ALBERT

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: The essential thesis of this article is that, as corporate and project finance trends continue in nuclear power plant financing, resulting in diversified and much broader and more complex structures of foreign investment, international investment law will become increasingly relevant to and influential upon these transactions. This in turn will spawn a new wave of disputes based in international investment law claims, before international arbitral tribunals including the ICSID. After discussing the 2011 Fukushima nuclear disaster, and the first international investment law case directly related to an investment in a nuclear power plant, the article begins by describing recent trends in the financing of nuclear power plants. These trends include a shift from almost exclusively sovereign-assumed financing cost and risk, to other financing models which increasingly access global capital markets, and spread risk among a larger and more diverse set of investors. It then proceeds to review and consider the international legal sources addressing nuclear energy development and related international trade and investment transactions, focusing on the sources of international investment law. It considers both the primary ways in which the current trends in nuclear power plant financing are making international investment law increasingly relevant to nuclear-power-plant-related investments, as well as the secondary effect this increasing relevance will likely have upon future structuring of financing arrangements for new nuclear power plants. The article provides detailed consideration of the application of international investment law to foreign investments in nuclear power plants, including areas in which host states of such investments are most likely to experience increased exposure to liability due to current financing trends. It concludes with a further consideration of the secondary effects caused by this increased host state exposure to liability, including effects on future structuring of financing arrangements for new nuclear power plants, and effects on (re)negotiations of international investment law instruments between actual or potential host states, and states that are actual or potential home states of nuclear vendors and investors.

Description: Shale gas developments in the USA have led to a hype about the energy security prospects for other world regions, eager to replicate the American success story. In Europe, shale gas developments have remained in their infancy. As we argue in this piece, it is likely that this situation will continue and the shale gas ‘revolution’ is one that remains restricted. We compare shale gas technology to solar and nuclear, each at the time coined a game changer for energy security, and hyped as key to a sustainable energy future. We argue that shale gas perceived as an unproven and risky technology, fails to surpass essential policy, industry and social barriers required for a new energy technology innovation to succeed.

Description: Liberia has huge potential to be an oil-producing nation in the near future. With an increasing number of hydrocarbon discoveries in West Africa over the past few years and oil discovery in February 2012 in the Narina well offshore Liberia by African Petroleum, interest in Liberia and West Africa should only accelerate. Indeed, major oil and gas companies such as Chevron, Tullow, Repsol, Anadarko and ENI already hold acreage in Liberia, and ExxonMobil recently acquired an interest. This article looks at a new model of Production Sharing Contract, which was developed as part of a recent transaction whereby Canadian Overseas Petroleum (Bermuda) Limited (COPLB) and ExxonMobil Exploration and Production Liberia Limited (ExxonMobil Liberia) acquired 20 per cent and 80 per cent, respectively, of Liberia Offshore Block LB-13 (Block LB-13). This article examines certain key features of the Production Sharing Contract entered into as part of the above transaction and how the issues addressed in this Production Sharing Contract might be applied to other emerging oil nations in West Africa.

Description: The Brazilian regulatory framework for petroleum exploration and production activities was significantly altered after the discovery of pre-salt province. In addition to Act No. 9.478, of 6 August 1997, four new Laws were launched since 2010, creating a new oil company—Pre-Sal Petroleo S.A. (PPSA)—and establishing two other types of international petroleum agreement—production sharing contract (PSC) and onerous assignment agreement. This article aims to explain the new rules launched, and also assess the role of the agents involved and their competences. Present article will also analyse the three petroleum agreements provided by Brazilian Law: concession agreements, onerous assignment and PSC.

Description: James Baily and Rachel Lidgate consider current issues arising in relation to LNG price reviews, set against the historical background to such disputes and the recent, unprecedented volatility seen in gas markets.

Description: A lawyer’s perspective on the history of what has become the largest integrated oil and gas company in the world, the challenges faced by Saudi Aramco as the national oil company of the Kingdom of Saudi Arabia and its response to those challenges.

Description: During the week of 9 December 2013 Mexico’s Congress officially launched Mexico’s long awaited, heavily debated, and much talked about Energy Sector Reform. Indeed, in less than 10 days Mexico’s Congress and States passed the Energy Reform and rendered the Energy Reform a reality. After Congressional and State approval, the Reform was then signed into law by President Peña Nieto. The Law also published in the Federal Official Gazette on 20 December 2013.

Description: ‘It’s Scotland’s oil.’ This Scottish National Party (SNP) electoral slogan encapsulates the importance of oil in the debate on Scotland’s constitutional future. In contrast therefore, the decision by the SNP-led Scottish Government in 2013 to apparently give up a claim to around 6,000 square miles of territory in the North Sea, encompassing several oilfields, is puzzling. This article contends that any dispute over North Sea boundaries would have resulted in unwelcome legal and diplomatic uncertainties for a putative independent State. The Scottish Government therefore may have taken the pragmatic decision to sacrifice this portion of its territory in favour of stability and certainty.

Description: Legal English is inevitably different to the ordinary use of language but this does not excuse the use of language which is verbose, obscure, repetitive or incorrect. Happily there is a growing trend toward the use of legal language which is plain and intelligible. In this transcript of his recent talk, Lord Justice Lewison considers the evidence for that trend, and also considers the way in which the English Courts have recently approached the interpretation of contracts.

Description: The US ‘shale gas revolution’ has triggered a worldwide search for unconventional gas in different forms on other continents. Asia’s growing demand for energy and need to switch from coal to natural gas has made governments in this region determined to exploit these newly accessible resources, inspired by the US experience. However, in addition to geological differences, the above-ground conditions in Asian countries are quite different from those in the USA. The papers in this Special Issue analyse the investment frameworks and the consequent outlook for unconventional gas production in China, Indonesia and Vietnam. Our paper sets the context for these accounts by identifying some relevant insights from the experience of the USA and summarizes some of the key conclusions from the later papers. A number of common themes emerge from the case studies, for example: the limited capacity of government, the role of the national oil companies and other interested economic actors, complex approval procedures, poor coordination between different government agencies and between different levels of government, access to land, and inadequate infrastructure, as well as the inappropriate nature of the prevailing laws, regulations and contracts designed for the extraction of conventional hydrocarbons. Despite these commonalities, the specific nature of each potential constraint and their relative importance varies between each country and even across an individual country. One challenge arising from the nature of unconventional gas extraction that is common to all countries is the need for effective engagement with society.

