An Agenda for Future Research in Forensic Economics: New Approaches to Viewing Controversial Topics

Despite a large body of published research in forensic economics, there are still controversial topics that are lacking consensus. This paper presents an agenda for research on controversial topics in the hope that the results of such research will improve the reliability and validity of the work of forensic economists. Specifically, the paper presents suggestions for research on the choice of interest rates for discounting; interest rates, earnings growth and inflation; interest rates, growth in medical costs and inflation; how many years of earnings history is necessary to project base earnings and earnings history; alternative approaches to hedonic damages; and punitive damages.

The Limits of Behavioral Economics in Tort Law

Skeptics of rational choice theory have long predicted that behavioral economics would radically transform the legislation, adjudication, and analysis of law. Using tort law as an exemplar, this Article maps out the narrow set of conditions where substantive law can be modified to accommodate irrational decision-makers. Specifically, this Article demonstrates that if injurers are systematically biased, and the due care standard can be expressed quantitatively, and victims are unable to take meaningful precautions, then imposing punitive damages can induce irrational injurers to exercise efficient precautionary care. In all other cases, it is better that the law adopt a presumption of rationality, regardless whether individuals behave rationally in fact.

Punitive Damages Awards in International Arbitration: Franchising Case

This article is written to evaluate the practical significance of punitive damages in the field of arbitration concerning international commercial disputes and franchise disputes. It finds that punitive damages awards are frequent in domestic arbitrations in the United States but not internationally common. This article discusses the severity of the punitive damages awards to explain why such decisions are not frequent in international trade disputes; it still has a significant influence that concerns the contracting parties, making them exclude punitive damages in their agreements. This article also explains the reasons for limiting the use of these punitive damages. The first one is the limitation of punitive damages applied to arbitration. Indeed, punitive damages are only recognised under a handful of domestic arbitration laws in a number of countries, especially the ones associated with contract claims. Secondly, the enforceability of such awards is internationally limited due to public policy. Therefore, this difficulty caused the arbitral tribunal to refuse to award such damages. Finally, the statistics on punitive damages award in international commercial arbitration are scarce, so the article refers to provide and analyse the cases that are not international-thereby discussing and evaluating the suitability of punitive damages in the context of international commercial arbitration

UNLAWFUL ARREST AND UNLAWFUL DETENTION: SEPARATE GROUNDS OF ACTION AND PUNITIVE DAMAGES Mvu v Minister of Safety and Security 2009 6 SA 82 (GSJ)

In Mvu v Minister of Safety and Security the plaintiff, an inspector in the South African Police Service was arrested without a warrant for malicious damage to property (his 15-year old daughters’ cellphones). It transpired that the plaintiff, while on police business in Gauteng, visited his daughters. He became enraged when he discovered that they had received cellphones by way of a “love relationship”, whereupon he took the cellphones and threw them to the ground, seriously damaging them. The daughters went to apolice station and laid a charge against the plaintiff for malicious damage to property. The police officer seized with the matter telephoned the plaintiff who immediately travelled to meet him. Upon arrival he arrested the plaintiff and imprisoned him overnight with six other men and set him free the following afternoon on warning. When the matter eventually came to court, the plaintiff was discharged at the end of the state’s case.

Responsible Citizens, Irresponsible States

International and domestic laws commonly hold states responsible for their wrongdoings. States pay compensation for their unjust wars, and reparations for their historical wrongdoings. Some argue that states should incur punitive damages for their international crimes. But there is a troubling aspect to these practices. States are corporate agents, composed of flesh and blood citizens. When the state uses the public purse to finance its corporate liabilities, the burden falls on these citizens, even if they protested against the state’s policies, did not know about them, or entirely lacked channels of political influence. How can this “distributive effect” of state-level responsibly be justified? The book develops an answer to this question, which revolves around citizens’ participation in their state. It argues that citizenship can be a type of massive collective action, where citizens willingly orient themselves around the authority of their state, and where state policies are the product of this collective action. While most ordinary citizens are not to blame for their participation in their state, they nevertheless ought to accept a share of the remedial obligations that flow from their state’s wrongful policies. However, the distributive effect cannot be justified in all states. Specifically, in (some) nondemocratic states most citizens are not participating in their state in the full sense, and should not pay for their state’s wrongdoings. This finding calls then for a revision of the way we hold states responsible in both the domestic and international levels.

