p.5 |
Ten Geleide STORME, M.E. |
7 |
In memoriam Marcel Storme vanuit Nederland MAEIJER, J. |
10 |
In memoriam Marcel Storme BOCKEN, H. |
23 |
De jongste herzieningen van het Nederlandse relatievermogensrecht De Redactie Privaat ANTOKOLSKAIA, M. |
39 |
Socio-juridische studies: de derde weg De Redactie Privaat SWENNEN, F. |
55 |
De grote oorlog en het Nederlandse overeenkomstenrecht – 'neutraliteit', 'weerstand' en 'responsiviteit' VAN BOOM, W.The great war and the dutch law of contracts - neutrality, resistance and responsiveness
In order to avoid being trapped between the Central Powers and the allied armies, the Kingdom of The Netherlands adhered strictly to its neutral stance during World War 1. Although this enabled this country to exempt itself from the battlefield, the War definitely left its mark on its social and economic relations. This paper essentially deals with the direct and indirect impact produced by the Great War on the Dutch law of contracts.
The first direct consequence was felt almost immediately following the events of 28 July 1914. The legal framework for these direct consequences, such as the crip- pling of trade, financial transactions and food supplies, proved to be unequal to the situation. The result took the form of rapid interventions in the free market on the part of the authorities, which meant suspending stockmarket activity and extensive regulation of banking and currency activity.
Another aspect of the Great War which had important implications for the law of contracts concerned a public limited liability company called NV Nederlandse Overzee Trustmaatschappij (NOT). In September 1914, a major network of con- tractual obligations was set up which was nurtured by NOT. The latter developed a network of contracts aimed at underpinning the Dutch Government’s neutrality in its trading policy. Allowing a private corporation to take the lead in regulating import and export trading activity gave rise to some astute arrangements between the English Admiralty and the German Empire – given that the economy of the Netherlands was dependent on both. The system of “consents” which NOT ap- plied to imports and exports was a trading system which was based entirely on self-regulation, and therefore on the law of contracts and which was capable of distinguishing between qualified smuggling and the free exchange of goods. Later during the War the part played by the law of contracts became redundant, and the business of importing and exporting became increasingly problematic.
Another element which played a part in this matter was the question of “force majeure”. Because of the rapidly rising prices of goods and of their conveyance, the notion of “force majeure” in the law of contracts came under increasing pres- sure. Since the introduction of the Civil Code in 1838, no international conflict as disruptive as WW1 proved to be had arisen. So to a certain extent World War 1 served as a “stress test” for the continuity of the essential principles of the law of contracts, such as force majeure and frustration. It would appear that, during the early stages of the War, no attempt was made at finding an accommodation with pressured debtors – pleas of force majeure were seldom acknowledged. Nor did the legal authors of that time display much sympathy towards debtors who were faced with increasing cost prices. The narrative that prevailed was that they resorted to force majeure in order to be released from their obligations and subsequently to conclude agreements on much more favourable terms. Their pleas were met with little sympathy. However, as the War continued to rage, some changes were made. It is true that debtors who entered into obligations in the full knowledge that they were doing so in wartime conditions were frequently held to risk acceptance. Nev-ertheless, some lower courts were prepared to issue rulings which were prepared to make concessions to unexpected circumstances. These cautious developments encouraged two lines of argument, i.e. (1) the debate as to whether force majeure accommodated both objective and subjective impossibility (i.e both impossibilitas and difficultas), and (2) whether unforeseen circumstances could give rise to re- scission or adjustment of the contract in question. During, and immediately after, the Great War neither of these lines of argument were settled by the courts, but did feature in the legal literature at that time. The Netherlands Supreme Court (Hoge Raad) remained quite reticent on this issue – in 1926 it ruled that a display of bona fides was unable to detract from a contractual obligation once undertaken, even in the light of the fundamental change in values which followed the War. In 1931, the Supreme Court continued this strict approach with the “Mark is Mark” decision, in which it held that, in relation to debts expressed in money, the nominality principle could not be set aside, not even in times of hyper-inflation. However, a number of legal authors took issue with this approach, and the lower courts frequently ploughed their own furrow. With the benefit of hindsight, it is possible to regard World War 1 as one of the factors which explain the eventual introduction of the “unforeseen circumstances” doctrine, and the subsequent advance made by the bona fides principle. At the same time, the decisions made by the Supreme Court at the time could to a certain extent be regarded as an expression of The Netherlands’ policy of neutrality.
An analysis of the events and developments of the day indicates that such dogmas as the freedom to contract and the free market died once and for all during the Great War, even in a neutral country such as The Netherlands. It is certainly the case that, in the longer term, when it looked as if the War was going to rage for much longer than many had expected, the compulsory distribution of goods and services, and the extensive intervention in contracts and market regulation to which it gave rise became a matter of necessity. Accordingly, World War 1 can justly be regarded as the definitive end of the laissez-faire principle in the law of contracts.
Close Summary |
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“Justice ou liberté?” De impact van de Eerste Wereldoorlog op het Belgische privaatrecht VANDENBOGAERDE, S."Justice ou liberté?” The influence of the first world war on Belgian Private law
In 1921, the Brussels lawyer Georges Marcotty wrote: “Fatalement, la guerre engendre de multiples conflits dans tous les domaines du droit, procès en matière de successions, procès en matière d’absence, d’état civil, d’assurances, de marchés de fourniture, d’exécution de contrats de tous genres” (Inevitably, war will bring about many developments in all areas of the law – especially in the procedural rules affecting succession, proceedings in absentia, the civil registration authority, insurance, public procurement, and the performance of all types of contract). The First World War had a distinct effect on the Belgian private law, which had experienced but few radical changes since the country’s independence in 1830.
In the field of legal history, the commemoration of World War I has revived interest in the question of Belgium’s neutrality, and recent years have witnessed the publi- cation of detailed studies on the penalisation of Flemish “activism” (i.e. ideological connivance with the German occupier), martial courts, and other related issues of criminal law. Unlike the situation in Belgium’s neighbours, the private law implications of World War I received but minimal attention in this country. This general overview seeks to provide any researchers in this area with some possible avenues to explore in this field, and to provide them with a starting point.
The main theme of this contribution concerns the various measures taken by both the Belgian authorities and the occupying forces, and their implications for our private law, both during and after the War. To put it briefly – how did World War I affect the Belgian private law?
