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This article provides an analysis of the Directive on representative actions for the protection of the collective interests of consumers of 25 November 2020. The Directive enables qualified entities to bring representative actions on behalf of the consumer. The article uses a Law and Economics approach to stress the advantages of collective actions as a tool to remedy rational apathy and free-rider behaviour. The article therefore in principle welcomes the fact that this Directive will lead to all Member States having some form of collective redress. However, it is rather difficult to fit this Directive into the economic criteria for centralization as there is no obvious danger of cross-border externalities or a race-to-the-bottom. The article is critical of the fact that the Directive only provides for a representative action and does not mention the alternative of a group action (sometimes referred to as a class action). This is especially problematic if there are very few qualified entities that could bring the representative action. Furthermore, the fact that Member States may choose an opt-in procedure instead of an opt-out procedure is critically evaluated. The most problematic aspect of the Directive is the funding of the representative action. Punitive damages and contingency fees are rejected, and the possibility of third-party funding is restricted. It is therefore to be feared that this Directive, notwithstanding the good intentions, may not lead to much application in practice, since the question of how the representative action is to be financed is not resolved in any satisfactory manner.

The microinsurance market suffers from severe market failures; thus, government interventions are increasingly used to stimulate its functioning. Our article evaluates, from a law and economics perspective, whether these interventions are effective in increasing access to insurance without inducing moral hazard and adverse selection. We then use this framework to evaluate typical types of government interventions in the Chinese microinsurance market (subsidisation, simplification, use of group policy and established distribution channels). Using practical cases, we further identify solutions to remedy the market frictions induced by government interventions. We find that government interventions are only effective under certain conditions: (1) stable and smartly designed subsidies are provided or innovative market practices are subsidised; (2) insurance policies are easy to understand; (3) product distributors are properly trained or licensed; (4) group policies can be renewed.

This short discussion paper addresses how controversy is monetized online by reflecting on a new iteration of the shock value in media production, identified on social media as the ‘clout chasing’ phenomenon. We first exemplify controversial behavior, and subsequently proceed to defining clout chasing, which we discuss this concept in relation to existing frameworks for the understanding of controversy on social media. We then outline what clout chasing entails as a content monetization strategy, and address the risks associated with this approach. In doing so, we introduce the concept of ‘content self-moderation,’ which encompasses how creators use content moderation as a way to hedge monetization risks arising out of their reliance on controversy for economic growth. This concept is discussed in the context of the automated content governance entailed by algorithmic platform architectures, to contribute to existing scholarship on platform governance.

How insolvency courts handle conflicts is an important aspect of the Directive on preventive restructuring frameworks and it has become more important in the current COVID-19 crisis, as a result of which insolvencies are or will be on the rise. Insolvency courts are one of the key actors that can impact the length and costs of conflicts, and, consequently, the effectiveness and efficiency of insolvency proceedings. However, there is a lack of empirical research that examines when, why and how insolvency courts prevent actual or potential conflicts. This article reports the results of an empirical study that explored the strategies used by insolvency judges in the Netherlands to resolve conflicts and to prevent a dispute from becoming one. The results show that insolvency courts deploy “under the radar” mediation-like strategies to prevent actual and potential conflicts involving insolvency practitioners, enhancing the speed and cost-effectiveness of the winding-up of cases in the perceptions of stakeholders. Consequently, insolvency judges do not only act as adjudicators in court proceedings, but also take on mediation-like roles, at least in some jurisdictions. Limitations and challenges of these roles are discussed. The findings of this study are relevant for determining and regulating the roles and tasks of insolvency judges.

Many of today’s products and services fall into the category of products and services that are, as such, legal but still unhealthy. Think of smoking as an example. This paper deals with the question of which mix of legal instruments should ideally be used in the light of such products and services. It distinguishes between products and services that predominantly lead to “harm to oneself” or “harm to others”. In the end, most law and economics arguments point in the direction of ex ante safety regulation. However, when there are concerns about the quality of regulation (eg due to lobbying efforts), liability has important added value. In the “harm to others” scenario, safety regulation is even more warranted because the larger number of victims and the increased difficulty to prove the causal link render litigation burdensome. Strict liability has several advantages over negligence and is, therefore, generally preferred. A strong point of negligence, however, is that it enables the court to conduct its own weighing of costs and benefits, which in specific circumstances may be better than that of the regulator or the producer. Furthermore, it enables the judge to consider not only the harm to the user, but also the harm to others in setting the due care standard.