REPENSANDO A RESPONSABILIDADE CIVIL AMBIENTAL: A APLICAÇÃO DOS DANOS PUNITIVOS À LESÃO AMBIENTAL FRENTE A EQUIDADE INTERGERACIONAL

O estudo tem por objetivo investigar a recepção ou não da aplicação dos punitive damages no que concerne a responsabilidade civil por dano ambiental. Para tanto, analisa-se o contexto histórico da responsabilidade civil, e, em igual substrato, no ordenamento vigente, na atualidade, bem como os motivos relevantes para se pensar no dano ambiental com demasiada preocupação, considerando se tratar de direito intergeracional. Ao final, apresenta-se conclusões acerca da possibilidade da aplicação do instituto, baseando-se, para tanto, em posições doutrinárias, tanto favoráveis quanto contrárias ao objeto do estudo. Utiliza-se o método dedutivo, mediante pesquisa bibliográfica.

Punitive damages in trademark infringement disputes in China: challenges and prospects

Punitive damages were introduced into the intellectual property field in China by legislation permitting their imposition for malicious and serious infringements. This paper offers a comprehensive legal framework of punitive damages regarding trademark infringement and a critical analysis of the application of punitive damages in trademark infringement disputes in Chinese judicial practice. My research reveals that punitive damages have rarely been imposed since the punitive damages provision, Article 63 of the Trademark Law, took effect in 2014, whereas statutory damages have been applied extensively. The reason for this is that there are few guidelines for the application of this provision. The challenges to the application include undefined statutory requirements, difficulties in not only assessing compensation but also providing evidence and determining the multiple of compensation, and an unclear relationship between statutory damages and punitive damages. The 2019 Amendment of the Trademark Law retains these problems. Fortunately, the recently released Judicial Interpretation and typical cases concerning punitive damages contribute to resolving them. Moreover, those cases in which punitive damages have been applied have gradually revealed some basic principles for their application. Reform suggestions are offered in order to stimulate the development of a more thorough and uniform application of the punitive damages provision.

Environmental torts and civil punishment

This article presents, in its first part, a general expositive overview regarding responsibility for environmental damages on US law, outlining its key guidelines, as well as a brief parallel regarding its differences with Brazilian law. In the second part, the main aspects of punitive damages on US law are discussed, including a description of the circumstances under which states in the U.S. permit punitive damages. In both parts of the text the main jurisprudential cases that concern the topics discussed and that support the legal grounds of the responsibilities that fall upon the defendant are indicated. The approach taken is inductive, according to US common law.

Damage in International Law: Precondition For State and International Organization Responsibility?

The first chapter of the paper elaborates the question of whether one of the constitutive elements of the internationally wrongful act and a precondition for responsibility could be embodied in an existence of damage that has to be inflicted upon participants with international legal personality. In this regards legal doctrine, the arbitral awards, international judgments as well as the works of the UN International Law Commission will be examined, particularly the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the Draft Articles on the Responsibility of International Organisations from 2001 and 2011, respectively. An interesting question could be raised concerning the terms used in Law on Responsibility and that is whether there is a difference between damage, injury, and unlawful consequence. Punitive or penal damage and its application in Law on Responsibility will be further assessed. The author will begin its research with the definition of punitive damage, and will further take into consideration international legal doctrine, international arbitral awards, judicial decisions of international courts, decisions of various claims commissions as well as norms of general international law in supporting his hypothesis that international law does not entail reparations for punitive damages. One of the aims of this paper is to indicate the question of whether the existence of punitive damages in international law, if any, be linked to a legal nature of State and international organization responsibility, in the sense that application of punitive damages in international law would support the thesis on the very existence of criminal responsibility of the named subjects of international law? It is interesting to note that the criminal responsibility of states has been abandoned by the removal of Article 19 in the final Draft Articles on Responsibility of States.