In 1920, the Journal des Tribunaux shed some light on this subject in an anon- ymous contribution entitled “Justice ou Liberté?”. In so doing, the author was making a fervent case for tenancy laws which were more “equitable” – i.e. fairer in social terms. Did this notion of social fairness express itself in other proposals in the Belgian private law? For an answer to this question, the author refers to the legislation which can be found in the laws as published in their official organs (i.e., for Belgium, the Belgisch Staatsblad, for the German occupiers, the Verordnungs- blätter). These sources are supplemented by information derived from the parlia- mentary proceedings and the legal literature of the day. This contribution taking the form of an overview, the legislation in question has not been assessed against its application. However, the author firmly concludes that World War I released the private law from the freedom principle and broke, once and for all, with the notion of the “watchman state”.
Following an overview of the legal patchwork that Belgian law undoubtedly was during the Occupation – given that three legal systems governed Belgian territo- ry at that time – this contribution focuses on the organisational and procedural changes brought about by the Occupation. Both the German and the Belgian au- thorities issued rules which were aimed at enabling the law to take its course as far as possible. The author deals successively with the laws governing damages, the general law of contracts, the law of landlord and tenant, family law, property law and – albeit briefly – company law. Each section specifies the subject areas which could give rise to a new and in-depth inquiry capable of further investigation.
World War I was much less a watershed than a turning point in the Belgian pri- vate law. Such changes as were implemented were implemented following this world conflict, such as the rule allowing single-judge proceedings, had already featured on the political agenda for some considerable time. Moreover, the public intervention which has occurred since the start of the 20th century ruptured the strict summa divisio between the public and the private law. The law increasingly protected both the general interest and the mutual interest of its citizens. Freedom gave way to solidarity, and the “nightwatchman state” which prevailed during the 19th century disappeared with the Armistice. Close Summary |
147 |
Bescheiden toezichter of bemiddelaar? De plaats van de rechter in reorganisatie en faillissement vanuit rechtshistorisch perspectief DE RUYSSCHER, D.Quiet watchman or mediator? The role of the courts in business restructuring
and bankruptcy from a historical perspective
It is possible to assess the Belgian law on court-ordered restructuring, as laid down in the 2009 Law on Business Continuity and in Part XX of the Business Law Code (Wet Continuiteit Ondernemingen – WCO), from a historical viewpoint. Many of the relevant rules continue to be conditioned by the historical link with bankruptcy and suspension of payments, as a favour bestowed on the unfortunate debtor. That much is clear from the limited involvement of the creditors in the procedure for court-ordered restructuring.
In the course of the 19th century, provision was made for short-term postponements of payments. Initially, this was a favour conferred by the public authorities – over which the creditors had no control. The rationale behind it was that the suspension of payments was largely a monolithic concept, which meant that there was no need for any debate on the substance of this measure. Another factor was the narrow, business-oriented interpretation of this concept. As from 1851, suspension of payments (sursis de paiement) became dependent on approval by the majority of creditors representing 75 per cent of the total volume of debts owing. Thus, the suspension of payments became more closely associated with bankruptcy. However, even after business restructuring not associated with bankruptcy was made possible in 1883 – in the shape of composition (concordat préventif) – the right to initiate and determine the contents of the agreement reached remained with the debtor. Admittedly, the creditors had the right to consult each other on the proposed agreement, and provision was made for some mediation by the delegated judge. However, these measures, which represented a recognition, to a certain degree, of the unique nature of the restructuring procedure, disappeared in 1946. In 1997, they were partially reintegrated in the Law on Composition (Wet Gerechtelijk Akkoord – WGA); however, the 2009 Business Law Code opted for a strict “open portal” approach and repealed them once again. Here, a distrustful attitude towards any creditor-led procedure combined with the lingering implicit notion, referred to above, of the need for temporary protection for the debtor - however undifferentiated this may be. Since then, the debtor has enjoyed a virtually exclusive right to initiate and determine the terms of the restructuring programme, which can merely be approved or rejected. All this is inconsistent with the intrinsic nature of the law relating to restructuring, which is based on the principle of co-operation as well as an assumption of a thorough assessment of the interests of all the parties involved, with a view to enabling the business that finds itself in difficulties to survive.
In addition, the limited degree to which the restructuring plans are subject to assessment is a consequence of the notion, mentioned above, of a restructuring programme subject to little differentiation and of a narrow, business-oriented approach. There is also the historical link with the rules on bankruptcy, over which the commercial courts had little control. On this issue, the Belgian law relating to business restructuring as it applied during the 19th, 20th and 21st century was very much based on the bankruptcy law model. Admittedly the 1997 WGA made provision for a business-oriented analysis, by the courts, of the relevant application and restructuring plan. This measure was, again, excluded from the WCO. Even though the laws regarding restructuring are currently regarded as the exception, rather than the rules, to the ordinary rules on this subject in the applicable private and procedural law, this is the reason for the subsistence of the statutory restrictions which are a historical legacy of the law on bankruptcies. However, some business-oriented oversight of the contents of restructuring plans remains necessary in order to meet the objectives of the rules governing the restructuring procedure, which is to enable the revival of the business in question. Close Summary |
219 |
De overmachts- en de imprevisieleer: één gespleten persoonlijkheid? DE POTTER DE TEN BROECK, M.Force majeure and hardship - a case of split personality?
Having concluded an agreement, a contracting party may, as a result of a change in circumstances, experience difficulties in performing his contractual obligation. Such changes in circumstances could take the form of a financial and economic crisis, a fierce storm, or a ban on exports. Force majeure and hardship (which, for the purpose of the contribution, includes the English doctrine of frustration of purpose) are the two doctrines which come to the fore where difficulties of this nature arise which are beyond that party’s control. Both these doctrines are used in order to remedy a situation whereby the party owing the obligation experiences difficulties in performing it because circumstances changed after he had concluded the agreement. However, the Belgian substantive law only allows such a party to plead force majeure. In principle, hardship has no place in the Belgian substantive law.
Force majeure and hardship have many common requirements. In each case, it is necessary for an extraordinary change of circumstances to have occurred after the conclusion of a contract, on the understanding that this change was not attributable to the party owing. The change in circumstances will not be attributable to the party owing if the latter was unable to foresee the change at the moment of concluding the agreement or to avoid the change. In addition, it is required that the party owing had not agreed to assume the risk of the change in circumstances.