Reviewing the burgeoning legal scholarship on global value chains to delineate the legal image of the global value chain and then comparing this legal image with images on global production in neighbouring social sciences research, in particular the Global Commodity Chain/Global Value Chain and the Global Production Network approach, this article reveals that legal research strongly aligns with the value chain image, but takes less account of the production-centric network image. The article then outlines a research agenda for legal research that departs from a network perspective on global production. To that end, it proposes that re-imagining the law in a world of global production networks requires a focus in legal research on the legal construction of global production and its infrastructure and a stronger contextualization of governance obligations and liability rules in the light of the issue-specific legal rules that apply to said infrastructure.

As the COVID-19 pandemic continues to expose obsolete business practices and nudges companies into a new status quo, a disruption worth (re)considering is for companies to replace their over-reliance on litigation with mediation. In order for mediators to make this transition more appetizing for businesses, we must: 1) promote our mediators to be trained more holistically through an interdisciplinary education, and 2) foster cognitive diversity amongst the mediators.

Summary During the Second World War Germany and German nationals looted the Netherlands and its nationals of many valuable assets, that were taken to Germany. Often the looting took the form of forced sales. In some cases, the sales price was too low, in other cases the German buyer paid market value or more, but often the buyer paid with guilders looted from the Dutch State. After the liberation of the Netherlands the ‘restoration of rights regime’ enabled victims of forced sales to seek annulment of the sales. This article concentrates on those movable goods that were sold to German buyers and that, after the war, returned from Germany to the Netherlands with the help of the Allied Forces, the so-called recuperation goods. If the seller did not seek annulment before the deadline of July 1951, for example because the price paid was considerable so that he preferred to keep the purchase price, or if his request was rejected, the Dutch State should not be forced to return these goods to their German buyer. Therefore, these goods were first subjected to Royal Decree E 133 which expropriated all German owned property in the Netherlands. Upon return to the Netherlands the recuperation goods became State property, but this measure could be undone by the seller successfully seeking annulment of the sales contract under Royal Decree E 100. However, if no annulment took place, the State remained owner of these goods.

This contribution explores the application of data science and artificial intelligence to legal research, more specifically an element that has not received much attention: the research infrastructure required to make such analysis possible. In recent years, EU law has become increasingly digitised and published in online databases such as EUR-Lex and HUDOC. However, the main barrier inhibiting legal scholars from analysing this information is lack of training in data analytics. Legal analytics software can mitigate this problem to an extent. However, current systems are dominated by the commercial sector. In addition, most systems focus on search of legal information but do not facilitate advanced visualisation and analytics. Finally, free to use systems that do provide such features are either too complex to use for general legal scholars, or are not rich enough in their analytics tools. In this paper, we motivate the case for building a software platform that addresses these limitations. Such software can provide a powerful platform for visualising and exploring connections and correlations in EU case law, helping to unravel the “DNA” behind EU legal systems. It will also serve to train researchers and students in schools and universities to analyse legal information using state-of-the-art methods in data science, without requiring technical proficiency in the underlying methods. We also suggest that the software should be powered by a data infrastructure and management paradigm following the seminal FAIR (Findable, Accessible, Interoperable and Reusable) principles.

Two English and two Dutch cases have recently clarified the (potential) liability of parent companies vis-à-vis third parties in relation to damage caused by their subsidiaries. They concern the decisions of the UK Supreme Court in Vedanta v Lungowe and Okpabi v Shell, the Hague Court of Appeal in Oguru v Shell and the Hague District Court in Milieudefensie v Shell (climate change case).

On 16 December 2020, the European Commission delivered on the plans proposed in the European Digital Strategy by publishing two proposals related to the governance of digital services in the European Union: the Digital Services Act (DSA) and the Digital Markets Act (DMA). The much-awaited regulatory reform is often mentioned in the context of content moderation and freedom of expression, market power and competition. It is, however, important to bear in mind the contractual nature of the relationship between users and platforms and the additional contracts concluded on the platform between the users, in particular traders and consumers. Moreover, the monetisation offered by digital platforms has led to new dynamics and economic interests. This paper explores the reform proposed by the European Commission by means of the DSA by touching upon four main themes that will be addressed from the perspective of consumer protection: (1) the internal coherence of European Union law; (2) intermediary liability; (3) the outsourcing of solutions to private parties; and (4) digital enforcement.

