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1187 results in Private International Law

Page 18 of 60

  • Chapter 11 - Legal Risk in International Commercial Disputes

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 285-300

  • Summary

    RISK AND ENGLISH PRIVATE INTERNATIONAL LAW

    The language of commerce is the language of risk. To that extent, the legal regulation of business is the legal regulation of risk. The law relating to commercial transactions reflects, creates and controls the risks which the parties undertake. This is true of any branch of commercial law. But it finds particularly sharp expression in the rules of English law regulating cross-border transactions and in the way that commercial actors view those rules. More precisely still, it is reflected in the rules relating to cross-border litigation which regulate an area in which the cost of litigation and the numerous strategic choices faced by litigants bring considerations of risk to the fore. There are few areas of English law in which the English lawyer's distinctively commercial view of the law and its objectives are more clearly revealed.

    In this world, dominated by complex, high-value, multi-jurisdictional disputes, the regulatory framework is provided by the rules of private international law. These concern principally the determination of jurisdiction, ascertaining the applicable law, and regulating the enforcement of foreign judgments. Significantly, however, these rules are not merely important in themselves but because they simultaneously create and regulate the risks associated with multistate litigation (defined as litigation involving such features as foreign counterparties, foreign laws, and foreign proceedings).

    To understand the practice of litigators and the decisions of the courts, it is necessary to understand the role of private international law in the assessment of risk. And to judge the law's effectiveness we must ask whether it enhances or reduces the risk to the parties (and in particular whether it allows the parties to transactions to self-regulate the risk of transacting by contractual agreement).

    This perspective must, however, be placed in context. It reflects the views of English lawyers and English courts, and the context in which private international law operates in England. English law's approach to the regulation of crossborder disputes responds to, and is explained by, the prominence of London as a centre for the resolution of international commercial disputes, and the role of the Commercial Court as an international forum. This in turn reflects the prominence of London as a financial centre, and the origin of so many disputes in the financial markets.

  • Chapter 3 - Risk and French Private Law

  • from Part I - Risk Overviews
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 55-78

  • Summary

    INTRODUCTION

    The concept of risk has been widely considered by law academics and in doctoral theses in various fields of French law. Risk has been discussed extensively in contract law, where we find a doctrine of risk, and in the law. of evidence. The concept of risk is oft en examined in articles dealing with professional activities, particularly the ‘criminal law risks’ or the ‘legal risks’ those professionals face. Discussions relating to risk clearly play a central role in environmental law, where risk and the precautionary principle (as a response to risk) have been, and continue to be, the subject of considerable academic study. Health risks are also a major concern for public authorities. A government website promotes the prevention of major risks threatening public health, in particular those posed by chemical or bacteriological contamination of water or air. The concept of risk is omnipresent in public law, particularly in rules imposing no-fault liability on the state for public bodies based on the principle of risk. In urban planning law, prevention plans are defined for risks posed by natural phenomena such as storms and flooding.

    Risk thus permeates wide areas ofFrench law. However, risk can be argued to have played its most significant role in the area of tort law, with respect both to debates about the foundations of tort liability and to the development of substantive liability rules.

    THE DOCTRINE OF RISK AND THE CREATION OF STRICT LIABILITY

    Historically, the most significant doctrinal theoretical debate about risk concerned the ‘theorie du risque’, the doctrine of risk developed by Saleilles.

    At the end of the nineteenth century and in the early twentieth, the use of industrial machinery and motorised transport caused an increasing number of serious accidents, generating more frequent claims for compensation. The Cour de cassation responded by significantly extending the scope of liability. Most famously, in an 1896 decision, an explosion of the steam engine on a tug boat due to a manufacturing defect in the engine caused the victim’ s death. The Court based the defendant’ s liability on article 1384.1 of the Civil Code relating to liability for harm caused by things under one’ s control (as of October 2016, renumbered as article 1242).

