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Cases of marine environmental pollution (MEP), such as condensate leakage in the Sanchi case, not only directly infringe on private personal health and property rights, but also cause serious damage to the marine ecological environment. This paper analyzes dozens of MEP cases and summarizes the typical rights, interests, and remedies under Chinese law. Traditional tort liability legislation remedies the problem of infringement of private interests by environmental torts through compensation and punitive damages but it cannot reverse the damage to the marine ecological environment. Traditional civil legislation is built on the basis of rights and interests regarding damages and relief. MEP infringes on a wide range of citizens’ environmental rights and should be addressed by the environmental public interest litigation (EPIL), which is an important way to protect citizens’ environmental rights. This paper analyzes the legal interests, relief measures, and limitations of the existing EPIL legislation that is applicable to MEP cases under Chinese law, so as to make corresponding legislative suggestions.

Introduction. Adoption of new laws of civil and substantive law, the novelty of legal relations governed by the rules of these laws, the complexity of civil conflicts arising from these legal relations, require a high level of legal protection, compliance with the rule of law by all members of society. Only the law allows interested parties to choose the form of protection. This form can be traditional – jurisdictional (provides for the establishment of a body and procedure for the protection of violated rights), and non-jurisdictional (but certainly allowed by law), which may resort to interested parties. obstacle to the exercise of the right. Resolution of legal conflicts is possible not only through a jurisdictional form of protection. A non-jurisdictional form of protection of civil rights is the independent protection of a person of his violated rights. That is, the person does not apply to the competent state authorities. In fact, it is the commission of actual actions aimed at protecting and securing their personal property and other non-property rights. The purpose of the paper is a thorough study of models of non-jurisdictional protection of property rights in the system of protection of civil rights by analyzing the theoretical and practical aspects of using alternative methods of protection of private rights in general and mediation. Result. It is determined that the non-jurisdictional form of protection of civil rights is the actions of citizens and organizations aimed at protecting their own civil rights, freedoms, and legally protected interests. It is noted that these actions are carried out and implemented by eligible entities independently, without seeking legal assistance from government agencies and structures, as well as officials. It is determined that the mechanism of legal protection is implemented in non-jurisdictional ways in the field of legal regulation when it is necessary to overcome and eliminate obstacles that arise in the exercise of rights and legitimate interests of the subject of law, in other words – to quickly protect (ensure) legal status. It is determined that in international practice, namely in European countries, the basis of non-jurisdictional protection of property rights is mainly in the use of negotiation and mediation procedures. Non-jurisdictional form, which is usually local in nature, is achieved as a result of actual actions, occurs not in jurisdictional or procedural forms, but within the protected substantive legal relations, which are the subjects of such legal relations (usually imply The main difference between jurisdictional and non-jurisdictional forms of protection of rights is that the protection of rights in jurisdictional form is carried out by the competent state and public authorities with each of them a certain procedural order of activity, while protection in a non-jurisdictional form takes place within the framework of a substantive legal relationship and is carried out by the parties themselves in the legal relationship. Conclusion. The study proves that in Ukraine, priority should be given to the development of various forms of out-of-court dispute resolution. The basis for this should be the legislative consolidation of out-of-court settlement of civil disputes as one of the basic principles of protection of violated private rights (of course, without revoking or replacing the right to judicial protection). Non-jurisdictional methods of protection of private rights are defined in the legislation of Ukraine and can be used due to the dispositive nature of the civil law method of regulation. However, this is insufficient, as participants in civil legal relations in case of violation of their rights are primarily confronted in the law with a defined right to judicial protection of violated rights, and often consider the court as the only possible form of protection.

The principles of adjusting the regulation of civil relations in the context of the Covid-19 pandemic are analyzed. The admissibility of restricting human rights in the context of the conflict of private and public interests are researched. Besides, the authors tried to determine the optimal algorithm of government actions aimed at preventing the spread of the epidemic. The main approach to the understanding of human rights in the article is based on Dworkin's concept of “rights as trumps”. A system of such categories as “a man”, “a private person”, “natural private rights”, “private law” and “national civil law” is analyzed. The conclusion is that the importance of the category of “natural” human rights is underestimated, which exacerbates the problem of ensuring human rights in a pandemic, when the state actively uses public law to cope with the crisis. As a result, there is a conflict of basic principles of private and public law: “everything is allowed except what is prohibited by law” vs. “only what is allowed by law is possible”. It is proposed to assume that the usual way of the legal existence of a person is that he/she acts as a participant in civil relations of a private type, even in a pandemic. Private relations, which arise during the quarantine period, are proposed to be regulated mainly by private law methods, limiting the influence of the state. This will allow us to reach a compromise of private and public interests, without restricting the rights of individuals voluntarily.

