ALBERT

Description: Diffuse nutrient pollution from agriculture has been the concern of policymakers for several decades, and yet it remains a persistent environmental issue. The current approach to mitigating the problem is predominantly via command and control regulation within the Nitrates Directive and the Water Framework Directive. This article will set out how diffuse pollution can be considered a wicked policy problem which acts as an explanation of how it has eluded the current regulatory regime. It will further establish that the traditional planning process overlooked the complexity of the problem. Finally, it will illustrate the ineffectiveness of the current regulatory framework to mitigate the problem. This will be exemplified through the legal framework of Northern Ireland.

Description: This analysis explores new developments in judicial review of planning policy interpretation. It shows how the nature of policy, often contextual and judgment-dependent, has led the UK Supreme Court to rethink the standard of review applicable to this issue. By considering the recent decision in Samuel Smith as part of a trilogy of cases—including Tesco Stores and Hopkins Homes—this analysis reveals a change in judicial attitudes, away from the expansive judicial supervision upheld in Tesco Stores. Furthermore, this study reflects on how this change is related to two wider ideas. The first is the Court’s understanding of the law and policy divide in the planning field, whilst the second is to do with a pragmatic stance regarding the purpose of the planning system and the institutional role of the courts in it. Finally, this analysis shows how the new approach emphasises the distinctive character of policy in the planning context.

Description: Energy security remains a vital issue for the European Union (EU), even more so in the wake of the events that unfolded in early 2014 in Ukraine. The EU’s already fragile position in the international energy arena in terms of security of supply appears to be more uncertain than ever after its umpteenth fallout with its historic energy supplier, Russia. This situation is untenable and calls for swift and decisive action to adequately tackle the issue once and for all. The article looks at the creation of a single EU energy market through integration of energy networks in the EU. It then examines various ways to diversify the EU’s energy supply, whether through increasing the import of liquefied natural gas, through its relations with the Eurasian Union, the promotion of renewable energy or the construction of alternative pipelines and energy routes. The article then offers an analysis of the latest developments of the Energy Charter Conference. The article concludes that from energy transit, to technology transfer, to investment protection, energy and trade present interplays across various fields. Improvements can be made to the EU trading system to ensure greater energy security and more efficient energy markets.

Description: Despite the Egyptian authorities’ great hopes for the fledging shale gas industry in Egypt, it appears that it could be difficult for Egypt to realize these lofty ambitions, at least in the near future. The Egyptian shale gas industry faces technical challenges as well as a critical lack of detailed regulations regarding the exploration for and the production of shale gas. There is also a lack of guidance over the manner in which foreign investments can be made in the industry.

Description: The demand for thermal coal has risen dramatically over the past 20 years, driven by an emerging markets-led commodities super cycle, which has recently come to an end. Today, thermal coal generates over 40 per cent of global electricity and is available in large quantities in countries such as China, India and the USA. Thermal coal is also the primary contributor to CO 2 emissions, a substantial driver of climate change. This has resulted in material tension for ‘sustainable and responsible’ institutional investors and strategic challenges for certain state-owned companies. Deciding upon the electricity generation technology in which to invest poses a significant dilemma. Thermal coal is abundant and by far the cheapest when externalities are not internalized. Electric renewables currently suffer from intermittency, viable storage solutions and are not very scalable. While cleaner than thermal coal, natural gas is abundant yet often needs to be imported and is more expensive than thermal coal. Although safe, scalable and clean from an emissions perspective, ‘new’ nuclear energy suffers from perception problems. The mixed method inductive methodology was used to determine the extent to which thermal coal remains investable over the next 20 years and has led to two divergent yet plausible scenarios impacting thermal coal investability. In assessing the investability of thermal coal across four chief stakeholders and geographies, a multifaceted interpretation of the term ‘investability’ is developed, which recognizes disparate financial and non-financial investment drivers. The research shows that thermal coal remains investable by a variety of stakeholders, particularly in the Transformative scenario, but their reasons for investing differ materially both by geography and the type of stakeholder. Finally, the key drivers for both scenarios are identified that can be monitored and used as an early warning system to inform investment decisions.

Description: In March of 2015 New Zealand’s Court of Appeal brought to a conclusion a long running dispute between the joint venture partners in the Pohokura gas and condensate field located in Taranaki, New Zealand. Todd Pohokura v. Shell Exploration NZ Limited et ano deals with the rights to production and offtake arising under the Association of International Petroleum Negotiator’s (AIPN) 1995 Model Form joint operating agreement (JOA), the powers of the Operating Committee in regards thereto and the practical implications of entering into a field development without documenting all the necessary gas sale and transportation arrangements in advance. The factual matrix provides an opportunity to review the principles of common law relevant to production and offtake, including the development of those principles from early English common law into U.S. domestic law, and how those principles have been reflected in model form JOAs on both sides of the Atlantic, including the AIPN forms and ultimately the Pohokura JOA. The analysis confirms the New Zealand courts’ rulings upholding the power of the Operating Committee to determine production rates under the AIPN Model form. However, it concludes that gas offtake arrangements that amend or add to the rights and obligations of the parties under the JOA must be agreed unanimously and are not within the jurisdiction of the Operating Committee to determine.

Description: Pursuant to a generous Association of International Petroleum Negotiator (AIPN) 2014 Summer Research Award, this article identifies, evaluates and compares the legal and fiscal rules, regulations and incentives necessary for countries with significant shale petroleum and natural gas formations to attempt to replicate the boom that is ongoing in the USA. As others have pointed out, 1 several legal, tax, and operational barriers can impair duplication of the US shale revolution in similarly endowed nations. This article identifies key factors responsible for the surge in US shale production, distill the fundamental forces from the US experience that are applicable to any jurisdiction, and evaluate and compare how several countries fare in this vein. The report also identifies avenues for reform and innovative policies that could be applied in other jurisdictions.

Description: Texas law has only recently codified in precedential decisions a reasonable formula for production allocations for horizontal, including fracked, wells. The ancient regime of the Rule of Capture does not generally apply, because of the nature of the geologic deposits and the new technology. This reasonable formula is applicable in the international arena for cross-border deposits and production blocks. Other national law and international treaties provide scant guidance in these matters and governments, national oil companies and international oil companies should review this formula to aid in negotiations for fair and equitable allocations that should preclude unnecessary disputes and litigation.

Description: The provisions in the Habitats Directive relating to protection of sites establish a triumvirate of decision-makers: administrative authority, scientific advisor and judiciary. This article examines the relationship between these decision-makers as developed in recent case law, both at a European Union (EU) and national level. It argues that reference to the goal of environmental protection obscures the allocation of power among these actors, and that to truly understand the resulting system, we must acknowledge the differing norms which motivate each of these actors. In particular, it argues that we must consider the judiciary as an actor within the decision-making process, and should examine the role of the principles of judicial review and EU law in shaping this. It highlights that there are currently conflicts within the process, and that the principles of judicial review cannot provide a successful mechanism to manage these conflicts without an explicit consideration of the values ‘hidden’ therein.

Description: One of the key issues in the current controversy over the hunting of wolves in Sweden is whether the wolf population has reached favourable conservation status (FCS). FCS is a legal concept, created and defined in law, but like many legal concepts within environmental law, can only be understood by reference to ecological concepts such as species viability. These ecological determinations in turn often require some sort of legal or policy judgment, such as how great an extinction risk is acceptable for a viable population. This article interrogates contested legal and ecological aspects of FCS and argues for how they might be applied to the Swedish wolf in potential litigation.