Description: China has huge unconventional gas resources and the largest is coal bed methane (CBM). Initial appraisal of CBM resources commenced in the 1990s, the first production sharing contract was signed in 1998 and first commercial production was in 2006. Eight years later, production has only reached 3 Bcm far lower than forecast despite PetroChina and CNOOC championing the development of these resources. Progress has been slow but better technology is being introduced, many of the issues that have delayed development over the last 25 years have been resolved and the government is prepared to offer further incentives to make the sector more attractive and speed up development. CBM production of 16 Bcm by 2015 remains most unlikely, but more projects are getting close to commercial production so we should see steady rather than spectacular growth over the course of the decade.

Description: This article examines the progress made towards achieving material commercial coal bed methane (CBM) production in Indonesia during the period since the publication in 2010 of ‘Coal Bed Methane Development in Indonesia: Golden Opportunity or Impossible Dream?’ (2010 Paper; P Godfrey, Tan Ee and T Hewitt, ‘Coal Bed Methane Development in Indonesia: Golden Opportunity or Impossible Dream?’ (2010) 28(2) JERL 233–64) by the Journal of Energy and Natural Resources Law. Although blessed by favourable geology, and despite some quite extensive exploration activities, Indonesia has not yet seen CBM become a significant contributor to its energy supply mix. This is the case both in relation to domestic gas demand and in terms of contribution to spare capacity in liquefied natural gas export facilities. The Government of Indonesia has continued to use the production sharing contract (PSC) as the centrepiece of its regulation of the CBM sector. Except for the issue of a newish regulation on bidding for unconventional gas acreage, the regulatory regime pertaining to CBM exploration and production (E&P) has remained basically unchanged since 2010. Generally speaking, bureaucratic inertia at central and local levels of Government continues to be an unfortunate characteristic of the administration of the sector. However, at the same time, a lack of suitable specialized drilling equipment together with a lack of commitment by some CBM operators has also played a significant part in disappointing progress overall.

Description: Conventional gas is a key energy source for Vietnam but it may not be sufficient to meet growing demand in the future. Unconventional gas could potentially be part of the solution to meet the shortfall. This article examines Vietnam’s institutional and regulatory context to identify key constraints for the development of unconventional gas. Key players from the Communist Party of Vietnam to the Government agencies and local communities will be analysed to understand their roles and interaction. Other major issues such as gas sales price negotiations, access to land, environmental protection and the model form for petroleum contracts will be also discussed. The article concludes that Vietnam is at the early stage of unconventional gas development and therefore more work and effort are required to bring about adequate human and technical capacities, as well as institutional and regulatory infrastructures to deal with the new resource.

Description: The Chinese authorities have great hopes for the fledgling shale gas industry in China. However, while China is widely acknowledged to have abundant shale gas reserves, it would likely be difficult for China to realize these lofty ambitions, at least in the near future. China has issued encouraging policy statements to support the shale gas industry, as well as announced a number of discrete financial incentives. However, its 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 in China. There is also a lack of guidance over the manner in which foreign investments can be made in the Chinese shale gas industry; significantly, the tussle between the ‘production sharing contract’ model and the ‘joint venture model’ still remains to be resolved. There are steps that China can take to address the hitherto lost opportunities to realize its exciting shale gas potential, the most important of which is to put in place appropriate clear and detailed regulations which are administered by a clear regulatory structure.

Description: Associated petroleum gas (APG), also known as associated gas or flared gas, was for many years considered to be an ‘unwanted by-product’ of oil production. APG is the natural gas that comes from oil wells, found in association with the oil, either dissolved in the crude (dissolved gas) or separated from the oil (free gas). Unfortunately, APG flaring and venting has proven to be not only harmful to the global environment by substantially contributing to greenhouse gas (GHG) emissions and global warming, but also represents a community health hazard and deprives local populations of additional revenues and socio-economic development opportunities by the misuse of a valuable and environmentally friendly, non-renewable resource, natural gas. Currently, Kazakhstan’s legislation prohibits APG flaring and venting but the effectiveness of the Government’s efforts in achieving its APG flaring and venting reduction goals is still unclear. What form should a roadmap to virtually eliminate APG flaring and venting in Kazakhstan take? This article examines the impact of APG flaring and venting on the environment and health, the challenges, opportunities and incentives of APG utilization as well as its contribution to Kazakhstan’s economic development. While recognizing that options for dealing with APG exist, they are often limited in capacity and/or expensive to implement. The gas utilization performance of two of the three largest hydrocarbon fields in Kazakhstan (ie fields with a significant amount of oil and APG production) are discussed and a roadmap is proposed with recommendations on how to utilize associated gas and virtually eliminate further APG flaring and venting in Kazakhstan.

Description: While the regulatory and institutional reforms in the Nigerian electricity sector, as envisaged under the National Electric Power Policy 2001 and the Nigerian Electric Power Sector Reform Act 2005, appear to be on a steady path, the reforms in the petroleum industry, as envisaged under the National Oil and Gas Policy 2004 and the Petroleum Industry Bill, has remained in a mire of uncertainty, especially with regards to their conclusions and overall implementation. The effects of the uncertainty and the consequential lingering disequilibrium between the gas and electricity sectors, has critical implications for investments, infrastructure development and the overall gas supply to power outlook. The electricity sector reforms are largely dependent on the availability, affordability and reliability of domestic gas supply to over 70% of installed national power generation capacity. The regular shortages in gas supply to power electricity generation in Nigeria can be directly or indirectly linked to the regulatory inefficiency of the existing regulatory framework in domestic gas supply. Thus, while power sector assets are being privatized and liberalization is introduced in the medium to long term, it is essential to ensure that the parallel development of the appropriate regulatory framework is established for the domestic gas sector. Such a regulatory framework is required to create the required commercial environment where investments in gas supply infrastructure thrive. The aim of this article is to examine the existing and proposed laws, policies and regulations in relation to domestic gas supply in Nigeria as they affect power generation and the realization of identified economic and policy objectives.

