Environmental Law — The Black Sheep in Rome Il's Drive for Legal Certainty? Article 7 of Regulation (EC) No. 864/2007 on the Law Applicable to Non-Contractual Obligations in Context

2009 ◽  
Vol 11 (3) ◽  
pp. 161-172
Author(s):  
Emmanuel Guinchard ◽  
Simone Lamont-Black
Keyword(s):  
Environmental Law ◽  
Primary Source ◽  
Environmental Damage ◽  
European Regulation ◽  
Conflict Of Laws ◽  
Black Sheep ◽  
European Tradition ◽  
International Laws ◽  
The Law ◽  
Contractual Obligations

Early in 2009, the Rome II Regulation on the law applicable to non-contractual obligations came into force in the European Community. As the very first European Regulation on choice of law, it finally enables environmental lawyers to refer to a single primary source throughout the EC when dealing with conflict of laws issues (that is, cases having a foreign element, such as those involving transboundary pollution) rather than asserting the law applicable according to the private international laws of the numerous Member States. This article focuses on the rules relating to environmental damage and, in particular, on Article 7, which appears to be the ‘black sheep’ of Rome II. In contrast to Rome II as a whole, Article 7 has no real background in European tradition; it is expressly grounded in Community law, and, last but not least, it deliberately creates uncertainty. Despite its character as an inverse mirror of the system of Rome II, Article 7 is a welcome solution in the interests of the protection of the environment and it reinforces Community policies in the absence of further harmonisation in this field since, for the purpose of deterrence, the burden of uncertainty falls on the alleged polluter.

Legal Regulation of Adjudication in Civil Code of the Russian Federation (Issues of Conflict Rules)

2015 ◽  
Vol 3 (5) ◽  
pp. 0-0
Author(s):  
Татьяна Лазарева ◽  
Tatyana Lazaryeva
Keyword(s):  
International Law ◽  
Russian Federation ◽  
Legal Regulation ◽  
Civil Code ◽  
Private International Law ◽  
Conflict Of Laws ◽  
The Russian Federation ◽  
The Law ◽  
Contractual Obligations ◽  
Rome I

The article deals with conflict of laws regulation of transfer of creditor’s rights to another person (assignment of claims (cessions) and transfer of rights under the law) in terms of amendments to Part III of the Civil Code of the Russian Federation. The author notes that though amendments to the separate article on cession are not fundamental, the amendments of other articles of the Civil Code of the Russian Federation, concerning contractual obligations, do influence regulation of relations between the parties in assignment. The article pays special attention to the new conflict of law rule regulating the transfer of the creditor’s rights under the law. Relevant court practice is analyzed. On the basis of comparing legislations of specific countries, as well as norms of EC No. 593/2008 (‘‘Rome I’’) Regulation and EC No. 864/2007 (‘‘Rome II’’) Regulation the author draws the conclusion that despite some differences in conflict of laws regulation of the transfer of the creditor’s rights, in general the Russian rules comply with modern trends in private international law in the majority of European countries.

scholarly journals Current Environmental Regulation of the Alberta Oil and Gas Industry and Emerging Issues

1990 ◽  
Vol 28 (1) ◽  
pp. 171
Author(s):  
Albert J. Hudec ◽  
Joni R. Paulus
Keyword(s):  
Environmental Regulation ◽  
Oil And Gas ◽  
Environmental Law ◽  
Insurance Coverage ◽  
Oil And Gas Industry ◽  
Environmental Damage ◽  
Regulatory Structure ◽  
Gas Industry ◽  
Emerging Issues ◽  
The Law

As the environmental law regime in Alberta becomes increasingly detailed and stringent, participants in the oil and gas industry will face greater liability arising from environmental damage. This paper reviews the current provincial environmental regulatory structure as it applies to the oil and gas industry. Prospective developments in the law are also considered. The drafting of operating agreements, sale of oil and gas assets, and the liability of subsequent users are discussed in this context. Insurance coverage for environmental damage and the liability of lenders are also examined.

scholarly journals Deeply Analysis on French Rules of Conflict of Laws

2019 ◽  
pp. 1-15
Author(s):  
Desiree Roffee Ciss
Keyword(s):  
Social Life ◽  
Legal Issue ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Abstract Rule ◽  
The Law ◽  
Contractual Obligations ◽  
The Moment ◽  
The Individual