Description: Within the regulatory space that exists at the intersection of UK company law and environmental regulation, the business community has generated its own environmental governance initiatives to address growing anxiety about companies’ externalised risk. Yet, there is currently nothing in law to prevent companies from frequently acting inconsistently with these voluntary unilateral assurances, which has led to widespread concern that environmental values are treated as merely instrumental to the dominant idea of achieving economic benefits for the company. This article examines a specific case for the legal facilitation of binding obligations owed to the environment, which require a company to make good on its previous commitments about environmental responsibility. It seeks to demonstrate that this is possible through the common law doctrine of estoppel, which can be opened up to prevent a company from acting inconsistently with its previous statements or actions about the governance of environmental risk.

Description: The aim of the article is to shed light on the particular issue of absence of judicial dialogue between the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU) in the matter of environmental rights which represents a glaring exception to the generally cooperative disposition exhibited by the two courts in other domains linked to human rights protection. The article draws on this particular absence of judicial dialogue by examining the respective patterns of judicial reasoning employed by the CJEU and the ECtHR in cases before them that involve, or have a bearing on, environmental rights (substantive and procedural). Thus, the singular tendencies discernible in the ECtHR’s progressive jurisprudence in the field of environmental rights will be compared to CJEU’s jurisprudence relevant to environmental rights with the intention of detecting certain aspects in the CJEU’s approach which could further stand to be improved following the example of ECtHR’s activist environmental jurisprudence as a viable avenue for initiating the currently missing dialogue between the two courts in the matter of environmental rights.

Description: Oil and gas fields that straddle a domestic licence boundary or a delimited international border are often unitized so that they can be developed efficiently and effectively as a single entity. The unitization process is usually governed by a pre-unit agreement and a unitization and unit operating agreement. Provision for expert determination in these agreements should include a decision on the basis for tract participation, the determination of initial tract participation around the time of unitization, the formulation of key elements of prescribed technical procedures for any redetermination of tract participation, the redetermination of tract participation post-production, and the enlargement or reduction of the unit area and/or unit interval. The agreements must also define the key issues of how an appointed expert is to arrive at a decision. Expert determination is generally preferred to pendulum decision-making, an expert should carry out an integrated study with a single deliverable as opposed to one that is subdivided into discrete incremental steps, and the expert should table an initial decision for technical and procedural scrutiny by the parties before delivering a final binding decision. Experience has shown that adherence to these principles of prescription facilitates expert engagement during subsequent field life and thereby promotes Pareto-efficiency, fairness and equitability.

Description: Through a three-year revision involving various stakeholders, China has enacted a new Environmental Protection Law ( EPL ). The new law seeks to harmonize economic and social development with environmental protection and for the first time establishes clear requirements for the construction of an ecological civilization. It toughens the penalties for environmental offences with specific articles and provisions for raising public awareness. It also places greater responsibility on local government and law enforcement for the protection of China’s environment. However, many of the problems identified in the old EPL and especially the obstacles to its implementation have not been fully addressed and resolved. Effective environmental governance entails not only environmental laws but also implementation mechanisms, accountability regimes, and institutional arrangements. Raising the status of the EPL and of the general environmental protection apparatus is only the first step to meeting China’s environmental challenges. More efforts in the area of enforcement and implementation will lead China to a cleaner future.

Description: The cultivation of genetically modified (GM) crops in the European Union (EU) is highly harmonised, but with persisting conflicts over authority. The European Commission responded to internal and external pressures with a more flexible approach to coexistence, a proposed opt-out clause, and a promise to review the existing EU GM regime, providing an opportunity to consider and suggest paths of development. This article considers the post-authorisation policy-making powers of Member States and subnational regions, in light of subsidiarity-based multilevel governance. It considers the different approaches to risk-centred issues and more general policy choices. Overall, the developments occurring at the EU level are strengthening subsidiarity-based multilevel governance within the GM cultivation regime, but with significant opportunities to improve it further through focussing particularly on the complementary powers, coordination and the regional levels.

Description: Renewable energy provides an answer to the most pressing socio-economic challenges governments face today, in particular the effects of climate change. Although efforts have been made throughout the world, it is necessary that investment in renewable energy is further increased if it is to have a marked impact on the reduction of carbon dioxide (CO 2 ). The lack of national investment is inevitably going to trigger the inflow of foreign investment which may be subject to performance requirements which are regulated by a number of economic treaties. The Article reviews all the norms currently applicable and stresses their differences to provide a typology of existing prohibition. The analysis is further refined by a comprehensive review of the case law (both decided by trade and investment tribunals) to identify the type of requirements which have been implemented on renewable energies. It also explains and anticipates the role of the most favoured national treatment in the context of bilateral treaties in a manner hitherto unexplored. In doing so, this Article provides a comprehensive analysis of the performance requirements in international treaties with a view to assessing their impact on the further development of renewable energies.

Description: This brief contains an update of the current situation of upstream petroleum investment in Thailand. It is a critical appraisal of the ongoing reformation of the new Petroleum Act, which intends to adopt all three types of upstream contract, namely, concession, production sharing and service contracts, to govern the contractual relationship between Thailand and upstream investors.

Description: Local-content legislation and policies in oil and gas producing countries have become a key priority of host governments and industry players alike. Increasingly, more resource-rich developing countries are enacting local-content legislation as a means of maximizing the benefits to be gained from their petroleum industries. However, these laws and policies are being implemented with insufficient research into their efficacy, and as a result have often yielded mixed results. This article assesses the effect of local-content legislation and policies in the oil and gas industry presenting insights on the challenges faced by industry players with regard to their implementation. We trace the channels through which local-content legislation advances value creation by evaluating different implementation programmes, using clearly stated local-content targets to measure their efficacy. Nigeria, Ghana, Brazil and Norway are chosen as case study countries to highlight the diversity of local-content strategies for countries at different developmental stages. The motivation for this research is to provide host governments, investors and domestic suppliers with guidelines on how to successfully develop and implement local-content regulations and strategies. The experience of the case study countries above show that the success or otherwise of local-content legislation and policies remains a function of a country’s institutional setting and developmental paradigm. Based on the review of the case studies, we summarize that successful local-content legislation and policies should be anchored on the following principles: (i) local-content policies need to look beyond simple generation of economic rents to focus on the development of linkages; (ii) the tools developed to measure agreed local-content benchmarks must be clearly defined to the acceptance of all industry players; and (iii) entrenching local content depends on the availability of an industrial-supply base that can act as growth levers.

Description: This article demonstrates how the oil regulatory framework enacted in Brazil in 2010 will have detrimental effects on technology and innovation. The shortcomings essentially derive from three of its aspects: (i) operational exclusivity; (ii) the governance structure of the operational committee; and (iii) local content policies which lack adequate focus and strategic planning. All these elements actually stem from an excessively intrusive regulatory approach, within a typical top-down model, disproportionately reliant on command and control procedures. The current regulations will lead to significant drawbacks in technology and innovation in Brazil that will inevitably affect Petrobras. Even worse, however, they will not guarantee the development of a dynamic and sustainable industry of suppliers. Instead of using Petrobras to propel its industry of providers towards higher technological standards, suppliers will be dragging the national oil company downwards at the expense of the whole sector. A less intrusive regulatory framework, based on reflexive and responsive regulations is more suitable in this context, since it induces agents to continuously interact in a favourable way for the intended outcomes, instead of imposing norms and rules on them that most probably lead to other undesirable consequences.