Buying real estate in a different European country is a complex understanding. The aim of this research is to explore how such European cross-border real estate transactions can be facilitated. To determine how the high complexity that underlies such transactions can be reduced, four steps were taken. First, to gain a solid understanding of how the process of acquiring real estate works on national level, the land registration systems of the Netherlands, Germany, and England & Wales were described and compared with each other. On the basis hereof, analyzed was which obstacles European citizens and legal professionals face when they are involved in a cross-border real estate transaction. Afterwards, the relevant European and international initiatives were discussed and it was assessed to what extent they respond to the obstacles that were identified. Finally, strategies for the further facilitation of cross-border real estate transactions were formulated.

Recently, two EU instruments relating to business-to-consumer (B2C) relationships have been adopted: a new consumer sales directive and a directive on the supply of digital content. Three further EU instruments are in the pipeline: the so-called Omnibus Directive and a directive on collective redress together known as the ‘New Deal for Consumer’, and a Platform-to-Business regulation (P2B). This editorial aims to give a brief overview and a prima facie evaluation of the content of these instruments and to invite contributions offering a more in-depth analysis of the new rules and their expected impact.

This article analyses the interplay between private law and large multinational companies in designing polices of corporate social responsibility (CSR). Based on a doctrinal legal analysis, the article first shows that private law takes a largely facilitative attitude towards CSR self-regulation in the sense that it subjects the enforcement of self-regulation and its review in the light of public interest standards to the intention of corporations as its authors. Taking account of the recent debate on whether there should be changes in private law towards a stronger interventionist or regulatory approach that subjects CSR self-regulation to public interest standards, the contribution discusses the likely consequences that this may have on the existence and further development of CSR self-regulation. For this purpose, the article reviews socio-economic studies on the motives and strategies of companies to engage in CSR self-regulation and the background role that the law plays in the development of such policies. The article argues that companies develop CSR self-regulation strategically in a way that it remains externally, i. e. towards the public and beneficiaries of this self-regulation, voluntary. Simultaneously, legal mechanisms are installed internally to ensure that those working for the company, such as employees and suppliers meet the self-regulatory goals. This strategy is also realized with a view to the existing laws. Looking into research on the factors that lead to changes in corporate behaviour, the article concludes that a stronger interventionist attitude of private law may only lead to adaptions in this strategy if combined with a particular corporate culture. Consequently, a stronger regulatory private law for CSR selfregulation may only be understood as an indirect pressure for improvement.

This article argues that it is possible to hold autonomous agents themselves, and not only their makers, users or owners, responsible for the acts of these agents. In this connection autonomous systems are computer programs that interact with the outside world without human interference. They include such systems as ‘intelligent’ weapons and self-driving cars. The argument is based on an analogy between human beings and autonomous agents and its main element asserts that if humans can be held responsible, so can, in principle, autonomous agents, as humans are more like autonomous agents than is often assumed (rather than the other way round)., Bu makale otonom ajanların/aktörlerin yaptığı eylemlerden ötürü sorumluluğun sadece üreticileri, kullanıcıları veya sahipleri değil otonom ajan/aktörlerin de sorumlu tutmanın mümkün olduğunu savunmaktadır. Bu bağlamda otonom sistemler insan müdahalesi olmaksızın dış dünya ile etkileşime geçebilen bilgisayar programlarıdır. Bunlar “akıllı” silahlar ve sürücüsüz arabalar gibi sistemleri içerirler. Bu argüman insanlarla otonom ajan/aktörler arasındaki benzerliklere dayanmaktadır ve insanlar genellikle varsayılandan daha çok otonom ajan/aktörlere benzediğinden (ki bu tercih edilen düşüncenin tersidir) eğer insanlar sorumlu tutulabiliyorsa prensipte otonom ajan/aktörlerde sorumlu tutulabilir.