The paper given by the problem of legal status of representatives of execution process parts. Legal regulation of the status of the representatives of execution process parts has been analyzed in the scientific article and researched. Representatives of execution process parts are determined as the members of executive process (par. 1 art. 14 The Law of Ukraine “On Executive Process”). In compliance with this prescriptions of legislation the parts of executive process are one member of executive process, the representatives of execution process parts are other members of executive process. It is slightly strange because the representatives of execution process parts realize in the executive process rights and execute obligations of parties, but not theirs own private rights and obligations. So, the question of necessity of separation, mentioned above, rises. Similar situation existed in civil process some time ago, but nowadays the prescription of art. 42 of The Civil Procedural Code of Ukraine provide that parties are the members of civil process, but the prescription of art. 58 of The Civil Procedural Code of Ukraine provide that parties can take part in the civil process by their own or via the representatives. There is resumed in the article that the capacity of the part of executive process to have the representative in executive process and realization rights and obligations in executive process via representatives are not identical. The author of the scientific article propose to state the prescriptions of par. 1 art. 16 The Law of Ukraine “On Executive Process” by the following manner: “Physical person can take part in the executive process by its own, or via representative. If the debtor is obliged to fulfil the acts by its own, execution of these acts can be made only by the debtor and cannot be executed by its representative”. If the representative has some restrictions to fulfil some acts under the name of the part of executive process, these restrictions are to be determined by the power of attorney. Other scientific researches of the theme of legal status of representatives of execution process parts are imagined as perspective because of the thesis as follows: representation in the jurisdictional activities as the legal relationship has different aspects – legal-material aspect and legal-procedural aspect.

The article is devoted to the memory of the outstanding Russian scholar Dmitriy I. Meyer (1819—1856) — the ancestor of Russian civilistics who declared that the rights of individuals depend on different circumstances that are, to some extent, natural and, to some extent, historical. Meyer’s statement that “there are different degrees of insanity: sometimes it is stronger, sometimes weaker” turned out to be accepted by the Russian legislator only in 2015 by making appropriate changes in the Russian legislation regarding the problem of legal capacity of citizens. The paper has investigated the evolution of the content of legal personality of individuals in the field of private legal relations, including family relations, as well as in the field of relations complicated by a foreign element, i.e. in the field of private international law. On the basis of the analysis, the author explores a civil legal personality of a natural person category as her ability to be a subject of civil law including such elements as capacity and legal capacity. Civil capacity should be understood as a legally equal abstract opportunity for everyone to have civil rights and duties. It is unacceptable to consider capacity as a subjective right to have the right: this leads to an unjustified doubling of the category of “subjective right” and hinders a proper understanding of the mechanism of civil regulation. The article investigates the subjective right as implementation of capacity of a particular person, and, therefore, citizens being legally equal in their capacity, to be not equal in the presence of specific subjective rights that constitute the content of their capacity in the abstract form. The authors have analyzed the amendments to the Civil Code of the Russian Federation introducing a new basis for limiting the legal capacity of citizens, as well as taking into account the degree of actual reduction of the ability of citizens to understand the meaning of their actions or to be in control of such actions. The article analyzes the conflict-of-laws principles of determination of capacity and legal capacity of foreign citizens. Jurisprudence, along with the recognition of the national regime of foreign citizens on the territory of the Russian Federation, indicates the need to apply foreign laws in determining the civil capacity and legal capacity of foreign nationals. The article analyzes the private law component of the institute of retortions the immediate purpose of which is to protect private rights and legitimate interests of Russian citizens. Thus, the content of the concept of civil personality of natural persons in the field of private law relations that consists of such categories as capacity and legal capacity evolves into the recognition of equality and the protection of the interests of all persons on the basis of the principles of justice, humanity and reasonability. At the same time, the State secures legal guarantees applied for the completion of the legal capacity of minors and certain categories of adult citizens through institutions of parental responsibility, guardianship and custody and establishes procedural guarantees of observance of the rights of these persons in judicial proceedings.

In recent years, there has been increasing pressure on public health systems in high-income countries due to high medicines prices, one of the underlying causes of which are the market monopolies granted to pharmaceutical undertakings. These monopolies have been facilitated by expanded forms of intellectual property protections, including the extension of the exclusivity period after the expiration of the patent term concerning medicinal products. In the European Union such an approach lies in the Supplementary Protection Certificate, a mechanism formally introduced under Regulation 1768/92/EEC (now: Regulation 469/2009/EC, amended). After more than 20 years of implementation since it was first introduced, the common justifications for SPCs are being challenged by recent findings as to their functioning and impact. Similarly, legitimate questions have been voiced as to the negative impact of SPCs on timely access to affordable medicines.On the basis of an analysis of three medicines for hepatitis C and cancer treatments, the present article critically engages with the policy justifications underlying SPCs. It then analyses access challenges to a hepatitis C medicine and an HIV treatment in Europe, highlighting the social cost of the introduction of SPCs. Both the normative and empirical analyses have demonstrated that the common justifications supporting the SPC regime are deeply questionable. The addition of SPC exclusivity has also heavily delayed competition and maintained high medicines prices in European countries. Ultimately, the granting of such extended exclusive private rights on medicines may result in unnecessary suffering and be a factor in the erosion of access to medicines for all.

The essential features of the concept of the sham marriage are considered (registration of marriage, the expression of the will of the couple to register marriage, and the lack of intention to create a family). The analysis of the legal grounds for the emergence of marriage bona fide spouse rights in case of the invalidity of the sham marriage and the rehabilitation of the sham marriage, which are sets of legal facts, is carried out. The authors argue for the possibility of invalidating the sham marriage after the death of the spouses. There is a critical point of view on the issue of establishing administrative or criminal liability for the sham marriage if only private rights are violated. It is advisable to protect private rights violated by the sham marriage by means of private law, which allows ensuring the personal privacy. At the same time, the commission of the sham marriage can be considered as a qualifying feature of an illegal act that violates public law (violation of the procedure for admission to citizenship, acquisition of the right to state benefits, and others), or as an aggravating circumstance when imposing the appropriate punishment. In the comparative legal aspect, the system of measures to counteract the sham marriages is considered. Given that the liberalization of views on cohabitation and the possible de lege ferenda recognition of their legal force will complicate the problem of fictitious marriages, it is proposed to put the recognition of the status of spouses for cohabitees under the condition of providing evidence of the creation of a family and establishing the relevant fact in court.

