract the language added by the 2004 amendments. Although that proposal has become effective, it is yet to be determined what the response of the three branches of government will be on the issue of privilege waivers in the context of federal criminal law. This Article gives readers an overview of the development of the use of privilege waivers by organizations seeking credit for cooperation at the time of sentencing for federal crimes, the reaction of both corporations and their lawyers to the waiver issue, and the events leading up to the Commission's change of position.     

Comparative effectiveness research under the Patient Protection and Affordable Care Act: can new bottles accommodate old wine?

The Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010, initiated comprehensive health reform for the healthcare sector of the United States. PPACA includes strategies to make the American healthcare sector more efficient and effective. PPACA's comparative effectiveness research initiative and the establishment of the Patient-Centered Outcomes Research Institute are major strategies in this regard. PPACA's comparative effectiveness research initiative is one in a long line of federal initiatives to address the rising costs of healthcare as well as to obtain better value for healthcare expenditures. The key question is whether the governance and design features of the institute that will oversee the initiative will enable it to succeed where other federal efforts have faltered. This Article analyzes the federal government's quest to ensure value for money expended in publically funded healthcare programs and the health sector generally. This Article will also analyze what factors contribute to the possible success or failure of the comparative effectiveness research initiative. Success can be defined as the use of the findings of comparative effectiveness to make medical practice less costly, more efficient and effective, and ultimately, to bend the cost curve.