Abusive language is a growing phenomenon on social media platforms. Its effects can reach beyond the online context, contributing to mental or emotional stress on users. Automatic tools for detecting abuse can alleviate the issue. In practice, developing automated methods to detect abusive language relies on good quality data. However, there is currently a lack of standards for creating datasets in the field. These standards include definitions of what is considered abusive language, annotation guidelines and reporting on the process. This paper introduces an annotation framework inspired by legal concepts to define abusive language in the context of online harassment. The framework uses a 7-point Likert scale for labelling instead of class labels. We also present ALYT – a dataset of Abusive Language on YouTube. ALYT includes YouTube comments in English extracted from videos on different controversial topics and labelled by Law students. The comments were sampled from the actual collected data, without artificial methods for increasing the abusive content. The paper describes the annotation process thoroughly, including all its guidelines and training steps.

Several crypto communities have claimed to have revolutionary potential and to present a possible alternative to the state legal order. In this paper, we first mention three different generations of crypto communities, revealing their shared narrative, before focusing on the Silk Road dark web marketplace. Based on the qualitative content analysis of the Silk Road forum, we look into whether this platform should be understood as a legal order, a revolutionary movement, or simply a capitalist marketplace. Lastly, the article includes a short discussion of the question whether or not an online platform such as the Silk Road poses a serious challenge for state sovereignty.

This article reports the results of a comparative empirical legal study that analyzed (1) strategic behaviour by actors in insolvencies that is salient to insolvency judges and (2) how insolvency judges respond to such behaviour. After examining four different European countries, namely Italy, the Netherlands, Poland, and Portugal, the study reveals how differences regarding case allocation, judge – insolvency practitioner (IP) interaction, and remuneration and case financing can result in strategic behaviour on both the side of the judges and the IPs. From this, it follows that improving the efficiency and effectiveness is not merely a matter of implementing legislation and case law, but that it also requires a look into the dynamics between insolvency judges, IPs, and other actors in the insolvency process.

Social media influencers have become increasingly important in the last years. Influencers, that is, individuals with a large number of followers on social media, filter information, advertise products and services, offer advice, and promote political opinions with a significant impact on a broad audience. Nevertheless, their actions have remained largely unregulated and overlooked in the literature. This paper offers an exploratory analysis of this phenomenon and delves into the regulatory challenges resulting from the activity of social media influencers. It fills an important gap in the academic literature by providing an interdisciplinary analysis of a phenomenon with growing societal relevance. Given their large audiences, influencers are very effective not only at creating online engagement for the companies that employ their services, but also at manipulating their followers’ opinions and transactional behavior, as the latter do not always distinguish between genuine and sponsored marketing advice. Although advertising regulations include endorsements made on Instagram or Youtube by ‘prosumers’, influencers appear to disregard these regulatory limits and national regulators have experienced difficulties in safeguarding their enforcement. In this context, average social media users are at an ever-greater risk of falling prey to inconspicuous commercial interests. This paper also introduces an interdisciplinary project that brings together insights from media studies, law, communication science and empirical legal studies, dealing with themes such as social media, influencer marketing, free speech, gig work, platform governance, and consumer protection.

This contribution aims to unveil a side of influencer marketing that remains underexplored: the control of content through private law mechanisms. As the influencer market is inherently transactional, it is important to understand what business practices define this industry from the perspective of how legal risks are divided among contracting parties. We do so by first looking into influencer marketing business practices and identifying the parties engaged in the supply chain of influencer marketing, and reflecting upon the commercial interests visible in these transactions. We further contribute to existing literature with qualitative empirical research based on a survey sent to Swiss influencer marketing agencies, to shed light on how contractual practices shape up in the supply chain, and how influencer contracts divide responsibility for posted content.

Cities are increasingly influenced by novel and cosmopolitan values advanced by transnational technology providers and digital platforms. These values which are often visible in the advancement of the sharing economy and smart cities, may differ from the traditional public values protected by national and local laws and policies. This article contrasts the public values created by digital platforms in cities with the democratic and social national values that the platform society is leaving behind. It innovates by showing how co-regulation can balance public values with platform values. In this article, we argue that despite the value-creation benefits produced by the digital platforms under analysis, public authorities should be aware of the risks of technocratic discourses and potential conflicts between platform and local values. In this context, we suggest a normative framework which enhances the need for a new kind of knowledge-service creation in the form of local public-interest technology. Moreover, our framework proposes a negotiated contractual system that seeks to balance platform values with public values in an attempt to address the digital enforcement problem driven by the functional sovereignty role of platforms. (C) 2019 Sofia Ranchordas and Catalina Goanta. Published by Elsevier Ltd. All rights reserved.