The ability of federal agencies to carry out actions or programs is based on their legal authorities. Efforts to improve federal capacities for the early detection of and rapid response to invasive species (EDRR) require careful delineation of legal authorities, regulations, and policies that would enable or limit EDRR. Building on information provided by federal agencies and an inspection of the US Code and the Code of Federal Regulations, we review and identify relevant authorities to determine federal legal capacities, gaps, and inconsistencies to address EDRR. The EDRR process can be examined in the context of four categories, including (1) explicit invasive species authorities, (2) emergency authorities that could be triggered during a crisis or serve as models for enhanced invasive species EDRR authorities, (3) supporting authorities that could be used under agency discretion, and (4) constraining authorities and legal requirements. Although the Plant Protection Act and the Animal Health Protection Act are comprehensive authorities that address the detection of and response to organisms that threaten plant and livestock health, there is no single authority that encompasses EDRR for all invasive species. Rather, there is a patchwork of authorities that unevenly addresses various aspects of EDRR. In addition to gaps in authority, EDRR efforts could be constrained by environmental compliance, as well as subnational governance and private rights. Although some of these gaps could be closed through legislation, others need to be addressed using the discretionary power of federal agencies and their ability to establish cooperation mechanisms with private and subnational entities.

The 2001 Cape Town Convention provides a mechanism for recognizing and recording international security interest in high- value moveable equipment. However, Law No.83 of 1958 did not mention the recording of secured private rights or security interests in aircrafts. Furthermore, Law No.15 of 1992 on Airport Transportation succeeded Law No.83 of 1958 which contained some rules on secured rights in aircraft. Chapter X of the new law no 1 of 2009 on Aviation could be regarded as the implementation of the Ratified Cape Town Convention and its Protocol. Does it mean that a national interest should be registered in the International registry, even though the aircraft object is legally owned by an Indonesian seller /lessor/creditor, but beneficially owned and operated by an Indonesian airliner/lessee based on a contract governed by Indonesian Law?

The prospect theory of patents views patents as a tool for the development and commercialization of inventions. Prospect patents rely on broad control of technology so that rivalry between competing products is diminished thus avoiding waste of common-pool resources. The theory has been widely criticized but in this article we argue that it does not address the realities of an economy where many innovations are created by universities. Although university patents on inventions such as new gene-editing tools fit squarely in the definition of prospect patents, they may still allow rivalry to resurface at the commercialization stage. This rivalry is not between competing firms; it is between competing visions of the prospect: ‘the university’s vision versus the licensees.’ We use as a case study the CRISPR-Cas9 technology invented by universities and commercialized by licensees. We employ patent landscape analysis showing that CRISPR-Cas9’s prospects comply with the characteristics of prospect patents and, above all, diminish rivalry at the commercialization stage. As the lack of competition leads to excessive treatment prices, tensions arise because the licensee understands CRISPR-Cas9 as a revenue-generating prospect, whereas the university views it as a technology requiring broad distribution. Such discerning visions can breed rivalry between licensor and licensee despite broad patent rights. In addressing this we turn to the literature on semi-commons, which implies an environment where private rights of exclusion such as prospect patents work with ethical licenses and a domain of resources open for reuse to foster innovation. We argue that in this environment, universities can emerge as important actors in the regulatory enterprise through additional ex post licensing. To this end, we propose a market-based solution in the form of a license allowing for patent re-licensing if the licensee fails to address a predefined demand for the final product.

A secular state, like United States of America, guarantees the private right of individual to express their religious ideas in public. In the era of media, religious broadcasting serves as a mean for individuals to express their private rights of speech and act based on their faith in public. By taking prosperity televangelical broadcasts as the main object, this article examines several aspects that are critical for understanding the religiousness and the secularization of American televangelism. This article provides an overview of the socio circumstances and movement roots of evangelism, examines the religiosity and spirituality frames in televangelism, and identifies the commodification of the religiosity and spirituality frames.

We use the social-ecological trap (SET) concept and path-dependence analysis to explain the emergence and persistence of illegal fishing, taking the Chilean king crab fishery as a case study. The results suggest that the fishery is caught in a SET, which we label the “illegality trap”, characterized by positive feedbacks between regulation astringency, illegal access, fishers’ resistance, and fishing effort that keep the fishery in an undesirable state. As a process, illegal fishing arises as the denunciation of past poverty conditions and policies enacted to protect private rights to the sea, against traditional fishing logics. As a state of the system, illegal fishing is a relational phenomenon involving fishers, intermediaries, processors, and consumers. Over time, the different types of fishers emerge along well-structured international and local fish chains: the legal fisher, the cooperative fisher, the legal-illegal fisher, and the illegal fisher, encompassing a continuum from subsistence to competitive rationalities, which reflect adaptive strategies in the face of normative-legislative constrictions and market opportunities. Yet, the “legal” or the “illegal” is not a permanent condition, but it can be one and/or the other, depending on the circumstances. These results contend the reductionist view of the deterrence dogma which depicts illegal fishing as a matter of rational utility maximizers. On the contrary, the SET described here reflects the complexity of a problem with many edges, from legislation legitimacy to cultural responses across all the actors involved.