  • Chapter 8 - Risk and Chilean Private Law

  • from Part I - Risk Overviews
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 195-222

  • Summary

    This chapter intends to show that there is no such a thing as ‘a systematic treatment of risk’ across private law’ s principal sources: legislation, doctrine and case law. However, the main contribution of Chilean private law to the conceptualisation, distribution and control of risks takes place in two different contexts, namely contract and extracontractual liability. In this chapter we will focus on extracontractual liability. The appreciation of risks has steadily increased in importance in Chilean society and has thus been subjected to a more sophisticated analysis by experts and regulators. This is reflected in legislation at different levels and in respect of a wide variety of activities with diverse degrees of danger. Yet for all that change, private law remains underdeveloped and inadequate in its treatment of risk. This failure is particularly evident in the limited role played by court decisions in the definition and management of risks. In Chile, judicial decisions are normally where the law in action is found. However, in respect of risk, Chilean case law has been less influential than doctrine and legislation. Rather, judicial decisions seem to confirm that the impact of private law on the conceptualisation, allocation and control of risks is modest. Courts tend only to apply a few abstract rules on extracontractual liability contained in the Civil Code that distribute risks among victims and wrongdoers. Courts usually enforce these default rules without engaging in risk analysis itself. Judicial creativity is scarce. However, the one potential area where judicial development has been engaged is the development of a presumption in case of liability for one's own acts specifically out of article 2329 of the Civil Code, a technique which may hold some hope of judicial contribution in the future.

    RISK: CLARIFYING CONCEPTS

    Risk, although pervasive in Chilean law, is under-theorised in legal discourse. By and large, the notion of risk is conceived in similar terms across doctrine, legislation and case law. It is generally understood in the most natural or colloquial sense of the term, that is, ‘contingency or proximity to harm’. In turn, contingency is defined as ‘the possibility that something does or does not happen’, danger as ‘an imminent risk or contingency that a mischief occurs’, and imminent as anything ‘that threatens or is about to happen shortly’.

  • Chapter 18 - Constitutionalising Rights and Reacting to Risk in South Africa

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 419-436

  • Summary

    INTRODUCTION

    Building on the overview of South African private law and risk, particularly delict, set out in Part I (Ch. 9), this part explores a narrower topic, namely the constitutionalisation of rights and risk. In particular, it examines appeals to fundamental rights and consequent reactions to risk (1) by the courts engaging in substantive and procedural legal reform, and (2) by litigants responding by suing in delict for negligent risk creation and settling novel claims where they would not have before. In short, constitutional rights and values, which are conceived by the South African courts as a guiding light for applying private law, have provided an impetus for the judicial expansion of civil liability for negligent endangerment.

    Three key legal developments have taken place since 2011:

  • 1. First, in Lee v. Minister for Correctional Services the Constitutional Court reformed the element of factual causation in delict so as to introduce the possibility of liability for negligently exposing another to a risk of harm, where that harm ultimately eventuates. Consequently, in Lee, prison authorities were held delictually liable for negligently failing to reduce the plaintiff's risk of contracting pulmonary tuberculosis while he awaited trial in Pollsmoor Prison.

  • 2. Second, the same Court held in Mankayi v. AngloGold Ashanti Ltd that statutes establishing no-fault, social insurance schemes to compensate mineworkers who contracted occupational diseases, including silicosis and tuberculosis, do not bar concurrent delictual claims against their employers, contrary to mining industry expectations.

  • 3. Third, the courts have developed the common law to permit class actions on the basis of their ‘inherent power to protect and regulate their own process … taking into account the interests of justice’. A class action may proceed to a trial only after a court has granted permission (that is, has ‘certified’ the class action).

    • As a direct result of these reforms, several groups of current and former mineworkers suffering from pulmonary tuberculosis and silicosis, and surviving dependants of such mineworkers, have claimed delictual damages against employer mining companies. The claimants argue that the employers'negligence either caused the diseases in question or wrongfully increased the risk thereof. In March 2016, AngloGold Ashanti Ltd, a gold-mining company, reached a settlement with over 4,000 claimants suffering from dust-related lung illnesses, agreeing to pay R464m (approx. £28m) into an independent trust tasked with distributing compensation.