Description: This analysis piece deals with a landmark case C-461/13, or the Weser case, in which the European Court of Justice settled a years-long dispute over the legal status of the environmental objectives laid down in the Water Framework Directive (2000/60/EC). The Court ruled that the objectives are legally binding: the Member States are for example obliged to refuse authorisation from individual projects estimated to compromise the objectives. The Court also took a strong stance on the so-called non-deterioration principle, ruling that it binds the Member States to such an extent that decline of the quality of the surface waters is no longer allowed. Being so, the Court did acknowledge the possibility of exemption from the now constituted norms, putting the derogation regime created in the Directive in the spotlight. Thus the alleged management planning instrument has turned into a more traditional, formalistic legal tool, affecting individual permitting procedures all across the Union.

Description: Climate change is a persistent, pervasive and pernicious problem. Each branch of government, including the judiciary, has a role to play in tackling climate change. Courts can make a meaningful contribution by: providing equal access to justice; determining and not deferring climate change claims; upholding the rule of law; taking and forcing the executive, legislature and private sector to take climate change seriously; explaining and upholding the fundamental values underpinning the law; promoting environmental values and putting a price on them; assisting the progressive and principled development of climate change law and policy; and making reasoned and evidence-based decisions.

Description: The article, which is based on a lecture delivered in London in September 2015, addresses the possibilities for adjudication of climate change issues before international courts and tribunals, finding them to be more favourable today than a few years ago. It argues for a role of international courts and tribunals in the determination of factual and scientific matters related to climate change, assessing the possible role of international courts of a more general jurisdiction, such as ITLOS and the ICJ.

Description: The energy transition requires a legal system that promotes the most sustainable forms of energy. This requires a holistic approach that accounts for all effects of energy production throughout the energy chain. This article analyses the presence of holistic elements in the current legal framework of biomass used for energy purposes. It finds that the most advanced example, sustainability criteria for biofuels, applies to only a fraction of all biomass uses, as the applicability is dependent on the production process used and the manner of consumption. Furthermore, the legal framework for biomass accounts for neither all direct effects, nor any indirect effects of production, nor the carbon debt resulting from biomass combustion. All this undermines the assumed sustainability of biomass. As a result, the current legal framework is far from holistic and poorly equipped to promote the most sustainable forms of energy.

Description: This article deals with compensation mechanisms for the aftermath of disasters. It claims that there is a necessity to speedily compensate victims of an accident, if this can prevent the occurrence of large societal follow-on damage. In reality this does not often happen. This article takes the entitlement to compensation as given, does not discuss substantive law matters regarding compensation, but deals with procedural aspects of how to actually get this compensation. The main obstacles to fast compensation may be found in lengthy mass litigation. Then again, civil litigation also entails economic advantages. There are law and economics arguments in favour of litigation versus alternative dispute resolution (ADR) solutions. After setting out the theoretical arguments, we discuss some American and European real-life examples of such rapid claims settlement mechanisms: the Gulf Coast Claims Facility (GCCF) and the Belgian compensation fund for technological accidents. The theoretical discussion, enriched by the illustration of the practical examples, will culminate in guidelines on how to set up a rapid claims settlement mechanism.

Description: The 2015 Paris Agreement, a product of a deeply discordant political context rife with fundamental and seemingly irresolvable differences between Parties, is an unusual Agreement. It contains a mix of hard, soft and non-obligations, the boundaries between which are blurred, but each of which plays a distinct and valuable role. This article identifies various defining elements of legal character and tabulates the core provisions of the Paris Agreement across a spectrum from those that conform most closely to hard obligations to those that are best characterized as ‘non-obligations’. It explores political drivers for the carefully calibrated mix of hard, soft and non-obligations in the Paris Agreement, as well as the dynamic interplay between them, and their critical importance in delivering an agreement acceptable to all.

Description: The tension between the meaning of causality in science and law or public policy is well-known; however, defendants in product liability cases or industries that might be affected by a government regulation may try to convince the factfinder to require evidence of a causal relationship that meets the standards of science. From the perspective of public health, however, people may be exposed unnecessarily to a health risk during the time period between the establishment of reasonably strong evidence of a causal relationship and the overwhelming evidence required for scientific causality. The Bayesian paradigm enables one to update information from epidemiologic studies as they accumulate, providing estimates of the probability that the relative risk of a particular harm from exposure exceeds a threshold value, e.g. 2.0 or 4.0 that is sufficient to meet the preponderance of the evidence standard or to support a health initiative. In order to diminish the role of the initial prior distribution, which may be quite subjective, the first case-control study or an analysis of adverse event and case reports is used to determine two prior distributions. One is the most favourable to the defendant, or industry that might be regulated, which is consistent with the previous data. The other is centred on or near the estimated relative risk from the first study. The method is applied to the studies that linked aspirin use to Reye syndrome and demonstrates that the evidence of a causal association was sufficiently strong in 1982, when the Food and Drug Administration first proposed that the public be warned of the risk, to support the regulation. Thus, lives would have been saved had the warning been given at the end of 1982 rather than in early 1985.

Description: In law, inferences of causation are sometimes made through a structured process in which multiple participants play various roles, and make decisions concerning various logical components of the overall inference (such as legal rules, policy objectives, presumptions, evidence, burdens of proof and findings of fact). This article illustrates such a process using empirical research into compensation decisions in the USA for injuries allegedly caused by vaccinations. Empirical research into actual legal processes is essential, in order to discover how various players approach their sub-tasks of decision-making. It also provides insights for areas outside of law, such as non-monotonic logic, cognitive science, sociology and artificial intelligence.

Description: Situations of causal factual uncertainty are relatively common in law. The problems and difficulties regarding ‘factual causation’ in law point to the need of ‘evidence’ and ‘proof’ models that are adequate and capable to accommodate the tests and methodologies used to explain and demonstrate it in a legal context. Given the configuration of the situations of causal factual uncertainty and the available ‘evidence’ and ‘proof’ models, I argue that it is justified to use an ‘argumentative-narrative’ model for ‘proving causation’ in law. However, considering that each model of ‘evidence’ and ‘proof’ reveals a different kind of ‘rationality’ that can still be viewed in different ways, I also argue that we must try to match the perspective we have on the ‘rationality’ behind the chosen model of ‘evidence’ and ‘proof’ with the ‘rationality’ underlying ‘causation’ in law.

Description: At least in some cases, the values confronted in legal decision-making appear to be incommensurable. Some legal theorists resist incommensurability because they fear that this presents an overwhelming obstacle to rational decision-making. By offering a close analysis of proportionality and, more particularly, measures of proportional value satisfaction, I show that this fear is unfounded. Comparative measures of proportional value satisfaction do not require the values to be commensurable. However, assuming incommensurability presents us with the problem of public significance in the proportional satisfaction of values. When two values are commensurable, this public significance is provided by the mediating effects of the overarching third value that provides the common measure of the values. However, when this common measure is removed, then the public significance of value satisfaction must be otherwise achieved. This is why I propose an equal proportional value satisfaction as the most appropriate proportionality maximand. Under equal proportional value satisfaction, the proportional satisfaction of any one value has significance for each and every other value. This kind of public significance is interpersonal rather than impersonal (or second-personal rather than third-personal). The article then shows that the legal process that is most appropriate to equal proportionality is a process that implements defeasible legal rules.

Description: In order to allocate the risk between parties in legal adjudication, we use evidentiary techniques with the main device among them being the standard of proof (SoP). The traditional view holds the grade of probability to be the parameter that shifts when moving to different standards. However, as soon as we dig slightly deeper, an incoherent picture is being revealed. In this article, I challenge the accepted view and try to show that it faces insurmountable problems concerning the rationality, the grammatical consistency and the impact of the SoP for the acceptability of verdicts. At the end of the article, I shortly discuss the theory of epistemological contextualism and propose a framework that allows rational distinctions to be drawn between different standards of proof. In the second part of this project (forthcoming), I will defend a contextualist view according to which shifting parameter is not the grade of (aleatory) probability, but instead the Set of Epistemic Defeaters in play.

