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This chapter compares the concepts of State responsibility under international law and State liability for economic harm suffered by private persons. It contains a comparison of the rules on State liability in France, the United Kingdom, Germany, the United States, Spain, Italy, Switzerland, and Austria. In addition, the practice of the European Court of Justice concerning non-contractual liability of the European Union and of the European Court of Human Rights is discussed. The rules on State liability generally try to balance the interests of the individuals harmed with the rights and duties of the States. The interests of the general public taken into consideration include the protection of public funds, the so-called ‘floodgate-concern’, as well as considerations of the distribution of powers within a State and the efficient conduct of governmental duties. This often produces a more limited result than ‘full reparation’ of the harm suffered.

International investment law creates an international level of review for (illegal) national regulations and laws and the conduct of administrative entities for foreign investors. It is state liability law for foreign investors. Whereas in national law, a right holder needs to take all (usual administrative and judicial) steps to have the illegality of an act reviewed (primary remedies), in investment law, the investor often has immediate access to courts without the exhaustion of local remedies and may immediately claim damages (secondary remedies). This difference justifies a functional comparison of national state liability regimes with international investment law. What are the rationales discussed for the different remedies found in national state liability law and in investment law? And do they have a rational justification in general and depending on the case in specific circumstances?

The chapter elaborates on the decision of the European court regarding the Francovich case in order to clearly discuss the case law that defines the state liability rules of member states under the EU law. The chapter also discusses the liabilities of private parties in case that they fail to comply with EC rules and there are provisions that are left in the consideration of the national law. An analysis of the relationship between derivatives and state liability rules is also included. The judicial power of the Court of Justice has caused confusion as to whether the European court or the local courts have the jurisprudence to settle cases regarding liabilities and damages.

This chapter argues that the emergence of the system of investment treaty arbitration, when viewed against the canvass of international law, marks a major transformation in international adjudication. This is because investment treaties uniquely combine various innovative features of international adjudication to formulate a singularly far-reaching and potent system that uses arbitration to review and control states. The elements of investment treaty arbitration, and thus of the wider adjudicative power granted to arbitrators, are examined. It is argued that they establish investment treaty tribunals as the closest the world has come to an international court that has comprehensive jurisdiction over individual claims in the regulatory sphere.

This chapter assesses the extent to which the common law system differs from a codified system in the application of the Francovich principle and the extent to which this results in divergence. A comparison of the English and German law of state liability suggests that it is easier to achieve an integration of the Francovich remedy in English courts than it is in German courts. In a more pragmatic case-by-case approach, English courts have successfully embedded the Francovich remedy into English law. The German position, on the other hand, is marked by a more reluctant attitude. Case examples have shown that the German Federal High Court (BGH, Bundesgerichtshof) does not favour a Europeanized version of the codified tort liability, possibly leaving this to the legislature.

This chapter examines how investment treaty arbitrators have exercised their power. Four broad approaches emerge from the jurisprudence to date. Two of them emphasize a reciprocal legal framework in their conceptualization of investment treaty arbitration: the first by treating it as a form of commercial arbitration; the second as public international law. In contrast, the third and fourth approaches to the subject recognize the regulatory character of the underlying relationship between investors and state. The first does so by comparing investor protection to the protection of human rights; the second by applying a more prudential public law framework which moderates state liability in order to preserve governmental discretion. Each of these approaches is examined, informed by the view that the appropriate approach is to accept the regulatory context for investment disputes, and thus the relevance of public law, within the boundaries set by the inter-state bargain of an investment treaty.

State liability for torts has been bedevilled by the mistaken view that the applicable principles differ when compared to those found in relation to private defendants. The unfortunate importation of public law concepts has led to uncertainty. The ‘red herrings’ which have distorted this area are: the policy/operational divide, intra vires, ultra vires, general reliance, policy arguments, and the view that the duty of care can be abandoned in this context. Further, the relationship between private law and the Human Rights Act 1998 has been misunderstood. The impact of the Act is, in many ways, to make the European Convention on Human Rights and Fundamental Freedoms less important. There is one true public law wrong, misfeasance in a public office, of recent origin and limited scope.

A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.

Even though there is an equality of treatment regarding member state and community liability for damages as provided by the article, individuals are frustrated with the article's inability to provide them with rewards for damages. Several studies conducted have revealed that several provisions of the article do not provide individuals with rewards for damages. The chapter begins by clarifying the interpretation of the European Court regarding the time-limit for bringing up proceedings under the contested article. An assessment of the ‘exhaustion of local remedies’ rule is also included in the chapter. The chapter ends with an analysis as to whether liability in damages is synonymous with unlawful conduct in the context of member states and EU agencies.