Long before the creation of blockchain platforms, the rise of personal computing, and Internet connectivity brought with it a digital, online dimension of the material world, leading to the socio-technical construct known as “digital identity.” After the online discussion boards and emailing lists of the early 1990s, individuals started socializing via the Internet more predominantly using social networks. One specific type of platform links this online socializing and transacting to blockchain-based spaces: dark web marketplaces. Identified as second-generation cryptocommunities, dark web marketplaces deployed cryptography for the use of pseudonymous identity, for communication, but also currency. This paper explores two questions in this fascinating space: what was the role of identity on the Silk Road, and what governance lessons can be drawn from this illustration for the purpose of applying them to more recent cybercommunities such as Ethereum? The paper is structured as follows. The first part describes the Silk Road and sketches its essential characteristics. The second part looks at how individuals could become platform users on the Silk Road, by analyzing the contractual relationship between the Silk Road and an individual user based on the rights and obligations enshrined in the Silk Road terms of service (ToS). The third part critically reflects on arbitrariness as the main pitfall arising out of the private regulatory framework created by the Silk Road, and contributes to existing narratives surrounding the regulatory nature of code by proposing a code-as-procedure perspective for analyzing this regulatory framework. Part four concludes.

Rewind to the early 1990s: an infant World Wide Web recently created by Tim Berners-Lee was starting to redefine the way people were connected globally. First came communication services (e.g. e-mail) and a shift from physical to digital marketplaces (e.g. ecommerce). Then came the rise of Internet platforms, in what is now deemed to be Web 2.0. The critics of Web 2.0 claim it is a spoiled version of early Internet promises: freedom from surveillance, online safety (even through anonymity)—in a nutshell, more control and power for the user. The answer to the problems of Web 2.0 is thought to be the third era of the Internet, namely the Decentralized Internet, based on (among others) blockchain technology. While a lot of literature has focused on the legal implications of blockchain assets such as cryptocurrencies from a banking perspective, not the same can be said about the consumer protection angle necessary in tackling the hype that has affected users who spent valuable financial resources on investing, playing on or using blockchain-based platforms. This chapter aims to make a contribution to fill this research gap, and focus on Decentraland, a virtual world where LAND, a non-fungible token is traded in order to allow users to build their own spaces on these plots. In doing so, the chapter elaborates on the notion of Internet of Value, and looks at the inner workins of Decentraland from the perspective of European law, more specifically the Digital Content Directive.

This chapter provides a law and economics analysis of the three main modes of enforcement of EU law in the financial sector, that is, private, administrative, and criminal enforcement. It explores which of them may be best-suited for a particular domain of financial regulation, focussing on consumer and investor protection. The authors show that the enforcement-related choices made by the EU legislator across different domains so far lack coherence and cannot be entirely explained on the basis of an economic rationale. They also suggest how law and economics could inform the development of a more coherent enforcement architecture for the financial sector.

In the academic context, plagiarism is usually seen as an ethical offence, the boundaries and definition of which are often unclear. However, in some countries, plagiarism is also a legal wrong, amounting to copyright infringement. This article proposes a test for assessing plagiarism of academic works. The test is based on the law and jurisprudence of a particular country, Portugal, where plagiarism is framed as copyright infringement. Article 196 of the Portuguese Copyright Law sets four elements that must be fulfilled for a finding of plagiarism: There must be a protected work; the alleged plagiarist must have used a partial or total reproduction of that work; the alleged plagiarist must have failed to attribute the authorship of the work to its rightful creator; and the work of the alleged plagiarist must lack its own individuality. The authors argue that, even if the law of a particular country does not frame plagiarism as a legal offence, these elements should be part of a test to be adopted and applied by academic institutions for the sake of legal certainty.

