Thesis (doctoral)--Universität Erlangen-Nürnberg.

Thesis (doctoral)--Philipp-Universität zu Marburg.

Thesis (doctoral)--Universität Marburg.

Thesis (doctoral)--Erasmus Universiteit Rotterdam, 2006. / Includes bibliographical references (leaves 356-367). Also available online (PDF file) by a subscription to the set or by purchasing the individual file.

Thesis (doctoral)--Erasmus Universiteit Rotterdam, 2006. / Includes bibliographical references (leaves 356-367).

No description available.

No description available.

By the end of the twentieth century, and after a long line of conflicting case law, the question about the basis of liability in nuisance was settled: in Scotland, damages are awarded only upon proof of fault (RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17). Fault, in turn, can adopt many forms: malice, intention, recklessness, negligence, and conduct causing a special risk of abnormal damage (Kennedy v Glenbelle Ltd 1995 SC 95). Many aspects of this seemingly clear picture, however, remain problematic. On the one hand, the way in which this model is interpreted and applied gives place to particular forms of liability that can actually be characterised as strict. On the other hand, two other areas of the law of neighbours that overlap with the scope of nuisance do not fit entirely this model, namely the regulation of disputes over uses of water and of those arising from withdrawal of support. The main argument of this thesis is that damages claims in the context of neighbourhood are governed by two distinct rules: a general fault-based liability rule for nuisance, and an exceptional strict liability rule for abnormally dangerous conduct. For the first of these rules, the thesis offers an evaluation of the fault model adopted in Kennedy v Glenbelle Ltd, explaining the interaction between its different elements and highlighting the developments that can result in forms of strict liability. For the second of these rules, the thesis develops an analysis of its elements and nature, as well as a proposal that delineates its scope of application. This two-rule model offers a justification for the current structure of the law applicable to disputes over uses of water. The strict liability rule applicable to interferences with the natural flow of watercourses, traditionally explained as based upon the infringement of property rights, is better explained as danger-based. The regulation of disputes arising from withdrawal of support, however, is not consistent with this model, even though they have also been characterised as nuisances. It is argued that this framework entails unjustified inconsistencies, both internal and by reference to the model proposed, and that it should be adjusted accordingly.

The safe extraction of shale gas resources has become a controversial issue in the energy sector and within energy law and policy circle. These issues have transcended to other areas of the society such as the environment, public health, and geopolitics. In fact, in environmental issue and regulation, it has become a norm in the minds of many that finding a model individual to do the right thing is a onerous task. One solution to this problem currently would be to realise the benefits energy resource extraction presents by devising the right regulatory strategies to improve the compliance level of those operating such risky activity to do the right thing. However, the strategic solutions to achieve the benefits are not that complex when compared with the strategic measures for achieving compliance to set regulatory standards for mitigating risks from energy extraction activity. This thesis argue for a complementary regulatory instrument mix (self-regulation and command & control regulatory strategies) to improve effective compliance for mitigating risks associated with energy extractive and consumption activities. One fundamental problem for this disparity is that the available regulatory strategies and approaches are fraught with diverse limitations that makes it unable to accommodate the dynamic of energy resource extraction. Also, industry and regulators of such activity's dependence on regulatory approaches has been centred on command and control regulation that inhibits the incentive for the operator to go beyond the set standards. Hence, the urgency to devise an effective framework to balance costs that comes with the quest to relaise the benefits from resource extraction activities and the need for the preservation of the environment and health. Though achieving full compliance is far-fetched but optimal compliance is achievable within the context of collective participation amongst all industry players. One pragmatic means of achieving these conflicting interests within the global energy sector is through alternatives or a combination of regulatory instrument mixes (self-regulation and command and control regulation). This thesis intends that these alternatives should serve as complements to the command and control regulation and not to replace them. Such alternatives to regulation which this thesis argue and formulate that can help mitigate especially water contamination risk which has an increased frequency of occurrence is what it calls: 'the risk/segment based strict liability rule.' In addition, 'self-regulation' as a complement to command and control environmental regulation. While self-regulation helps to address the problem of information asymmetry that regulation grapple with, the risk based strict liability rule helps to address risks that have a highly probable or increased frequency level of occurrence. By risk based strict liability rule being proposed in this thesis, it means a risk from an activity can be subject to a strict liability cause of action without necessarily subjecting the entire activity to stricter environmental laws. This is based on the legal rationale that where particular risks' has an increased frequency level of occurrence or the impacts could lead to transgenerational harm, it should be classified as abnormal. Therefore, should be subject to strict liability cause of action. Thus, the philosophy behind this thesis is to see how regulation can deal with particular risks under strict liability when they have an increased frequency to occur and not necessarily the entire activity. Thus, the significance of this thesis is that it resonates the ability of self-regulation and liability systems to direct the costs of the harms to those who create them. More so, these innovative policy options embedded in the properties of self-regulation and liability system will force operators to incur additional costs needed to forestall or control their actions that might result in externalities beyond the socially optimal level. Thus, environmental governance through self-regulatory and risk/segment liability rule systems as alternatives to command and control regulation will erode that complacency on the part of the creators of such possible negative impacts to act sustain-ably. These alternatives to command and control regulation are cogent in mitigating risks associated with shale gas as an energy source on two grounds. Based on the above problems, this thesis shall examine the critical question of whether stricter environmental liability and regulatory approaches is required to achieve a sustainable shale gas extraction. Also, what other features should be included in these environmental protectionist tools to achieve effectiveness in managing water contamination and dispersed risks associated with fracking activity. This thesis, argue for a stricter liability and regulatory approach as a complement to the limitations of command and control regulation with some added features to address dispersed harms associated with energy extraction activity especially the risk of water contamination.