In a political society where service to the king and kingdom are passed down family lines – so, where public responsibilities are hereditary, where the monarch himself is simultaneously head of State and head of a lineage but sacrifices his inheritance to run the country – the boundary between public and private is problematic, to say the least. This article uses the royal domain to analyze how theorists of power under the Ancien Régime discussed the dividing line between the public and private spheres. The domain, the inheritance of the kings of France, was originally composed of possessions of the Capetian family but ownership gradually shifted to the crown, thus making them possessions of the State. Private rights then challenged collective interest in a history deeply shaken by the accession of Henri IV to the crown and the union of his holdings with the royal domain. The ensuing enquiry by legal advisors raised issues that are active to this day, ultimately shedding light on a central aspect of political construction both before and after the French Revolution. The connection between the dynastic nature of the monarchical regime and the assertion of sovereignty leads to a tension that opens the path of modernity, but without resolving one of the major contradictions of the system, in which the respect of personal or corporate acquisitions presupposed by privilege could upset an all-powerful dedicated to the benefit of all. Dans une société politique où le service au roi et au royaume se transmet dans la famille, où donc les charges publiques sont héréditaires, où le monarque lui-même est tout à la fois un chef d’Etat et un chef de lignage et qui, pourtant, sacrifie ses biens patrimoniaux au fonctionnement du pays, la frontière entre le public et le privé est pour le moins problématique. Cet article se propose ainsi d’analyser la manière dont les théoriciens du pouvoir discutent, sous l’Ancien Régime, des limites entre ce qui relève de la sphère publique et ce qui appartient à la sphère privée en prenant pour objet le domaine royal, cet héritage des rois de France formé à l’origine par les possessions capétiennes mais progressivement rattachés à la couronne et, à ce titre, un bien de l’Etat. C’est alors l’intérêt collectif qui est mis à l’épreuve des droits particuliers à travers une histoire profondément secouée par l’avènement d’Henri IV et la réunion de ses biens familiaux au domaine royal. Le questionnement engagé par les jurisconsultes soulève des interrogations qui viennent jusqu’à nous et éclaire, finalement, un aspect essentiel de la construction politique en amont comme en aval de la Révolution. L’articulation entre la nature dynastique du régime monarchique et l’affirmation de la souveraineté crée une tension qui ouvre la voie de la modernité sans cependant résoudre une des contradictions majeures d’un monde où les privilèges supposent le respect des acquis personnels ou corporatifs susceptibles de heurter une toute puissance dédiée au bénéfice de tous.

Polemics with the view that the right to the grave is always only a property right has led me to pay attention to the phenomenon of private rights. Probably all private rights to goods are both of proprietary and non-proprietary character, certainly in various proportions. Moreover, an attempt to define the nature of goods as only property or only non-property seems unreliable. The article also reminds the former role of footnotes as a place of valuable digressions, complementing polemics, sometimes invaluable pieces of information. Besides I present such areas of research on law, regarding the post mortem situations, which are rarely of interest to scholars.

The Directive on Unfair Trading Practices in the Agri-food Supply Chain is characterized by its objective to increase agricultural producers’ income by redistributing the gains from trade along the supply chain. In this article, arguments are advanced that make it doubtful whether this goal can be achieved: the Directive’s restrictions will (at best) only slightly increase the suppliers’ relative bargaining power. Neither the attempt to limit the Directive’s scope to cases of unequal bargaining power nor the ban of only those practices that are regarded as particularly “egregious” will ensure that the Directive’s restrictions do not also preclude efficiency-enhancing practices. Nonetheless, given the legislature’s wide discretionary power, the Directive could legally be adopted on the basis of Article 43(2) TFEU. While the Directive’s focus is entirely on public enforcement, there are sound reasons to believe that the Directive assigns implicit rights to those parties that are within the Directive’s protective scope and that are (potentially) aggrieved by infringements. The consequences of the incorporation of prohibited contract terms are analysed and potential legal bases for private rights of action are discussed.

Collateral attack is the indirect challenge of administrative decisions, instruments or actions in civil and criminal proceedings for the purpose of determining private rights. Collateral challenges are a common way litigants seek to contest actions of the executive or other public bodies, and represent a different mechanism for the courts to exercise their supervisory jurisdiction over administrative action. The New Zealand courts have adopted a straightforward approach to the doctrine of collateral attack, generally allowing such challenges. This paper explores the principles that underlie the doctrine of collateral attack and the potential difficulties that the doctrine creates. It is argued that the courts should take a more principled approach to determining whether collateral attack should be allowed in any individual case. A number of "touchstones" are proposed to ameliorate any collateral damage to administrative law's unique character while still ensuring that people are able to challenge the invalidity of administrative instruments, decisions or actions as and when they arise in civil and criminal proceedings

The long-standing battle between economic nationalism and globalism has again taken center stage in geopolitics. This article applies this dichotomy to the law and policy of international intellectual property (IP). Most commentators see IP as a prime example of globalization. The article challenges this view on several levels. In a nutshell, it claims that economic nationalist concerns about domestic industries and economic development lie at the heart of the global IP system. To support this argument, the article summarizes and categorizes IP policies adopted by selected European countries, the European Union, and the U.S. Section I presents three types of inbound IP policies that aim to foster local economic development and innovation. Section II adds three versions of outbound IP policies that, in contrast, target foreign countries and markets. Concluding section III traces a dialectic virtuous circle of economic nationalist motives leading to global legal structures and identifies the function and legal structure of IP as the reason for the resilience and even dominance of economic nationalist motives in international IP politics. IP concerns exclusive private rights that are territorially limited creatures of (supra-)national statutes. These legal structures make up the economic nationalist DNA of IP.