However, there is one requirement which is deemed to constitute the essential difference between force majeure and hardship – the impossibility requirement which characterises force majeure is said to differ from the serious impediment requirement on which hardship is based. The party owing may only plead force majeure where he can demonstrate that it is impossible for him to perform the obligation. The established view is that it is insufficient for the party owing to have experienced serious difficulties in performing his obligation – in such cases no specific remedy would be available to that party under the ordinary law, given that, in principle, hardship has no place in the current Belgian law.
In this contribution, the author examines this one requirement which is said to represent the essential difference between force majeure and hardship. A key question that arises under this essential point of difference is whether the situation of the party for whom the change in circumstances has made it impossible to perform his obligation is truly different from that of a party who experiences serious difficulty in performing his obligation as a result of a change in circumstances.
As regards force majeure, an extensive analysis of the Belgian case law on force majeure, coupled with a brief survey of the French, German and English approach towards this question, shows that it is deemed impossible for a party to perform his obligation where it is clearly unreasonable to require him to perform it subject to this change in circumstances. The party owing cannot therefore be bound to make a clearly greater effort to perform his obligation than the effort which is expected of a normally diligent person experiencing the same concrete circumstances.
Under the doctrine of hardship, there is a turning point as from which performing the obligation becomes not merely difficult, but seriously difficult for the party owing. From a comparative study of this question, it emerges that bona fides (good faith) is a suitable criterion for determining the stage at which this turning point has been reached. Therefore, the party owing will be deemed to experience serious difficulties in performing his obligation where the other contracting party would clearly be acting unreasonably by requiring the party owing to perform his obligation subject to this change in circumstances. The party owing is accordingly deemed to experience serious difficulty in performing his obligation where he is required to make a clearly greater effort to perform his obligation than the effort which is expected of a normally diligent person experiencing the same concrete circumstances.
Consequently, the author can conclude that the essential difference between force majeure and hardship has no basis in reality. The situation of the party owing for whom it is impossible to perform his obligations is not actually any different from that of the party owing who experiences serious difficulty in performing his obligation. Therefore, the party owing will be able to plead force majeure where he is required to make a clearly greater effort to perform his obligation than the effort which is expected of a normally diligent person experiencing the same concrete circumstances. This criterion applies equally to the three types of impossibility (material, legal or moral impossibility) and to the situations which have traditionally been reserved for hardship (including the frustration of purpose doctrine). This criterion will also come into play where the party owing is faced with a serious distortion in the relative values of the mutual obligations as agreed between the contracting parties when concluding the agreement, and where the party owing no longer can fulfil the objective he sought to achieve with the agreement and which the other contracting party has in a certain sense made his own.
The general conclusion necessarily to be drawn from the foregoing is that force majeure and hardship apply to the same situations. Where there is no difference in the requirements to be fulfilled, both doctrines will apply to the same situations. Accordingly, those situations which have traditionally been reserved for the doctrine of hardship can also be brought within the scope of force majeure. From this contribution, the concrete conclusion arises that Belgian law does not need the notion of hardship as distinct from force majeure. Close Summary |
323 |
Loyaliteitsplicht van meerderheidsaandeelhouders. Aard en misbruik van stemrecht herbekeken HALLEMEESCH, N.The majority shareholders‘ duty of company loyalty -
reassessing the scope and abuse of shareholders‘ voting rights
The principle of majority decision-making in companies creates the risk of the majority shareholders enriching themselves at the company’s expense. The requirement of good faith which governs the performance of contracts goes some way towards mitigating the agency issues that potentially arise from this situation. The exact nature of the conduct which this requirement imposes on the shareholder is qualified by whatever status is attributed to his/her voting rights. On the one hand, these rights could be qualified as functional, as are those enjoyed by the company directors. On these terms, the shareholders are required to act in the interest of the company if they are not to be found guilty of misuse of powers. However, these voting powers could also be regarded as being quasi-discretionary, as is the case with the owners’ powers. If this approach applies, shareholders are not bound to act in the company’s interest, but are merely required to refrain from abusing their right. The distinction between these two conceptions is particularly marked where any conflict of interest arises between the majority shareholders and the company itself. Only where a functional concept of voting right applies does an obligation arise to subordinate the shareholders’ individual interest to that of the company – i.e. that which the author of this paper describes as the “duty of loyalty”.
By analogy with the fiduciary obligations imposed under the common law jurisdictions, various functional powers arise where the ownership of an asset is split by separating title or control from the economic or financial interest. The shareholders entrust control over their contribution to the company organs, whilst all the time retaining its economic or equitable ownership. This entails that the powers held by the general meeting of shareholders are, in principle, functional. This is because the shareholders are merely the beneficiaries of the company’s assets as a group, whereas the decisions are made by shareholder majority. However, the general meeting is unable to act in the company’s interest if its members, who play a part in the decision-making process, do not themselves act in the company’s interest. Accordingly, the shareholders’ voting rights are definitely rights that are functional and must be exercised in the company’s interest.
Where the shareholders refrain from exercising their voting rights in the company’s interest, they are guilty of misuse of powers. The traditional view has been that, in this area, the courts should apply the “highly deferential standard of review” test. This entails that the courts should not assess the decision in question on its suitability or acuity. Any review of a decision as to whether it constitutes misuse of powers can only be based on a procedural test, with the court assessing whether or not the shareholders acted rationally and subjectively in good faith. In essence, this creates a quasi irrebuttable presumption that the decision in question serves the company’s interests. However, such an assumption is untenable where there exists a conflict of interest between the majority shareholder and the company. Where a conflict of interest arises, the court will also need to assess whether the majority shareholder acted loyally, i.e. whether he subordinated his interest to that of the company. The test used by the courts should not be the highly deferential standard of review, because loyalty, just as much as rationality and acting in good faith, is a criterion by which the courts may test the shareholders’ actions, whether fully or not. Close Summary |
393 |
Bestaat de bevrijdende verjaring of is ze slechts een vorm van de verkrijgende verjaring? Een onderzoek naar de verjaring als monistisch of dualistisch concept Een diepe duik in de geschiedenis van de verjaring VAN DE VOORDE, J.Does extinctive prescription exist, or is it merely a form of acquisitive
prescription?