Description: This article focuses on the question of how decision makers with no relevant scientific background can (if at all) legitimately evaluate conflicting scientific expert testimonies and determine their relative reliability. Sceptics argue that non-experts can never reach justifiable conclusions regarding the merits of conflicting expert testimonies because they lack the fundamental epistemic capacity to make such judgement calls. In this article, I draw on works on epistemology, philosophy of practical reasoning, philosophy of science, science and technology studies, and legal theory in order to scrutinize recent proposals to solve the problem of conflicting scientific expert testimonies. Addressing this question is of ultimate importance due to the idea that immanent in the idea of rule-of-law there is an intellectual due process norm, which articulates that epistemically arbitrary legal decisions are also not legally justified. This article is divided into two Sections. In Section 2 , I describe the basic philosophical inquiries underlying the debate about expert testimony. In particular, I first elaborate on the philosophy of testimony and its epistemic justifications, then move to the idea of epistemic deference, and finish with philosophical accounts of expertise. Section 3 presents the problem of conflicting scientific expert testimonies and analyses recent attempts to solve it as formulated by Ward Jones, Alvin Goldman and Scott Brewer. I argue that there is no single criterion (or set of criteria) upon which the non-expert could rely in order to make a rationally justified decision in each and every case in which he faces conflicting scientific expert testimonies. The alternative view here defended is to stop looking for an epistemic panacea and accept the idea that testimonial reliability operates differently within different kinds of testimony—and differently within the same kind of testimony at different times.

Description: The criterion of bioequivalence of two drugs in infringement cases may differ from the requirements used for drug approval by the FDA. In Adams v . Perrigo , 1 the Federal Circuit examined three different sets of criteria for judging bioequivalence. The statistical properties of those criteria are explored and evaluated. Our results support the appellate court’s decision to impose less stringent requirements for bioequivalence in infringement cases.

Description: The North Carolina Racial Justice Act allows defendants to submit statistical studies of prosecutorial actions pertaining to their seeking the death penalty or in making peremptory challenges. These studies may consider data from four geographical regions: the state, county, judicial division or prosecutorial district. A study of the effect of race on peremptory challenges in death penalty cases demonstrating statistically significant disparities disadvantaging Black defendants has been submitted in several cases. This comment shows that a more appropriate statistical analysis yields much stronger statistical evidence that race entered into the peremptory challenge process in Randolph County than the affidavit submitted by the authors of the study. A subsequent sensitivity analysis indicates that in order for a characteristic to explain the highly statistically significant disparity, it would need to increase the odds of an individual being challenged by a factor of three and more than twice as many Black venire members would need to possess that characteristic as non-Blacks. Since the data examined excluded potential jurors who had been removed for cause, it may be difficult for the state to find a legitimate reason justifying the racial disparity.

Description: This article critically evaluates experiments used to justify inferences of specific source attribution (‘individualization’) to ‘100% certainty’ and ‘near-zero’ rates of error claimed by firearm toolmark examiners in court testimonies, and suggests approaches for establishing statistical foundations for firearm toolmarks practice that two recent National Academy of Science reports confirm do not currently exist. Issues that should be considered in the earliest stages of statistical foundational development for firearm toolmarks are discussed.

Description: Much debate exists between Frequentist and Bayesian methods in statistics. In the evaluation of evidence, the likelihood ratio is credited with quantifying the value of evidence in favour of one or other proposition by considering the probability of the evidence conditional on each proposition and this then converts the Bayesian prior odds into the posterior odds. Motivated by this approach, this paper considers an alternative p -value-based likelihood ratio by explicitly taking into account the behaviour of the Frequentist p -value under both hypotheses, rather than restricting focus solely on the null hypothesis. It is shown that by accommodating the alternative hypothesis, analysis leads to inferential conclusions which are consistent with Bayesian methods.

Description: This essay explores the implications of complexity for understanding both the law of evidence and the nature of the legal system. Among the propositions critically analysed is that one significant way to understand the general problem of the meaning of rationality is as a multivariate search for tools to understand and regulate a hostile environment. The law of evidence is conceptualized as a subset of this effort, at least in part, as involving a search for tools to regulate the almost infinitely complex domain of potentially relevant evidence and at the same time to accommodate policy demands. The proposition is then considered that the legal system of which the evidentiary system is a part has emergent properties that may not be deducible from its component parts, which suggests in turn that it may be, or at least has properties highly analogous to, a complex adaptive system. One implication of this analysis is that the tools of standard academic research that rely heavily on the isolation and reduction of analytical problems to manageable units to permit them to be subjected to standard deductive methodologies may need to be supplemented with analytical tools that facilitate the regulation of complex natural phenomena such as fluid dynamics. This has direct implications for such things as the conception of law as rules, and thus for the Hart–Dworkin debate that has dominated jurisprudence for 50 years. That debate may have mischaracterized the object of its inquiry, and thus the Dworkinian solution to the difficulties of positivism is inapplicable. It can certainly be shown that the Dworkinian solution is not achievable and cannot rationally be approximated. Solutions to legal problems within the legal system as a whole (as compared to any particular node within the legal system) are arrived at through a process of inference to the best explanation that occurs within a highly interconnected set of nodes similar to a neural or social network.

Description: Causation as an element of a criminal offence is different from the probative difficulties. The empirical laws that are relevant to the proof of causation, as a pure matter of fact, are not discussed here, but only causality as a category of our understanding and a general law of the intelligible world. This general law of causality is equally valid for all result crimes (e.g. homicide, bodily harm, deception offences and criminal damage). According to the European continental theory of conditions, any ‘conditio sine qua non’ is by itself a cause. Causation is established by the formula of ‘conditio’ (similar to the so-called ‘but for’ test in the common law), which corresponds to a counterfactual reasoning. However, that formula is not able to resolve adequately those cases of causal overdetermination where the result occurred by means of actions of multiple, independently intervening agents. A semantic model of the world evolution, based upon ramified temporal logic, may assist the comprehension of causal connections between human actions and the relevant results. At the end of the day, this model allows us to understand that even in situations where no kind of factual uncertainty is present, doubts upon the attribution of causation to specific agents remain. We shall conclude that the attribution of causation is not a natural problem, but a logico-legal one, that has to be dealt with by way of logico-legal criteria. Nevertheless, attribution of causation must be clearly distinguished from objective imputation of proscribed harm.

Description: Over the course of the past few decades, there has been an exponential growth in environmental courts and tribunals (ECTs). At present, over 350 of these specialized fora for resolving environmental disputes exist, spanning across every region throughout the world. Some of the ECTs have been more successful but others have been less successful. This article identifies 12 characteristics that experience suggests are required for an environmental court or tribunal to operate successfully in practice, drawing upon examples from multiple jurisdictions. In identifying best practices, both substantive and procedural, from existing ECTs, this article will assist two groups: first, stakeholders who are in the process of planning or creating environmental courts or tribunals in their jurisdictions and, secondly, stakeholders and countries that are looking to improve the functioning and performance of their own ECTs.