Description: The purpose of this article is to outline the current state of the US domestic natural gas market, focusing on the regulatory climate related to exporting natural gas. Currently, companies must seek multiple levels of approval to export natural gas. Each company’s application is independently considered using a holistic and nebulous process. This article highlights differences between regulations as written and the practical effect of regulations affecting the exportation of domestic natural gas. While there is a long history of natural gas regulation in the USA, the current process remains unclear and inefficient. This article is a snapshot of the regulatory process faced by companies investing billions of dollars in the infrastructure necessary to export natural gas. The myriad organisations regulating natural gas exportation, time and politics are a few of the factors discussed that currently affect whether a company will be granted permission to export natural gas from the USA.

Description: This article looks at the conceptual framework of oil and gas unitization agreements from the standpoint of negotiators who must discuss and debate various provisions as they work to come to an agreement. It uses game theory to analyse the motivations of individuals in a rule of capture regime and the need for compulsory unitization statutes. It then uses game theory to look at the negotiation drivers in determining a mutually acceptable allocation formula. Finally, this article provides some suggestions on how to resolve the potential stalemate that may result in cooperative negotiations.

Description: This article will examine and discuss national petroleum reservations. While such reservations are a common feature of the regulatory framework for petroleum producing countries, the details will vary. A national policy will be different for each country as it will depend on a large variety of internal considerations like amount of oil and gas reserves, amount of oil and gas production, refining capacity, size of the population, infrastructure, geographic location and access to international markets, diversity on the energy matrix and so-on. The impact of such policies on international investments will vary greatly depending on questions such as triggers of the national supply obligation or the choices relating to pricing. At a more abstract and academic level, this article will discuss the difference between an ‘energy policy’ and a ‘resources policy’.

Description: The International Federation of Consulting Engineers (FIDIC) forms of construction contracts are widely used in oil and gas transactions as they are considered to give the right balance to the interests of all parties and to have a degree of complexity in line with such transactions. Yet the standardization of the relevant content may represent a serious setback and force the parties to engage in exhausting negotiations aimed at tailoring the relevant content to the actual interests of the contracting parties. This article aims at providing a general overview of FIDIC construction contracts and their use in relation to the construction of oil and gas facilities, suggesting some possible amendments that contractors may seek in order to render the agreement more adherent to their needs. The article will only focus on the Conditions of Contract for Plant & Design-Build for Electrical & Mech. Plant & for Building & Engineering Works Designed by the Contractor (the ‘Yellow Book’) and the Conditions of Contract for Engineering, Procurement and Construction (EPC) Turnkey Projects (the ‘Silver Book’), 1 both included in the collection of contracts published by FIDIC in 1999 (the ‘Rainbow Suite’ 2 ).

Description: This article assesses the legal and political nature of decision-making with regards to nuclear energy policy in Turkey. The main focus is on the choice of nuclear technology and the associated safety and liability issues for Turkey’s new nuclear development plans. The article highlights the importance of legal certainty for both safety and liability in the nuclear energy sector. In particular, the liability regime in case of a nuclear accident must be clear and transparent. It also concludes that it is not the environmental impact assessment, safety concerns or liability regime but politics that is the key determinant in the choice of nuclear technology for a new nuclear project. In addition, with the planned use of the new financial model of Build-Own-Operate, this results in legal certainty being even more important for new nuclear development in Turkey.

Description: In a February 2014 State of the Nation address, Ghana’s President John Dramani Mahama stated, ‘Corruption erodes national resources and deprives government of the capacity to invest in our people ... We will fight this battle on two fronts: Firstly, to put in place the measures to prevent corruption, and secondly, to pursue and punish corruption wherever it occurs ... We have the courage to investigate and expose corruption.’ As Ghana’s oil and gas industry grows, the topic of anti-corruption, transparency, and ethics has become even more prevalent. This is because of not only the examples from regional counterparts that have suffered the ‘resource curse’, but also because Ghana has learned its own lessons, dealing for years with other resources like gold. This article addresses the anti-corruption framework of Ghana by the components of national laws and institutions established to specifically ensure anti-corruption, transparency and ethics, and provides some recent measurements of Ghana’s related performance. The conclusion is that Ghana is in a seasonable position to successfully conduct a responsible and transparent petroleum sector that offers maximum good to all, however, enforcement of the law and political will are simply prerequisite.

Description: Individualization, the claim to be able to reduce the potential donor pool of a forensic trace to a single source, has long been criticized. This criticism was echoed by a 2009 U.S. National Research Council report, which called such claims unsupportable for any discipline save nuclear DNA profiling. This statement demanded a response from those disciplines, such as fingerprint analysis, that have historically designated ‘individualization’ one of their approved testimonial conclusions. This article analyses three serial responses to this challenge by the U.S fingerprint profession. These responses posited new terms for testimonial reports or modified the definition of individualization. The article argues that these reforms have yet to ‘fix’ individualization and that all three reforms suffered semantic and conceptual difficulties. The article concludes by suggesting that these difficulties may be traced to the insistence on retaining, and somehow justifying, the term and concept ‘individualization’, instead of developing new terms and concepts from a defensible reasoning process.

Description: This case comment critiques the Supreme Court of Canada’s decision in R v. Mabior. In Mabior , Chief Justice McLachlin affirmed the criminalization of human immunodeficiency virus (HIV) non-disclosure to sexual partners, and sought to clarify exactly when criminal sanctions apply. Citing expert evidence, McLachlin CJC held that criminal liability is appropriate for HIV non-disclosure when there is a ‘realistic possibility of transmission’ and that only condom use combined with antiretroviral therapy reduces this risk enough to preclude liability. Using the same expert evidence, I calculate the transmission rates underlying this argument and show that McLachlin CJC’s use of statistics results in logical contradictions and uncertain liability. I argue that her statistical approach is unworkable and I propose an alternative non-disclosure regime.