Regulating Risk through Private Law
  • Edited by Matthew Dyson
  • Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018
  • Regulating Risk Through Private Law sets out, for nine significant legal systems, an overarching conception of risk in legal theory, particularly of the linked role of risk-taking in generating liability and in liability regulating risk. It examines and explains what risk-based reasoning adds to private law. Taking tort law as the core case study, the book analyses national variation in risk understanding, liability, culture and regulation and from that, develops a legal framework for understanding and responding to risk. Then, looking beyond tort, the volume examines the contextual and cultural setting of different risks and how different legal systems seek to regulate them. The volume draws on more than 25 leading scholars of private law and risk from around the world to develop a coherent and systematic study of risk. The legal systems included span the common law and civil law, large and small, codified and uncodified, as well as those with wider and narrower strict liability rules and causation rules: England and Wales, France, Sweden, Italy, Spain, the Netherlands, Chile, South Africa and Brazil. This is the first multi-handed work on risk to explore what risk-reasoning adds to private law and how best it can be deployed, resisted or simply understood Matthew Dyson is an Associate Professor in the Faculty of Law, University of Oxford, and Tutorial Fellow of Corpus Christi College. Previously, he was a Fellow of Trinity College and Jesus College, Cambridge. He is an associate member of 6KBW College Hill Chambers, a Research Fellow of the Utrecht Centre for Accountability and Liability Law and Vice President of the European Society for Comparative Legal History. He is the editor of Unravelling Tort and Crime (2014), Comparing Tort and Crime (2015) and Fifty Years of the Law Commissions (2016).With contributions by Cristián A. Banfi (University of Chile), Bernardo Bissoto Queiroz de Moraes (University of Sao Paulo), Mia Carlsson (Stockholm University), Nadia Coggiola (University of Turin), Matthew Dyson (University of Oxford), Anton Fagan (University of Cape Town), Duncan Fairgrieve (University of Paris-Dauphine PSL), Richard Fentiman (University of Cambridge), Sandra Friberg (Uppsala University), Bianca Gardella Tedeschi (Università del Piemonte Orientale), María Paz Gatica (University of Chile), Ivo Giesen (Utrecht University), Michele Graziadei (University of Turin), Cyril Holm (Uppsala University), Elbert de Jong (Utrecht University), Marlou Overheul (Utrecht University), Ignacio Maria Poveda Velasco (University of Sao Paulo), Alistair Price (University of Cape Town), Otavio Luiz Rodrigues Junior (University of Sao Paulo), Albert Ruda (University of Girona), María Agnes Salah (University of Chile), Helen Scott (University of Oxford), Sandy Steel (University of Oxford), Jenny Steele (University of York), Simon Taylor (University Paris Diderot), Eduardo Tomasevicius Filho (University of Sao Paulo) and Véronique Wester-Ouisse (Deputy Prosecutor at the Court of Appeal of Rennes).

  • Chapter 12 - Medical Accidents and Pharmaceutical Product Liability in France

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 301-322

  • Summary

    INTRODUCTION

    The first French chapter (Ch. 3) showed that risk has played an important part in the development of accident liability in French tort law. It showed how conceptualisation of risk as a basis for liability played a significant role in liability for risk in certain areas, whereas in others the idea of liability for risk has been less conceptualised, but risk has nevertheless been used as a way of facilitating victim compensation in line with ideas on solidarity and risk distribution. In Part II, we turn to consider two specific and related examples of the French approach to risk in tort law: medical accidents and pharmaceutical product liability.

    The section on medical accidents considers to what extent liability for risk has been developed in this area, and the influences behind that development. The section on medicinal products liability shows how liability for risk is perceived as a basis for liability in this field, but it also demonstrates that risk is inherent within key concepts of the European product liability regime and that, in these areas, French courts have found it difficult to define the role of risk with any precision.

    MEDICAL ACCIDENT LIABILITY AND COMPENSATION

    Medical accident liability in some ways stands out as an area which raises particular challenges for tort law and for the regulation of risk. The area of medical accidents is indeed one where it is perceived as particularly difficult for victims to obtain compensation due to problems in proving fault and causation, and the difficulties victims face in this respect are argued to justify liability for risk. However, at the same time it is seen as necessary to balance the interests of victims with those of medical service providers and liability insurers in order to avoid an excessive liability burden and overly defensive medical practice. The need to achieve a balance in this way is clearly not the exclusive concern of this area of law. However, the effectiveness of the balance can be argued to be of particular significance in medical accidents due to the central importance for society of maintaining a high level of healthcare provision. Also, it should be noted that, unlike in other areas, imposing the burden of the risk of accidents on risk creators cannot be justified by the profit motive of a medical defendant.

  • Chapter 19 - Regulating Risk in Brazil: Resort to General Clauses

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 437-454

  • Summary

    WHY GENERAL CLAUSES?

