Revisiting privatization, foreign investment, international arbitration, and water

Includes bibliography

Direitos e garantias fundamentais no direito societário

Pós-graduação em Direito - FCHS

Quantifying the Economics of Medical Malpractice - A View from a Civil Law Perspective

Life is full of uncertainties. Legal rules should have a clear intention, motivation and purpose in order to diminish daily uncertainties. However, practice shows that their consequences are complex and hard to predict. For instance, tort law has the general objectives of deterring future negligent behavior and compensating the victims of someone else's negligence. Achieving these goals are particularly difficult in medical malpractice cases. To start with, when patients search for medical care they are typically sick in the first place. In case harm materializes during the treatment, it might be very hard to assess if it was due to substandard medical care or to the patient's poor health conditions. Moreover, the practice of medicine has a positive externality on the society, meaning that the design of legal rules is crucial: for instance, it should not result in physicians avoiding practicing their activity just because they are afraid of being sued even when they acted according to the standard level of care. The empirical literature on medical malpractice has been developing substantially in the past two decades, with the American case being the most studied one. Evidence from civil law tradition countries is more difficult to find. The aim of this thesis is to contribute to the empirical literature on medical malpractice, using two civil law countries as a case-study: Spain and Italy. The goal of this thesis is to investigate, in the first place, some of the consequences of having two separate sub-systems (administrative and civil) coexisting within the same legal system, which is common in civil law tradition countries with a public national health system (such as Spain, France and Portugal). When this holds, different procedures might apply depending on the type of hospital where the injury took place (essentially whether it is a public hospital or a private hospital). Therefore, a patient injured in a public hospital should file a claim in administrative courts while a patient suffering an identical medical accident should file a claim in civil courts. A natural question that the reader might pose is why should both administrative and civil courts decide medical malpractice cases? Moreover, can this specialization of courts influence how judges decide medical malpractice cases? In the past few years, there was a general concern with patient safety, which is currently on the agenda of several national governments. Some initiatives have been taken at the international level, with the aim of preventing harm to patients during treatment and care. A negligently injured patient might present a claim against the health care provider with the aim of being compensated for the economic loss and for pain and suffering. In several European countries, health care is mainly provided by a public national health system, which means that if a patient harmed in a public hospital succeeds in a claim against the hospital, public expenditures increase because the State takes part in the litigation process. This poses a problem in a context of increasing national health expenditures and public debt. In Italy, with the aim of increasing patient safety, some regions implemented a monitoring system on medical malpractice claims. However, if properly implemented, this reform shall also allow for a reduction in medical malpractice insurance costs. This thesis is organized as follows. Chapter 1 provides a review of the empirical literature on medical malpractice, where studies on outcomes and merit of claims, costs and defensive medicine are presented. Chapter 2 presents an empirical analysis of medical malpractice claims arriving to the Spanish Supreme Court. The focus is on reversal rates for civil and administrative decisions. Administrative decisions appealed by the plaintiff have the highest reversal rates. The results show a bias in lower administrative courts, which tend to focus on the State side. We provide a detailed explanation for these results, which can rely on the organization of administrative judges career. Chapter 3 assesses predictors of compensation in medical malpractice cases appealed to the Spanish Supreme Court and investigates the amount of damages attributed to patients. The results show horizontal equity between administrative and civil decisions (controlling for observable case characteristics) and vertical inequity (patients suffering more severe injuries tend to receive higher payouts). In order to execute these analyses, a database of medical malpractice decisions appealed to the Administrative and Civil Chambers of the Spanish Supreme Court from 2006 until 2009 (designated by the Spanish Supreme Court Medical Malpractice Dataset (SSCMMD)) has been created. A description of how the SSCMMD was built and of the Spanish legal system is presented as well. Chapter 4 includes an empirical investigation of the effect of a monitoring system for medical malpractice claims on insurance premiums. In Italy, some regions adopted this policy in different years, while others did not. The study uses data on insurance premiums from Italian public hospitals for the years 2001-2008. This is a significant difference as most of the studies use the insurance company as unit of analysis. Although insurance premiums have risen from 2001 to 2008, the increase was lower for regions adopting a monitoring system for medical claims. Possible implications of this system are also provided. Finally, Chapter 5 discusses the main findings, describes possible future research and concludes.