Description: Legal education plays an important but under-acknowledged role in anthropogenic environmental change because it shapes and qualifies people to become lawyers, judges and policy makers. Their work can prohibit and legitimate particular environmental practices. The conceptual framework of law, its taxonomy, as taught to students of law, often perpetuates an unsustainable relationship to the environment where it separates questions of entitlement to land and natural resources from questions of responsibility for them. The implication of perpetuating this separation in law curricula is that generations of legal practitioners will remain unlikely to develop a coherent system of environmental law that aligns rights with responsibilities. Environmental education scholar David Orr argues that ‘all education is environmental education’. But legal education often excludes environmental considerations even where these are materially relevant. Given the role of legal education in shaping future law, this article contends that rethinking its categories opens the possibility to create sustainable land use practice laws and policy.

Description: This article utilises the concept of interdisciplinarity as a background against which to reflect on the nature of environmental law scholarship. The article argues that, while interdisciplinary scholarship has some tangible benefits in terms of expanding the perimeters of a discipline, the effects of interdisciplinary work are often exaggerated. In fact, interdisciplinary scholarship may have the unintended consequence of entrenching academic disciplines even further. In light of this, it is argued that environmental law scholarship is best perceived and defined as a deliberative practice which takes place within, and speaks to, a specific community of scholars—an interpretive community. In order to secure a vibrant discipline, the article argues that the community ought to maintain a flexible, open-ended and broadly defined approach to environmental law scholarship.

Description: European Union (EU) legal studies generally picture the Member States’ local and regional authorities as implementers of national and supranational norms rather than independent regulators. Yet, sub-national authorities (SNAs) have become active regulators in the context of climate change mitigation and adaptation, a role not foreseen by EU primary law, which this article understands to constitute the surface of EU law. This article examines regulatory activity of SNAs from the perspective of EU law. It illustrates that sub-national, national, supranational and international actors are engaged in a process of mutual learning and experimentation and that, below its surface, EU law recognises that SNAs are not mere implementers of norms but also independent regulators.

Description: This article presents a fresh analysis of the implications of the 2006 judgment of the Court of Justice of the European Union (CJEU) in Case C-244/05 Bund Naturschutz in Bayern , which clarified the standard of legal protection afforded to sites eligible for adoption as Sites of Community Importance (SCIs) under the EU’s Habitats Directive. The article argues that, as a result of this line of case law, it will be unlawful ( at least in certain cases, and perhaps in all) to apply the Article 6(4) Habitats Directive derogation in respect of eligible sites which have not yet been adopted by the European Commission as SCIs. The Commission appears to have been aware of this potential implication, and acted swiftly to minimise the potentially disruptive impact of the judgment on plans and projects within the EU. The article also considers the relevance of the CJEU’s Sweetman judgment ( C-258/11 ) to the Bund Naturschutz in Bayern line of jurisprudence.

Description: What does the specialised nature of an environment court entitle it to do? The recent decision of the New Zealand Supreme Court in Environmental Defence Society Incorporated v Marlborough District Council (‘the King Salmon case’)[2014] NZSC 38 helps to answer this question. For the past 20 years, the New Zealand Environment Court has decided applications within a framework of the broadly defined statutory purpose of sustainable resource management. The King Salmon case narrows this wide discretion. This article analyses the implications of the decision, suggesting that it helps to delineate between functions of specialist environment courts that may be considered appropriate (adjudicative and legislative fact finding) and decision-making that strays too far into the policy-sphere.

Description: This article compares the protection from unnecessary suffering afforded to wild animals with that afforded to domesticated animals and animals under human control. It considers various forms of species-specific biodiversity- and conservation-based protection for wild animals, under legislation such as the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2010, as well as the general protection from intentionally inflicted unnecessary suffering afforded to wild mammals under the Wild Mammals (Protection) Act 1996. The article then compares the standard of protection afforded to wild animals with that afforded to non-wild animals under section 4 of the Animal Welfare Act 2006, which criminalises unnecessary suffering unreasonably caused to non-wild animals.

Description: Sellers and buyers of political risk insurance (PRI) ask a simple question about a claimed indirect expropriation: ‘Is it covered by the PRI policy?’ The answer is far from simple. This article investigates only one PRI coverage—compensation for indirect expropriatory conduct. Numerous definitional issues and uncertainties exist. Investors in energy projects and PRI insurance providers will therefore both benefit from direct and clear discussions about the scope of indirect expropriation cover under a PRI policy before the policy is purchased.

Description: A number of recent governmental actions have impacted energy companies' abilities to perform under contracts relating to the extraction and export of natural resources in countries such as Russia, Iraq, and Libya. What steps can a company take to protect itself when relations between oil-rich countries and the West deteriorate? Should a company continue performing under its contract at the risk of violating economic sanctions or should it refrain from performing and risk contractual liability? While tempting to assume that the relevant contract's force majeure provision will provide sufficient protection, force majeure is not a magic talisman that can always be invoked to avoid contractual obligations that have become too difficult to perform. This article analyzes relevant case law and model clauses published by the Association of International Petroleum Negotiators and the International Chamber of Commerce to provide practical guidance on force majeure situations resulting from government action and civil unrest.

Description: When the Master Deed was conceived one of its core objectives was to expedite and simplify the United Kingdom Continental Shelf (UKCS) asset transfer regime. Although the Master Deed has had some successes since its introduction in 2003, its effectiveness in reducing the time and cost of asset transfers in the UKCS has been hindered by an inconsistent application of legal principles and the overtly adversarial legal and commercial culture that prevails in the UKCS. The UKCS’s viability to continue as a profitable producing basin is currently under threat as margins are squeezed by high producing costs and low commodity prices. During such times of increased financial pressure, it is imperative that regulators react to these challenges by developing and nurturing a regulatory environment that reduces administrative obstacles associated with asset transfers encouraging greater liquidity and investment. This article argues that with the support of a proactive and collaborative regulator, which safeguards the consistent application of transfer provisions, discards outdated methodologies and fosters a more collaborative culture between UKCS participants, the UKCS transfer regime has the potential to be one of the most dynamic and user friendly regimes of its kind. Maximizing the effectiveness of the transfer regime will ensure that the UKCS remains a competitive environment to carry out oil and gas operations, elongating its producing life and increasing overall hydrocarbon recovery.

Description: Russia is posing a series of challenges to gas consumers and gas producers alike. But the effectiveness of these challenges remains a matter of considerable debate. Overall, prospective Russian actions and policies have profound implications for the development of the European gas market in general, and thus for potential US LNG exports to Europe. Moreover, underlying all this is the most worrisome question of all: do Russia’s policies and actions enable gas consumers—and indeed, some Central Asian gas producers—to regard Russia as a reliable energy partner? This article therefore addresses: Prospects for the full implementation of the Russia–China gas accords; Prospects for Turkmen gas supply to both Russia and China; Prospects for the development of both Gazprom’s Turkish Stream project and the EU-backed Southern Gas Corridor; Prospects for US LNG in Europe; The potential challenge that a change in Russian gas export policies could pose to European gas prices. The article also seeks to answer the question as to whether Russia can be considered a reliable partner, particularly in connection with long-term deliveries to Europe.

Description: Article 33 of the 1945 Constitution of Indonesia is the most basic rule that serves as the main source for every policy concerning natural resources in Indonesia. It is interesting that ever since the independence of the Republic of Indonesia, there is no official or formal interpretation with regard to that provision. This article will discuss the Indonesian Constitutional Court’s interpretation of Article 33 of the 1945 Constitution of Indonesia. Furthermore, it will discuss overlapping rules and policies, and how derivative rules are in contradiction with Article 33 of the 1945 Constitution of Indonesia. An understanding of this provision is crucial in order to understand the general principles of gas governance in Indonesia.