This research examines the impact of Chinese cultural values on the application of law on contractual damages. Following an experimental design, 43 in-depth interviews were conducted with Chinese judges in 13 cities and provinces across China. The data reveal two patterns. First, the judges took the cultural values into account when determining the amount of damages. Second, the consideration of cultural value factors reduced the judges’ consideration of legal factors. The local cultural values did not change the Chinese judges’ understanding of law. Instead, the judges compromised the legal requirements and cultural desires by using the discretion offered to them or by recommending mediation. The consideration of cultural values is not only the result of judges’ personal preferences, but also of judges seeking social approval. The motivation of Chinese judges to obtain social approval may be enhanced by the assessment criteria and the institutional constraints of Chinese courts.

A central question in the debate on corporate social responsibility is to what extent CSR codes can be enforced among private parties. This contribution argues that this question is best answered by reference to the applicable doctrinal legal system. Such a doctrinal approach has recently regained importance in American scholarship, while it is still the prevailing method of legal analysis in Europe. Applying a doctrinal analysis of CSR codes allows for the possibility of private law enforcement, that is, enforcement by means of contract or tort, dependent on three different elements: the exact type of claim that is brought, the evolving societal standards about the binding nature of CSR codes, and the normative complexity of the doctrinal system itself. This approach allows for a typology of cases in which the enforceability of CSR codes can be disputed. It is subsequently argued that societal standards have not yet reached the stage where the average consumer who buys a product from a retailer can hold that retailer legally liable for violations of the norms incorporated in the code.

Over the last five years, the sharing economy has enjoyed a real boom. One important example of this is the creation of numerous internet platforms that have made it easier for businesses and citizens to offer goods and services to the public. While the rise of platforms allowing for the sale of goods by commercial parties was openly embraced by society, the rise of platforms such as Uber and Airbnb, allowing non-professionals to offer services, has given rise to quite some social and legal consternation. This brief contribution discusses approach of the European Union towards the sharing economy, including the European Commission’s 2016 Communication on the ‘European agenda for the collaborative economy’.

Background The amount of available data, which can facilitate answering scientific research questions, is growing. However, the different formats of published data are expanding as well, creating a serious challenge when multiple datasets need to be integrated for answering a question. Results This paper presents a semi-automated framework that provides semantic enhancement of biomedical data, specifically gene datasets. The framework involved a concept recognition task using machine learning, in combination with the BioPortal annotator. Compared to using methods which require only the BioPortal annotator for semantic enhancement, the proposed framework achieves the highest results. Conclusions Using concept recognition combined with machine learning techniques and annotation with a biomedical ontology, the proposed framework can provide datasets to reach their full potential of providing meaningful information, which can answer scientific research questions.

markdownabstractEmpirical Legal research (ELR) has become well established in the United States, whereas its popularity in Europe is debatable. This article explores the popularity of ELR in Europe. The authors carried out an empirical analysis of 78 European-based law journals, encompassing issues from 2008-2017. The findings demonstrate that a supposed increase of ELR is questionable (at best). Moreover, additional findings highlight: – An increase for a few journals, with a small number of other journals showing a decrease over time; – A higher percentage of empirical articles for extra-legal journals than for legal journals (average proportion per journal is 4.6 percent for legal journals, 18.9 percent for extra-legal journals); – Criminal justice journals, environmental journals, and economically oriented journals being more likely to publish empirical articles than other journals; – More prestigious journals being more likely to publish empirical articles than less-prestigious journals; – Older journals being more likely to publish empirical work than younger journals, but not at an increasing rate; – Journals being legal/extra-legal, journals in a specific field, journal ranking, or the age of the journal not making it more (or less) likely that the journal will publish empirical articles at an increasing (or decreasing) rate. Considering the lack of convincing evidence indicating an increase of ELR, we identify reasons for why ELR is seemingly becoming more popular but not resulting in more empirical research in Europe. Additionally, we explore interventions for overcoming the obstacles ELR currently faces.