    This chapter picks up one of the key characteristics of the Brazilian approach to regulating risk: the use of open-textured general clauses to empower judges to deal with cases equitably. These clauses have been key to developing the Brazilian response to risk in private relationships, in particular in the form of, first, the risk-based strict liability general clause, provided for in the sole paragraph of article 927 of the 2002 Civil Code (2002 CC), which is the apex of this system, and, second, the strict liability general clauses in the 1990 Code of Consumer Protection (1990 CDC).

    In order to understand why general clauses are the main legal form of risk regulation in Brazilian laws, a short history of the Brazilian Civil Code is required. On 10 January 2002, the old 1916 Civil Code (1916 CC) was replaced by a new Code. Although the new Code appears to be very modern, one of the first twenty-first-century civil codes, the development of a new Code in Brazil had actually taken a long time. Since the 1940s, successive Brazilian governments have wanted to replace the 1916 CC and, in the early 1960s, two leading Brazilian jurists, Caio Mario da Silva Pereira and Orlando Gomes, were appointed to draft a Civil Code and a Code of Obligations. However, the advent of a military dictatorship in April 1964 ended their work on the draft: even if Orlando Gomes’ socialist views were in no way reflected in the draft legislation, the draft was nonetheless tainted. After a short gap, in 1970, the government appointed another committee of scholars, supervised by Professor Miguel Reale, to draft a new Civil Code.

    Professor Reale enshrined three values in the 2002 CC. The first was ‘sociality’ (socialidade), a word which in Portuguese expresses the need for individuals to exercise their rights without causing harm to one another. The social function of contract and property are examples of this value in this Code. The second value was ‘ethicality’ (eticidade), through the principle of good faith, notably inspired by § 242 German Civil Code (BGB). Finally, the third value was ‘flexibility’ (operabilidade), through which he desired to establish a system that was open and permeable to new values, 4 and sensitive to the socio-economic transformations in Brazil, so that courts could promote the development of law faster than parliament.

  • Chapter 16 - Dutch Tort Law at the Crossroads: Judicial Regulation of Health and Environmental Risks

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 375-398

  • Summary

    INTRODUCTION

    JUDICIAL RISK REGULATION

    It is the government’ s responsibility to protect its citizens against health and environmental risks. Governments have to enact regulations that set out the legal responsibilities of the relevant private actors – such as producers, developers of a technology, employers – with respect to risks. Moreover, these rules should ideally be enacted and enforced before the materialisation of risks.

    Lately, the Dutch government has been (legally but also socially) accused of failing in this task. Its response to several risks would have been inadequate, such as the risk of asbestos exposure, (shale) gas extraction, Q fever (bacterial infection associated with cattle), tobacco smoke and greenhouse gas emissions. Also for the future, some scholars – and even the government itself – expect that the government will face difficulties in regulating the risks of new technologies, such as biotechnology and nanotechnology, and hence in protecting citizens against such risks.

    As a reaction to these threats from alleged governmental failures, judicial regulation of health and environmental risks is being sought by litigants, and the results are entering the Dutch private law system. Although such risk-regulatory lawsuits might have different claimants, defendants and outcomes, they share three characteristics:

  • 1. they seek to use the private law system to set regulatory standards for risks (i.e. to provide the standard of care for the government or an industrial sector that also has relevance beyond a specific legal dispute);

  • 2. they seek to and/or actually bring about changes in the behaviour and policy of private actors and/or governments in relation to the management of (the consequences of materialised) risks; and

  • 3. they affect the (non-legal) interests of third parties, such as industrial sectors.

    • The complementary role that civil courts currently play in regulating risks can also be seen in three forms.

    First, claims for damages against the state and private actors may be sought as a mechanism to redress the negative effects of (alleged) inadequate risk management, including the failure to regulate at all. Such claims have typically failed when brought against the state. For example, in 2013, a Dutch worker whose work had involved asbestos contracted mesothelioma, a cancer caused by exposure to asbestos, and lodged a claim for damages against the Dutch state.

  • Chapter 9 - Regulating Risk Through Private Law: South Africa

  • from Part I - Risk Overviews
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 223-252

  • Summary

    INTRODUCTION

    There are two distinct ways in which risk-reasoning features in the South African law of delict. The first, which is the subject of section 9.2 below, relies on the concept of ‘risk-taking’. The second, which is discussed in section 9.3, relies on the notion of ‘risk generation’.