Civilinės atsakomybės taikymas yra labai jautri sritis, todėl svarbu užtikrinti jos taikymo vienodumą bei nukentėjusiojo asmens bei už žalą atsakančio asmens interesų balansą. Viena iš civilinės atsakomybės instituto dalių – atsakomybė be kaltės. Atsakomybės be kaltės („griežtosios atsakomybės”) normų egzistavimas visuomet kėlė nemažai diskusijų, nes atsakomybės taikymas nekaltam asmeniui gana prieštaringas ir sunkiai moraliai pateisinamas. Todėl pirmojoje darbo dalyje pateikiama griežtosios atsakomybės samprata bei pagrindimas. Toliau darbe nagrinėjama atsakomybės už žalą, atsiradusią dėl didesnio pavojaus šaltinio valdymo, įtvirtintos Lietuvos Respublikos civilinio kodekso 6.270 str., kategorija. Atsakomybė pagal šį straipsnį taikoma be kaltės, todėl svarbu preciziškai apibrėžti jos taikymo ribas bei nustatyti taikymo specifiką. Pirmiausia darbe yra apžvelgiami didesnio pavojaus šaltinių rato nustatymo principai. Ši dalis svarbi, nes nuo minėtų principų priklauso griežtosios atsakomybės ribos. Pasirinkus didesnio pavojaus šaltinių ratą apibrėžti įstatymuose, atsakomybės be kaltės taikymas tampa aiškus, tačiau įstatymų leidėjui atsiranda rizika pamiršti tam tikrus pavojingus objektus. Kita vertus, paliekant didesnio pavojaus šaltinio plėtojimą teismų praktikai, rizikuojama susidurti su neprognozuojamu atsakomybės be kaltės taikymu. Toliau darbe aptariamos su valdytojo sąvoka susijusios problemos, civilinės atsakomybės sąlygos bei atleidimo nuo atsakomybės pagrindai... [toliau žr. visą tekstą] / Since application of civil liability is a very sensitive area it is important to ensure the consensus of its application and the balance of interests of the aggrieved party and the person who is liable for damage. Liability without fault is a part of civil liability institute. The existence of liability without fault (strict liability) norms has always been negotiable since the application of civil liability on an innocent person is quite controversial and hard to justify morally. Therefore, the conception and the grounding of strict liability is introduced in the first part of the paper. Later in the paper the category of liability arising from a possession of a potentially hazardous object, which is provided in Article 6.270 of Civil code of the Republic of Lithuania, is being analysed. Since liability according to this Article is applied without fault it is very important to define the boundaries and particularity of its application. First of all, the principles of the definition of the unit of potentially hazardous objects are reviewed. This part is quite important since the boundaries of strict liability depend on the above mentioned principles. In case of the determination of potentially hazardous objects in legal acts the application of this kind of liability becomes clear. On the other hand, the legislator faces the risk to simply forget particular dangerous objects. When the development of the conception of potentially hazardous object is left for the case-law the... [to full text]