The law, in a general way, has the role of regulating life in society. From this same Law, several rights with branches facilitate their explanation and use in our social life to establish order. This being life in society could be seen as a kind of contract to the extent that it would be difficult for the individual to live without maintaining relationships with others. So, from the moment that there is this exchange between individuals there is what we could call contract. As we know, the contract is defined in law as an agreement by which one or more persons agree to one or more other persons to give, do or not to do something. It should also be specified that there are several kinds of contracts, but the one that will be the main focus of our development is the international contract. An international contract is understood to mean this contract, which, unlike the internal contract, presents an element of extraneity, in other words an international character. For example, a contract between two individuals of different nationality. The contract thus concluded, the contracting parties may indeed encounter difficulties that may arise at any time, most often due to non-compliance with the terms of the contract. These problems or disputes are often very difficult to resolve because the parties are from different origins, residing in different countries, or bound by commitments made in a country other than their country of residence, hence the existence of different laws. and the birth of what is called a conflict of laws. This being so, by conflict of laws is meant to be one of the main problems with private international law (the branch of law which deals with the settlement of disputes of private rights having at least an extraneous character). Thus, the question arises as to which law would be applicable in the event of a conflict of laws in the matter of contract, that is, how to choose or determine the applicable law in the course of a dispute with a foreign element? Thus, once the French judge is seized of the dispute, it will be necessary to find the law applicable to the questions of law asked. Assuming that the French judge can apply a foreign law, and that the various foreign laws with links to the litigation have a theoretical vocation to apply, were developed what are called conflict of laws rules which is an abstract rule, indirect (it does not solve the substantive question asked, but only to determine the law competent to resolve this substantive legal issue), and neutral (the substantive solution is not taken into account in the determination of the applicable law). In order to give answers to our questioning, we will focus on how to choose the law applicable to conflict of laws in matters of contract and this, in the light of French law, the Rome Convention of 19 June 1980 and the Rome 1 Regulation on the law applicable to international contractual obligations.

Modern Approaches to Private International Law and Conflicting Provisions on Legal Aid in Civil Cases

2020 ◽  
Vol 27 (1) ◽  
pp. 177-188
Author(s):  
Iryna Dikovska
Keyword(s):  
International Law ◽  
Hague Convention ◽  
Private International Law ◽  
International Treaties ◽  
Legal Aid ◽  
Conflict Of Laws ◽  
Eu Member States ◽  
The Law ◽  
Contractual Obligations ◽  
The Right

Part of the legal aid treaties between Ukraine and other states contains rules concerning conflict of laws. Where those that determine the law applicable to contractual obligations, family, and hereditary relations are not in line with current approaches to determining the law applicable to the specified groups of relations. The purpose of the paper is to uncover the differences between the regulation of conflict of laws in private relations in the legal aid treaties between Ukraine and some EU countries and the modern approaches to the regulation of conflict of laws in such relations, contained in other sources of private international law; an explanation of how to solve conflicts between legal aid treaties and other international treaties; outlining the main areas of improvement of rules concerning conflict of laws in legal aid treaties. The methods of the study were comparative, dialectical, and Aristotelian, which allowed to identify the problems of regulation of conflict of law in legal aid treaties and to draw conclusions for their elimination. Application of these methods allowed to find out that lex loci contractus is most often used to regulate contractual obligations in the absence of an agreement of the parties on the choice of applicable law. The agreement between Ukraine and Romania does not provide for the choice of the law for contractual obligations. Legal aid treaties imperatively determine the law applicable to the property relations of the spouses. They apply a dualistic approach to determining the right to inherit. It has been established that competition between the rules of this Convention and the rules of legal aid treaties between Ukraine and Poland and Ukraine and Estonia should be decided in favour of the Hague Convention. It is proposed to amend the legal aid treaties concluded between Ukraine and the EU Member States: the rules concerning conflict of laws, which define the law applicable to contractual, family, and hereditary relations should be revised using the relevant EU regulations as a model.