    Risk-taking is the ground upon which the South African law of delict imposes Aquilian liability on negligent harm-doers. A harm-doer was negligent if he created the risk of the harm that eventuated and was at fault in doing so: because a reasonable person in his position would have foreseen the risk and, having foreseen it, would have guarded against it. The law disapproves of the risk-taking conduct, and that is the reason for the imposition of liability in respect of the harm suffered. However, risk-taking may also serve as a reason to deny liability. Thus the defence of volenti non fit iniuria deprives the plaintiff in a delictual action of an otherwise valid claim on the ground that he has assumed responsibility for the negative outcome of a risk generated by the defendant. This is similar to the way in which a claim in unjustified enrichment – in so far as it arises in whole or in part from mistake on the part of the plaintiff – is refused if he can be said to have taken the risk of his mistake. The effect of risk-taking on the part of the plaintiff is to neutralise mistake as a cause of action, since his mistake can no longer be said to have caused him to confer the benefit in question.

    When we consider the efforts of the South African law of delict to regulate risk, it seems that we are concerned not only with risky conduct of which the law disapproves, but also with risky activities which the law wishes to encourage, or at least has no reason to discourage. Even socially beneficial activities generate risks of harm, and the question then arises whether the law of delict should regulate these risks through the imposition of liability on the risk-generator, as opposed to letting the loss lie where it falls, or – outside the immediate domain of private law – creating some form of insurance scheme by means of which the loss is spread throughout the general population or some part thereof.

  • Chapter 10 - Risk and Brazilian Private Law

  • from Part I - Risk Overviews
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 253-282

  • Summary

    INTRODUCTION

    The concept of risk is embedded in Brazilian law. The term ‘risk’ has acquired multiple meanings and has found its way into several fields of law, with varying degrees of acceptance. Scholars and professionals normally mention risk when trying to reduce it. This is the case, for instance, in contract law. Risk is also a main subject in tort law and plays a key role in the summa divisio of tort liability: fault-based liability and strict liability. Fault is the foundation for ‘subjective’ liability (along with abuse of rights); 1 risk is usually the foundation for strict liability. Each form of liability is autonomous with regard to the other and in no sense is ‘subjective ’ liability hierarchically superior to, or thought to be more important than, strict liability in Brazil. Rather, each of these types has its own scope of regulation, clearly defined by law, meaning that parties may not choose when fault-based liability or strict liability is applied. Thus, the two regimes complement one another through the application of general clauses. Unlike some other countries, the use of general clauses is a hallmark of Brazilian law on risk and complicates regulating risk in a given activity, as discussed in the Brazilian chapter in Part II (Ch. 19).

    However, the concept of risk is not confined to generic hypotheses enshrined in contract law or tort law. Every country has particular problems related to risk that require specific legal solutions formulated within the general framework of that jurisdiction, and has its own starting points, usually not explicit in legislation, case law or legal doctrines. Analysing risk in Brazilian law reveals interesting features of the country's legal culture, for example the way in which Brazilian scholarship has developed doctrines regarding risk distribution, or how legislative techniques were adopted to provide timely answers to riskrelated problems, particularly those that were and are more sensitive due to the socio-economic conditions in twentieth- and twenty-first-century Brazil.

    In this chapter, the analysis of the concept of risk is divided into three parts in sections 10.2 – 10.4. The first part is a survey of risk definitions in key Brazilian legislation and classification of risk by scholars.

  • Chapter 14 - Modernisation and Risk Regulation in the Italian Food Sector

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 347-360

  • Summary

    INTRODUCTION

    This second chapter from Italy takes up one particular theme to illustrate two important aspects of how private law regulates risks: the interactions within domestic law and the relationship between domestic law and international legal sources.

    First, it is almost a truism to say that private law rules do not exist in a vacuum. Tort or contract law rules, for example, are considered as separate branches of the law for a number of purposes, but when the question is the allocation of responsibilities for the governance of certain risks, they surely come in as part of a larger picture. What is that picture? In particular, how do public law regimes interact with tort and contract law rules to regulate risk? As a preliminary point, although criminal law is present on the same scene as well, the role played by criminal law will not be explored in this context. Criminal law is mostly applied to individuals, while the accent here falls on the regulation of businesses.