Prescription as monist or dualist concept
It is generally accepted that there is a fundamental difference between acquisitive and extinctive prescription, the implication being that the authors of the Napoleonic Civil Code erred by dealing with them under one and the same heading. Recently, the authors Frédéric Zenati-Castaing and Stephanie Fournier have attempted to disable this assumption, maintaining as they do that extinctive prescription is a variant on acquisitive prescription. This enables the debtor to acquire the obligation owed by him through acquisitive prescription – after which the obligation is extinguished through merger of debts. Our contribution examines this challenge to the prevailing assumptions.
In historical terms, it does appear that there has been a tendency to regard extinctive and acquisitive prescription as one and the same concept (absolute monism), as was, for example, the case under the customary law of Paris. However, even at that time this had not prevented a number of authors, such as Pothier, from making a clear distinction between extinctive and acquisitive prescription.
The text of the Napoleonic Civil Code also supports the notion that extinctive and acquisitive prescription amount to the same concept. However, if we take note of the intention displayed by the drafters of the Code, the position becomes much less clear. There are a number of unambiguous statements which establish a difference between extinctive and acquisitive prescription.
A comparative examination of the requirements for, and implications of, extinctive and acquisitive prescription also indicates that there are fundamental differences between both these concepts. Thus possession is only a requirement under acquisitive prescription, as has been confirmed by the Supreme Court (Hof van Cassatie), even though what could be described as “negative” possession can also play a relevant – although in most cases limited – part when it comes to the extinctive prescription of certain limited property rights. In terms of the effect of both types of prescription, it is only acquisitive prescription that has acquisition of ownership as its outcome.
Nevertheless, it would appear that both extinctive and acquisitive extinction entail that a right – being a legal situation – is, during a certain amount of time, countered by a factual situation, after which the factual situation becomes consolidated. As a result, both these concepts belong to one and the same legal category (conceptual monism). This is comparable to the relationship between sale and lease – both concepts are fundamentally different, but fall within the scope of agreements; consequently, there are a number of rules which apply to both these concepts.
The conclusion to be derived from the foregoing is that there is indeed a fundamental difference between extinctive and acquisitive prescription. Nevertheless, it would be wrong to conclude that they present no similarities, given that the element they have in common is the lapsing of time. Indeed, there are a number of other rules which are common to both these types of prescription. Close Summary |
465 |
Het vennootschaps- en boedelbelang in de queeste van dionysos: naar nieuwe wijn in oude zakken? DE LEO, F.The company and estate interest and the conundrum of Dionysius -
Towards new wine in old bottles?
In this contribution, the central issue is the following: “In whose interest should the administrators of a company/estate act”? This question may at first appear to deal with two separate issues, but is conceived by the author as a single inquiry. Companies experiencing financial difficulties and those in good financial health have this in common – they will be administered by a body or person, where appropriate in the form of a trustee. Accordingly, both company law and insolvency law will be faced with the same question. The dichotomy reflected in the question on which this paper is based concerns, in essence, a company’s financial situation. The author accordingly seeks answers in the legal and legal/economic theories that govern both company law and the rules on insolvency.
In Part One (nos. 4-13), the author concludes that the existing legal theories fall short of providing an appropriate and complete answer to the question posed in this paper. The basic principles governing the company interest and the estate interest – both in the broad and relatively narrow sense – currently find themselves in a state of flux. In addition, the courts and legal authors are frequently at odds with each other on this subject.
In Part Two (nos. 14-53), the author actually seeks to solve the conundrum and in so doing consults the existing legal and economic theories relating to business units and insolvency procedures. In his search for an adequate answer, he examines successively the transaction cost theory (nos. 18-19), the contract theory (nos. 20- 21), the property rights theory (nos. 22-25), the agent/principal theory (nos. 26-31), the law & finance literature (nos. 32-37), the team production theory applied to business units (nos. 38-39), the creditors’ bargain theory (nos. 40-44), the broad contract theory (nos. 46-47), the “dirty, complex, elastic and interconnected view of bankruptcy” (nos. 48-49), the team production theory applied to insolvencies (nos. 50-51) and the explicit value approach (nos. 52-53).
In Part Three, the author, on the basis of the contract and property rights theories, combined with valuable insights obtained from other theories, takes a normative approach under which the company/estate should be administered in the interest of the residual economic property rights holders (no. 55). For financially healthy companies, these holders are, in principle, the shareholders (including the creditors as “future shareholders”); in the case of companies experiencing financial difficulties, they are the creditors (including the shareholders as structurally secondary creditors). Thus the company and estate interest acquires a dynamic dimension. For this approach, the author finds authority in a positive economic analysis of the current reforms of Belgian company and insolvency law (no. 56). In so doing, the author concedes that the administration of a company or estate should be monitored by the residual economic property rights holders, unless the expenses incurred by the principal are, in essence, disproportionately high. Here, we are dealing with a cost/ benefit assessment between the increased principal costs and the reduced agent costs. Close Summary |
529 |
De productaansprakelijkheid voor zelfrijdende motorrijtuigen WERBROUCK, J.Product liability for self-driving motor vehicles
The arrival of self-driving motor vehicles arouses expectations of a major upheaval in the manner in which vehicle damage claims will be settled. When penetrating the inner sanctums of tort liability law, the interested lawyer will hear voices asserting that product liability is ready and primed to take over the baton of fault-based liability as the standard mechanism for settling compensation claims. However, if we consider product liability law in its current state, one cannot deny that the latter is in itself insufficiently up-to-date for the purpose of adequately regulating this innovative type of vehicle and any torts that may arise from it. Accordingly, the author of this paper formulates a number of proposals aimed at readying product liability for the arrival of self-driving motor vehicles. However, given the major role which self-driving vehicles are about to assume in society, their introduction also provides an excellent opportunity to reassess certain aspects of product liability in general. Thus product liability will not only have a part to play in the introduction of self-driving motor vehicles – the latter will also be of considerable use for the development of the law of torts in general and product liability in particular.
The first issue to arise in this regard concerns the relevant software. To this day, uncertainty persists as to whether software in itself – independently of its carrier – constitutes a product within the meaning of product liability. However, this can definitely be said to be the case, so that where the defective operation of any software the victim will be able to engage not only the liability of the end producer of the self-driving motor vehicle, but also that of the manufacturer of the deficient software.