Description: This article discusses the regulation of ‘substances of concern’ in the circular economy (CE) in the European Union (EU). It analyses the tensions and obstacles that the present sectoral separation of waste, product and chemicals legislation sets for the development of the CE. We argue that in a longer term perspective the aim should be to erase the border between waste and chemicals regulation and create a single regime for the regulation of materials and their flow. However, the eventual aim of such non-toxic material circulation can be achieved only via precautious transitional measures that outweigh the costs and benefits of each material flow and set restrictions for the particular substances of concern. Regulatory actions addressing the risks posed by the substances of concern in the waste-based material flows are urgently needed. New measures are necessary to protect human health and the environment and to support the development of the markets for the secondary materials.

Description: The Extractive Industries Transparency Initiative (EITI) Standard adopted in May 2013 broke new ground by including revenues from the sale of natural resources among the revenue streams to be reported by governments. This addition is of great significance considering the economic importance of sales revenues, in particular in the case of crude oil, and the rather opaque environment in which the sale and purchase of natural resources often takes place. Transparency of sales revenues, as for fiscal revenues from upstream activities, helps empower citizens of resource-rich countries to hold their governments accountable for the wealth generated by those resources. The author argues in favour of a global adoption of the EITI regime and its further strengthening in the area of disclosure of payments by companies purchasing natural resources, including commodity traders. The experience of Iraq with EITI reporting shows how information from the government as well as companies regarding the sale of the state’s crude oil can be made available to the public. National, top-down initiatives, such as the disclosure rules in section 1504 of the Dodd-Frank Act (not implemented at the time of writing), only compel companies under national jurisdiction to disclose payments to foreign governments. Unilateral initiatives create a patchwork of inconsistent standards, inviting regulatory arbitrage. As an example, while the disclosure requirements developed in the USA also apply to payments by listed companies purchasing natural resources for exporting (oil companies, refineries, commodity traders, etc); the scope of the legislation introduced in the European Union is limited to payments for upstream activities by companies in the extractive (and forestry) industries. The resulting unbalanced playing field, in addition to compliance costs, is an issue of concern to businesses, in particular with regard to the disclosure of commercially sensitive information. These considerations inform the ongoing debate regarding the possible adoption of transparency requirements in Switzerland, a major trading hub for physical energy commodities.

Description: Investment in upstream oil and gas operations is of great importance for the exploration and development of oil and gas fields. There are diverse and varied laws and regulations regarding investment in upstream oil and gas operations. This article intends to investigate and evaluate these various laws, as well as to provide an answer to the question as to what extent these rules are able to provide a secure legal framework for foreign investment in upstream oil activities. In this article we first prove that from a legal point of view foreign investment in oil and gas upstream activities has not been very explicitly permitted. Secondly, the basic terms and conditions of upstream oil and gas contracts, through which investments can be materialized in the oil and gas sector, have not yet been touched by regulations. And thirdly, it is still unclear which body is responsible for defining these essential terms and conditions: whether it is the Council of Ministers, the Economic Council or there is no legal body at all to legalize these terms and conditions and they are left to the Ministry of Petroleum and the National Iranian Oil Company (NIOC) itself to set these terms and conditions within the broad framework of the legislation.

Description: It is often believed that investment arbitrations are filed because some form of political risk materialized, harming the investor’s interests. This is the hypothesis that the authors examine in this article, focusing on the oil and gas sector. They analyse which types of political risk, present in the host state, eventually lead oil and gas investors to file investment arbitration claims against that state. They find statistical evidence supporting the idea that bad governance and economic nationalism are indeed conducive to arbitration claims in the oil and gas sector. However, it appears that economic hardship does not have the same triggering effect.

Description: After becoming independent in 1991 Azerbaijan has signed more than 30 production sharing agreements (PSAs) with international oil companies (IOCs), attracting more than $55 billion foreign investments for the joint development and production of major oil and gas fields and with significant impact for the country and the Caucasus region at large. The focus of this article is on the PSA as the legal agreement which regulates the legal, commercial and fiscal relationship between the government of Azerbaijan and IOCs. The article is a comprehensive and systematic analysis of the existing major PSAs from its legal, commercial, fiscal and environmental perspectives. The article identifies the key legal and contractual issues in the PSA regime and proposes ways to restructure the current regime in order to meet the challenges facing the petroleum industry of Azerbaijan in the future.

Description: Mexican energy reforms open the energy sector to foreign participation via different types of contracts, some of which may qualify as investments under North American Free Trade Agreement (NAFTA) Chapter 11. Mexican NAFTA reservations exclude some Mexican regulation from the scope of application of specific obligations in Chapter 11, such as those regarding performance requirements, most-favoured-nation treatment, and national treatment. However, Mexico’s legislative restrictions on foreign investors’ right to pursue investor–state arbitration are not covered by its NAFTA reservations and should not affect access to NAFTA Chapter 11 dispute settlement. Those restrictions are inconsistent with NAFTA Chapter 11 and Mexico cannot invoke its domestic laws to justify a violation of its international obligations. Moreover, Mexico’s reservations do not prevent the application of obligations regarding fair and equitable treatment and expropriation.

Description: Most states of the Gulf of Guinea have discovered significant offshore petroleum resources. The discoveries come at time when petro-states of the Gulf of Guinea do not have adequate regulation or capacity to manage the environmental consequences of offshore petroleum development, and at a time that the international community is yet to agree on any global offshore petroleum regulatory framework. The article, therefore, suggests that it is in the interest of petro-states of the Gulf of Guinea to protect the Gulf of Guinea by negotiating a protocol under the Abidjan Convention to regulate offshore petroleum development despite international disagreement as to the need for global offshore petroleum regulation.

Description: The current practice of Malaysian courts in calculating the award of damages for loss of future earnings in personal injury and fatal accidents claims is the conventional multiplier–multiplicand approach without admitting any actuarial evidence. The objective is to calculate an appropriate amount to compensate the plaintiff which will restore to the position he would have been in if that particular damage had not occurred. This article attempts to develop actuarial models using the concept of human life value that can be used as a guide to determine the amount of loss of future earnings. We believe this is where actuarial scientists need to play a role in developing a new scientific model in order to acquire an appropriate amount of award, which is relevant and satisfy both plaintiff and defendant.

Description: Recently published articles have proposed the use of likelihood ratios (LRs) in determining the evidential value of finding a given number of gunshot residue (GSR) particles on a suspect. LRs depend on the probabilistic models assumed for the defence proposition (the suspect was not involved in a shooting) and the prosecutor’s proposition (the suspect was involved), and should be calculated based on data obtained in well designed experiments. However, statistical aspects of the analysis that select the appropriate model and provide uncertainty measures are rarely considered. In this article, data from Cardinetti et al. (2006 , A proposal for statistical evaluation of the detection of gunshot residues on a suspect. Scanning , 28 (3):142–147) are used to demonstrate the sensitivity of calculated LRs to the assumed model. It is shown that the Poisson model, considered by Cardinetti and others, is inappropriate and that a Negative Binomial model fits the data much better. The statistical error arising from the fact that models are estimated based on small sampled data is discussed, as well as the importance of accounting for this error. We conclude that only with a large database can statistical models be estimated accurately and LR’s be treated as valid scientific measures.

Description: We first discuss certain problems with the classical probabilistic approach for assessing forensic evidence, in particular its inability to distinguish between lack of belief and disbelief, and its inability to model complete ignorance within a given population. We then discuss Shafer belief functions, a generalization of probability distributions, which can deal with both these objections. We use a calculus of belief functions which does not use the much criticized Dempster rule of combination, but only the very natural Dempster–Shafer conditioning. We then apply this calculus to some classical forensic problems like the various island problems and the problem of parental identification. If we impose no prior knowledge apart from assuming that the culprit or parent belongs to a given population (something which is possible in our setting), then our answers differ from the classical ones when uniform or other priors are imposed. We can actually retrieve the classical answers by imposing the relevant priors, so our set-up can and should be interpreted as a generalization of the classical methodology, allowing more flexibility. We show how our calculus can be used to develop an analogue of Bayes’ rule, with belief functions instead of classical probabilities. We also discuss consequences of our theory for legal practice.