    The second point explored in this chapter highlights the interaction between EU law and the national legal systems with respect to risk regulation. To achieve the ends set by the European Treaties, all the Member States of the European Union have come to share a huge of amount of law. EU law has a pervasive and profound influence on the content and shape of the national legal systems of Europe, requiring more harmonisation and more uniformity across Europe. Private law is deeply involved in this movement, to the point that some commentators have decried the instrumentalisation of private law by the law of the European Union. Prime examples of this trend are the subordination of consumer information to market integration and the framing of the Product Liability Directive as a maximum harmonisation tool to advance the same goal, which is prioritised over the goal of pursuing justice among the parties. The legal cultures of the Member States and their identity are still quite different, however. The Treaty on the European Union pledges to respect pluralism, and to protect the national identities of the Member States (Arts. 1(2) and 4(2) TEU). How do these elements play out in reality? How do they play out in Italy in particular?

  • Chapter 7 - How Dutch Tort Law Responds to Risks

  • from Part I - Risk Overviews
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 165-194

  • Summary

    INTRODUCTION

    An important part of analysing Dutch tort law has been devoted to the way the law should and does deal with situations characterised by (technological or health) risk. Important focal points in the case law include the line of cases decided by the Dutch Supreme Court (Hoge Raad) concerning asbestos (prescription, duty of care, causation), the DES case (on alternative causation), and the District Court case dealing with the possible liability of the tobacco industry for the harms of smoking; however, the (lower) courts trying to handle litigation concerning workmen’ s diseases probably due to, for example, lead paint poisoning could also be alluded to. Perhaps the most famous recent example is the Urgenda case on climate change litigation.

    The concept of risk has therefore been an important trigger for judicial developments and thus in legal practice in the field of liability law (as tort is called in the Netherlands). Given that state of play, this chapter aims to advance our understanding of how liability in Dutch law does, and how it should, relate to risks. In doing so, we especially focus on how the tort law system can and/or should deal with new, until recently unknown risks (think of nanotechnology, new toxic substances and the like), looking at these risks from the current state of the law. Thus we seek to show how risk should be understood and constructed, how the Dutch legal system responds to risk and what legal techniques it uses to reduce risk.

    CONCEPTUALISATION OF RISK AND UNCERTAINTY

    LACK OF CONCEPTUALISATION IN RULINGS

    In their rulings, courts do not explicitly refer to definitions of risk and uncertainty, nor do they seem to be relying on established concepts of risk. For their part, Dutch scholars have only recently started to delineate the concepts of risk and uncertainty, relating them to liability law and highlighting the implicit links between risk and uncertainty on the one hand and case law and the distribution of responsibility for risks on the other hand.

    THE CONCEPT OF RISK

    In Ancient Greek, the term rhíza (which means ‘cliff’) denoted the ‘hazards of sailing too near to the cliff s: contrary winds, turbulent downdraughts and swirling tides.’ In Dutch, the term risico first appeared in 1525 and denoted the possibility of harm to trade and merchandise.

  • Chapter 21 - Epilogue: What does Risk-Reasoning Tell Us about Tort Law?

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 513-522

  • Summary

    RISK-BASED REASONING IN TORT

    In his concluding chapter, Matthew Dyson has clearly identified the core question addressed by the contributions to this volume: what does risk-based reasoning do for tort law? Doubtless there is no single neat answer to this question, and the answers suggested by the chapters are rich and fascinating in their variety. Of course, behind the question is a prior one – what is meant by ‘risk-based reasoning’? In his introduction and conclusion, Dyson points out that most, if not all, of the core questions of tort law can be and have been expressed in terms of risk. In this way, the language of risk has indeed become pervasive, at least in certain areas of the law of tort – some limits to the terrain on which this pervasiveness can be observed are explored below. He goes on to identify a number of reasons why it may be that the language of risk is so widely used. For example, he asks whether it is because this language is new (perhaps suggesting that it offers an escape from questions that have proved unanswerable, or can cut through language that has led to an impasse)? Or because it offers flexibility? Flexibility, certainly, has been a distinct characteristic of modern tort reasoning, and the conclusion to this epilogue argues that features of tort law which are linked to its flexibility (for example, its openness to policy reasons) are indeed compatible with the spread of risk-based reasoning.

