ALBERT

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: 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: 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: 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.

Description: As the bridge between science and regulation, risk assessment is an important area of study where generalisations underlying scientific evidence are employed to fulfil legal criteria found in protective statutes. Scientific generalisations in risk assessment often assume the form of presumptive default inferences that function as rules of evidentiary evaluation in the presence of uncertainty. There are no definitive criteria to determine when a body of scientific evidence effectively rebuts a protective standard or assumption of harm established by an administrative agency. In 2011, the Government of Canada established the first Board of Review under the Canadian Environmental Protection Act 1999 in response to an industry led rebuttal concerning the protective regulation of the chemical Siloxane D5. A default logic framework is used to model and visually depict the Board’s reasoning at a critical rule–evidence junction to examine how scientists can become regulators through the imposition of default inference.

Description: Fracking in England has been the subject of significant controversy and has sparked not only public protest but also an associated framing war with differing social constructions of the technology adopted by different sides. This article explores the frames and counter-frames which have been employed by both the anti-fracking movement and by government and the oil and gas industry. It then considers the way in which the English planning and regulatory permitting systems have provided space for these frames within the relevant machinery for public participation. The article thus enables one to see which frames have been allowed a voice and which have been excluded.

Description: The article argues that regional environmental governance in the Arctic, specifically the Arctic Council, can offer lessons that might inform governance in other regions in the world. For almost 25 years of continued regional-level work Arctic actors have been testing various approaches, and embracing those that have proven effective. Innovations in Arctic environmental governance have emerged both due to larger politico-legal changes and institutional, internal or reflexive learning. In the complex landscape of multi-level environmental governance, regional organisations need to continuously find their niche, learn and adapt. A discussion of the concept of organisational learning helps to understand the nature of the learning processes. This process is visible in the change of the Council’s focus from normative activities towards large-scale scientific assessments. The characteristics of the Council that facilitated learning, primarily its structural flexibility, are highlighted.

Description: The recent decision of the Court of Appeal in Venn v Secretary of the State for Communities and the Local Government provided necessary clarification on the application of the current costs protection regime in cases within the scope of the Aarhus Convention. The case made the problematic features of the new costs rules explicit in ensuring access to environmental justice. Prohibitively expensive and unpredictable litigation costs in environmental litigation, a traditional feature of English law, are principally addressed through the implementation of the third pillar of the Aarhus Convention. Article 9(4), the key provision, provides that access to justice should be ‘fair, equitable, timely and not prohibitively expensive’. The recent amendments to the Civil Procedure Rules (CPR 45.41–45.44 and Practice Direction 45) reflect an urgent, but superficial, attempt to secure compliance with the Convention. This case note discusses the specific criticisms of CPR 45.41, and the broader implications of the case concerning the legal status of the obligations under the Aarhus Convention, the relationship between environmental justice and procedure, and the nature of environmental law and policy.

Description: Central Asia is strategically located at the crossroads of many natural gas production and consumption regions. Historically isolated because of lack of infrastructure and Soviet control, multiple projects are being proposed to transport gas from the rich reserves found in the Caspian Basin both eastward and westward. Littoral nations on the shore of the Caspian Sea are in a time of significant energy growth as the European Union has sought to eliminate reliance on Russian gas supply. The Trans-Caspian Pipeline (TCP) is one of these proposed projects. It would transport gas from Turkmenistan to Azerbaijan through the seabed of the Caspian Sea from which it could be transported on to Europe, eliminating Russia from the transport process. In this article, we will look at the background of the pipeline’s proposal, setbacks arising, and how the construction would affect each of the five littoral nations.

Description: This article analyses how the progressive globalization of the natural gas market has shaped Liquefied Natural Gas (LNG) arbitration disputes over the past two decades. It concludes that globalization has had differing impacts on two categories of LNG arbitration disputes.

Description: New hydrocarbon frontiers open for various reasons, including technological advances and beneficial economic conditions. In this article, the authors focus on countries opening for business because of political changes and how foreign entrants can best manage investment risk in these countries. Investing in frontier markets may be challenging for a number of reasons, however, the prize for overcoming these challenges can be significant. In the current low oil price environment, risk tolerant investors may see a perfect buying opportunity in promising frontiers. The authors provide an overview of ten key issues (such as political risk and local law risk) that, regardless of the oil price, investors should consider before bidding for oil and gas assets in frontier markets and advise on effective mitigation strategies.