It is a commonplace in American politics that Democrats are far more likely than Republicans to favor access to courts to enforce individual rights with lawsuits. In this Article we show that conventional wisdom, long true, no longer reflects party agendas in Congress. We report the results of an empirical examination of bills containing private rights of action with proplaintiff fee-shifting provisions that were introduced in Congress from 1989 through 2018. The last eight years of our data document escalating Republican Party support for proposals to create individual rights enforceable by private lawsuits, mobilized with attorney’s fee awards. By 2015–18, there was rough parity in levels of support for such bills by Democratic and Republican members of Congress. This transformation was driven substantially by growing Republican support for private enforcement in bills that were anti-abortion, immigrant, and taxes, and pro-gun and religion. We demonstrate that this surge in Republican support for private lawsuits to implement rights was led by the conservative wing of the Republican party, fueled in part by an apparent belief during the Obama years that the President could not be relied upon to implement their anti-abortion, immigrant, and taxes, and pro-gun and religion agenda. We conclude that the contemporary Republican party’s position on civil lawsuits has become bifurcated, reflecting the distinctive preferences of core elements of their coalition. They are the party far more likely to oppose private enforcement when deployed to enforce business regulation, while embracing it when deployed in the service of rights for their social conservative base.

In debates over the Second Amendment, the conventional view is that the government ought to possess a monopoly of legitimate force, subject to the right of individuals to act in emergency self-defense. Many treat the non-defensive circumstances in which our system decentralizes force as holdovers from days of nonprofessional police and soldiers. When it comes to the Second Amendment, many believe that the only legitimate reason individuals may bear arms today is for individual self-defense against isolated criminal violence (e.g., an occupied home invasion). This symposium article attacks the monopoly of force account, justifying the continued relevance of American law’s decentralization of legitimate force. This article argues that decentralization of force remains important for three reasons. First, despite the rise of professional police, American law enforcement still enforces law below desirable levels. Underenforcement of core crimes is particularly a problem in disadvantaged and rural communities and during times of civil unrest. Decentralization of force helps mitigate the underenforcement problem. And decentralization may be a better solution than simply providing more police because many areas where law is underenforced also (paradoxically) suffer from the effects of overcriminalization. Increased police presence could make the overcriminalization problem worse without solving the underenforcement problem. Second, American law has a mismatch between public duties and private rights. While providing effective law enforcement is a public duty, it is not a private right. Individuals, thus, have no effective claim that the government adequately enforce the law or protect them against unlawful violence. And any attempt to create such a private right would create profound separation of powers concerns. Consequently, self-help and private law enforcement are the best remedies when governments undersupply needed levels of police protection. Third, even if the “government” has a monopoly of force, it does not follow that government officers are the only ones in whom the government’s monopoly may be vested. The “government” is an incorporeal entity whose power must be exercised by human agents. Agents do not perfectly carry out the tasks of their principals; some government officers commit malfeasance and nonfeasance. The decentralization of force provides a remedy for such abuses of office. Ultimately, the article concludes that the individual right to bear arms still has relevance for public defense and security. This fact should warrant consideration when determining the scope of the right, including that the arms protected by the Second Amendment should continue to include those arms whose primary value is public security rather than individual self-defense.

The margin of appreciation doctrine, developed by the European Court of Human Rights, generally refers to how much deference the Court decides to accord individual States in fulfilling their obligations under the European Convention on Human Rights. This concept has been borrowed by the Tribunal of the International Centre for the Settlement of Investment Disputes (icsid) in Philip Morris v. Uruguay, an investment dispute involving novel cigarette packaging regulations, requiring single presentation for each cigarette brand. While Philip Morris claimed the single presentation requirements (spr) infringed investors’ rights to use its trademark, the Tribunal applied the doctrine confirming Uruguay’s rights to regulate for the benefit of public health. However, one arbitrator submitted a dissenting opinion rejecting its applicability to the investment dispute given the spr was adopted without sufficient evidence and due consideration by the Uruguayan government.This paper tries to examine whether and how the margin of appreciation doctrine can be applied by an investment tribunal to evaluate the legality of a newly introduced tobacco control regulation devoid of supporting scientific evidences. This paper argues that such doctrine should be applied cautiously to avoid having an easy excuse for the tribunal to refrain from substantive reviews over investor’s claims, and this doctrine can be adjusted by investment tribunals to establish a balanced standard of review theory, accommodating both the States’ rights to regulate and the private rights of investors.

The “American-style” class action, when combined with private rights, is an important tool of American regulatory policy. And just as American regulation has global reach, the global class action is not unfamiliar to U.S. courts. Yet, global U.S. class actions are facing ever-stronger headwinds. In addition to the recent retrenchment of class actions and international litigation generally, U.S. courts have raised additional barriers to global class actions in particular. This Article’s first goal, therefore, is to document these developments and their consequences for regulation. Against this backdrop, this Article also reviews the options available to foreign lawmakers, foreign courts, foreign litigants and litigation funders, and foreign public enforcers. Foreign lawmakers may provide alternatives to global U.S. class actions; foreign courts and foreign litigants may explicitly or implicitly coordinate to approximate global class resolution; and foreign public enforcers may achieve the goals of global regulatory litigation while avoiding some of its legal impediments. Finally, this Article evaluates these various foreign responses from an institutional perspective, with special attention to the institutional incentives for lawmakers and law enforcers.