    First, however, I would suggest – in reinforcement of these observations – that ‘risk-based reasoning’ is so oft en adopted because it is a means of translating normatively difficult questions, whose language does not easily enable a satisfactory answer, into reworked and more answerable questions. It is possible that some traditional tort concepts such as fault are diluted, or at least altered, in making this translation, and this is further touched on below. Arguably, the history of risk demonstrates that the core reason for its prevalence is that it has as its very purpose the facilitation of answers. In other words, risk-based reasoning may be deployed in different contexts because of its connection not with a particular kind of problem, but with routes to finding solutions to a broader range of issues.

  • Chapter 15 - Motor Vehicle Accidents Caused by Game Wandering onto Spanish Roads

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 361-374

  • Summary

    Spain is a country of many complex relationships: the centre's relationship with the ‘foral regions’ like Catalonia and the Basque country; religion and learning; humankind and animals. Spain's size and widely distributed historic cities mean there is room for diversity. It also means that two common activities can easily collide: the use of roads and the presence of animals. In particular, how Spanish tort law manages collisions or similar accidents between game and motor vehicles can unlock significant insights into how Spanish law conceives of, creates liability from and seeks to control risk. This area of law has recently undergone a significant change in legal regulation at the point where two strict liability regimes, one for hunters and one for drivers, overlap. That change has highlighted the politicisation of risk and liability in Spain and the role of legislative change in responding to perceived liability risk perhaps more than the risk of harm to others.

    GAME IN SPAIN

    Spain haof game onto public roads, driven by hunting or by shift s in the population s long been a country where hunting is a very important activity, not only in connection with culture and leisure, 1 but also for economic reasons. At the same time, hunting is something which divides society between those who hunt or earn a living from it, and those who oppose it for environmental or other reasons. The risks of the activity of hunting are significant. Hunting commonly involves guns, thus it is a source of risk in the sense described in the first Spanish chapter (Ch. 6); but hunting also involves the behaviour of wild animals themselves, and thus is a source of non-man-made possibilities of harm, i.e. danger in the sense pointed out already. A specific problem is the escape density.

    Accidents caused by escaping game have become a significant and technically complex area. According to a study carried out on behalf of an insurance company, the animals involved in motor vehicle accidents are mostly wild boars (33% of cases), dogs (30%) –obviously not game –or roe deer (17.5%).

  • Chapter 1 - Introduction

  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 1-20

  • Summary

    This book seeks to build towards an overarching conception of risk in legal theory, particularly of the linked role of risk-taking in generating liability and in liability regulating risk. Its purpose is to show what analysing and regulating in terms of risk adds to our understanding of legal phenomena.

    Sometimes risk-taking is a specific wrong in private law; sometimes it is wrongful only when harm results and in other situations it is only wrongful when some further requirement to harm, like fault, exists. On occasion, it has even been said that risk is a distinct harm itself or that causation can be satisfi ed by an increase in risk. There are some roles for risk-reasoning expressed through defences, or which trigger particular remedies, such as injunctions. Similarly, the objectives and methods of the law in seeking to shape risk are varied and under-researched: legislation, judge-made law, professional standards and guiding principles all play roles of varying kinds in the patchwork of regulation. This diversity, both within legal systems and across systems, inhibits a real understanding of risk and the role law can play in regulating it.

    The core purpose of the book is to show what benefit legal systems derive from deploying risk-reasoning. This involves understanding how ‘risk’ is used in different legal traditions and then assessing what benefit that use provides. Risk-reasoning could be used on at least three levels: first, a theoretical level (the conception of risk itself); second, on a liability-defining level (risk-taking generating liability, primarily for wrongs but including liability for non-wrongs); and third, from an instrumental angle (private law 's efforts to regulate risktaking). We therefore move from ‘risk’ as a conception, to discuss ‘risk-taking’ as a component of liability and as an activity to be regulated. A second-order aspect of the study is the role of legal actors in making decisions about risk, including the role of the state and insurers in legal phenomena.

    Taking tort law as a case study, the book analyses national variation in risk understanding, liability, culture and regulation, and from that develops a legal framework for understanding and responding to risk. Then, looking beyond tort, the book examines the contextual and cultural setting of different risks and how to regulate them, across legal systems.

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