THE EFFECT OF ROME II ON NATIONAL PROCEDURAL LAW

2015 ◽  
Vol 74 (1) ◽  
pp. 37-40 ◽  
Author(s):  
Joshua Folkard
Keyword(s):  
Conflict Of Laws ◽  
Applicable Law ◽  
Procedural Law ◽  
Foreign Law ◽  
Procedural Autonomy ◽  
The Law ◽  
Council Regulation ◽  
Contractual Obligations ◽  
Definition Of ◽  
Court Of Appeal

AT common law, in cases where the substantive claim is governed by foreign law, questions of procedure are nonetheless governed by the lex fori. In the context of damages, although the existence of damage is a question for the lex causae, its quantification and assessment is determined according to the law of the forum (Boys v Chaplin [1971] A.C. 356). The distinction between substance and procedure is preserved by Article 1(3) of Council Regulation (EC) No 864/2007 (“Rome II”) which provides, with certain exceptions, that Rome II “shall not apply to evidence and procedure”. That rule is, however, qualified by Article 15, which requires the law applicable under the Regulation (i.e. “the law applicable to non-contractual obligations”) to govern, inter alia, “the existence, the nature and the assessment of damage or the remedy claimed” (Article 15(c)). The decision of the Court of Appeal in Wall v Mutuelle De Poitiers Assurances [2014] EWCA Civ 138; [2014] 3 All E.R. 340 concerns the definition of “procedure” in Article 1(3) and the meaning of “applicable law” in Article 15(c). It raises the important question of how far Rome II has encroached on the traditional view of national procedural autonomy in the conflict of laws.

scholarly journals Two European Conflicts Conventions

1998 ◽  
Vol 28 (3) ◽  
pp. 527
Author(s):  
Friedrich K Juenger
Keyword(s):  
European Union ◽  
Brussels Convention ◽  
The European Union ◽  
Conflict Of Laws ◽  
Rome Convention ◽  
The World ◽  
The Creation ◽  
The Law ◽  
Contractual Obligations

The states of the European Union have so far concluded two major conflict of laws conventions:  The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, and the Rome Convention on the Law Applicable to Contractual Obligations.  Professor Juenger here reflects on the creation and experience of these treaties and concludes that the Brussels/Lugano Conventions present a model for the world while the Rome Convention shows what to avoid.

Modern Trends of Conflicts of Laws Regulation of Tort Liabilities: EU Regulation of 2007 “On the Law Applicable to Non-Contractual Obligations” (Rome II) and the Russian Legislation

2016 ◽  
Vol 4 (6) ◽  
pp. 0-0
Author(s):  
Наталия Марышева ◽  
Nataliya Maryshyeva
Keyword(s):  
Russian Federation ◽  
Federal Law ◽  
Conflict Of Laws ◽  
Current Trends ◽  
Restricted Form ◽  
Flexible Framework ◽  
The Russian Federation ◽  
The Law ◽  
Contractual Obligations ◽  
The Impact

The article is devoted to the conflict of laws regulation of torts under Rome II (Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 “On the law applicable to non-contractual obligations”) and under the Russian legislation. The analysis of the Rome II provisions and the relevant norms of the Civil Code of the Russian Federation (including significant changes made to the Code by the Federal Law of the Russian Federation, dated 30 September 2013) identifies current trends in the development of conflict of laws regulation of torts and the impact of the Rome II Regulation on the Russian legislation. The author notes that in the Russian legislation, as well as in Rome II, the operation of the basic conflict of laws rule is combined with the operation of special conflict of laws rules; the possibility to use the autonomy of the will of the parties in conflict of laws of torts is extended; the use of the principle of closer connection with the tort is allowed, though in a more restricted form than in Rome II. The author regards the whole complex of the conflict of laws rules on torts in the modern Russian legislation as the result of development towards softening of the basic conflict of laws rule aimed at the creation of a more flexible framework for conflict of laws regulation of torts. Here the provisions of the Rome II served as a sample in many ways.

Sustainable Development in Learning, Leadership and the Law: A Review Essay

2006 ◽  
Vol 22 (1) ◽  
pp. 115-121 ◽  
Author(s):  
Noel Gough
Keyword(s):  
New York ◽  
Sustainable Development ◽  
Educational Leadership ◽  
Lifelong Learning ◽  
San Francisco ◽  
Review Essay ◽  
Environmental Law ◽  
Environmental Damage ◽  
Sustainable Leadership ◽  
The Law

AbstractThis review essay offers a critique of the concepts of sustainability and sustainable development through an appraisal of three recent texts. These texts explore issues of sustainability and sustainable development in the context of three different (but interrelated) discourses-practices, namely, (lifelong) learning, (educational) leadership and (environmental) law. The texts reviewed are:Halsey, Mark. (2006). Deleuze and Environmental Damage: Violence of the Text. Aldershot: Ashgate.Hargreaves, Andy, & Fink, Dean. (2006). Sustainable Leadership. San Francisco: Jossey-Bass.Scott, William A. H., & Gough, Stephen R. (2004). Sustainable Development and Learning: Framing the Issues. London and New York: RoutledgeFalmer.