Description: Stewardship is a broad concept that is used in different disciplines, in a variety of different ways. Even within discrete disciplines there is plurality in the concept, so for example, in environmental law, stewardship constitutes a general, universal duty to care for the planet, but also a specific duty requiring landowners to carefully manage their land. This multiplicity of uses has led to conceptualisations too imprecise for it to have analytical utility. In order for stewardship to be an effective concept with which to analyse and inform environmental law, this article maps the different permutations of the concept according to a network of actors and interests, and a spectrum of relationships and duties.

Description: The recent decision of the High Court (Administrative Court) in Thames Water v Bromley Magistrates’ Court [2013] EWHC 472 (Admin), [2013] Env LR 25 exemplifies the tensions present in the interpretation of environmental offences. The court’s conclusion that unintended escapes can be deposits for the purposes of section 33(1)(a) Environmental Protection Act 1990 is based on faulty reasoning, both as a matter of authority, and as a matter of policy. The appeal of taking a purposive approach to such an interpretative task is apparent, but so too are the dangers of taking an expansive approach. The decision is based on an approach that leads to unacceptable uncertainty and which should not be adopted in future cases. This case note discusses the results of treating the definition of ‘deposit’ as a question of fact, not law; the practicability of taking a ‘purposive approach’ to this definition; and the relevance of the criminal law context.

Description: This article considers and reviews the judgment of the European Court of Justice in Case C-237/07 Dieter Janecek v Freistaat Bayern [2008] ECR I-06221, which followed a reference for a preliminary ruling by the Bundesverwaltungsgericht in Germany. It also considers later German cases concerning the law on air quality plans. The analysis elucidates the aims and legal scope of EU air quality law and reflects on the questions referred to the Court of Justice of the European Union by the UK Supreme Court following the judgment in R (on the application of ClientEarth) v The Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25.

Description: The Millennium Development Goals (MDGs) included a target to halve the proportion of people without sustainable access to safe drinking water by 2015—a right recognised as fundamental to human needs. Small independent water vendors are often the only water supply option in peri-urban neighbourhoods in developing countries and fill a critical gap in the municipal system, but there is concern about the quality and price of their water. Such vendors need to be recognised and regulated due to their role in meeting basic water needs. This article reflects on the lack of regulation and discusses a recent multidisciplinary research project in Kenya and Ethiopia that considered whether there is a case for regulation of competition, price and quality. It concludes that recognising small independent water vendors as part of a regulatory framework will result in increased access to water for the poor and assist in the realisation of the MDGs, the right to water and intergenerational equity.

Description: Climate change demands new forms of environmental decision-making. The concept of adaptive management can contribute to this transformation. Adaptive management recognises the dynamism of natural systems and the importance of monitoring, review, and modification of projects, plans and activities in response to new understanding. As the dominant approach in natural resource management, it finds remarkably little explicit reflection in legal frameworks. Five key mechanisms are advocated by which to implement adaptive management in law: changing statutory objectives; requiring monitoring and evaluation of projects, plans and activities; staged approvals processes; conditional approvals and statutory triggers; and proportionate resource allocation models. Wider use of these flexibility mechanisms would enable environmental decision-making to respond to the impacts of climate change, while continuing to provide a level of legal certainty. Their uptake requires shifts in the institutional culture of administering agencies and the assumptions underpinning current approaches to environmental and resource management law.

Description: Groundwater law in India gives individual landowners overwhelming control over groundwater. This is inappropriate in a context where groundwater is now the main source of water for the realisation of the human right to water. This also fails to provide the basis for effective protection of groundwater at aquifer level. Increasing dependence on groundwater for all the main water uses has made the need for reforms of the legal framework increasingly acute. This article argues that groundwater law must be reconceived around a new set of principles that recognise the common nature of groundwater, its importance in realising the human right to water, the need for a governance framework starting at the local level and the need for a strong aquifer protection regime. The proposed new framework is then examined in the context of the Groundwater Model Bill, 2011 that reflects in large part this new framework.

Description: Compliance is a precondition for a regulatory system to be effective. This article analyses the drivers behind non-compliance and ways of enhancing compliance by empirically investigating the assumptions of compliance theories in the regulation of biodiversity conservation in private forests in Finland. The article shows that institutional factors, such as the characteristics of the decision-making procedure and the roles professional forest organisations, as well as market pressure on large corporate actors, explain to a large extent the identified low level of non-compliance. Knowledge, information and coordination are identified as the most important bottlenecks in the enhancing the implementation of regulation on habitat conservation. We propose the following combination for the promotion of compliance: building on a cooperative strategy by improving the knowledge base and sharing; following a responsive regulation strategy by maintaining existing deterrence tools; and applying true smart regulation through more ambitious institutional arrangements for engagement with new third parties.

Description: The conceptual foundations of burdens of proof are examined, and the unified theory of evidentiary devices derivable from those foundations is explicated. Both the conceptual foundations and the unified theory generated are shown to rest on questionable assumptions about conventional probability theory. The resulting analytical difficulties are analyzed. Inference to the best explanation and the relative plausibility theory are examined as potentially providing the foundation to a superior conceptualization of the burden of proof.

Description: Since the Human Rights Act 1998, scholars and courts have dedicated considerable attention to the presumption of innocence. A major strand of the ensuing debate has focused on the scope of this safeguard. Many academics have argued in favour of according to the presumption a substantive—as opposed to a procedural—role. In other words, these scholars maintain that the presumption set in art. 6(2) of the European Convention on Human Rights (ECHR) should have some influence on the definition of criminality. Courts seem sympathetic to this approach, albeit not following it to the full extent. The article, instead, defends a procedural understanding of the presumption of innocence, on the basis of interpretive arguments concerning art. 6(2) ECHR. Besides, it shows that adopting this conception does not entail lowering the protection of the individual before the substantive criminal law.