The second – and possibly most important – problem in this area resides in the fundamental incompatibility of the “consumer expectations” test with innovative products such as self-driving motor vehicles. The lack of clarity and certainty to which this situation gives rise is a major impediment to their introduction – this is the so-called chilling effect. In order to redirect the focus towards the product itself, so as to provide both the producer and the consumer with a greater degree of certainty as to the existence or non-existence of product deficiency, it would appear advisable to adopt the “risk/utility” approach instead. Such a difference in approach is less momentous than it might seem at first sight, given that both the courts and the leading authors have been known to apply risk/utility criteria when applying the “consumer expectations” test.
Thirdly, the scope of the material damage which is capable of attracting compensation should be extended to cover material damage beyond the private sphere. It would also appear desirable to abolish the franchise deductible in any future legislation on this subject. If product liability is to assume the role assigned to it by the inner sanctum voices referred to earlier, there must be available a sufficiently broad range of loss types capable of compensation, without the victims being compelled, as they are currently required, to claim under a different set of compensation. In addition, a comprehensive exercise in harmonising the rules on compensable loss is highly desirable, in view of the cross-frontier nature of torts involving self-driving motor vehicles on the one hand, and the aims of the EU Product Liability Directive on the other.
The laws governing the right of recovery, which is capable of applying as between the producer claimed against and any jointly liable producers, would also benefit from regulation at the European level. Failing this, there is the danger that producers will relocate to member states whose rules on the right of recovery best serves their interests – an outcome which is also inconsistent with the aims and objectives of the Directive.
Finally, the ten-year expiry period also presents several problems when it comes to the introduction of self-driving motor vehicles. More specifically, this expiry period is difficult to reconcile with the inevitable software updates, or with the fact that self-driving motor vehicles are themselves capable of developing certain practices. Serious consideration should therefore be given to abolishing this expiry period.
It is important to consider these proposed adjustments together, rather than separately. Whereas one particular proposal will result in the balance shifting slightly towards the producer, another will serve to restore the balance. If either of the parties involved in this legal relationship, i.e. the producer or the (potential) victim, acquires the impression that the rules on product liability are too heavily weighted in the interests of the other party, a certain chilling effect will undoubtedly be the result. Given the certainty that self-driving motor vehicles will lead to a more efficient and safer use of our roads, this is an outcome that must be avoided at all cost. Close Summary |
605 |
Overzicht van rechtspraak bevrijdende verjaring (1992-2017) CLAEYS, I. |
839 |
Boekbesprekingen L. DE SCHRIJVER; I.DURANT; E. DEWITTE; N. CARETTE; M.D'HERDE; K. DEKETELAERE & B. DELVAUX (eds.); W. CHEN; E. DIRIX, R. HOUBEN & E. WYMEERSCH (eds.); VLAAMSE CONFERENTIE BALIE ANTWERPEN
|
867 |
Ten Geleide STORME, M.E. |
869 |
In Memoriam Jef Maeijer (1932-2018) GEENS, K. |
875 |
In herinnering Jef Maeijer: van rechtvaardigheid bezeten SIEBURGH, C. |
881 |
Tot ziens handelaar, welkom onderneming: modernisering met belangrijke impact, doch geen vereenvoudiging De Redactie Privaat STEENNOT, R. |
889 |
Structuur, praktijk en theorie van rechtsvergelijkend onderzoek ADAMS, M.Comparative legal research - its structure, practice and theory
The principal challenge set by comparative legal research is that the researcher must find a way of handling “foreign” law. This means becoming acquainted with a body of law in which you essentially received no training, which as a discipline is alien to your way of thinking, and which has specific institutions and principles, unspoken codes and commercial practices, as well as its own history, ideology and self-image. This should be done in a manner which is understandable not only to those whose thinking is located within the legal systems concerned, but also to outsiders. Moreover, this must involve more than merely “mapping” the various differences and similarities between various legal systems. Because much of the available material regarding legal method has remained stuck at the theoretical level, its practical relevance appears to be but minimal. It is here that the most profitable endeavours can be made, and the most important object of this paper is to provide a guide for the effective performance of comparative legal research. This has been done by, inter alia, building a research structure or objective in the form of a step-by step plan.
In this regard a number of more specific questions and challenges of methodology also arise. How does one formulate a research question? Which legal systems does one wish to involve in one’s comparative research? Where can there be said to exist comparability, and what will be the role played by the tertium comparationis? To what extent does an analysis of foreign law differ from actual comparative research? What is the meaning of the neutrality principle when it comes to comparative legal research?
When we consider and study the object and structure of comparative legal research, as well as the methodological issues that may arise in this regard, we are automatically also confronted with a number of fundamental questions as to what we need to regard as legal sources, and as to the disciplinary identity of legal research. Given that the various approaches towards this question have a considerable influence on the manner in which the object of the research is performed, and on the manner in which research develops, these questions are examined separately – as is the question as to what is actually the specific nature of comparative law.
The expectation from all of the above is that the interaction between structure (research objective), practice and theory can provide an insight into the actual performance of comparative legal research. Close Summary |
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Digitalisering en het Nederlands Burgerlijk Wetboek VOULON, M.Digitalisation and the Dutch Civil Code
This contribution examines the private law issues which arise from the digitalisation process and from digital products.
In the first instance, the author analyses the technique and legal status of electronic signatures. Here, the principles on which safe electronic communication is based play a crucial part. These principles concern the issues of identification and authentication (i.e. the assertion of an identity and its reliable verification), integrity (ensuring that an electronic message remains unchanged), confidentiality (ensuring that an electronic message remains secret) and irrefutability (avoiding any unjustified denial that a message has been compiled, sent or received).
The author asserts that electronic signatures differ as to their nature from handwritten signatures. Where a handwritten signature has been put to a private instrument, the approach is based on bona fides. This is because the signatory can simply and firmly deny that he/she made that signature. Where this occurs, the burden of proof rests with the party seeking to rely on that instrument. The bona fides under this principle consists in an assumption that the placing of a signature shall not be unjustifiably denied. Electronic signatures, on the other hand, are subject to a riskbased approach – in many cases, they only produce the same legal consequences as handwritten signatures if they are sufficiently reliable. This reliability principle is subject to a risk analysis. In performing this analysis, the risk of unjustified denial will need to be mitigated. This serves to give substance to the irrefutability principle.
The author further discusses the status of digital products. Digital items such as databases and software currently appear to be incapable of governance by the law relating to goods. When it comes to disputes involving databases, the courts should give greater consideration to the law on data protection. In relation to software, the copy principle cannot be sustained in a digital environment.
