Michael Faure

Climate Change Liability

Contents: Introduction PART I 1. Introduction to the Book Michael Faure and Marjan Peeters PART II: CROSS-CUTTING THEMES 2. Liability with and Liability from the Precautionary Principle in Climate Change Cases Miriam Haritz 3. High Noon: Prevention of Climate Damage as the Primary Goal of Liability? Jaap Spier PART III: EUROPEAN PERSPECTIVE 4. Liability of Member States and the EU in View of the International Climate Change Framework: Between Solidarity and Responsibility Javier de Cendra de Larragan 5. The Regulatory Approach in the EU in View of Liability for Climate Change Damage Marjan Peeters 6. Potential Liability of European States Under the ECHR for Failure to Take Appropriate Measures with a View on Adaptation to Climate Change Armelle Gourtin PART IV: NATIONAL PERSPECTIVES ON CIVIL LIABILITY 7. Climate Change Litigation in the UK: Its Feasibility and Prospects Giedre Kaminskaite 8. Liability for Climate Change-Related Damage in Domestic Courts: Claims for Compensation Within the USA Elena Kosolapova 9. Civil Liability for Global Warming in The Netherlands Chris van Dijk 10. Will Civil Society Take Climate Changers to Court? A Perspective from Dutch Law Phon Van den Biesen 11. Governmental Liability: An Incentive for Appropriate Adaptation? Ben Schueler PART V 12. Concluding Remarks Michael Faure and Marjan Peeters

Liability for nuclear accidents in Belgium from an interest group perspective

Liability for nuclear accidents in Belgium is governed by a strict liability rule and subjected to compulsory liability insurance. In addition the compensation due to the victim is limited. The regulation of the nuclear risk has traditionally been explained, both by the legislator and by legal doctrine, on victim protection grounds. Many lawyers favour the evolution towards an expanding strict liability and compulsory insurance, arguing that these devices suit the need of effective victim protection. Taking a closer look at the regulation, it, however, becomes clear that its contents cannot entirely be explained on victim protection grounds. The legal mechanisms used are not effective means of victim protection. Indeed, as will be explained below, compared with the previous law, strict liability combined with a limit to compensation does not improve the situation of the victim substantially. Moreover, the advantages of strict liability and compulsory insurance have to be weighed against the disadvantages of the regulation for the victim (such as the channeling of liability and the short periods of limitation) before definitive conclusions with respect to the victim’s position can be drawn. A better insight in statutory arrangements can often be achieved by analyzing them from an interest group perspective. This is true both for market and non-market regulations, such as liability rules. The purpose of this paper is to use the Belgian regulatory framework for nuclear accidents to show that the interest group theory of regulation can also help to provide a better understanding of regulations concerning liability rules and insurance. Hitherto this theory has mostly been applied to explain the passage of legislation in fields of production and distribution. In this paper we use interest group theories of regulation to find an explanation for some odd legal rules which do not serve the goal of victim protection, pronounced by the legislator. We start from the assumption of rational behaviour by utility-maximizing politicians. Useful insights will be obtained by examining the regulation as a form of rent-

Self-regulation of the professions in Belgium

In the context of the 1992 program, the European Economic Community aims at a free flow of professional services. Many barriers to this freedom have already been overcome. The right of establishment is protected by the directfy effective prohibition of discrimination and furthered by directives for the mutual recognition of diplomas and qua&fications.’ As far as the freedom to provide services is concerned, significant progress has been realized by the acceptance in case law of the principie that restrictions must be justified on grounds of “public interest .“? Free access to the host member state does not, however, provide for real freedom as long as professional ethics continue to restrict competition. In the EEC member states professional ethics are issued by self-regulating public professional bodies. This self-regulation restricts entry into the profession and limits competition through strict rules regarding professional conduct. Impediments to real market integration resulting from these restrictions are further worsened by differences between the professional ethics that apply in the separate member states. Various important judgements of the European Court of Justice have made it clear that the freedom of establishment and the freedom to provide services also

Product Liability and Product Safety in Europe: Harmonization or Differentitation

The paper examines whether there are economic reasons for a harmonisation of product safety and product liability. On the basis of the economic criteria an analysis is given of the areas that may be centralised at the European level. It is argued that there are arguments in favour of centralised European rule making if there would be inefficiencies in national product liability law that would allow manufacturers to externalise damage caused by product defects or if it would be established that states could attract industry with lenient product safety standards. However, the paper claims, analysing the effectiveness of the European product liability directive, that this directive is not able to cure the risk of interstate externalities and that there is no empirical evidence of a risk that states could attract manufacturers with lenient product liability legislation. Copyright 2000 by WWZ and Helbing & Lichtenhahn Verlag AG