Description: In the academic literature, three approaches to rational legal proof are investigated, broadly speaking based, respectively on Bayesian statistics, on scenario construction and on argumentation. In this article, these approaches are discussed in light of a distinction between direct and indirect probabilistic reasoning. Direct probabilistic reasoning directly reasons from evidence to hypotheses, whereas indirect probabilistic reasoning reasons from hypotheses to evidence (and then back to the hypotheses). While statistical and story-based approaches usually model indirect probabilistic reasoning, argumentation-based approaches usually model direct probabilistic reasoning. It has been suggested that all legal probabilistic reasoning should be indirect, but in this article, it is argued that direct probabilistic reasoning has a rational basis and is, moreover, sometimes easier to perform for judges than indirect probabilistic reasoning. Moreover, direct probabilistic reasoning can be analysed in terms of standard probability theory, resulting in an alternative, non-Bayesian use of the terms ‘prior’ and ‘posterior’ probability and without the need to estimate unconditional probabilities of the hypotheses.

Description: Burdens and standards of proof are primarily concerned with minimizing the expected cost of error. This probabilistic goal explains both the levels at which general standards of proof are set, and the general allocation of burdens of proof to the plaintiff or prosecution. Variations from these general positions, achieved through presumptions and affirmative defences, can also be understood as directed towards minimizing expected error costs. This model describes the operation of many presumptions and defences, and also provides a normative basis for criticising presumptions and defences that fail to minimize the expected cost of error. However, it struggles with classes of cases where one side of the dispute faces systemic proof difficulties. Minimizing error costs would lead to an expectation of a serious imbalance in error rates; however, varying the standard of proof to equalize error rates would fail to minimize error costs. This is a genuine dilemma. No solution is offered.

Description: Mistakes in evidential reasoning can have severe consequences. Especially, errors in the use of statistics have led to serious miscarriages of justice. Fact-finders and forensic experts make errors in reasoning and fail to communicate effectively. As tools to prevent mistakes, three kinds of methods are available. Argumentative methods analyse the arguments and counterarguments that are presented in court. Narrative methods consider the construction and comparison of scenarios of what may have happened. Probabilistic methods show the connections between the probability of hypothetical events and the evidence. Each of the kinds of methods has provided useful normative maxims for good evidential reasoning. Argumentative and narrative methods are especially helpful for the analysis of qualitative information, but do not come with a formal theory that is as well-established as probability theory. In probabilistic methods, the emphasis is on numeric information, so much so that a standard criticism is that these methods require more numbers than are available. This article offers an integrating perspective on evidential reasoning, combining the strengths of each of the kinds of methods: the adversarial setting of arguments pro and con, the globally coherent perspective provided by scenarios, and the gradual uncertainty of probabilities. In the integrating perspective, arguments and scenarios are interpreted in the quantitative setting of standard probability theory. In this way, the integrated perspective provides a normative framework that bridges the communicative gap between fact-finders and forensic experts. Both qualitative and quantitative information can be used safely, focusing on what is relevant.

Description: Although courts have incorporated statistical hypothesis testing into their evaluation of numerical evidence in a variety of cases, they have primarily focused on one aspect of a statistical analysis: whether or not the result is ‘statistically significant’ at the 0.05 or ‘two-standard deviation’ level. The theory underlying hypothesis testing is also concerned with the power of the test to detect a meaningful difference. This article shows that using the insights provided by power calculations should assist courts to better interpret and evaluate the statistical analyses submitted into evidence. In particular, the concept of power should help in assessing whether a sample is too small to provide reliable inferences. On the other hand very large samples can classify minor differences as statistically significant. This occurs when the power of the test at the standard 0.05 level is very high. It will be seen that requiring significance at a more stringent level, e.g. 0.005, which can be determined from a power calculation, often resolves this problem.

Description: This article discusses rule-based presumptions that are authoritatively established, as distinct from other types of presumptions that are generalization-based or policy-based. It first introduces some legal distinctions that are used to define presumptions in law, and then presents extended examples of legal presumptions drawn from the statute and case law governing compensation for vaccine-related injuries in the USA. It proposes a formal method of representing rule-based legal presumptions that utilizes a three-valued, default logic. Finally, it uses the vaccine-injury compensation cases and the concept of legal presumption to explore difficulties in determining the burdens of production and persuasion, the meaning of legal terms in propositions to be proved and the inferences to be drawn from them.

Description: Offshore oil and gas production in Brazil is one of drivers of the domestic economy and is expected to grow significantly in the coming years, especially with the recent discoveries in the subsalt layer. Regulatory authorities have an important role to assure that companies continually assess and improve their procedures for operational, occupational and environmental safety. In Brazil, the National Petroleum, Natural Gas and Biofuels Agency, Brazilian Navy, Ministry of Labour and Brazilian Institute of Environment and Renewable Natural Resources oversee offshore oil and gas exploration and production. This article aims to analyse the overlap among these authorities related to offshore oil and gas exploration and production in Brazil, with focus on drilling and production activities. Mechanisms for integrated action are proposed, including a new macro safety regulation framework and the establishment of a safety commission and operational committees focused on specific activities. The data and conclusions may help Brazil and other countries in their planning or review of offshore regulations.

Description: Global demand for internationally traded oil and gas is increasing. In order to meet this increasing demand, oil and gas transportation, including by cross-border pipeline, is clearly critical. This article examines risk factors associated with cross-border oil and gas pipelines and will argue that the likelihood and consequence of risk could be greatly reduced if certain actions are taken at the international and state (policy) level and at the pipeline company level. Fifty-five cross-border pipelines (in development and operational) are examined to provide evidence for sources of risk based upon concrete case studies. The article will first explore two of the most acute geographical constraints encountered when trying to secure supplies of oil and gas: maritime ‘chokepoints' and the movement of production from landlocked countries via cross-border pipelines. These constraints reveal deficiencies in existing public international law—a key source of state-to-state risk to cross-border pipelines. The article will then examine other sources of risk (seven in total) within a comprehensive analytical framework. The various sources of risk identified are categorized as either internal (relating to enterprise risk management deficiencies in the pipeline company) or external (relating to the company's interface with host governments, commercial counterparties, local people and communities or hostile third parties) and ranked. The article further examines the dynamics of risk allocation within a government-to-government, government-to-company, company-to-commercial-counterparty and company-to-local community context. It will also examine risk factors during the two key stages of a pipeline project's life cycle (pre and post-completion). Recommendations will be offered on the development and negotiation of bespoke agreements to allocate state-to-state, state-to-company and commercial risk. Managing hostile third-party risk requires that measures are taken by public security forces in coordinattion with private (pipeline company) security and consistent with international security standards including the Voluntary Principles on Security and Human Rights. Other forms of external (community-based) risk require that pipeline companies rigorously adhere to applicable law and internal systems of enterprise risk management. At a minimum, these standards should include prevailing international environmental, safety and social standards as well as the UN Guidelines on Business and Human Rights.