People and corporations are increasingly held liable in private law for the external effects of their actions, in particular in cases that involve some fundamental aspect of “justice” such as severe violations of labour standards or threats to the environment. These public interests are traditionally guarded by the state, but are now increasingly enforced by private individuals, in particular in cross-border situations where the injustice takes place in a “far-away” country. This contribution explores what is the potential of contract law in dealing with “private law justice across borders.” It asks whether the doctrine of privity of contract should be traded in for an approach that better takes the externalities of contracts into account. It is argued that current contract law is ill-suited to deal with this challenge and should adopt new techniques to expand the circle of people contract law seeks to protect.

This chapter provides a historical perspective on the interaction between private and public actors in the area of commercial law, to identify lessons about an appropriate design of commercial law. Historically private actors generally have borne responsibility for creating rules to regulate their transactions whereas public actors often have supported and subsequently codified this private regulation. A central theme in this contribution is whether private actor solutions need public actor intervention to thrive. Although public actor intervention might not be necessary per se for clarity, predictability and the wide use of private actor solutions, that still leaves the possibility open that public actor intervention still might have those effects on private actor solutions. The history of bills of exchange is used to address these questions, because it provides a vivid interaction between private and public actors. It will be concluded that from a historical perspective, private actors appear to be pre-eminently suited to creating relevant legal rules, regardless of the level—local, regional, global—where these rules are used, provided a relatively efficient enforcement mechanism exists. Although it can be assumed that public actor intervention will generally create more legal certainty for a private actor solution, the actual effects of this legal certainty are very difficult to establish. Moreover, public actor intervention does not appear to be necessary per se for a wide use of clear and predictable private actor solutions.

Assistant Professor Janwillem Oosterhuis (Faculty of Law, Maastricht University) traces the historical development of international trade contracts, suggesting an important influence from 19th century Dutch commercial sales law. Index keywords: Netherlands, sales law, commercial law, legal history, international trade law

Private liability can potentially play a crucial role in protecting critical infrastructure. Traditional liability rules will especially play their deterrent and therefore preventive effect in the case of so-called man-made “technological” disasters. By using a strict liability role and by providing solvency guarantees potential tort-feasors can be provided with incentives to take optimal preventivemeasures.However, the case of nuclear accidents, addressed inmore detail, makes clear that in practice those efficient liability rules that would be needed to generate this preventive effect are often not implemented at the legislative level. The legislator rather imposes financial limits on liability and provides for public funding, thus effectively granting a subsidy to operators. Those type of inefficient rules laid down in international conventions are obviously often the result of interest group politics.As far as natural disasters are concerned liability rules can play less of a role given the fact that those are considered an “act of God”. One could then only consider public authority liability.However, this is not often accepted in practice and there may also be theoretical reasons to be careful with the imposition of public authority liability. Public authorities are multitask agents which need a substantial amount of discretion. That explains that many legal systems award (partial) immunity from liability to public authorities. This leads generally to the conclusion that although liability rules can play a role in the protection of critical infrastructure those rules may have important limits as well. As a result the primary instrument to protect critical infrastructure will in practice often be safety regulation rather than liability rules.

From a law and economics perspective tort law is to serve two important functions: deterrence of wrongdoers and victim compensation. We can easily construct examples of torts leading to small and widespread harm for which it is questionable whether a rational victim will initiate an individual lawsuit. This is mainly true because of rational apathy, free-riding problems and information asymmetries. In this paper we assess various funding and insurance options that are available with a view to improving the individual’s risk ratio and the potential of out-of-court dispute resolution mechanisms to capture small claims. Next, we consider the attribute ‘widespread’ and, therefore, look at any solution that would involve grouping claims, thereby leading to cost-reductions for the individual. Public law enforcement functions in a way similar to grouping claims because a collective matter is dealt with in one proceeding and individuals are relieved of (most of) the litigation costs. Combinations of public and private means are likewise possible. Throughout the analysis we will differentiate cases of small and widespread and very small and widespread harm. For the latter the threat of collective compensation claims is neither credible nor economically feasible. This calls for an investigation of alternative remedies to compensation, such as skimming off procedures, fines or punitive damages that uphold the deterrent effect. In addition to the theoretical analysis, we will refer to current eu policy where applicable.