This article tracks the evolution of the regulatory framework in relation to transport noise in England from private and public nuisances in common law to the defence of statutory authority. The article looks at the evolution of transport noise law focusing primarily on the emergence of turnpike roads in the eighteenth century, railways in the nineteenth century, the extension of road motor vehicles in the verge of the twentieth century and, lastly, the introduction of jet aircraft after World War II. The introduction of these noise sources shaped the current noise regulatory framework in England. Traffic noise in England enjoys protection against nuisance claims. Nowadays, the British Parliament is reluctant to remove citizen’s private rights, and express statutory authority has appeared in very few legislative provisions, save when these have been juxtaposed with some form of statutory remedy – which was not present in early English jurisprudence on transport noise.

The purpose of this research is to show the different implementation of ulayat rights concept and the communal rights of a Land on the customary law community, after the enactment of Permen ATR/Head of BPN No. 10 of 2016., from the aspect of legal subject, object, characteristics, the validity is the same of not on the implementation based on the knowledge and the kindship system of the 9 (nine) ethnic group of customary law community in 12 (twelve) region of customary regency Jayapura, Province of Papua. This research using normative-juridical and empirical-juridical approach with a secondary legal material, observation, and interview, then the analysis has been done qualitatively which the reduction, presentation of legal material and verification. The Result showed that there are a perception differences on the government knowledge and customary law community knowledge of 9 ethnic group in 12 customary region on 4 development area of Jayapura. Especially the customary community of Sentani which are in the one of the development area, knows that the ulayat rights or communal rights is a common rights beside the individual rights, is different on its implementation. It means that for the 9 ethnic group of the customary law community of Sentani the concept of Ulayat rights are broad public rights and limited private rights to land, held and done by the head of the tribe, klen, and the main family, while the concept of communal rights is limited to the public rights and broad on the private of the land which done by the klen and the main family including the individual rights of the customary law community. The recognition of both differences of the concept on the implementation of ulayat rights and communal rights of 9 tribal ethnic group of Sentani on 12 sub-region of customary area of Jayapura, based on the knowledge and the legal system of kinship (the history of origin) genealogically and customary territorial and customary institution (social structure), the system of keondoafian leadership which are run until today, there are no legal certainty as the effort to overcome the differences in the concept of implementing ulayaat rights and communal rights as well as individual rights of the Sentani customary law community, Jayapura.

Existence of a paradigm of the consumer society causes in modern world causes no doubts. Consumering is a process which includes a choice of goods or services, keeping their maintenance and repairs, managing them. Ukraine has adopted the Civil Code which in fact is the act of the European Private Law, therefore the private rights protection is now in place. Articles 282, 708, 709 of the Civil Code of Ukraine guarantee proection of rights of a person as of a customer. The Law of Ukraine "On Protecting the Customers Rights" - partly harmonised with the EU Law - has provisions developed in line with the EU standards on customers rights protection. It is necessary to follow further developments in this area in the EU and to make sure they are applied to the Ukrainian context. Therefore a study of the types and forms of protection of the customers rights in the EU as well as of the mechanisms of possible application and the sources of law is of considerable importance. Of particular interest are the aspects of the rights of customers who make e-agreements taking the offers of the online shops, which are being regularly updated in the EU. Ukraine's legislation has to ensure similar provisions so that the rights of customers are guaranteed and spesific features of these agreements are taken into consideration. It should also be noted in this regard that there's a considerable number of EU Directives which deal with the protection of a customer in the area of information advertising, tourism services, information technologies at large. A wide range of issues and relevant EU legislation have therefore to be approximated and regulated in the Ukrainian law. Research on this topic is also part of the tasks that Ukraine has to fulfil under its obligations on the protection of the customers' rights within the EU-Ukraine Association Agreement

This article seeks to explain the enduring effect of the Soviet Union and its founding principles upon arbitration in the former Soviet space. It does so by reference to the Soviet Union’s attitude towards – and contribution to – the development of arbitration, analysed in three stages: pre- 1917, post-1917 and in the post-Soviet space. As part of that analysis the article considers what rights were being arbitrated in the absence of private rights that would otherwise be readily recognisable within an overtly capitalist jurisdiction. After analysing the Bolsheviks’ attitude to arbitration, the article seeks to explain that a by-product of the distinctive goals of the USSR was a focus on arbitration as a mechanism for dispute resolution and to demonstrate how arbitration was a necessary component of the Soviet economy, developing as a tool through the arbitrazh tribunals and Moscow Convention 1972, both of which led to a two-track system which encouraged international arbitration but downplayed its significance at the domestic level. The article then seeks to explain the impact of the Soviet Union’s approach to commercial arbitration upon modern arbitration in the post-Soviet space. A study of Russia, the CIS and the former Republics demonstrates the lasting impact of Soviet theory and practice on the post-Soviet arbitral environment.