Description: Identifying specific human body fluids and establishing their presence in traces can be crucial to help reconstructing alleged incidents in criminal cases. It is up to the forensic practitioner to test for the presence of body fluids, interpret the test results and draw scientifically supported conclusions that can be used in a court of law. This study presents a Bayesian network for the interpretation of test results for human saliva based on the presence of human salivary α-amylase. The Bayesian network can be used by forensic practitioners as an exploratory tool to form their expert opinion on the presence or absence of saliva in a trace.

Description: Arbitration is the most widely used dispute resolution method in the energy sector. A major advantage of arbitration is that it allows parties to select the persons who will settle the dispute—the arbitrators. However, finding meaningful information on the level of expertise of potential arbitrators is not easy. There are serious information asymmetries that prevent the market for arbitrator services from being fully competitive and impair parties’ ability to make wholly informed decisions. Because most parties and their counsels are not familiar with the market for arbitrators, they tend to rely on personal enquiries and generic or specific directories of arbitrators. The choice of a suitable arbitrator is critical, not merely from the parties’ point of view but also to ensure the efficiency and legitimacy of the overall system of dispute resolution. Arbitrators should be able to balance a variety of diverse interests that frequently go beyond the strict concerns of the disputing parties. This article argues that lists of energy arbitrators should be improved so as to allow interested parties to consult prior awards rendered by potential arbitrators and the feedback provided by previous users of their services. This would allow parties to conduct a more efficient screening of potential candidates, hopefully contributing to make the process of identification of expert energy arbitrators easier and cheaper.

Description: The Energy Charter Treaty is an important multilateral treaty for promoting international energy cooperation. Sustainable development is one of its purposes. The investment regulations of the Treaty have emphasized protecting the investors’ interests, which has potentially both positive and negative influence on sustainable development. To achieve the aim of sustainable development and to attract more countries’ participation in the Treaty, the Treaty should increase its transparency and give differential treatment to developing countries. This article seeks to analyse these concerns and offer some wider conclusions regarding the particular improvement which can be carried out to increase the level of investment protection, while maximizing sustainable development simultaneously.

Description: As global climate change and its adverse effects have caused serious consequences, the Chinese Government is speeding up on energy saving and emissions reductions, becoming much more active on the climate and environment front. According to the work schedule of the Ministry of Finance, construction of the environmental protection tax system is one essential part of the forthcoming green tax reform in China. On 10 June 2015, the Cabinet’s Legislative Affairs Office issued a Draft Environmental Protection Tax Law of the People’s Republic of China (hereinafter referred to as the ‘Draft EPT Law’) to solicit opinions and comments. This action received much attention and prompted discussion both at home and abroad. The Draft EPT Law shows the trend of transforming pollution charges into tax, and starts a green reform in administrative management by means of financial tools. Though the law does not include carbon dioxide with taxable pollutants, it leaves space for future carbon taxation. With the increase of green reform in the future, carbon tax will no doubt be put on the priority list of the Chinese Government, at which point the Government will face three major challenges. First, the current unsatisfactory tax system environment will jeopardize carbon tax. It is necessary to repeal the overlaps between the Draft EPT Law and carbon tax, other energy taxes and non-environmental taxes, and introduce carbon tax into the current tax system without throwing off the order of the overall tax structure. Secondly, in spite of the design of the new tax structure, the administrative organization of tax management remains a very critical problem. It will be necessary to establish an orderly interactive relationship horizontally between the environmental agency and tax agency, and vertically between the central and the local authorities. Thirdly, a new carbon tax will cause economic slowdown in the short term. In addition to offering tax rebates, reductions and subsidies, a system of penalties could offset negative effects and optimize positive outcomes of emission reduction.

Description: At present, the issue of bilateral investment treaties (BIT) is gaining more and more importance worldwide, because of various projects requiring effective financial flow, being globally initiated. This article tries to analyse the particularities of the BITs between China and Canada (China–Canada BIT), as well as between the European Union (EU) and Canada (investment chapter of the Comprehensive Economic and Trade Agreement, CETA) to locate and emphasize some of the basic features applicable for a future investment protection oriented agreement involving China and the EU. Furthermore, the scope of United Nations Conference on Trade and Development (UNCTAD)’s Investment Policy Framework for Sustainable Development (IPFSD) broadens the view on International Investment Agreements in general, helping the assessment of their provisions from a sustainability aspect. The article also covers some of the areas of dispute settlement, its main goal being to make complex suggestions to the constantly forming international investment policy of China, potentially contributing to the pressurization of sustainable development.