The dutch supreme cassation court was established in 1838 within the context of the french cassation tradition. From its inception important improvements were implemented when compared to the french model, for example the rule that cassation appeal would be allowed only one time in any single case, and that the cassation court would be able to provide a final judgment itself if the facts of the case did not need further inquiry. Since the 1980s supreme court litigation and practices have changed significantly. There were two main drivers for reform. The first was the need to diminish the supreme court’s workload. The second concerned the changing views on the role of the supreme court. Presently, the court’s function of promoting the development of the law is emphasized. Five measures have been implemented to enable the efficient allocation of the court’s resources and to enhance the court’s ability to promote the further development of the law: the court may decide relatively simple cases by a panel of three rather than five judges; the court may dismiss cases without giving reasons for its decision; the court may dismiss cases at a very early stage in the proceedings (selection at the gate); a specialized supreme court bar was introduced; and lower courts may ask the supreme court to give a preliminary ruling on legal questions.

This article pays hommage to the important work of Goran Skogh, the founding father of the European Association of Law and Economics. It recalls Skogh's work on instrument choice, the transaction cost of insurance and his important contributions to environmental policy. Attention is especially focused on Skogh's contribution to the topic of risk-sharing institutions. The article sketches how Skogh identified the conditions for effective risk-sharing and indicates that risk-sharing can also provide interesting solutions for various (natural) catastrophes.

This paper addresses auditors’ liability in the light of the current competition problems in the market for statutory audits and actions taken by the European Commission. First, it will be explained that there is a lack of competition in the market for audits of large and quoted companies. Middle-tier firms are not willing to enter this market, inter alia, because of high litigation risks and problems in the insurance market. Second, Commission Recommendation 2008/437 will be analysed from an economic perspective. Interestingly, the Commission suggests various options for limiting liability, but leaves the choice between those instruments to Member States. The need to limit auditors’ liability will be addressed in the context of the economic theory of regulation, with a focus on the European context. The central question, therefore, is whether there is a need for the EU to interveneand whether the existing Recommendation is the right instrument.

In order to secure their fishery products market share in the EU, third countries, especially the developing ones, tend to transplant EU requirements into their domestic legal order. In reality, theses transplanted laws do not correspond to measures to reach a level of protection needed by the country of destination. Based upon the case of Benin, this paper intends to show that when these legal transplants are adversely made, they can in some cases have disastrous effects. It can be argued that an unintended result of EU policy was that it contributed to the collapse of the shrimp industry in Benin. The paper moreover argues that despite the stringency of the EU requirements, the implementation of its control policy might inadequately protect European consumers of shrimp.

On 2 June 2016, the Commission published a Communication containing “A European agenda for the collaborative economy”. The Communication intends to provide non-binding legal guidance and policy orientation on the sustainable development of the collaborative economy. It contains a number of helpful suggestions for example as to when an individual offering services via an online platform is to be regarded as an employee. The advice to ensure a high level of consumer protection while not imposing disproportionate burdens on non-professional service providers can be supported in general. However, it is to be investigated whether the application of many rules of consumer law could not be extended to consumers dealing with such service providers. The Commission’s advice to use trustmarks as an instrument of consumer protection is interesting, but its implementation requires further research. While the Commission is generally very supportive of the collaborative economy, its advice to collaborative platforms to take voluntary action to fight illegal content online may entail the risk of the platform losing the benefit of the hosting exemption.

Company insolvencies can lead to potential financial losses for consumers. Insolvency can clearly also create a severe problem for consumers who are disappointed because the travel that they were anticipating cannot take place or has to be interrupted. Insolvency may create a negative image for the entire travel sector as well; as a result, the sector itself has developed a variety of guarantee mechanisms. Moreover, governments in some legal systems have also intervened to guarantee compensation to consumers who are confronted with an insolvent travel company. The mechanisms in this respect are quite divergent. In addition, this phenomenon of providing security in the case of insolvency in the package travel sector has not yet been analysed from an economic perspective. Nevertheless, these mechanisms pose interesting questions from an economic viewpoint, inter alia with respect to the rationale for creating such a mechanism, but also related to the issue of whether either the sector itself or the government should organise a security mechanism. The goal of this paper is therefore to examine mechanisms geared to ensure financial compensation to consumers in instances of insolvencies in the package travel sector. A law and economics approach will be used to critically review these security mechanisms. In this ambit, the different mechanisms opted for in the UK, The Netherlands, and Sweden will be displayed and analysed.