Description: Brazil is one of the world’s leading petroleum province frontiers and is thus an interesting case for a close examination of the future role of the petroleum industry in the promotion of industrial development in emerging economies. A major instrument for accomplishing such industrial development is the establishment of minimum local content requirements in auctions granting exploration licences. The Brazilian National Petroleum Agency (ANP) has recently proposed changes to the country’s fiscal regime with regard to local content and unitization. These changes are aimed at harmonizing the local content requirements which would apply to two areas undergoing a unitization process. This article evaluates the possibility of making gains from the subadditivity of costs owing to unitization and how this possible windfall profit could be perceived by the ANP. The new local content methodology presented by the ANP was tested by us for a case study, which included an analysis of the process of unitizing two areas of the Brazilian pre-salt layer which were held under different fiscal regimes. Our simulation verified the potential existence of gains from cost subadditivity and demonstrated that these gains could contribute to a windfall profit tax without reducing the overall profitability of the project before unitization.

Description: The rising costs of oil products on the global market and increasing dependency on fossil fuels have become a concern for both governments and international bodies. Aside from calls to governments to move towards alternatives in the form of renewable energy, the impact of government financial support to businesses in the oil sector in the form of subsides has also come under criticism. Advocates for oil subsidy removal argue that these subsidies only divert much needed investment in development projects especially in the developing economies, to rich players in the oil sector. In January 2012, the Nigerian government therefore announced its policy to remove the subsidies attached to oil products. The announcement was received with wide public protests which the government sought to calm with a ‘Subsidy Reinvestment and Empowerment (SURE-P) programme’. This article considers the broad context of oil subsidy removal in Nigeria. It investigates the necessity behind the Nigerian government’s oil subsidy removal policy and evaluates the practical economy of oil subsidy removal in this developing and mono (oil) dependent economy.

Description: Interpretation concepts of scientific evidence have always been under discussion among forensic scientists and among all stakeholders of criminal proceedings in general. It seems that this issue has been attracting more attention since the introduction of the case assessment and interpretation (CAI) model in the late nineties and even more since the release of the National Academies of Science report ‘Strengthening Forensic Science in the United States’ in 2009. Following the debates there is, however, a certain danger of overcompensation if the input of stakeholders from e.g. inquisitorial criminal systems is under-represented. Without doubt, a likelihood ratio-based approach can be a powerful tool assisting in logically complex case assessments and judicial considerations of evidence. However, the application of this approach should be an option rather than an international standard as it concerns the concept of the stakeholder’s roles more profoundly in some countries than in others and may possibly take some countries by surprise. In the following article, this is discussed and some proposals are put forward which appear suitable to strengthen the evaluation of forensic results by the principle of methodological pluralism rather than by an exclusive and compulsory commitment to only one approach.

Description: Searching against larger Automated Fingerprint Identification System (AFIS) databases may increase the likelihood of finding a suspect in the database. However, Dror and Mnookin (2010) have argued that this also leads to an increase in the number of similar non-matching prints, which could lead to an erroneous identification. Using simulations, we explore the relation between database size and two outcome factors: close non-matching prints and overall database sensitivity, which is a measure of discriminability between true matches and close non-matches. We find that larger databases tend to increase both the likelihood of finding the suspect in the database as well as the number of close non-matching prints. However, the former tends to asymptote while the latter increases without bound, and this leads to an initial increase and then a decrease in the sensitivity of the database as more prints are added. This suggests the existence of an optimal database size, and that caution should be observed when interpreting results from larger databases. Quantitative evidentiary techniques such as likelihood ratios have the potential to address some of these concerns, although they too must consider the database size when calculating the likelihood ratio. Implications for practitioners are discussed.

Description: Nigerian transparency initiatives have been driven by public demands for better governance and disclosure of commercial dealings in the public and private sector. This is particularly so because most aspects of the Nigerian petroleum industry have hitherto been characterized by a lack of contract transparency and incomplete reporting, resulting in institutional challenges impeding Nigeria’s ability to derive the maximum benefit from the sector. A number of policies, which have evolved into regulations and statutes, are now having a profoundly positive effect on how business is done in the Nigerian petroleum sector. New statutes such as the Nigerian Extractive Industries Transparency Initiative Act (2007) and the Freedom of Information Act (2011) exemplify the vigorous commitment of the Nigerian government towards entrenching openness and accountability in the petroleum sector. However notwithstanding the gains from transparency initiatives, current events enquiring into shortfalls in the Nigerian National Petroleum Corporation’s revenues continue to demonstrate the ongoing challenges faced by the Nigerian petroleum sector. The need to continue to bolster up our oversight laws and institutions as illustrated by this article therefore remains an important future objective.

Description: A primary function of an oil and gas joint operating agreement is to allocate liability between the parties in respect of the oil and gas rights that are governed thereby. Limitation of liability clauses in a joint operating agreement usually limit the operator’s liability for lost profits and lost production. Case law from the UK suggests that drafting clauses that limit recovery for specific losses, particularly for consequential damages, is not as straightforward as many in business or law might anticipate. An application of the case law to oil and gas joint operating agreements suggests that the limitation of liability clause may not exempt an operator from liability for loss of profits and loss of production if careful attention is not paid to the specific wording of the clause. This article examines the specific wording of the limitation of liability clause in the AIPN 2012 Model Form International Operating Agreement in light of the case law and suggests drafting tips and areas of concern that may assist negotiators in drafting clauses that successfully limit operator liability for loss of profits and loss of production.