Legality and Human Rights: Administrative Justice in Russia 1862-1917

The question of how far pre-revolutionary Russia was from the ideal of a lawful state has received little academic attention, particularly as relates to the legal regulation of relations between person, society and state within the state administration. Pravilova explored the methods of settling disputes between individuals and the administration, and the emergence of legal controls of the administration, analysed projects for the organisation of administrative justice and studied the particular nature of concepts from Russian administrative justice. The idea of an organisation of special bodies examining complaints by private persons against the actions of officials and state bureaucratic organs first appeared in the early 1860s. In the 1870s-1890s various projects for the reform of administrative justice (reorganisation of the Senate and local administrative institutions) were proposed by the Ministries of Justice and Finance, but none of these was put into practice, largely due to resistance from the bureaucracy. At the same time, however, the rapid development of private enterprise, the activities of the zemstvo and self-government produced new norms and mechanisms for the regulation of authorities and social relations. Despite the lack of institutional conditions, the Senate did consider complaints from private persons against illegal actions by administrative officials, playing a role similar to that of the supreme administrative courts in France and Germany. The spread of concepts of a 'lawful state' aroused support for a system of administrative justice and the establishment of administrative tribunals was seen as a condition of legality and a guarantee of human rights. The government was forced to understand that measures to maintain legality were vital to preserve the stability of the system of state power, but plans for liberal reforms were pushed into the background by constitutional reforms. The idea of guarantees of human rights in relations with the authorities was in contradiction with the idea of the monarchy and it was only when the Provisional Government took power in 1917 that the liberal programme of legal reforms had any chance of being put into practice. A law passed in June 1917 ordained the organisation of local administrative justice bodies, but its implementation was hampered by the war, the shortage of qualified judges and the existing absolute legal illiteracy, and the few administrative courts that were set up were soon abolished by the new Soviet authorities. Pravilova concluded that the establishment of a lawful state in pre-revolutionary Russia was prevented by a number of factors, particularly the autocratic nature of the supreme authority, which was incompatible with the idea of administrative justice as a guarantee of the rights of citizens in their relations with the state.

Kontent i Pravo v. Masterhost Presidium of the Supreme Arbitration Court of the Russian Federation, Judgment of 23 December 2008, Nr. 10962/08 Translation and Comment

This Judgment by the Presidium of the Supreme Arbitration Court of the Russian Federation can be considered as a landmark ruling for Internet Service Provider’s (ISP) liability. The Court stipulates for the first time concise principles under which circumstances an ISP shall be exempt from liability for transmitting copyright infringing content. But due to the legislation on ISP liability in the Russian Federation it depends on the type of information which rules of liability apply to ISP. As far as a violation of intellectual property rights is claimed, the principles given now by the Supreme Arbitration Court are applicable, which basically follow the liability limitations of the so called EU E-Commerce Directive. But, furthermore, preventive measures that are provided in service provider contracts to suppress a violation through the use of services should be taken into account as well. On the other hand, as far as other information is concerned the limitations of the respective Information Law might be applicable which stipulates different liability requirements. This article gives a translation of the Supreme Arbitration Court’s decision as well as a comment on its key rulings with respect to the legal framework and on possible consequences for practice.

The role of the state in investor-state arbitration

The Role of the State in Investor-State Arbitration is a collection of contributions from lawyers, arbitrators and political scientists on the development of the concept of the “State” in a field that currently presents an increasing number of controversial disputes: Investor-State Arbitration. The book analyzes the limits of the host State as a regulator, studying issues such as attribution and the role of State-Owned Enterprises and sub-State entities; the changing role of the home State in Investor-State disputes, including its direct participation in Investor-State arbitration and State to State dispute settlement; and the overall role that both home and host States can play in the improvement of Investor-State Dispute Settlement.