Description: The Organization of Petroleum Exporting Countries (OPEC) was established in 1960, and Indonesia became the seventh country to join in 1962. However, Indonesia suspended her membership for seven years from January 2009, and has just rejoined in January of this year. During her initial 27-year tenure, Indonesia’s representatives held the position of Secretary General four times, for a total of 10 years. This article will give a brief historical overview of OPEC, as well as that of Indonesia’s oil and gas sector and her relationship with OPEC.

Description: The European Union (EU) has a recognized international legal personality and it has signed the Energy Charter Treaty (ECT) as a Regional Economic Integration Organization (REIO). As a result, the ECT, the EU and national legislation together establish different regulatory layers governing energy markets. Although those layers are in principle complementary, rules adopted in different periods and frameworks may cause inconsistencies in their implementation. The arbitral tribunal award on 21 January 2016 in the case Charanne and Construction v Spain , is only the latest illustration of the uneasy boundaries between the EU and ECT. This article will look into some of the dynamics and tensions between the EU internal energy market and policy and the ECT in the areas of transit, long-term contracts, renewable energy and external relations. The review of selected measures and case law will reveal the existence of tensions at regional and international levels and the way they are addressed to simultaneously accommodate regional and international legal orders. This article will help to understand what kind of interactions are happening today between the EU and the ECT legal systems and will offer a particular view to explain and approach those relations.

Description: To date there have been limited attempts by energy law scholars to ensure that their research impacts upon legal practice and in particular upon the decision-making of judges. One of the aims of this article is to address this issue and call for the need of energy law scholars to re-engage with what their sub-discipline of law is and also to provide new scholarship that can bridge the gap between academics and professionals in energy law. This article aims to begin a wider movement across the energy law field of scholars with the aim of initiating and advancing the aim and direction of energy law. A central aim of this article is to begin a debate on whether a paradigm shift is needed in energy law. As part of this new initiative, three theoretical frameworks are advanced and these are as follows: (i) The Energy Law and Policy Triangle; (ii) The Theory of Change in Energy Law; and (iii) The Power of Energy Law: Targeted Legislation. These theories outlined in this article aim to highlight some of what scholars and practitioners should focus on, and present them with thinking-tools or theories of how to do so. In order to finalize the emergence of energy law as its own sub-discipline of law it needs its own theory to evolve and grow as other sub-disciplines of law do both in theory and in practice.

Description: The 2009 Copenhagen Accord marked a significant shift in global climate governance which has been substantially adopted in the 2015 Paris Agreement. At Copenhagen, binding targets for states to reduce emissions were replaced by voluntary pledges. We argue that the Polanyian ‘double movement' offers a useful lens to understand the Copenhagen shift in global climate governance as part of ongoing contestation in the international law system between principles of economic liberalisation and redistributive intervention. In the second half of the 20th century, redistributive design of international legal institutions became evident in a number of issue areas including trade law, oceans law and the seminal climate treaties. However, there has been ongoing US lead opposition to ‘redistributive multilateralism’ (RM), particularly over the last decade of climate negotiations. The Copenhagen model of voluntary pledges, therefore, needs to be viewed as an outcome of this opposition to RM and a related weakening of differentiation in international environmental law.

Description: Complexity theory has been highly influential within environmental studies circles, including among environmental legal scholars. The focus of the majority of this research has been on the implications of complex natural systems for policymaking; how best to design and implement public policy instruments in the context of complex natural systems in order to achieve desired objectives. Far less attention has been paid to the application of complexity theory to the policy process itself. This article addresses this gap by looking at what complexity theory adds to the study of environmental policymaking. To do this, the article builds a bounded model of environmental policymaking based on a meta-analysis of the existing non-complexity related theoretical and empirical policy literature. The model is used to illustrate how complexity theory changes and how environmental policy processes are perceived and studied.

Description: This article reviews the law applicable to boundary determinations and observes that this legal framework does not provide sufficient guidance for parties involved in development of subsoil or subsea resources that may straddle an undefined or contested boundary. Examples of how states and private parties have attempted to cope with this uncertainty are discussed. The authors propose that a duty of good faith applies to prevent the existence of legal uncertainty in such situations from being exploited to prohibit resource exploration. They finally discuss briefly how some parties seek to address these risks contractually.

Description: At their core, natural gas and LNG price review claims focus on evaluating whether or not the applicable contract sales price aligns with the various benchmarks specified in the underlying contract. While price review clauses are drafted in different ways, the common premise is a simple one. Its application, however, is mired in nuance and potential pitfalls. In this article, we consider the commercial bargain underlying price review rights with an eye to understanding the context within which the text of any price review clause should be considered. We examine some of the key issues to be considered in evaluating the market benchmarks referenced in these clauses and some of the complexities associated with quantifying market value by reference to these benchmarks. Ultimately, many factors must be considered and reconciled in the context of a price review claim. For the lawyers involved in these cases, it is critical to understand both aspects separately and in tandem to arrive at a coherent and comprehensive analytical framework.

Description: Energy contracts have long been vexed by questions about the role of gap filling by arbitrators and judges, along with the effect of changed circumstance on the parties’ obligations. Each challenge continues to resist facile analysis as differing legal standards interact with subtleties of contract language and factual matrixes. In the face of these challenges, arbitrators must seek a delicate equilibrium between legitimate respect for bargains and an equally legitimate recognition of expectations that genuine gaps be filled and dramatically changed circumstances receive appropriate consideration. In aiming for counterpoise, common sense normally pays greater dividends than ideology or dogmatism.

Description: The importance of substantial and sustained investment in the energy sector cannot be overstated. The protections offered to private investors through the global network of bilateral investment treaties (BITs), including investor-state dispute settlement (ISDS) are particularly significant for the energy sector. However, the ISDS system that has been so significant in encouraging investment is under attack. An intense and public debate is on foot. This article highlights the ways in which the investment treaty system and ISDS are developing to achieve an appropriate balance between private rights and public interests, particularly given recent developments in sustainable development, responding to climate change, and the promotion and protection of human rights. The article surveys reactive developments in substantive standards of protection under BITs, as well as the ways in which the existing system is capable of self-calibration to respond to public concerns, namely in respect of transparency, state counterclaims, legislative discretion, and the emergence of a new generation of BITs addressing the public/private divide. Finally, the authors consider how arbitration, including ISDS, has contributed to an equally important public interest, the growth of the rule of law around the world. The authors conclude that while a range of improvements to the investment treaty system can and should be considered, the system as a whole and ISDS are vital components of the energy industry, integral to our future energy security and key contributors to global stability through their promotion of the rule of law.

Description: A definition of causality introduced by Halpern & Pearl, which uses structural equations , is reviewed. A more refined definition is then considered, which takes into account issues of normality and typicality, which are well known to affect causal ascriptions. Causality is typically an all-or-nothing notion: either A is a cause of B or it is not. An extension of the definition of causality to capture notions of degree of responsibility and degree of blame , due to Chockler and Halpern, is reviewed. For example, if someone wins an election 11–0, then each person who votes for him is less responsible for the victory than if he had won 6–5. Degree of blame takes into account an agent's epistemic state. Roughly speaking, the degree of blame of A for B is the expected degree of responsibility of A for B , taken over the epistemic state of an agent. Finally, the structural-equations definition of causality is compared to Wright’s NESS test.

