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Maria Ioannidou

EU competition law has played an important role in shaping EU energy markets, albeit in a rather opaque manner. The application of Article 102 TFEU in the energy sector after the completion of the Energy Sector Inquiry supports this contention, since the Commission’s decisional practice has endorsed a more flexible application of Article 102 TFEU via commitment decisions. While such a practice arguably may further disguise regulatory aims, it enhances competition and entails benefits for the implicated actors and the completion of the EU Internal Energy Market. Given that such flexible application has been endorsed by the Commission, the implicated actors and the European courts, it is time to acknowledge that the application of EU competition law in the energy sector will occasionally assume a regulatory tone. This realization will aid the improvement of current mechanisms by infusing more transparency into the process and designing remedies that account for concrete benefits for affected parties. Tackling the opaqueness in procedural enforcement may further account for a more principled substantive application.

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Fang Xiaomin

Different from the German and European competition law, there is no explicit provision of China’s Antimonopoly Law which stipulates the equal and fair application of competition law upon all market participants including state-owned enterprises (SOEs). Though the interpretation of the Chinese Constitution may lead to the requirement of equal and fair application of the Antimonopoly Law upon SOEs, the enforcement practices are not consistent from case to case. Respect for competition neutrality or selective law enforcement? It is not only a challenge for antimonopoly law enforcement but also for the reconstruction of the economic system in China, as the equal application of the AML is closely connected with the market-oriented reform of SOEs. The Fair Competition Review, since 2016, would support establishing fair competition circumstances for both public and private enterprises. Anyway the equal and fair application of competition law upon all market participants needs explicit rules in law or even in constitution.

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Odysseas G. Repousis

Article 40 of the Energy Charter Treaty (along with Art 1(10)), determines the territorial scope of the Energy Charter Treaty. Specifically, Article 40 governs territorial declarations, namely declarations according to which Contracting Parties consent to apply the Energy Charter Treaty to certain (usually overseas) territories. In fact, the territorial coverage of the Energy Charter Treaty is important in at least two specific respects. First, it delimits those areas where the Energy Charter Treaty applies. Second, since the overseas territories of certain Energy Charter Treaty Contracting Parties constitute separate jurisdictions that also have separate corporate registries, it also helps determine the scope of covered investors. Moreover, Article 40, when read in conjunction with Article 45 (that governs provisional application), raises interesting questions, inasmuch as it is not entirely clear whether the Energy Charter Treaty continues to apply to Gibraltar, a territory to which it was provisionally applied, but which territory was not included in the United Kingdom’s instrument of ratification.

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Justice Rachel Pepper and Lauren Butterly

This chapter focuses on the role of the courts in the protection of Indigenous cultural heritage in Australia. Across a number of the Australian jurisdictions there has been recent curial evolution in this area, with courts increasingly recognizing that cultural heritage comprises of much more than artefacts, and includes landscapes and values. However, this needs to be situated within a broader context that seeks to limit the court’s ability to engage with the wider ‘environment’. In asking whether courts are ‘blind to country’, this chapter considers whether courts can see the whole of country, rather than compartmentalizing it in line with Eurocentric ideas and legal divisions. It must be acknowledged that clearly the courts alone cannot provide the solution to protection of Indigenous heritage. Yet a court determination is often the culmination of a long-term, complex and hard-fought dispute in this area. Further, court decisions on Indigenous heritage matters often have impacts beyond that one case, and can demonstrate new judicial understandings. This chapter seeks to provide both a judicial and an academic perspective on these issues, to draw what otherwise may be discrete ideas together and to suggest practical examples of legal reform (both inside and beyond the courtroom). Although this chapter focuses on Indigenous cultural heritage and its relationship to courts, the notions of compartmentalization and limitation of courts have implications for other substantive areas of law, particularly relating to Indigenous peoples.

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Yussuf Aleem and Jacob Slowik

Our chapter on ethics is not a throw-away chapter. For a business-niche-driven, small law firm, there is great benefit and strategic power to making the small sacrifices it takes to hew to ethical guidelines. We’ll share with you how to include ethical considerations into many of your firm’s activities and gain the meaningful business advantages from doing so.