Finally, the author examines self-acting systems. The current rules governing the creation of agreements still appear to be adequate in order to regard a person contractually bound where such a system enters into operation. The existing rules on statute-based tort liability also appear still to be equal to the task. Close Summary |
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De inpassing van digitale producten in het Belgisch privaatrecht SWINNEN, K.Accomodating digital products in the Belgian private law
This contribution examines the extent to which the currently applicable Belgian private law is capable of accommodating digital products. The author decided to centre his analysis around three crucial and topical subject areas – liens on, and the attachment of, digital data; electronic contracting and signing in relation to real estate agreements, and the tort liability for loss caused by robots.
As regards liens on, and the attachment of, digital data, the author firstly finds that, under the law as it applies today, the main focus must at all times be on the data carrier. Digital data not being goods, they cannot themselves be the subject-matter of an attachment or lien. The paper then proceeds to demonstrate that the two possible “loopholes” that would enable digital data to be made subject to an attachment or a lien, i.e. by applying these two mechanisms to the data carrier, or to a right someone has in relation to digital data, do not constitute fully adequate alternatives. Thirdly, the article highlights a number of issues that deserve particular attention, including the importance of the exclusivity factor when dealing with certain types of data, and the issues that law-making authorities will need to take into account if and when they decide to make it possible to subject digital data to liens and attachments.
The conclusion drawn from the second part of this contribution is that mutual consent concerning a sale of real estate that is reached electronically is capable of being signed, and that private sale agreements may also be signed electronically, but that notarial deeds cannot, for practical reasons, as yet be drawn up and signed digitally. Accordingly, in order to be able to rely in good faith on the sale of real estate against third parties, a notarial deed on paper remains necessary.
The third and final part of this paper demonstrates that the law relating to contractual liability is better equipped to accommodate (to various degrees) self-acting digital products than is tort liability. Here, the rules on contractual liability will enable the liable party to be identified just as reliably as would be the case in relation to the use of any other product. If the desired outcome is not reached, or if the necessary steps to achieve this outcome have not been taken, the contractual party will be held liable, regardless of whether it was that party’s own act or omission, or that of a robot, which caused this to happen. The rules on tort liability, on the other hand, are centred largely around fault-based actions, and around a comparison between a thing that causes loss and a model that represents the norm. As self-driving cars become increasingly self-acting, fault-based liability will increasingly fold into the background, and the emphasis will very much come to rest on omission-based liability, the scope for which will, however, remain restricted, because cars of this type will leave the “driver” but few opportunities to intervene. As regards object-based liability, finding the appropriate model that fits the norm, or finding the most justifiable safety expectations as a standard of comparison for a loss-causing self-driving car will become a difficult task. Close Summary |
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Privaatrechtelijke bescherming van de stem in commerciële context DEBRUYNE, N.Civil law protection of the voice in a commercial context
Technological advances in the recording and reproduction of vocal fragments represent one of the main factors that have caused a flourishing contractual practice to develop during the past few decades concerning the voice. Professional voice actors “dub” foreign language films, record audiobooks or lend their voice to cartoon characters or all manner of software applications (e.g. navigation systems, digital assistants such as Apple’s Siri, etc.). In addition, people in the public eye who are recognisable because of the characteristic sound of their voice recommend commercial products in radio commercials. However, the important part played by the voice in commercial law terms has led to a number of abuses which take the form of, inter alia, secret recordings, misleading voice distortions and parasitic imitations. In spite of this, the author notes that the legal framework that regulates use of the voice in a commercial context has hitherto attracted but scant attention in the legal literature. This contribution seeks to provide an overview of the existing civil law rules providing protection which are dependent on the concrete use of the voice, and at the same time to discuss the applicable rules and the conditions for their application. In so doing, the author raises the question whether there is such a thing as the “right to one’s voice” which would protect the individual’s personality through his/her voice, regardless of the content of the spoken pronouncements. Although there are currently a number of authors who regard this type of subjective right as an established right, and include it in the broad category of personality rights, they frequently do so without any previous critical and fundamental analysis. With this contribution, it is intended to remedy this glaring omission through a comparative study of the relevant Belgian, French, Dutch and Swiss laws.
In Chapter One, the voice is treated as a medium of content. This means that, firstly, the voice can be protected indirectly to the extent that it gives expression to a person’s creative mind through the oral interpretation of an authored work. In view of the need to protect the interests of those artists who use their voice for both advertising purposes and by way of entertainment, particular attention is given to the associated rights which apply to them. However, there are several types of voice usage which, because of the restrictive conditions for the application of the relevant rules, fall outside the scope of such protection – such as non-artistic interpretations (e.g. the use of a neutral voice when recording sounds for voice-activated technology) or imitations of the voice (and not of the protected performance itself). Secondly, the voice can, as a medium of content, convey private information, or enable the listener to identify the voice owner within his private sphere. In such cases, the person in question may derive his protection from his right to privacy, and have unlawful use of the voice penalised on that basis.
In Chapter Two, the author examines the legal rules that apply where the voice is merely used as a patrimonial right. In some rare cases – which concern mainly the use of misleading voice imitations – unlawful use of the voice is penalised as an unfair commercial practice. Here, the protection provided seeks to safeguard not so much the person or his work per se, but the assets of a business that holds property rights to a voice or its recording. Trade mark law is also capable of restricting the use of another person’s voice, but here, the scope of the protection given is limited to such vocal sequences as have been specifically registered as trade marks.
In Chapter Three, the author asserts that the voice is an aspect of one’s personality which is just as characteristic of any person as is his visual image or name. He adds that effective protection of the voice is only possible where the voice is also treated as an integral personality trait. Copyright, the right to privacy and other personality rights have their uses for the purpose of restraining commercial misuse, but do not appear capable of providing protection against certain types of unlawful reproduction and voice imitation. From the recent case law on this subject, it emerges that this is the reason for the ever-increasing number of cases where the law is applied to voice usage. In terms of the conditions for its application, and the manner in which infringements are penalised, the right to one’s voice displays many similarities with other personality rights, whilst nevertheless constituting a protective set of rules in its own right. Close Summary |
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De milieu-erfdienstbaarheid of milieugrondlast: een nuttig zakenrechtelijk instrument voor de milieubescherming? VAN DE VOORDE, J.; CARETTE, N.; HUBEAU, B.; VAN DEN BROECK, P.Could environmental servitudes or land charges be an effective patrimonial law
instrument in the cause of environmental protection?