Economic models of compensation for damage caused by nuclear accidents: Some lessons for the revision of the Paris and Vienna Conventions

In this paper the economic analysis of accident law is used to examine the liability for nuclear accidents. It is argued that the classic system of individual liability of a nuclear power plant operator with a financial cap on compensation and individual insurance by national pools is not effective. The current system leads to a too low compensation for victims and lacks an adequate internalization of the nuclear risk. Hence, it is argued that the economic analysis of law can provide useful insights for the revision of the Paris and Vienna Conventions on the liability for nuclear accidents. It is also argued that higher amounts of compensation can be generated only if the idea is accepted that all plants share the costs of an accident wherever it occurs. This could be realized through a mutual pooling system. Such a system could also be fitted into the revision of the Paris and Vienna Conventions.

Economic Criteria for Compulsory Insurance

This paper applies the economic analysis of law through the question of under what conditions should insurance be made compulsory. A distinction is made between first-party (victim) insurance and third-party (liability) insurance. It is argued that under some circumstances compulsory victim insurance may be indicated, for example, when information problems or externalities arise. The major argument in favour of compulsory liability insurance is insolvency of the potential injurer. His insolvency may lead to underdeterrence. This can be cured through making the purchase of insurance compulsory. However, equally a few limits and warnings with respect to the introduction of a duty to insure are presented. If the moral hazard problem cannot be cured or if insurance is not sufficiently available, making insurance compulsory may create more problems than it cures. Also, it is argued that a major disadvantage of compulsory insurance is that it may make governments too dependent on the insurance market. The Geneva Papers (2006) 31, 149–168. doi:10.1057/palgrave.gpp.2510063

Economic analysis of the removal of illegal gains

The purpose of the present paper is to explore both the motivation for confiscating illegal gain and also to look at some of its legal aspects and economic effects. It is argued that the removal of illegal gain may be able to play a significant complementary role, if only by closing the gap between the maximum punishment the law will allow and fines sufficient to represent a credible deterrent. The paper develops a deterrence model and applies it to confiscation powers introduced to help combat drug trafficking.

No-fault compensation in the healthcare sector

Questionnaire.- Economic Analysis: Economic Observations Concerning Optimal Prevention and Compensation of Damage Caused by Medical Malpractice (M. Faure).- Country Reports: Compensation in the Austrian Health Care Sector (B. A. Koch, H. Koziol) Compensation in the English Health Care Sector (M. A. Jones) Compensation in the Finnish Health Care Sector (M. Mikkonen) Compensation in the French Health Care Sector (V. Rachet-Darfeuille) Compensation in the German Health Care Sector (C. Wendehorst) Compensation in the New Zealand Health Care Sector (PDG Skegg) Compensation in the Spanish Health Care Sector (M. Martin-Casals, J. C. Feliu, C. Seuba Torreblanca) Compensation in the Swedish Health Care Sector (L. Wendel) Compensation in the Swiss Health Care Sector (O. Guillod).- Comparative Reports: Comparative Report and Conclusions (B.A. Koch) A Comparison of No-Fault Compensation Schemes (J. Dute).- Index.- Publications

Curbing Consumer Financial Losses: The Economics of Regulatory Enforcement

This article deals with the question of how a high level of compliance with consumer protection legislation designed to prevent financial losses can be secured. We use a theoretical framework based on economic analysis of law to address some of the key policy options, such as proactive and reactive monitoring, providing officials with postdetection enforcement discretion, administrative, civil, and criminal sanctions, and facilitating actions by victims and third parties. On the basis of our theoretical framework and a classification of jurisdictions into different groups (models of enforcement policy), we identify some key elements of an enforcement regime and indicate in what circumstances a particular solution can be expected to be more or less cost effective.

The International Regimes for the Compensation of Oil‐Pollution Damage: Are they Effective?

This article discusses the question whether the current international regimes are adequate for the compensation of oil pollution damage. It sketches the regime of the CLC 1969 and the Fund Convention. Then it will show that by in 1984 and 1992, among others following the catastrophe with the Amoco Cadiz new initiatives were taken with the goal of providing more compensation. In 2000, following the Erika incident, the IMO Legal Committee proposed new amendments, which are to take effect in November 2003. However, even before this new regime has entered into force the sinking of the Prestige has cast doubt on whether this new regime is indeed sufficient to deal with major oil spills. Hence, this paper will address some of the critical issues underlying the current structure of the regime and discuss possible future developments, as indicated in doctrine and at the policy level. Finally, the paper formulates concluding remarks.