Description: In recent years, Mozambique has attracted international attention with the prospect of vast mineral wealth offered by large-scale gas discoveries and the potential of its fledgling mining sector. However, the journey from protracted civil war through socialism to sustainable economic development is long and arduous and among its toughest challenges is the need to tackle a pernicious culture of corruption. An effective legal framework is clearly part of the solution and an extensive programme of law reform in this area, which started in 2011, remains ongoing in Mozambique. However, the last 10 years have seen little impact on corruption made by a succession of related legal changes. In this article, Samuel Levy and Cerys Williams consider the lessons that can be learned from a decade of legislative history and whether the current legal response to corruption has the ability to succeed where previous attempts failed.

Description: With international arbitrations plaguing the rest of Latin America, Colombia has become the new hot spot for petroleum investment due to its attractive foreign investment policies. Unfortunately, foreign investors are not the only ones who have taken advantage of this favourable climate; the Revolutionary Armed Forces of Colombia (FARC) have, along with the E&P companies, also taken advantage of the newly liberated and surging Colombian oil and gas sector. However, while the E&P companies are vying for production, FARC has instead used this surging sector to highlight their half-century old struggle against the incumbent Colombian government through increased attacks on the sector. The Transandino pipeline, for example, suffered 51 attacks in 2011, while overall attacks on Colombian pipelines were up 460 per cent in the first seven months of 2012. 1 Coincidentally, oil production in Colombia has nearly doubled since 2007, finally surpassing the 1 million barrel per day mark in December 2012. 2 As the Colombian oil and gas sector continues to grow by leaps and bounds, it is likely that FARC will continue to target this sector for its political attacks. The question facing foreign investors—and what this article proposes to answer—is, ‘what recourse is available in case my investment is attacked?’

Description: The Energy Act 2013 received royal assent in December 2013. It implements the Feed-in-Tariff Contracts for Difference (the CfD) which is set to become the primary support scheme for low carbon generation in the UK by 2017. The CfD will be in the form of a long-term contract between a low carbon generator and a counterparty which is a state-owned limited liability company (the CfD Counterparty). It is intended to remove long-term price risk for low carbon generators which sell electricity into the market, thereby stabilizing their revenues and reducing the cost of financing their projects. This article comments on the uncertainties currently faced by generators (or developers) of existing (or planned) electricity generation plants in the UK brought on by the implementation of the CfD regime.

Description: Angola is a country blessed with abundant natural resources, a resilient national spirit and other essential ingredients for a bright future. One lacking ingredient for such future is a robust and diversified economy supported by vibrant democratic institutions. While Angola has made significant strides in that direction since the end of its protracted civil war, it still has a considerable way to go. Economic development and political transparency go hand in hand and both require rigorous and equitable enforcement of sound laws. In this article, Professors Feijó and Nadorff describe and analyse the anti-corruption laws of Angola as well as its treaty obligations in this area. They conclude that Angola has adopted an adequate number of anti-corruption laws and technically met most of its international obligations. What it most lacks is effective enforcement of these laws. The authors suggest several short- and long-term priorities designed to transform Angola’s legislative transparency framework into practical reality.

Description: In many European countries, a paradigm shift from technically oriented flood protection to a holistic approach of flood risk management is taking place. In Germany, this approach is currently being implemented after several amendments of the Federal Water Act. The paradigm shift is also reflected in the theoretical structure of the legal stipulations. While the former regulations of flood protection were predominantly conditions-based, linked with clear preconditions and legal consequences, the legal implementation of the flood risk management approach is accompanied by an increase of goal-oriented, performance-based regulations. This contribution discusses the interrelationship between the two legislative approaches and the specific challenges for the administration. Flood risk management, as a policy field, requires the law to provide robustness but also flexibility. It is concluded that the German way could accidentally provide a viable answer to this dilemma. The conclusions drawn for the flood risk management in Germany might be applicable also to other policy fields and even outside Germany.

Description: This article discusses the continuing legal complexities and challenges that exist in balancing the interests of mining and conservation in protected areas, through an exploration and critical analysis of the law relating to mining and protected areas in South Australia, and a case study of the recent controversy over mining in the Arkaroola Wilderness Sanctuary. The analysis of the legal regime demonstrates a hierarchy in procedural protection, with areas of public land with very high conservation values at the top of the hierarchy, and private land generally at the bottom. The resolution of the conflict over mining in Arkaroola, and reforms subsequently proposed to South Australia’s system of protected areas, suggest new ways to better protect conservation from mining on private land.

Description: The decision of the UK Supreme Court in the HS2 appeal considers some of the leading decisions of the Court of Justice of the EU on both the SEA and EIA Directives. In a number of important respects, the Supreme Court finds that the CJEU’s decisions are unsatisfactory, at least from the point of view of a domestic supreme court which is called on to apply those decisions within the domestic constitutional order. Although the challengers to the HS2 scheme lost the appeal on both the SEA and EIA grounds, the Supreme Court has used the case to make some far-reaching observations on the relationship between EU law and UK constitutional law. These observations make the HS2 decision a landmark in modern British constitutional law.

Description: This article inquires into the meaning of a ‘right’ to water. It examines how the nature and content of such a right may be changing in the context of greater emphasis in environmental regulation on water stewardship which seeks to tackle risks of water scarcity. In the UK, for instance, water abstractions have been further regulated through the Water Act 2003 and additional reforms are proposed by the draft Water Bill HC (2013–4). The article locates its analysis in literature on the qualification of private property rights through natural resource management, and in the developing socio-legal literature on the intersection between rights and regulation. We critically engage with this literature on the basis of qualitative empirical research about how farmers in England think about a right to water. Our pilot project confirms some accounts in the literature, but questions others. We find empirical support for thinking about rights that is qualified by stewardship practices, but we suggest that conceptions of rights need to be broadened to include administrative concepts, including collective rights to water. On the basis of our data we develop an eco-socio-legal perspective that foregrounds three interpretive frames for understanding how conceptions of rights to water are generated. These are the institutional–legal framework of abstraction licensing in England and Wales, perceptions of the natural space which is governed by this legal framework, and, the economic context in which rights to water are exercised.