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Ronald Leenes and Silvia De Conca

After decades of promises, AI is (finally) taking ground in people’s lives. Due to an enormous increase in computing power, significant reductions in storage costs and years of hard study by AI engineers and scientists, the full potential of AI is showing its face. Inferences are made on the basis of information provided by us, the individual profiles created about us, the profiles and behavior of others and the feedback loops that through Machine Learning lead to even better predictions about what we’re up to next. Increasingly we will be surrounded by intelligent helpers in the form of service-robots, care-robots, surgery-robots and more, next to the already prevalent industrial robots. Obviously, in order to work their magic, these devices need input. Not only from their physical environment, but also from us, their masters. This means that they will have to process information from us, about us, and thus affecting us. Whereas one can keep information away from household members relatively easily because they are not always present, this may turn out to be much harder with respect to the omnipresent robot helpers surrounding us in our homes. We may thus be about to yield the trojan horse of surveillance into our castles of seclusion. In this chapter, we explore the relation of intelligent home assistant robots as one particular strand of modern AI, to the law, in particular privacy law and the adjacent field of data protection law. We first outline the central legal notions at play: privacy and data protection and briefly outline the legal framework, focusing specifically at the European Union, being our home turf, and being (one of) the jurisdiction(s) that has the most comprehensive legal framework relating to privacy and data protection. Next, we set the stage with respect to the AI’s of choice, intelligent home assistants, by describing various types of such devices that are either already on the market, or are about to enter it. This is followed by a discussion of a number of data protection and privacy issues introduced, aggravated or solved by these technologies. While the (regulatory) answers to many of the questions posed in this chapter will only come in the following years, this chapter frames the discourse around AI entering the house and its consequences for privacy and data protection, in order to start posing the right questions and advancing some preliminary suggestions for mitigating issues.

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Shawn Bayern

In focusing on how to regulate artificial intelligence, legal and policy analysts have paid insufficient attention to the fundamental structures of the private law, including contract law and the law of organizational governance.  Artificially intelligent systems may already engage with these areas of law in surprising but potentially useful ways.  This chapter discusses several possibilities that result from the flexible ability of private legal instruments to assign legal significance to the action of artificially intelligent systems.

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Isabelle Wildhaber

Numerous robots are already in use in workplaces throughout the world today. We are in the so-called Second Machine Age, also frequently referred to as Industry 4.0. Many enterprises are working towards the goal of optimizing work and production processes and creating a so-called smart factory in which humans and machines work together and automation is achieved through the deployment of intelligent machines. These intelligent self-learning systems are driven by cloud computing, breakthroughs in sensor technology and the creation of new algorithms that harness the power of big data. The new workplace is constantly changing, increasingly uninhibited by geographical boundaries and inspired by the arrival of robots and new technologies. Progress in robotics and artificial intelligence (AI) will change the workplace and employment law. If robots become colleagues and superiors, employers must keep a keen eye on employment law developments. The aim of this Chapter is to examine the effects of robots and AI on employment and labour law. The introduction first defines what we understand by robots and AI. It then explains which robots play a role in the workplace today and could play a role in the workplace in the future. The workplace changes will have consequences for employment and labour law. I will therefore examine seven employment and labour law issues that might be problematic in the light of existing regulations. These seven challenges for employment and labour law are identified using Swiss law as the national system of reference for the chapter.

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Madeleine de Cock Buning

Artificial Intelligence (AI) penetrates more and more into what is traditionally considered the domain of human creativity. Although the ability to create is a quality that has traditionally been considered a human capacity, the increased quality and complexity of AI, shall ultimately render human intervention in the process of creation redundant. This contribution looks into challenges that are encountered when a machine is the creative agent of a work, with a focus on the output of autonomous creative agents that would traditionally fall inside EU copyright law. It draws some conclusions on the need to consider taking balanced legislative action, leaving room for the fair balancing of public and private considerations.

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Toni M. Massaro and Helen Norton

The First Amendment may protect free speech rights for strong Artificial Intelligence (AI). In this chapter, we bolster support for this surprising claim, address significant criticisms, and provide important limiting principles. Ours is not a claim about the state of technology, but an analysis of First Amendment law. We show how AI teaches us about current First Amendment doctrine, and the lack of humanness at its core. Yet thinking about AI free speech rights also points to the future of limits on First Amendment protections: determining what constitutes a non-speech harm, and the scope and limits of listener rights. Current positive and negative theories of the First Amendment may justify protecting AI speech insofar as they are largely unconcerned with human dignity, and wary of attempts to regulate more callous or disruptive speakers. We argue, however, that this does not mean free speech rights must extend to all AI; nor must all AI speech acts rise to the level of protectable expression. If AI speech protection is justified by listeners’ interests, then giving AI speech coverage need not --indeed should not -- obviate the human interests at the law’s core. We anticipate a future that includes greatly expanded AI speech and take this important first step of starting to think—Siri-ously—about the implications of AI for freedom of expression theory and doctrine.