Journal of European Tort Law最新文献

{"title":"Turkish Product Liability Law from the Perspective of European Law","authors":"Yasin Alperen Karaşahin","doi":"10.1515/jetl-2023-0016","DOIUrl":"https://doi.org/10.1515/jetl-2023-0016","url":null,"abstract":"Abstract Product liability has been, and continues to be, a problematic area in Turkish law. Prior to legislative attempts to introduce strict product liability, producers could only be held liable based on their fault. Although liability based on fault cannot provide appropriate solutions to all product liability problems, the Turkish Court of Cassation was in the process of establishing case law that was suitable to most product liability issues. However, this development was interrupted by problematic legislative attempts to introduce strict product liability, which became the focus of academic literature on product liability. The final of these legislation attempts is the Product Safety and Technical Regulations Act of 2020. In this Act, product liability and product safety rules are intertwined with each other. This is problematic for product liability provisions, since concepts and rules that should remain in product safety law are transferred to product liability law. The Act claims to be in line with the Product Liability Directive of 1985. However, this is far from accurate. The Act fails to harmonise Turkish law with the Product Liability Directive of 1985, let alone offer solutions to problems that have become apparent since 1985. This article attempts to highlight the product liability issues caused by the Act and interpret its provisions in a manner that is as compatible with European law as possible.","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":"45 13","pages":"272 - 315"},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139203054","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Instrumental Tort Law: Moral Technology or the Promise of a More Advanced Normative Underpinning?","authors":"Rob Schwitters","doi":"10.1515/jetl-2023-0014","DOIUrl":"https://doi.org/10.1515/jetl-2023-0014","url":null,"abstract":"Abstract In recent decades, tort law, and the theory on which it is based, have been the subject of intense debate. These debates focus on the underlying rationale of tort law and reflect tensions between instrumental and non-instrumental perspectives. Instrumental perspectives cover a wide variety of approaches in which tort law is seen as a tool to realise social aims. It can be recognised in the theories of legal economists, such as Posner, who emphasise deterrence, but also in the theories of those who consider it to be an instrument to realise compensation or to contribute to distributive justice. The non-instrumental perspective reflects the concerns of those who consider tort law to be based on individual autonomy and liberty. Some advocates of this perspective adopt a straightforward anti-instrumental position. Weinrib and Beever for instance, object to tort law being used as an instrument to realise collective aims. An instrumental approach would make individuals – either the injurers or the victims – the servants of collective aims, whereas tort law should instead protect individual freedom in the face of community needs.These non-instrumental theories and their individualistic interpretation of liability are unrealistic in a society where people are embedded in wide networks of interdependency, in which risks are often anticipated and deliberately accepted as socially desirable, and in which insurance and its accompanying rationale of actuarial justice play a prominent role.Nevertheless, the issue I seek to address in this paper is whether the principle of corrective justice might not embody some important values that can be used to counter some problematic aspects of an instrumental approach. Based on an awareness that the concept of corrective justice as a whole is no longer realistic in today’s society and building on Habermas’ theory of communicative action, I will sketch the contours of an alternative underpinning for tort law that better reflects current social realities, while at the same time taking some normative reservations held by advocates of corrective justice against instrumentalism into account.","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":"3 1","pages":"211 - 234"},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139208740","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Paul Wragg and Peter Coe (eds), Landmark Cases in Privacy Law (Hart, Oxford 2023). xiv + 432 pp, ISBN 9781509940783. £54 (hardback).","authors":"Fiona Brimblecombe","doi":"10.1515/jetl-2023-0018","DOIUrl":"https://doi.org/10.1515/jetl-2023-0018","url":null,"abstract":"","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":"33 1","pages":"352 - 356"},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139207026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"23rd Annual Conference on European Tort Law (ACET)","authors":"","doi":"10.1515/jetl-2023-9001","DOIUrl":"https://doi.org/10.1515/jetl-2023-9001","url":null,"abstract":"","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":"71 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139199511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Climate Change, Compensation and Unpredictable or Uninsurable Loss: A Possible Path Forward Using Compensation Funds","authors":"Kim Watts, T. Vansweevelt, B. Weyts","doi":"10.1515/jetl-2023-0017","DOIUrl":"https://doi.org/10.1515/jetl-2023-0017","url":null,"abstract":"Abstract Climate change has created existential challenges for current models of natural hazard insurance, and it may be difficult going forward for these models to consistently, fairly and coherently manage the compensation challenges associated with climate change impacts in Europe. This paper analyses the application of a comprehensive no-fault compensation fund framework to the problem of presently uninsured and technically uninsurable losses that are currently inadequately covered by other compensation mechanisms, and for which compensation may be difficult to recover using tort law mechanisms. The proposed structure includes consideration of the purpose and form of the fund, eligibility and categories of loss covered, quantum of compensation, and funding sources. There is also a preliminary consideration of the impact of such a fund on questions of liability. The proposed model illustrates potential ways for a compensation fund to support and complement existing compensation structures such as insurance and civil liability, and provide the necessary stabilisation in European