Description: The Leviathan natural gas field has become a significant energy source for surrounding states in the eastern Mediterranean such as Lebanon, Cyprus, Syria, Israel, Jordan and Turkey. Tensions in the particular area cause this resource to be exploited on a low efficiency level both when it comes to utilization and organized cooperation between states helping their economies to benefit from the trade in this natural resource. This article analyses the current tendencies towards the expansion of the regulatory frameworks already functional in Mediterranean states west of the Levantine basin and simultaneously aims to give an assessment of these efforts. The main goal is to thoroughly evaluate the appropriateness of the existing cooperative methods and legal solutions regarding energy trade on an open market between developed states for countries with different political interests in a highly unstable area of constant sociological and political turbulence.

Description: The discipline of forensic epidemiology, a branch of forensic medicine, provides a systematic approach to the assessment of general and specific (individual) causation, with the results suitable for presentation in a court of law. In the present paper some of the methods utilized in forensic epidemiology are described, along with examples of how such methods can be reliably applied to the evaluation of specific causality in criminal and civil matters. Included in the discussion is the presentation of two case studies in applied forensic epidemiology; one in a civil action for medical negligence, and the other in a homicide investigation.

Description: Due to an error in the computer program used to summon potential jurors for service, the African-American percentage (4.17%) of jury pools was only one-half their percentage (8.25%) of the age-eligible population for about fifteen months. In June 2012, in Ambrose v. Booker , the Sixth Circuit accepted the statistical evidence as sufficient to meet the requirements for a prima facie case of unfair representation the U.S. Supreme Court established in Duren . On the same day, the Michigan S. Ct. in People v. Bryant said that the statistics were insufficient. The Michigan Court accepted a new measure, the disparity of the risk (DR), of under-representation. The DR measure is shown to be extremely stringent and an alternative measure based on the probability that a jury randomly selected from the jury pool will have fewer minorities than a jury selected from the age-eligible population is proposed. The minority fraction of individuals ultimately serving on juries also depends on the fairness of the peremptory challenges made by the parties. A method for detecting unfairness is reviewed; its effectiveness depends on the number of minorities on the venire. A reanalysis of the Michigan data shows that if the proportion of African-Americans in the jury pool equaled their proportion in the age-eligible population, prosecutors could only reduce their proportion on juries to about 80% of their proportion in the population. In contrast, the criteria for adequate representativeness based on the DR measure adopted by the Michigan Court could lead to virtually no minorities serving on actual juries as only three percent of the venires would have a sufficient number of minorities to classify a prosecutor's peremptory challenging all of them as significant. Our results indicate that when assessing statistics on the demographic mix of jury pools for legal significance, courts should consider the possible reduction in minority representation that can occur in the peremptory challenge proceedings.

Description: In violent crimes, adhesive tapes such as duct tape are often used by perpetrators e.g. to tie up a victim. In the forensic examination of such tapes many different types of traces can be found, such as finger marks and human biological traces. These traces are first interpreted at source level. However, even when it is certain that a trace was donated by the suspect this does not necessarily mean that he donated the trace while taping the victim, as he could have e.g. used the tape roll from which the pieces came previous to the crime. Therefore, the trace can also be interpreted at activity level. For this, factors such as transfer, persistence and recovery, as well as the position of the trace as it would have been on the original roll have to be taken into consideration. In this study, we have developed a Bayesian network which can aid the forensic practitioner in his interpretation. From a sensitivity analysis, we have concluded that it would be most desirable to set up further studies to determine the most likely positions of DNA on tape rolls if there has only been innocent contact.

Description: Member States retain the right to decide who can receive renewable energy subsidies, and can exclude green electricity produced abroad from subsidy programmes. With its decision in the Ålands Vindkraft case, the European Court of Justice assured the continued existence of renewable energy subsidy programmes in various European Union Member States. While the judgment was welcomed by many political stakeholders, it highlights a number of unresolved legal questions. To date, the Court of Justice of the European Union (CJEU) has failed to clarify if and when discrimination against foreign goods is permitted for reasons of environmental protection. The problems that remain in the wake of the Ålands Vindkraft decision argue in favour of abandoning the existing distinction between discriminatory and non-discriminatory subsidy measures. With its decision, the CJEU has granted Member States broad leeway to conduct their own assessment of the proportionality of a measure. All in all, renewable energy providers have reason to celebrate; however, the goal of creating a single European market for electricity has fallen by the wayside.