Environmental servitudes or land charges constitute a limited patrimonial right, which may not necessarily be a “servitude” within the meaning of Article 637 of the Civil Code, but nevertheless imposes certain obligations on the owner of the servient tenement in the interests of environmental protection. Examples of these are orders prohibiting the removal of valuable plants, hedges or woods, banning the use of certain harmful products, or imposing an obligation to engage in biological farming. This contribution examines in detail the extent to which environmental servitudes are capable of definition, why they are appropriate legal devices, which legal forms they could take, and what factors need to be taken into account should the lawmaking authorities wish to embed environmental servitudes in the existing body of legislation.
The first reason why environmental servitudes are appropriate legal devices is that they are private law instruments, thus making it possible to circumvent any restrictions imposed by the public law. This is particularly relevant for private individuals who normally are unable to avail themselves of public law instruments, but are free to use those in the private law sphere. Private individuals are thus better able to serve their own needs and desires without being hamstrung by the vicissitudes of political priorities. The public authorities will also find them a useful legal device, because, being private law instruments, they are in principle consensual – which makes it unlikely that they will be challenged before the administrative courts – and are not subject to the restrictions resulting from the legality principle (which could restrict the use of public law servitudes). The use of a patrimonial right rather than a personal right is inspired by (a) the broader opportunities to rely on a limited patrimonial right against any legal successors or third parties, and (b) the more solid protection of patrimonial rights which it provides against any insolvency on the part of the person on whom the servitude is imposed.
Environmental servitudes can assume various legal forms. The rights which provide usage and enjoyment of property, such as the right of usufruct, and the various security interests in property are not suitable legal formats for environmental servitudes, since they deprive the owner of the full use and enjoyment of his land (rights of usage and enjoyment) – whereas the object of the exercise is merely to have him act in accordance with environmental policy objectives – or restrict themselves to securing the performance of obligations (security interests in property). Certain foreign legal systems, as well as the extremely scarce Belgian case law on the subject, indicate that frequent use is made of ordinary servitudes, of patrimonial rights which are similar to servitudes, of ground rents (i.e. patrimonial rights which impose a positive obligation on the owner of the servient tenement) and of patrimonial rights sui generis. Under Belgian law, ground rents no longer exist as patrimonial rights, there are no patrimonial rights similar to servitudes, and the numerus clausus which applies to these rights makes it impossible to give sui generis patrimonial rights a lawful basis. The only legal form which could be used to accommodate environmental servitudes is the ordinary servitude as defined in Article 637 Civil Code. However, this gives rise to a number of problems: (a) there is a need for a dominant tenement which (b) must benefit directly and immediately from the servitude, and (c) no positive major obligations may be imposed on the servient tenement. Therefore, environmental servitudes can only be used on this legal basis if these three requirements are met, which means that their scope will be considerably restricted. This type of restriction appears to be undesirable, given that the importance of a healthy environment for man and society requires that the former be protected as effectively as possible.
Naturally, the lawmaking authorities may embed environmental servitudes expressly in legislation in order to avoid these problems. However, in so doing they will need to ponder a number of issues. One of these would be the legal form this would take. The most straightforward solution would be to create a limited patrimonial right, which could be modelled on an existing patrimonial right in order to minimise the number of new rules to be enacted. However, it could ultimately be desirable to create a new and more general category of limited patrimonial rights, which reduces the risk of discrimination. However, the danger with this approach would be that it could produce undesirable side effects. Other examples of the issues that would need to be resolved are the maximum duration of environmental servitudes – given that the environment exists for eternity, it would appear appropriate for these servitudes to have eternal effect – and the question of who would be entitled to institute claims for the protection of these servitudes. Close Summary |
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Boekbesprekingen N. CARETTE; G. STRAETMANS; W. PINTENS EN C. DECLERCK (eds.); N. VANDEBEEK; C. DRAGHICI; J.E. BEERNAERT, N. DANDOY, S. LOUIS EN P.-A. WUSTEFELD; R. VEIL (ed.); P. CONTI-BROWN EN R.M. LASTRA (eds.); J. ARMOUR, D. AWREY, P. DAVIES, L. ENRIQUES, J. N. GORDON, C. MAYER EN J. PAYNE; D. MATRI; E. SPRUYT, N. GEELHAND DE MERXEM EN H. PELGROMS; N. PORTUGAELS; K. DE GREVE; T. KRUGER EN J. VERHELLEN; F. PASTOR-MERCHANTE; B. FEUILLET-LIGER EN S. OKTAY-ÖZDEMIR (eds.); S. GRUNDMANN K. RIESENHUBER (eds.); J.-F. FUNCK, P. JASPIS, M. LEYS EN D. MOUGENOT; G. FRANKENBERG; S. VANDENBOGAERDE; E. LIEVENS, P. VAN ASSCHE, S. VEREECKEN EN E. VOLCKAERT; K. RENIERS; C. DELFORGE, S. STIJNS EN P. WÉRY (eds.)
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Ten Geleide STORME, M.E. |
1377 |
Van tranen, duiten, dijken en sluizen. Over vergoeding van 'affectieschade' en 'shockschade' in Nederland na 1 januari 2019 De Redactie Privaat LINDENBERGH, S. |
1383 |
De verjaring van buitencontractuele rechtsvorderingen tot schadevergoeding wegens kartelinbreuken: een intrigerend drieluik TANGHE, T.Limitation of non-contractual actions for damages
to compensate infringements of anti-trust law: a three-way enigma
In order to stimulate the enforcement of competition law by means of private law, the Economic Law Code has, for the purpose of implementing Directive 2014/104/ EU, incorporated a number of rules on compensation claims, which include a number of specific provisions on time limitation.
Regarding the limitation of non-contractual compensation claims for infringements of anti-trust law which were started or occurred before the new legislation entered into effect, the author of this paper informs us that, as matters stand at present, account must be taken of a complex interaction between (1) the rules on limitation laid down in Article 2262bis, §1, paras. (2) and (3) of the Civil Code, (2) the Constitutional Court decision of March 10, 2016, and (3) the new rules on limitation which result from the implementation of Directive 2014/104/EU, being Articles XVII.90 and XVII.91 of the aforementioned Code.