London, England : Poor Law unions, 1884 (Raster Image)

This layer is a georeferenced raster image of the historic paper map entitled: Map of London and its environs : shewing the boundary of the jurisdiction of the metropolitan board of work, also the boundaries of the city of London, and of the Poor Law unions. It was published by Edward Standford, April 21, 1884. Scale [ca. 1:31,680]. This map is part of a 5 map set showing various thematic districts and boundaries of the London region. The image inside the map neatline is georeferenced to the surface of the earth and fit to the British National Grid coordinate system (British National Grid, Airy Spheroid OSGB (1936) Datum). All map collar and inset information is also available as part of the raster image, including any inset maps, profiles, statistical tables, directories, text, illustrations, index maps, legends, or other information associated with the principal map. This map shows features such as roads, railroads, drainage, selected private and public buildings, towns and villages, cemeteries, parks, farms, Poor Law unions, and more. Relief is shown by hachures. This layer is part of a selection of digitally scanned and georeferenced historic maps from The Harvard Map Collection as part of the Imaging the Urban Environment project. Maps selected for this project represent major urban areas and cities of the world, at various time periods. These maps typically portray both natural and manmade features at a large scale. The selection represents a range of regions, originators, ground condition dates, scales, and purposes.

Access to environmental information in an Open European Society - Directive 2003/4. Research Paper in Law 5/2003

[From the Introduction]. Information gives knowledge and knowledge gives power. Though in all EC Member States, the task to protect the environment is given to the administration, it is obvious that the administration is not the owner of the environment. The environment is everybody's. It is for this reason that administrative decisions which affect the environment must be transparent, open and must strike a balance between the general interest to preserve, protect and improve the quality of the environment on the one hand, the satisfying of specific private or public interests on the other hand. In order to allow at least a certain control of whether the administration strikes the right balance between the need to protect the environment and other legitimate or less legitimate needs, it appears normal and self-evident that information on the environment which is in the hands of public authorities, be also made available to the public and to citizens.

The Europeanisation of Criminal Law and the Criminal Law Dimension of European Integration. Research Papers in Law, 3/2005

From the Introduction. In the academic year 1991-1992, Utrecht University, on my initiative, started to offer courses in European criminal law. This initiative came at a symbolic moment, just prior to the entry into force of the EU Treaty of Maastricht1 and the outlining of European policy in the areas of Justice and Home Affairs (JHA). The Director of the Legal Department, Paul DEMARET, was aware of the significance of this development and I have been given the opportunity to teach this subject at the College of Europe since 1995. Since then, JHA has evolved into one of the main areas of EU legislation. Now we are again on the threshold of an important historical feat. In June 2003, the European Convention reached agreement concerning a draft Treaty establishing a Constitution for Europe.2 The use of the term “Constitution” for the future EU Treaty is not simply cosmetic. The realisation has dawned that EU integration must be embedded in a treaty document which also regulates the rights and duties of citizens, not just with respect to European citizenship, but also with respect to, for example, Justice. Where JHA is concerned, this result acknowledges that the harmonisation of criminal law and criminal procedure and transnational cooperation cannot preclude the harmonisation of principles of due law and fair trial. Despite the substantial Europeanisation of criminal law, many criminal lawyers are defending the achievements and typicalities of their national criminal law like never before. EU initiatives are assessed from the perspective of the national agenda and national achievements. We are still too far removed from a European criminal law policy that is both European and enjoys national support. The core issue is therefore not how to keep our criminal (procedural) law national and free from European influences, but rather how to ensure democratic decision making, the quality of the constitutional state and the guarantees of criminal law in a national administrative model which has to operate increasingly interactively within a European and international context. In this contribution, the contours of the Europeanisation of criminal law are outlined and analysed. First, attention will be paid to the EC and, second, to the JHA. Following this, an evaluation and a look ahead at the current IGC are indicated.