CHOICE OF LAW REGARDING THE VOLUNTARY ASSIGNMENT OF CONTRACTUAL OBLIGATIONS UNDER THE ROME I REGULATION

2011 ◽  
Vol 60 (1) ◽  
pp. 29-56 ◽  
Author(s):  
Trevor C Hartley
Keyword(s):  
Third Parties ◽  
The Other ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Other Hand ◽  
The Law ◽  
Contractual Obligations ◽  
Rome I ◽  
The Relationship

AbstractThe voluntary assignment of contractual (and non-contractual) obligations in conflict of laws is governed by article 14 of the Rome I Regulation. Under this, the validity of the assignment as between the assignor and assignee is governed by the law applicable to the contract between them (paragraph 1 of article 14). On the other hand, the assignability of the claim and the relationship between the debtor and the assignee are governed by the law applicable to the obligation assigned (paragraph 2 of article 14). Certain issues are, however, outside the scope of article 14 as it stands at present. These are the question of priorities between competing assignments (if the same obligation is assigned twice to different assignees) and the rights of third parties (mainly creditors of the assignor). This article examines the precise scope of the two existing paragraphs and considers the arguments that might be relevant in deciding what law should govern the issues at present not covered by either paragraph, a question that has become more pressing in view of the fact that negotiations will soon begin on a possible amendment of article 14 to deal with it.

scholarly journals TINDAKAN AFIRMATIF SEBAGAI BENTUK KEADILAN PADA PENEGAKAN HUKUM LINGKUNGAN HIDUP DI LAUT : STUDI KASUS MV HAI FA DAN NELAYAN UJUNG KULON

2020 ◽  
Vol 2 (1) ◽  
pp. 48
Author(s):  
Rayhan Dudayev
Keyword(s):  
Sustainable Development ◽  
Law Enforcement ◽  
Criminal Law ◽  
Environmental Law ◽  
Environmental Damage ◽  
Poor People ◽  
Environmental Enforcement ◽  
Illegal Fishing ◽  
The Poor ◽  
The Law

AbstrakUpaya penegakan hukum yang tegas merupakan salah satu cara untuk menjaga kelestarian lingkungan. Instrumen hukum lingkungan dibuat dan ditegakkan untuk mencegah terjadinya kerusakan lingkungan. Namun pada pelaksanaannya, penegakan hukum lingkungan tidak senada dengan konsep pembangunan berkelanjutan. Penegakan hukum lingkungan seolah hanya tajam ke bawah namun tumpul ke atas. Dalam tulisan ini, akan dibahas mengenai penegakan hukum lingkungan di sektor maritim dalam dua kasus yang berbeda, berkaitan dengan pelanggaran Undang-Undang Konservasi Nomor 5 Tahun 1990 Tentang Koservasi Sumber Daya Alam dan Ekosistemnya. Perbedaan sebab akibat dalam kasus yang berbeda tidak membuat hukum memperlakukan kedua kasus tersebut secara berbeda karena adanya asas kesamaan (equality before the law) dalam hukum. Tulisan ini akan memaparkan penegakan hukum, terutama hukum pidana, ditinjau dengan perspektif pembangunan berkelanjutan pada kasus nelayan dan kasus illegal fishing yang melibatkan korporasi. Berangkat dari perspektif tersebut, tulisan ini mencoba menganalisis alasan pentingnya tindakan afirmatif bagi penegakan hukum di masing-masing kasus. AbstractOne of the means to protect the environment is to firmly enforce the environmental law. Environmental legal instruments are made and enforced in order to prevent environmental damage. However, environmental law enforcement in practice is not always consistent with the concept of sustainable development. Environmental enforcement is sharper to the poor people, but dull to big corporations. This article attempts to discuss the enforcement of environmental law in the maritime sector in two different cases, with regard to the violation of Law no. 5 of 1990 regarding Conservation. Despite the different causation and magnitude of impacts, the law treats those cases equally due to the equality before the law principle. This article also elaborates the law enforcement, especially criminal law, with the perspective of sustainable development in the case of involving fishermen and the illegal fishing case involving a corporation. From this perspective, this paper analyzes the importance affirmative action for the law enforcement in each case.

Sign in / Sign up

Export Citation Format

Share Document