society. Further legal research in this area will require qualitative and quantitative empirical data on how existing compensation frameworks (including innovative insurance instruments like parametric insurance) have so far positively and negatively impacted the ability of victims of climate change to prepare for and recover from loss incidents, in comparison with tort law and existing insurance.","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":"629 ","pages":"316 - 351"},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139204100","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Presumptions of Law Concerning Causality in Environmental Cases: Towards Collective Presumptions of Fact?","authors":"Simon Van Eekert","doi":"10.1515/jetl-2023-0015","DOIUrl":"https://doi.org/10.1515/jetl-2023-0015","url":null,"abstract":"Abstract Presumptions of law are an appealing concept to remedy situations of causal uncertainty. In many pieces of EU legislation in various areas such as competition law, AI law and environmental law, presumptions are presented as a solution for plaintiffs that encounter problems regarding causal uncertainty in their compensation claims. Oftentimes, however, insufficient attention is paid to the possible risks of over- and under-compensation, the available alternatives and the functionality of these presumptions. In this article, I argue that a presumption of law fulfils two functions. First, this paper aims to address situations of evidentiary deficiency (individual goal). Second, it aims to facilitate the procedural road to compensation in cases of mass harm (collective goal). A comparative analysis of Belgian, Dutch and French law reveals that there are many ways to shape a presumption and its consequences. In conclusion, I argue that presumptions should always be tailored to a certain case and should attempt to reconcile the collective goal with the individual goal. To that end, policy-makers should aim to create collective presumptions of fact, based on the statistical evidence in a certain mass harm case, as opposed to presumptions of law.","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":" 5","pages":"235 - 271"},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139197654","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prospectus Liability in Europe: The Relevant Breach of Duties","authors":"P. Lucantoni","doi":"10.1515/jetl-2023-0011","DOIUrl":"https://doi.org/10.1515/jetl-2023-0011","url":null,"abstract":"Abstract This article focuses on the relevant breach of duties under art 11 of the Prospectus Regulation (EU) 1129/2017, which provides only few elements of the private enforcement model, leaving the specific choices of the civil liability regime to the Member States. The main purpose of this paper is to underline the contradiction that exists between (i) a rigid formalism in the Prospectus Regulation and the extensive administrative rulebook and related soft law, which imposes binding formats and contents of prospectuses in order to enhance maximum harmonised investor protection and reduce issuers’ costs in Europe, and (ii) the existing different prospectus liability regimes among the European Member States, which undermine the effectiveness of Union law on prospectuses. In order to highlight this contradiction, the contribution analyses the different legal bases of prospectus liability provided in a sample of Member States, focusing on the different (and sometimes conflicting) methods of defining, from the defendant’s side, the persons responsible and liable for the incompleteness or the incorrectness of the prospectus, and, from the plaintiff’s side, the persons who can sue for damages. In this scenario, the Court of Justice of the European Union (CJEU) has recently brought some clarity as regards the potential scope of prospectus liability claims, thus revealing how important it is to solve the above-mentioned contradiction soon.","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128122774","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"US Prospectus Liability – An Overview and Critique","authors":"Marc I. Steinberg","doi":"10.1515/jetl-2023-0010","DOIUrl":"https://doi.org/10.1515/jetl-2023-0010","url":null,"abstract":"Abstract This article addresses prospectus liability in the United States. The key statutes and Securities and Exchange Commission (SEC) rules and regulations are examined in conjunction with analysis of the causes of action and defenses that are applicable. While the US prospectus framework is thorough, substantial gaps exist that should be remedied. The article accordingly focuses on principal aspects of US prospectus liability exposure and proffers recommendations for improving the overall framework.","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":"42 8","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120812837","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Laura Vitale, La perte de chances en droit privé (LGDJ, Paris 2020, Bibliothèque de droit privé). xv + 581 pp. ISBN: 978-2-275-07302-6. € 62 (paperback).","authors":"Adeline Jeauneau","doi":"10.1515/jetl-2023-0013","DOIUrl":"https://doi.org/10.1515/jetl-2023-0013","url":null,"abstract":"","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":"135 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132387125","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Prospectus Liability and Causation","authors":"Arnoud Pijls","doi":"10.1515/jetl-2023-0012","DOIUrl":"https://doi.org/10.1515/jetl-2023-0012","url":null,"abstract":"Abstract When establishing causation for claims involving prospectus liability, it is the factual basis of the claim and the corresponding line of argumentation that determines the perspective that should be taken as a starting point. There are basically two factual bases that can be distinguished. For the first factual basis of causation, the reliance of the investor on the prospectus is irrelevant. For the second factual basis, reliance is, however, relevant. In its World Online decision, the Dutch Supreme Court adopted a presumption of reliance for both factual bases of causation. This presumption of reliance is based on art 11(2) of the Prospectus Regulation. In my opinion, this provision does not provide a convincing basis for the adoption of such a presumption. Article 11a(1) of the Unfair Commercial Practices (UCP) Directive provides a much more convincing basis.","PeriodicalId":225160,"journal":{"name":"Journal of European Tort Law","volume":"16 4B 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133978700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}