In Spokeo v Robins, the Supreme Court confronted one of the harder questions of its intricate law of standing to sue. The question is whether Article III of the Constitution limits Congress's ability to create legal rights that can be vindicated in federal court -- and, if so, what those limits are. The Court's cases had provided two contradictory approaches to answering it. Boxed in by these conflicting precedents, Spokeo failed to resolve the problem. The violation of a legal right can support standing, said the Court, only if it represents an injury that is “concrete” -- a term that simultaneously includes some “intangible” injuries, but requires that they be “real.” These terms, and the Court's explanation of them, do little work to answer the core question. And to the extent that they do point to a general approach, that approach is a wrong turn. But Spokeo also produced a glimmer of hope for approaching standing in the future: a concurring opinion by Justice Thomas, building off of an important line of scholarship on the long-standing difference between public rights and private rights. While Justice Thomas's proposal is not yet fully developed, it may provide a theoretically satisfying way to make sense of the Court's approach to statutory standing. Even if his answers are not perfect, they are answers to the right questions, which will reframe the problem of standing in a helpful way. Justice Thomas's concurrence may be one of the most fruitful things to happen to standing at the Supreme Court in many years. The rest of this article explains the problem of standing in the face of Congress's creation of statutory rights. Part I describes the basic problem and the prior cases that address it. Part II describes the Court's attempted answer in Spokeo. Part III argues that Spokeo's answer is unhelpful and even problematic, and could have ominous implications for the law of privacy and other areas of substantive law. Part IV shows why Justice Thomas may have provided a better way forward.

John MacAskill, Scotland's Foreshore: Public Rights, Private Rights and the Crown, 1840–2017. Edinburgh : Edinburgh University Press (https://euppublishing.com/), 2018 Scotland's Land Series. xi + 260 pp. ISBN: 9781474436915. £80.

China&rsquo, s rapid urbanization and industrialization have continually placed massive pressure on the country&rsquo, s natural resources. The fragmented departmental administration of natural resources also intensifies the problem of sustainable use. Accordingly, China&rsquo, s central government has launched natural resource administration reform from decentralization to unification. This study systematically analyzes the reform requirements from legal, organizational, and technical aspects. The right structure of China&rsquo, s natural resource assets for fulfilling such requirements is examined in this work through a review of relevant legal text, and such a right structure is converted into a draft national technical standard of China&rsquo, s natural resource administration on the basis of the land administration domain model (LADM). Results show that China&rsquo, s natural resource administration covers lands, buildings, structures, forests, grasslands, waters, beaches, sea areas, minerals, and other fields. The types of private rights over natural resources include ownerships, land-contracted management rights (cultivated land, forest land, grassland, and water area), rights to use construction land (state-owned and collective-owned), rights to use agricultural land, rights to use homestead land, breeding rights on water areas and beaches, rights to use sea areas, rights to use uninhabited islands, and mining rights. The types of public rights over natural resources include comprehensive land use, urban and rural, sea use, and territory space planning. Furthermore, various types of these property rights can be converted into corresponding classes in LADM on the basis of the analysis of the property subject, object, and rights.

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States Energy last term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public, regulatory schemes.

In April 2017, the U.S. Supreme Court, in Jesner v. Arab Bank, denied terror victims in Israel access to U.S. courts, holding that foreign corporations may not be sued under the Alien Tort Statute (ATS). The petitioners alleged that Arab Bank, a Jordanian financial institution, had facilitated acts of terrorism by maintaining bank accounts for known jihadists, and that it had used its New York branch to clear Dollar transactions and launder money for a US-based charity said to be affiliated with Hamas. The Majority argued that courts should not use the ATS to create new private rights of action, but should leave this task to the legislator. The decision is said to deal the deathblow to U.S. Human Rights litigation, but as this article argues, seems a logical consequence of the Supreme Court’s latest restrictions on personal jurisdiction over foreign corporate defendants and a growing concern to respect the sovereignty rights of foreign states. It confirms a trend towards more judicial reticence and, in this regard, suggests an increasing convergence of U.S. and foreign attitudes towards judicial discretion as well as international jurisdiction rules. However, on substance, the decisions leads to significant jurisdictional gaps to hold multi-national corporations accountable for the violation of international human rights. Based on a comparative analysis of EU procedural and substantive rules, this article makes suggestions for a harmonized legal regime to judge foreign corporations’ liability for human rights violations before domestic courts.

O presente artigo tem como objetivo principal identificar as coincidencias e contradicoes entre a orientacao contemporânea ao direito privado, pelo deslocamento da diretriz patrimonialista, e a centralidade do objetivo lucrativo da atividade empresarial. Buscando estruturar um raciocinio pelo metodo dedutivo, serao tratados os contornos constitucionais ao direito privado, os paradigmas para o direito civil na contemporaneidade, de natureza infraconstitucional, para as pessoas que desenvolverao a atividade empresaria e a centralidade no papel do lucro para a definicao de direitos e deveres empresariais. Com o presente trabalho, portanto, tem-se como objetivo demonstrar que a atividade empresaria, assim como as demais atividades privadas, devem ser orientadas pelos principios constitucionais. O lucro nao pode, por outro lado, ser demonizado, mas nao e ele que qualifica a atividade empresarial e sim o cumprimento dos seus elementos substanciais. O trabalho buscara verificar algumas situacoes em que a dogmatica nao se comporta dessa forma e contraria, portanto, as teses pos positivistas. Palavras-Chaves: Direito Empresarial - Lucro - Pos-positivismo - Funcao social ABSTRACT This article aims to identify coincidences and contradictions between the contemporary guidance of the private rights, by displacement of the vector patrimonialist, and the centrality of the lucrative purpose of business activity. Seeking to structure a reasoning by the deductive method, it discusses the constitutional contours given to the to private rights, paradigms for civil law in the contemporary world, whose nature is infra-constitutional, for people who develop the entrepreneur activity and the centrality of the economic purpose for the definition of corporate rights and duties. This article aims, therefore, to demonstrate that the commercial activity, as well as other private activities, should be guided by the constitutional principles. Profit can not, however, be demonized, but it is not he who qualify the entrepreneur activity, but the fulfillment of its substantial elements. This article aims to check some situations where the legal doctrine does not behave that way and contradicts therefore the post positivists thesis. Keywords: Commercial Law – Profit - Post- positivism - Social function