Bearing in mind this three-way conundrum, the author adopts a step-by-step approach in order to determine whether a non-contractual compensation claim for infringement of anti-trust law which was started or instituted before the new legislation entered into effect, i.e. 22 June 2017, is time-barred or not.
It also emerges from this contribution that problems could arise in relation to the limitation of claims when it comes to determining the joint and several liability of the members of a trust arrangement. Traditionally, it has been accepted that limitation in time is a “common” defence and is therefore capable of being relied upon by all the jointly and severally liable parties. This could produce the – undesirable – consequence that, where such limitation has been determined for each member of the trust arrangement individually and has entered into effect for one of these members only (e.g. because that one member had failed to lodge an appeal against the decision of the competition law authority) the other members would also be allowed to rely on time limitation. However, the author, assisted by a comparative glance at other legal systems, demonstrates that, when it comes to joint and several liability in the passive sense, time limitation conceived as a common defence need not be regarded as the most sacred of cows … Close Summary |
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Duurzaam goederenrecht: naar een herijking van ons goederenrechtelijk stelsel? [Inspiratie uit onder meer Nederland] AKKERMANS, B.A sustainable property law:
Towards recasting of our law of property?
With the increase in climate change, the finite nature of fossil fuels, and the growing inequality in the (Western) world, as well as the commitments entered into by the nations of this world in the context of the 17 United Nations Sustainable Development Goals, is it time to revalue our law of property – i.e. inject it with new values? Because of this question, the urgent need to heed the issue of sustainability is greater than ever. The laws relating to things provide the building blocks on the basis of which we mould our society – which is why they are eminently suitable for enabling us to mould a sustainable society.
Revaluing our property law requires the insight that this law was created on the basis of a liberal and neo-liberal philosophical and economic mindset. In this context, we need to consider the earthquakes caused by the extraction of gas in Groningen, and the mortgage loans granted to customers of whom it is clear from the outset that they will not be able to pay their debt.
By opting for another philosophical basis, property law can embark on a new pathway which is focused not only on growth, but also on the use of our resources for the benefit of ourselves and of the generations that follow us. A new theoretical framework is needed on the basis of which the circular economy and the shared economy could operate, and on the basis of which new, innovative and especially sustainable projects can be shaped. Here, we can consider not only the collective installation of windmill parks, but also the sustainable creation and sharing of goods - whether by using existing sharing platforms or by some other means.
There are currently already many initiatives which are based on the sustainable use of things. These initiatives avail themselves of the existing rules of property law. The car sharing firm Cambio, but also the communal purchase and installation of solar panels, are examples of this. These types of initiatives, as well as the problems they encounter – such as the property rules on accession - are receiving increasing attention in legal literature. At the same time, there is a lack of an all-embracing theory capable of systematically shaping a continuous system of coherent and sustainable solutions. The development of a sustainable system of property law requires a set of rules on the basis of which problems are capable of being solved – i.e. an algorithm – by which a solid sustainability requirement could be introduced in the law relating to property and under which the rules of private and of public law could be combined in order to develop the law further. On the basis of this algorithm we will be able to decide how we are to interpret our current rules, and whether our rules can continue to apply in their present form. Such an algorithm could also be used in order to create new property rules. Accordingly, our entire system of legislation relating to things and property rights, including the relevant restricted property rights, and our rules of procedure must be re-evaluated for this purpose.
The notion of achieving sustainability by pouring all the relevant rules into the mould of service provision contracts is not the right way to go about this. Revaluing them, i.e. integrating new values into our system – in this case general well-being – by creating a relevant obligation under property law, brings the law relating to goods to the forefront. Thus we all have a duty to think about how we handle our possessions – such as, for example, our houses. Thus we can provide the building blocks that will enable us to work together in creating a sustainable economy in which, in addition to general well-being, economic growth for everybody and the continued development of new initiatives occupy a central place. Close Summary |
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De inplanting van onshore windturbines in het Vlaamse Gewest vanuit privaatrechtelijk perspectief REYNEBEAU, M.Installing onshore wind turbines in the region of Flanders -
a private law perspective
The available legal literature on the installation of wind turbines frequently focuses on developments in the law relating to energy on the one hand, and in the administrative law on the other – i.e. policy objectives, licencing and appeal procedures, etc. However, the private law dimension is also an element which is not to be underestimated when it comes to establishing the legal framework for wind energy projects. However, legal areas such as the law of property or the law of obligations remain – unjustifiably – under valued in relation to the installation and operation of wind turbines.
This contribution is the result of a legal analysis of the various stages involved in the installation of wind turbines. In so doing, the author has combined various research methods. Interviews with experts and a qualitative analysis of the relevant documents have brought to light several key legal issues which have been either neglected or merely treated as a marginal issue in the existing legal literature.
In this regard, we should consider the various obstacles involved in obtaining the various rights that relate to the use of land belonging to third parties in order to be able to build both the wind turbines and the related infrastructure. Both at the pre-contractual stage and when it comes to obtaining the necessary property rights (building rights, easements) even the most minor detail is crucial. Each clause has constantly to be re-examined in the light of, and geared to, inter alia, the parties involved and the defining features of the project. Agreements regarding the fees paid for, and the expiry of, the contracted user rights represent a mere fraction of the issues which frequently give rise to discussion. The various “intervening” parties, such as tenant farmers and suppliers of credit, are capable of causing even greater difficulties when it comes to obtaining the necessary user rights. The right to use wind, and accusations of “wind theft”, also represent an increasingly relevant factor.
The author makes it clear that the interaction between energy law, administrative law and private law is capable of rendering the legal framework for the operation of wind energy projects a highly complex matter. In order to reconcile the disparate – and at times even contradictory – interests of the various parties involved, an exercise in balancing these interests is necessary at each stage of the installation of wind turbines and wind turbine parks. Such an exercise does not appear to be devoid of complication and will involve the expenditure of a good deal of time and energy. Whereas the process of developing of wind turbines is currently quicker and more straightforward than was the case 20 years ago, the same cannot be said in legal terms – at least not in every case. Close Summary |
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Boekbesprekingen M.-P. DELLISSE; J. HERBOTS; I.DAUGAREILH (ed.); R. BARBAIX; P. DE PAGE & I. DE STEFANI; I.H.-Y. CHIO & I.G. MACNEIL (eds.); A. WUDARSKI; J. BAEL, M. BLONDIA & N. BERNARD (eds.); N. BERNARD; L. WEYTS; P. WESTERMAN
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