Description: Negotiations are currently underway for a new global compact on climate change, to build on the United Nations Framework Convention on Climate Change (UNFCCC). This article asks whether the UNFCCC is adequate to the task or whether, despite the urgency of the need to agree a path ahead, it would be more appropriate to supplant, rather than further to supplement, the UNFCCC. The article answers this question through application of the theory of Cognitive Structures of Cooperation (CSC Theory) and the light it sheds on the role of the foundational treaty in a multi-treaty regime. Applied to the UNFCCC CSC Theory suggests that despite incorporating a rich tapestry of ideational components, the UNFCCC does not offer a strong conceptual basis on which to build further and recommends reappraising the assumption that a new agreement be concluded on the same basis.

Description: A ‘burden reducing’ agenda has spurred an increased interest in how EU environmental legislation is transposed into national legislation—most prominently reflected in the principle of ‘no gold-plating’. Yet, an important question is to what extent transposition principles and practices may ensure a coherent and accessible body of environmental legislation, while at the same time ensuring adequate transposition of EU environmental legislation. This article analyses the existence, or emergence, of transposition principles and practices in three Member States—the United Kingdom, the Netherlands and Denmark. It also examines how EU initiatives may influence these principles and practices. The article concludes that the steering of transposition processes by general transposition principles and objectives alone, and in particular those dominated by a ‘burden reducing’ agenda, has a limited focus on coherence and accessibility with respect to environmental legislation and that such issues deserve more attention in the transposition process.

Description: This article presents some fresh reflections on participation in environmental decision-making by focussing on the case of newly designated Marine Conservation Zones (MCZs) under the Marine and Coastal Access Act 2009. The article draws on empirical research conducted by the author with South-East fishermen, considering their perceptions of the designation process. Julia Black’s distinction between ‘thin’ and ‘thick’ proceduralisation serves as a theoretical basis to explain fishermen’s perceptions of the process of designation of MCZs but it is then complemented by observations on knowledge construction and representation, following critical social sciences writings on nature conservation. The argument put forward is that the process of designation of MCZs is an example of ‘thin’ proceduralisation and that a move towards ‘thicker’ forms would benefit from acknowledging the existence of multiple knowledges within each participant and from deconstructing the dichotomy between socio-economic and ecological aspects in thinking about conservation.

Description: The ecosystem approach, broadly understood as a legal and governance ‘strategy for the integrated management of land, water and living resources’ is being increasingly adopted within a wide variety of international environmental legal regimes. From freshwater to oceans, from biodiversity to fisheries, from Antarctica to climate adaptation, the approach provides a narrative, a policy approach and in some cases legally binding obligations for States to implement what has been called a ‘new paradigm’ of environmental management. Responding to hopes of arresting, and reversing, the increasingly negative trends of resource depletion and ecological degradation affecting most ecosystems in the world, the ecosystem approach promises to ‘protect the environment, maintain healthy ecosystems, preserve biological diversity, and achieve sustainable development’, all at once. This article problematises the ecosystem approach in order to highlight its complex genealogies, and its contested and slippery character, which makes it susceptible to discursive capture by competing narratives.

Description: This article examines a small body of decisions on applications for nationally significant wind energy projects under the Planning Act 2008, focussing on the ways in which Examining Authority reports respond to concerns expressed by publics. We draw three closely related conclusions. First, while there is nuance and flexibility, national policy tends to limit the scope for dissenting views to bear much weight, if any, in decision-making. Secondly, the strong national policy support for nationally significant wind farm development means that in many cases the Examining Authority is trying to find a way to deal with the publics’ concerns without dismissing them completely or classifying them as unimportant, and yet still allow the development to proceed. This leads to a focus on mitigation; a ‘how not whether’ approach to participation. Finally, albeit a little more tentatively, we conclude that these decisions confirm studies in a range of areas and jurisdictions that suggests a preference among decision makers for expert over lay constructions of knowledge.