This chapter deals with corrective justice, currently the most fashionable justification of tort law. Weinrib explains the corrective justice theory as the pattern of justificatory coherence latent in the bipolar private law relationship of the plaintiff to the defendant. The second section explores compensation as a way towards tort tax. The third section looks at culpability and deterrence in the theory of liability. The fourth section examines various responses on Dicey's doctrine of equality through personal liability.

This chapter reviews the differences in the systems of substantive English and French governmental law in liability in terms of the approach, philosophy, and procedural factors, and similarities in the division between personal and state liability, concepts, approach, system of reparation, outcomes, and reasonable limitations of liability that make the two jurisdictions less divergent than they may at first seem. They also have parallels in the evolution of liability and the gradual liberalising of the substantive law. French law might learn from English law, as English law might learn from French law, to cope with the limitations of each system and to provide reference for progress and significant improvement.

This chapter aims to clarify the attitude of the French and English courts toward state liability in tort with a comparative survey of prevailing tests of causation in each jurisdiction. The English courts adopted an approach of causal inquiry into the tort of negligence divided into a two-stage analysis — preliminary filter of factual causation using the causa sine qua non theory (but-for test) and the question of legal cause based on reasonable forseeability. On the other hand, the French courts asserted a unitary conception of causation — a nuanced approach which relies on various causal theories to address the problems of assessing liability. However, with both approaches, there is a concern for multiple causes such as third parties, contributory fault of the injured party, and independent natural events, as well as the matter of unlawful administrative acts.

This chapter explores whether and to what extent a measure adopted by the State in the furtherance of international obligations other than those provided for in the investment treaty bears any consequences not only in the appreciation of state liability, but also in the determination of the quantum of compensation and in the choice of the method of valuation. The review of ICSID jurisprudence shows considerable shifts in the appreciation of this issue. The chapter consider several cases: Compañia del Desarollo de Santa Elena SA v. Republic of Costa Rica; Siemens v. Argentina; and SPP v. Egypt. The SPP v. Egypt case sets a useful precedent in that it clearly shows how international obligations arising under different areas of international law can be specifically relevant not only in the appreciation of the legal nature of the taking but also in the choice of the method of valuation affecting the quantum of compensation.

This book examines the conditions of French and English laws and their respective government system in dealing with the question of state liability. It is a complex matter that debates the function, methodology, and role of a comparative approach; but through this approach, the book aims to uncover the underlying principles and administrative ability, historical background, policies, and non-judicial procedures, and provide a critique of and possible changes in the English law. The examination of state liability is confined to the sphere of tort and delict, focusing on the rules of state liability and not on the introduction of administration of each country. The challenge of the research comparison is to analyse the liability of the state in French and English law based upon differences in their conceptualization of the state.

This book deals with the legal problems of state liability and the approach to it in the common law world. This chapter signals a significant shift from aggregative to distributive values, the former emphasizing collective responsibilities and group entitlements to public goods, the latter reflecting the personalized consumer values of the modern welfare state. The lectures in this book argue for a formal agreement in which legislators, judges, policy-makers, and academics come together to fashion a new and less aggressive system of state responsibility, founded on values of community and social solidarity.

Chapter 8 scrutinizes some of the general principles and other foundational legal concepts which exist in or may be derived from the RTC and RTB, including: conferral (attributed competence), direct applicability, direct effect, indirect effect, supremacy, pre-emption, state liability, non-discrimination, most favoured nation treatment, cooperation, consultation, human rights, the need for reasons, and proportionality. It examines the role of direct effect in shaping EU law and suggests a similar potential in both CARICOM and the OECS if the general principle is fully implemented in those legal systems. It examines the more limited scope for indirect effect in the Caribbean, especially in light of the rules related to unincorporated treaties in common law legal systems. It highlights the key potentials of the general principles of state liability, human rights, and proportionality to Caribbean regional integration.

This chapter argues that the federal government should be concerned about state pension liabilities. In the absence of fundamental reform, some large state pension funds may not last through the decade. When the funds run through their assets, the size of promised benefit payments will be so large that raising state taxes enough to make these pension payments will be infeasible. The federal government will therefore face massive and likely irresistible pressure to bail out the affected state governments. The chapter proposes reforming states in pension trouble by closing defined benefit pension plans to new workers, an arrangement called a “soft freeze.” Current employees would continue to earn traditional pension benefits under the existing programs, but retirement benefits for future workers would come under a new defined contribution plan. Once a state or municipal government has stopped unfunded pension liabilities from growing, it becomes more feasible, and less costly, for the state to issue debt to improve its liquidity situation.