Volume 11, Issue 3

How does tort law deal with historical injustice? This question appears of increasing relevance since the global quest for the reparation of historical injustices influences tort law. This contribution seeks to offer an answer to it by addressing three sub-questions: (1) how may reparation be claimed, that is, what kind of reparation claims are possible and what problems do they encounter?; (2) why should these claims be sustained, that is, how do they fit in the traditional legitimation patterns of tort law?; and (3) when are they most likely to be sustained, that is, what conditions will enhance their chances of success? In this article I draw on examples from the slavery reparation suits in the US, post-colonial redress cases in the Netherlands, and sexual abuse cases against clergymen (amongst others). I conclude that only under specific circumstances can tort law offer a remedy for historical injustice. Amongst the variables of successful claims are the period of time that has lapsed, the nature of the parties, the remedies claimed, the moral legitimation, and political considerations. This list is not closed, however, since many more cases are to be expected.

In European private law, operators of industrial facilities, power plants and other sites using special substances or procedures are made responsible for harm caused by pollution even where it is doubtful that such harmdoing is unreasonable or could have been foreseen. Analysing both fault-based and strict liability, the author discusses legal bases for this liability and its justification in European jurisdictions.

Balancing health and the environment against economic interests – in terms of production but also employment – is a big conundrum for national, European and international courts and politics. It seems a ‘tragic choice’ to deal with. The Ilva case symbolises an environmental disaster that offers an opportunity to delve into several sensitive issues. Part I will address, firstly, the possible methods and limitations of balancing constitutional rights in the Italian legal system, drawing on the flexible and dynamic nature of the hierarchy of legal values. Secondly, it will address the role of effective judicial protection of the right to health and environment, taking into consideration access to justice and effective remedies, as the European Court of Human Rights (ECtHR) pointed out. Part II will focus on the role of civil liability in repairing damage where no effective prevention is feasible. While focusing on the unilateral prevention of accidents and the irrelevance of a regulatory compliance defence, the paper will contend that ‘reflected’ environmental damage should be awarded compensation through a strict rule of liability. Finally, the paper will articulate some policy remarks as to the most effective model to regulate environmental disasters.

Should pure economic loss be compensated in China? If so, to what extent? Both questions are left unsolved in the established literature. We contribute to the existing literature by showing that the Chinese courts have developed a relatively conservative attitude towards the compensation of pure economic loss and that the arguments adopted by the courts to deny recovery are neither fair nor reasonable. Using the law and economics analysis, we have recourse to four complementary solutions. First, pure economic loss cases involving socially relevant losses should be compensated. Second, when social losses are not involved, pure economic loss should also be compensated if the third parties are willing to pay or have paid for protection against such a loss. Third, to relieve the excessive pressure imposed by the compensation for such loss, the concepts of causation and the duty of the victim to mitigate damage need to be further clarified in Chinese laws. Fourth, when determining the amount of compensation for pure economic loss, we should carefully balance the trade-off among a variety of factors, including the extent to which the damage could have been foreseen, the nature of the loss, the blameworthiness of the tortfeasor, the size of the plaintiff class, the public policy toward professional standards, the victim’s private loss, the social loss, the courts’ capacities to calculate the loss, and the third parties’ willingness to pay for protection against the loss.