Description: In this article, we introduce a new tool, namely ‘Limit Tippett Plots’, to assess the performance of likelihood ratios in evidence evaluation including theoretical bounds on the probability of observing misleading evidence. To do that, we first review previous work about such bounds. Then we derive ‘Limit Tippett Plots’ that complements Tippett plots with information about the limits on the probability of observing misleading evidence, which are taken as a reference. Thus, a much richer way to measure performance of likelihood ratios is given. Finally, we present an experimental example in forensic automatic speaker recognition following the protocols of the Acoustics Laboratory of Guardia Civil, where it can be seen that ‘Limit Tippett Plots’ help to detect problems in the calculation of likelihood ratios.

Description: Law-and-economics scholars have recently argued that the legal system should set burdens of proof on the basis of ex ante welfare considerations. In this article, we reject this welfarist approach, showing that it relies on contested normative principles, raises legitimacy concerns, and is nearly impossible to implement in practice. As an alternative, we propose a decision-theory model that we constrain to account for core legal values and the practical limitations of the trial process. Specifically, we require that the burden of proof prioritize accuracy (truth) over welfare, and that it be capable of operating without knowledge of the base rates or prior probabilities of activities. The resulting optimization problem can be solved using a minimax approach, which minimizes the maximum probability of error faced by each of the parties, and remarkably, the minimax solution turns out to be precisely the preponderance-of-the-evidence standard currently imposed by courts. We thereby not only refute recent welfare theories about the burden of proof, but also provide a new theoretical justification for the traditional preponderance standard.

Description: The scientific basis of claims made in court concerning post-mortem root banding are examined critically. Root banding has been an issue in criminal trials concerning the murders of Theresa Fusco, of Piper Stregle and Larisa Dumansky, and of Caylee Anthony, and in civil trials arising from the Fusco murder. In each case, root banded hairs were found, and interpretations testified to. The questions addressed here are the scientific basis for the claim that root banding is solely a post-mortem phenomenon, and whether data supports conclusions about the time interval between death and the development of root banding in the corpse.

Description: This article is concerned with criminal trials where the defendant is a convicted felon with a prior conviction for the same offence. The article investigates a probabilistic argument that I will call the felony argument . According to the felony argument, the fact that the defendant has been previously convicted for the same offence has probative value in the present case, and increases the probability that the defendant is guilty. The article analyses the felony argument in Bayesian terms to pinpoint under what circumstances it is correct, and under what circumstances it comes to the wrong conclusion. This analysis shows that the felony argument is correct if the probability that a guilty defendant has been previously convicted for the same offence is higher than the probability that an innocent defendant has been previously convicted for the same offence. The problem with the felony argument is that the latter probability is not as low as one might think. It is not unlikely that an innocent defendant has been previously convicted for the same offence. In cases where the defendant is innocent, the cause behind the wrongful prosecution is often related to prior conviction, e.g. when photos of people with a prior conviction for the same offence are presented to an eyewitness and the witness mistakenly identifies a person who has nothing to do with the present case. Prior conviction for the same offence is used by the police as a criterion for selecting suspects, and this selection bias increases the probability that a defendant who is innocent has a prior conviction for the same offence. The defendant in a criminal trial is a person who belongs to a very special sample , the sample of people selected by the police as suspects and then selected for prosecution. An assessment of the probability that he/she is guilty, given a prior conviction for the same offence that does not take into account that he/she belongs to this sample, commits an error, that I call the felony fallacy .

Description: Likelihood ratio (LR) models are moving into the forefront of forensic evidence evaluation as these methods are adopted by a diverse range of application areas in forensic science. We examine the fundamentally different results that can be achieved when feature- and score-based methodologies are employed to calculate likelihood ratio as a measure for the strength of evidence in forensic comparison, especially when comparable hypotheses and identical raw data are used. The focus is on LR based on multivariate continuous data. As an example of this, chemical profiles used in MDMA (illicit drugs) comparisons, will be investigated. The two model types, feature based and score based, are shown to perform differently when identical raw data are used. Score-based models provide much lower absolute LR values than feature-based models and demonstrate greater stability than feature-based models. This is the result of using different information of the raw data as evidence. Score-based models reduce multivariate information to a univariate distance or similarity score between items, whereas feature-based models use the multivariate structure of all the original feature values (and their combinations) of individual items as evidence. We discuss the different results and provide an explanation of the effects of data pre-treatment and dimension reduction on both methods.