Water conflicts are rare across Michigan's history. As a result, water rights have received little attention by courts or the legislature. Traditionally, the common law of water rights in Michigan embraces the riparian doctrine for surface water and provides landowners with the right to use groundwater. However, two recent changes in common and statutory law significantly modify the legal relations among water users and others with a stake in water use decisions. A 2005 Michigan Court of Appeals decision created a new legal relation among riparian and groundwater rights holders. In 2008, Michigan's legislature passed laws aimed at regulating surface water and groundwater withdrawals. As an exercise of police power intended to protect public rights in water and associated environmental quality, the 2008 laws cap total water withdrawals. This program of restricting water withdrawals coexists with the state's common law which provides for reasonable use of surface water by riparian landowners and groundwater by owners of the overlying land. The result is a new set of legal relations, an uncertain legal environment, and a growing likelihood of water use conflicts. Because Michigan's body of water law is unique, neither courts nor legislature can rely on solutions used in other states.

Protection of personal data as closely related to the protection of personal and private rights. Indonesia does not yet have legislation that specifically regulates the protection of personal data. then the problem that the author raises is: the comparison of the right to personal protection as part of human rights in Indonesia with the constitution in other countries and the concept of comparing the protection of personal data as a manifestation of the human rights of personal protection in Indonesia and other countries. related to the protection of personal rights in Indonesia is a state constitutional obligation regulated in the 1945 Constitution of the Republic of Indonesia Article 28G Paragraph (1). The constitutions of other countries such as in several Asian, African, and European countries as mentioned above have explicitly regulated and mentioned the protection of guarantees and personal rights or privacy rights of their citizens. while in Indonesia such as Saudi Arabia and Madagascar it does not explicitly mention anything about the right of privacy in their constitution. it can be concluded that the concept of personal data protection can be found in international and regional instruments such as the European Union Data Protection Directive, the European Union Data Protection Convention, and the OECD Guidelines.

In this paper, we use geospatial data and difference-in-differences models to identify the deforestation effects, during 2000-2013, of the leading forest policies in the Peruvian Amazon: i) logging concessions, ii) third-party certification of concessions, and iii) Protected Areas (PAs). We find that on average logging concessions have no effect on tree-cover loss, while the PAs do reduce loss. Further, the PAs allowing limited private extraction save more forest than do more restrictive PAs. Certification has an impact (reduces loss) only in the single region where concessions reduce loss, suggesting a complementarity of third parties with private and public efforts to govern concessions. Our results suggest roles for private rights within conservation, given oversight.

Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation (and separate definition) of administration and the judiciary. This article aims to historicize the commons, but also the state in order to escape the projected shadow of public administration in considering environmental regulation. It looks into the commons’ ambiguous relations with history. A first point is to critically reconsider the opposition between commons and enclosure, inherited from Hardin’s thesis. A second point consists in deconstructing mythical accounts of stateless commons. This is done by relying on water commons — which are also a key example in Ostrom’s theory. Early histories of water commons by commoners provided the opportunity for a first version of commons’ history without the state. This ‘discovery’ of the water commons presented them as a pertinent response to the aporia of the private property system, but also to the dangers of keeping resources available to the administrative state, which appeared ill-suited to managing scarce natural resources. This positive development translated into a series of fascinating inquiries, undertaken from the 1800s to the 1880s in several places across Europe. They gave rise to the very first ethnogeographic descriptions of the commons’ functioning. It was in the context of very acute conflicts over access to the resource that this use of history became enshrined. The historical longevity of these irrigators’ communities was highlighted in order to defend their historical and customary rights against the administrative state’s will to regulate all water courses, which was more favorable to new users in water sharing. The resource’s ecological limit thus served to set boundaries to the administration’s intervention. Scarcity was a way to conceive of the resource as unavailable both for property and for state sovereignty. Protecting environmental resources through the courts was a way of conceiving a regulation based on the resource’s specific status, rather than on the will of subjects — whether private, collective or public.

This articles analyzes the Supreme Court’s leading securities cases from 1962 to 1972—Capital Gains, J.I. Case v. Borak, Mills v. Electric Auto-Lite Co., Bankers Life, and Affiliated Ute—relying not just on the published opinions, but also the justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather than a mere agent. The interpretive space opened by the Court’s invocation of purpose allowed a dramatic expansion in the law of securities fraud. Encouraged by the high court’s dynamic statutory interpretation doctrine, the Second Circuit—the “Mother Court” for securities law—developed new causes of action that transformed both public and private enforcement of the securities laws. The insider trading prohibition found a new home in the flexible confines of Rule 10b-5. Implied private rights of action encouraged class actions to flourish. The growth of fiduciary duty in the 1960s created a blueprint for “federal corporation law.” The Supreme Court’s “counter-revolutionary” turn in the 1970s cut back on purposivism and the doctrinal innovations of the Sixties, but the approaches to insider trading and private rights of action survived, remaining pillars of securities regulation today.