Description: The European Court of Justice has held that as from 21 December 2012, insurers may no longer charge men and women differently on the basis of scientific evidence that is statistically linked to their sex, effectively prohibiting the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services throughout the European Union. This ruling marks a sharp turn away from the traditional view that insurers should be allowed to apply just about any risk assessment criterion, so long as it is sustained by the findings of actuarial science. The naïveté behind the assumption that insurers’ recourse to statistical data and probabilistic analysis, given their scientific nature, would suffice to keep them out of harm’s way was exposed. In this article, I look at the flaws of this assumption and question whether this judicial decision, whilst constituting a most welcome landmark in the pursuit of equality between men and women, has nonetheless gone too far by saying too little on the million dollar question of what separates admissible criteria of differentiation from inadmissible forms of discrimination.

Description: A study by the authors of determining manner of death used a method novel to forensic pathology. This article details the method used. Drawing on the methodology of evidence-based medicine, data was systematically identified and pooled to provide a robust and substantial dataset of probabilities for forensic evidential features of gunshot wounds. This provided source data for a Bayesian analysis to determine the probable manner of death. We suggest the same method can be applied to a wide variety of evidence, meeting the need for strong and reliable data highlighted by R v . T and subsequent debate.

Description: The Engineering Department of the Spanish Civil Guard has been using automatic speaker recognition systems for forensic purposes providing likelihood ratios since 2004. They are quantitatively much more modest than in the DNA field. In this context, it is essential a suitable calculation of the prior odds to figure out the posterior odds once the comparison result is expressed as likelihood ratio. These odds are under the responsibility of a Judge, and many consider unlikely that they can be quantitatively calculated in real cases. However, our experience defending in Court over 500 speaker recognition expert reports allows us to suggest how the expert may support Judges from a technical point of view to assess the odds. Technical support as referred should be preferentially provided in the preliminary investigation stage, after the expert report being issued by the laboratory, as in the course of oral hearings it is much more difficult for those who are not familiar with the new paradigm. It can be initiated upon request by the Examining Judge or any of the litigant parties. We consider this practice favourable to the equality of arms principle. The use of Bayesian networks is proposed to provide inferential assistance to the Judge when assessing the prior odds. An example of the explanation above is provided by the case of the terrorist attack against Madrid-Barajas Airport Terminal 4 perpetrated in December 2006.

Description: From the 1920s to the 1960s, seven major International Oil Companies (IOCs) were almost the only market players in the global petroleum industry. Their share of oil and gas reserves, however, fell dramatically from about 85 per cent in 1970 to less than 10 per cent today. Changes in the competitive dynamics of the upstream petroleum industry are, however, less studied areas in the literature. In this article, we conduct a review of previous studies to answer the question: Is the traditional business model of IOCs still valid? We propose a theoretical framework and give a historical account of IOCs erosion and Global National Oil Companies (GNOCs) ascent to the top. Finally, we explore an array of possible future scenarios. We argue that IOCs are not in a position to regain the lost ground if they remain wedded to their traditional business model.

Description: The Russia–China deal in May 2014 opened a new page in Gazprom's efforts to orient its exports to Asia. The political logic behind the new agreement resembles the first Soviet gas export contracts with European states. However, the international gas markets favour Asia's position in general and China's in particular. Moreover, China is now having a leverage on its future liquefied natural gas suppliers. The new context makes Russian negotiating positions weaker and, moreover, Russian gas export to China might not be a subject of Gazprom monopoly any longer.

Description: Bangladesh has recently decided to build the country’s first nuclear power plant in the western region of Rooppur, despite strong public opinion against it. The Bangladeshi government argues that the project is necessary to diversify the country’s energy mix to improve electricity generation capacity. This commentary explores the Rooppur nuclear power plant project and argues that there are serious concerns about the project that should be taken into account by the Bangladeshi government and that there are other options available to diversify the energy mix. The author recommends that Bangladesh is not yet ready for nuclear power as sufficient technical and regulatory expertise and improvement of infrastructure is required before the country can go nuclear.

Description: The energy industry has been Mexico's main economic engine since the early 20th century. Booming oilfields across the Gulf of Mexico have financed government expenditures, social programmes and infrastructure for almost 80 years. Nevertheless, Mexico's once abundant reserves have been dwindling at an accelerated rate under the energy monopoly model controlled by the state. As exploration, production, processing and distribution became increasingly complex and demanded higher levels of specialization, the Mexican energy industry started to lag and fall behind due to the State's monopoly inability to efficiently reallocate and invest the necessary resources to maintain a sustainable growth. Consequently, the once almighty Mexican oil production peaked in 2004. In 2013, the Mexican government was finally able to enact the necessary constitutional and legal changes to transform the energy industry from a monopoly into a free market model where private companies, domestic and international, could invest and participate in Mexico's energy renaissance. This article will discuss the new model, focusing on upstream ventures, brought about by the Energy Reform, including the main regulatory agencies, laws, and contract schemes that are expected to attract new investors and technologies, ultimately reinvigorating Mexico's energy industry.

Description: The United Nations Secretary-General, in the 67th annual report, Oceans and the Law of the Sea , gave a preliminary statement regarding the governance policy and legal framework for marine renewable resources. The report also suggested establishing a relevant legal regime but did not provide any details. Legislative and research work have positive effects in facilitating marine renewable energy programmes. It is also a necessary precondition to create a relevant legal governance regime, in order to establish a concrete marine renewable energy programme. This article examines international legal duties and obligations in relation to the exploration of marine renewable energy. It also examines state practice in the USA, the UK and Canada.

Description: Given their rapidly increasing contribution to the climate change problem, calls for regulation of emissions from the international aviation sector have become stronger in recent years. The Kyoto Protocol has delegated the adoption of mitigation measures to the International Civil Aviation Organization (ICAO), with only modest results to date. A core challenge in crafting international regulation for international aviation emissions is the differential treatment of developed and developing countries in a sector that is otherwise characterised by equality of treatment. This article shows how the ICAO has struggled to find a balance between the two approaches, and traces the evolution of the European Union’s approach to differentiation, which included international aviation in its emissions trading system as of 2012. We argue that reconciling differential and equal treatment is likely to include the use of contextual norms applying differential treatment at the implementation stage, specifically through financial, technological, and capacity-building assistance arrangements.

Description: This articles examines in detail the rhetorical means most commonly used in debates on environmental regulation. The article argues that debates on whether and how to regulate in the context of the environment often take the form of a predictable toing and froing between participants in such debates. The primary reason for this is found in the all too common reliance of participants on ready-to-hand arguments. By way of illustration, the article makes use of debates surrounding hydraulic fracturing in the UK in the form of the recently enacted Infrastructure Act 2015. The article concludes that the reliance on predictable means of rhetorical moves runs the risk of taking place at the expense of attempts to find a constructive middle-ground.

Description: The Water Framework Directive is innovative in EU law, and the informal role of the Common Implementation Strategy (CIS) guidance documents makes the Directive’s regulative space complex. This analysis raises questions about the legitimacy of interpretative elements found in CIS guidance. The CIS interpretations seem to result in only one element of ‘ecological status’ being assessed (structure, and not functioning), generally weakening the obligation of ‘good ecological status’. Using ecological knowledge in guidance that contradicts the main legal construct on which it is based raises questions about the CIS, and also the ‘legal effect’ bar established by the Court of Justice, as the CIS may produce guidance documents to the Directive that alter the legally binding objective, although not providing enough legal effects for a review.