Description: This article discusses how local governments, in three different countries, challenge higher levels of government’s decision making that enables hydraulic fracturing, and it explores how these higher levels of government should respond. The article finds that in those countries where at the local level, authorities have regulatory powers in the field of planning and the environment, such as the USA, the UK and the Netherlands, these powers indeed can and are used to limit or completely ban high-volume hydraulic fracturing. In these countries, however, higher levels of government are or have been putting legislation in place taking away or overruling local regulatory powers for reasons of national energy security. The article concludes that (1) setting and applying effective environmental protection standards, (2) involvement of local government and (3) meaningful participation of local communities are keys to responsible decision-making on hydraulic fracturing.

Description: Like many issues in environmental law and governance, climate change adaptation planning involves difficult policy trade-offs. Decision-makers must balance competing public and private interests and short- and long-term concerns against a background of considerable uncertainty and complexity. One of the classic challenges of environmental governance is to establish laws and other institutions which support long-term decision-making in the public interest and this is equally a challenge for adaptation planning. This article explores Australian approaches to such policy trade-offs in the context of spatial planning for bushfire and coastal hazards. These examples illustrate the difficulties of considering cumulative, longer term environmental impacts of adaptation measures in the face of immediate and known risks to existing private property and infrastructure, and the way in which current decision-making downplays these public values. The authors identify institutional factors that help to explain this bias and propose strategies to improve protection of public interest environmental values in adaptation planning.

Description: While there have been many legal studies of the European Union Emissions Trading Scheme (EU ETS), none seem to have considered the EU ETS from the perspective of private law, particularly the private law issues that stem from the ambiguous legal nature of the ‘carbon credit’. Such ambiguity translates into regulatory uncertainty and business risks of the sort that occurred in Armstrong DLW GmbH v Winnington Networks Ltd [2013] Ch 156, an English case involving fraud and ‘stolen’ European Union Allowances (EUAs). From an environmental law and policy perspective, uncertainty does not bode well for the EU ETS’s regulatory effectiveness and environmental integrity. From a property law perspective, the legal nature of the EUA begs for clarification in order to give holders of EUAs certainty of their rights and obligations, the absence of which led to the litigation in Armstrong v Winnington taking on an unduly convoluted complexion. The authors argue that one of the critical failures of the EU ETS lies in its failure to properly define the fundamental legal nature of the EUA. While this omission to define can be explained away by deference to the principle of subsidiarity, it can be argued that the omission stems also from a failure to appreciate the legal nature of intangible property as well as a misunderstanding of the way in which registers of rights operate. Handicapped by conceptual failings, the EU ETS exposes participants to unnecessary uncertainty that national courts will find difficult to resolve.

Description: Sustainability, as a concept, is recognised as consisting of various complex but familiar elements. One would expect to find such elements in legislation purporting to adopt sustainability as its orientating goal. This is arguably so with the EU’s 2009 Directive that aims to achieve the sustainable use of pesticides (the Sustainable Use Directive). Legislation governing pesticide use built on the principles of sustainability could provide a powerful and sophisticated framework through which to consider, and respond to, the multiplicity of concerns pesticide use raises. This article examines sustainability in terms of its potential to regulate pesticide use. It articulates various elements of sustainability that one might expect to find in legislation designed to achieve sustainable pesticide use. It assesses the Sustainable Use Directive against the elements identified and argues that the Directive implements a narrow agenda of risk management rather than genuinely and ambitiously adopting the true principles of sustainability.

Description: Despite proliferation of law and policy directed at halting global biodiversity decline, it is a common concern that decline continues. Using a case study of six New Zealand birds, this article demonstrates reasons for the reduced effect of the law in the context of three international agreements: the Convention on Wetlands of International Importance; the Convention on Biological Diversity; and the Convention on Migratory Species of Wild Animals. The article concludes that the agreements are deficient in terms of obligation and consistency, and that these deficiencies are compounded by insufficient implementation and siloed approaches at the national level. Success is also compromised by the ways in which the law privileges resource use to the detriment of species due to insufficient environment standards, sectoral defences, and widespread externalities. Ironically for birds, mobility which in evolutionary terms has been a survival strategy, may become a liability in the Anthropocene.

Description: On June 24th 2015, the civil section of The Hague District Court ruled—in its judgment of 60 pages translated into English—that the Netherlands has breached the standard of due care by implementing a policy that would lead to a reduction of CO 2 emissions by 2020 of less than 25% compared with 1990 emissions. Any such policy of the Netherlands was seen as insufficient to avoid dangerous climate change and was therefore unlawful towards the Urgenda Foundation, a citizen’s platform that instituted the proceedings, partly on behalf of 886 Dutch individuals. The Court ordered the State to cut CO 2 emissions by 25% by 2020 against a baseline of 1990 emissions. This case note discusses the reasoning of the court.

Description: The proclamation of a marine protected area by David Miliband in the Chagos Archipelago in 2010 triggered a complaint of infringement of sovereignty by Mauritius and a human rights claim by dispossessed Chagossians. It also faced criticism by academia and the UK media. In March 2015, a Tribunal of the Permanent Court of Arbitration investigated the Mauritian claim. In a majority decision, the Tribunal found that Mauritius was legally disabled from pursuing its sovereignty claim but through estoppel the UK Government was required to fulfil its obligations contained in an undertaking given before independence. This included requirements for the return of the Archipelago once it is no longer needed for defence, mineral rights and historic fishing rights. It called for the proclamation to be revoked. The majority of the Tribunal found no link to the exclusion of the Chagossians. It provides useful insight on the development of large marine parks.

Description: Courts and authors have suggested that, under certain circumstances, claim aggregation—and statistical sampling procedures in particular—can increase not only efficiency, but accuracy as well. Such assertions have been used to rebut anti-aggregation arguments that are based on the premise that accuracy cannot be sacrificed for the sake of efficiency. But assertions that sampling procedures can increase accuracy have been met with scepticism and a general unwillingness to rely on such assertions in real-world contexts. The scepticism is arguably due to the fact that legal scholarship has not begun to contemplate, in any rigorous form, the practical effect of sampling procedures on accuracy under real-world conditions of both claim variability and judgment variability, and with realistic constraints imposed by the law. In the current article, I introduce a framework for examining the conditions under which sampling can increase accuracy in the law. In particular, I introduce a model for studying the effects of sampling on accuracy, and for deriving the optimal sample size, with respect to accuracy, under conditions of claim and judgment variability, and with constraints described by reductive sampling. I then discuss a number of important extensions, such as methods for estimating variability parameters and the use of sequential sampling and stratification.

Description: The doctrine of chances remains a divisive rule in the law of evidence. Proponents of the doctrine argue that evidence of multiple unlikely events of a similar nature supports an objective, statistical inference of lack of accident or random chance on a particular occasion. Opponents argue that admissibility is improper because the underlying inference ultimately requires a forbidden form of character or propensity reasoning. Using formal probability modeling and simple numerical examples, this article shows that neither side is correct. Contrary to the claims of its proponents, the doctrine of chances provides no novel or independent theory of relevance. But contrary to the claims of its opponents, the doctrine of chances does not require character or propensity reasoning. An intuitive way to understand these properties is to interpret the doctrine-of-chances inference as a weak form of any inference that could be permissibly drawn if extrinsic events were simply bad acts for which culpability or intent were certain.

Description: Most forensic science evidence is produced in conditions that do not protect the analyst from contextual information about the case that could sway their decision-making. This article explores how these largely unrecognized threats raise real problems for the criminal justice system; from the collection and interpretation of traces to the presentation and evaluation of evidence at trial and on appeal. It explains how forensic analysts are routinely exposed to information (e.g. about the investigation or the main suspect) that is not related to their analysis, and not documented in their reports, but has been demonstrated to affect the interpretation of forensic science evidence. It also explains that not only are forensic analysts gratuitously exposed to such ‘domain-irrelevant’ information, but their own cognitively contaminated interpretations and opinions are then often unnecessarily revealed to other witnesses—both lay and expert. This back and forth can create a ‘biasing snowball effect’ where evidence is (increasingly) cross-contaminated, though represented, at trial and on appeal, as separate lines of evidence independently corroborating one another. The article explains that lawyers and courts have not recognized how contextual bias and cognitive processes may distort and undermine the probative value of expert evidence. It suggests that courts should attend to the possibility of contextual bias and cross-contamination when admitting and evaluating incriminating expert evidence.