Description: Whaling remains one of the most controversial and divisive aspects of the modern regulation of marine resources. In 1982, the International Whaling Commission, the global management body responsible for the regulation of whale stocks, instituted a moratorium on commercial hunting, which has been in force for almost 20 years. Nevertheless, a number of legal avenues exist within the current international regulatory framework to facilitate a degree of continued hunting. The most contentious of these is the scientific research exemption advanced under Article VIII of the International Convention for the Regulation of Whaling 1946, which provides for the national authorization of permits for lethal research. Japan has undertaken a significant programme of scientific whaling in Antarctica since 1987, despite widespread international criticism and an escalating campaign of nautical obstruction by militant activists, duly generating a long-standing legal dispute with Australia. On 31 March 2014, judgment was rendered by the International Court of Justice, in favour of Australia, ordering Japan to cease and desist its Antarctic whaling programme and refuting Japanese assertions that these activities had been legitimately conducted ‘for the purposes of scientific research’ as permitted under the 1946 Convention

Description: Fact finders in legal trials often need to evaluate a mass of weak, contradictory and ambiguous evidence. There are two general ways to accomplish this task: by holistically forming a coherent mental representation of the case, or by atomistically assessing the probative value of each item of evidence and integrating the values according to an algorithm. Parallel constraint satisfaction models of cognitive coherence posit that a coherent mental representation is created by discounting contradicting evidence, inflating supporting evidence and interpreting ambivalent evidence in a way coherent with the emerging decision. This leads to inflated support for whichever hypothesis the fact finder accepts as true. Using a Bayesian network to model the direct dependencies between the evidence, the intermediate hypotheses and the main hypothesis, parameterised with (conditional) subjective probabilities elicited from the subjects, I demonstrate experimentally how an atomistic evaluation of evidence leads to a convergence of the computed posterior degrees of belief in the guilt of the defendant of those who convict and those who acquit. The atomistic evaluation preserves the inherent uncertainty that largely disappears in a holistic evaluation. Since the fact finders’ posterior degree of belief in the guilt of the defendant is the relevant standard of proof in many legal systems, this result implies that using an atomistic evaluation of evidence, the threshold level of posterior belief in guilt required for a conviction may often not be reached.

Description: Twenty states, the District of Columbia, and the federal government have adopted sexually violent predator (SVP) Laws, which permit the post-incarceration confinement of persons who: (1) have a previous conviction or charge for a sexual offence; (2) suffer from a mental abnormality; and (3) are likely to engage in future acts of sexual aggression. Although most who are convicted of a sexual offence will not be subject to SVP commitment, a burgeoning body of research indicates that commitment is highly likely once the decision is placed in the hands of the jury. The high rate of commitment suggests that there might be a presumption of dangerousness in these proceedings, possibly stemming from the previous conviction requirement. This potential explanation was tested in the current experiment. Jury-eligible participants ( n = 190) were provided with varying degrees of information pertaining to the SVP commitment criteria. Some participants were told only that a person had been referred for an SVP commitment proceeding, whereas others were given information relevant to some or all three of the legal criteria. The rate of commitment did not vary as a function of the information provided. The mere fact that a respondent had been referred for an SVP proceeding was sufficient for a majority of participants to authorize commitment. We then calculated participants’ implicit operationalization of the ‘likely to offend’ criterion. On average, participants require the risk of recidivism to exceed 31% (range 20–40%) to effectuate commitment. These findings raise concerns about whether the constitutionally required due process occurs in SVP commitment proceedings.

Description: In response to criticism of latent fingerprint evidence from a variety of authoritative extra-legal inquiries and reports, this essay describes the first iteration of a guide designed to assist with the reporting and interpretation of latent fingerprint evidence. Sensitive to the recommendations of these reports, we have endeavoured to incorporate emerging empirical evidence about the matching performance of fingerprint examiners (i.e. indicative error rates) into their testimony. We outline a way of approaching fingerprint evidence that provides a more accurate—in the sense of empirically and theoretically justified—indication of the value of fingerprint evidence than existing practice. It is an approach that could be introduced immediately. The proposal is intended to help non-experts understand the value of the evidence and improve its presentation and assessment in criminal investigations and proceedings. This first iteration accommodates existing empirical evidence and draws attention to the gap between the declaration of a match and positive identification (or individualization). Represented in this way, fingerprint evidence will be more consistent with its known value as well as the aims and conduct of the accusatorial trial.

Description: This article extends existing discussion in literature on probabilistic inference and decision making with respect to continuous hypotheses that are prevalent in forensic toxicology. As a main aim, this research investigates the properties of a widely followed approach for quantifying the level of toxic substances in blood samples, and to compare this procedure with a Bayesian probabilistic approach. As an example, attention is confined to the presence of toxic substances, such as THC, in blood from car drivers. In this context, the interpretation of results from laboratory analyses needs to take into account legal requirements for establishing the ‘presence’ of target substances in blood. In a first part, the performance of the proposed Bayesian model for the estimation of an unknown parameter (here, the amount of a toxic substance) is illustrated and compared with the currently used method. The model is then used in a second part to approach—in a rational way—the decision component of the problem, that is judicial questions of the kind ‘Is the quantity of THC measured in the blood over the legal threshold of 1.5 μg/l?’. This is pointed out through a practical example.

Description: At a time when disciplined inference and decision making under uncertainty represent common aims to participants in legal proceedings, the scientific community is remarkably heterogenous in its attitudes as to how these goals ought to be achieved. Probability and decision theory exert a considerable influence, and we think by all reason rightly do so, but they go against a mainstream of thinking that does not embrace—or is not aware of—the ‘normative’ character of this body of theory. It is normative, in the sense understood in this article, in that it prescribes particular properties, typically (logical) coherence, to which reasoning and decision making ought to conform. Disregarding these properties can result in diverging views which are occasionally used as an argument against the theory, or as a pretext for not following it. Typical examples are objections according to which people, both in everyday life but also individuals involved at various levels in the judicial process, find the theory difficult to understand and to apply. A further objection is that the theory does not reflect how people actually behave. This article aims to point out in what sense these examples misinterpret the analytical framework in its normative perspective. Through examples borrowed mostly from forensic science contexts, it is argued that so-called intuitive scientific attitudes are particularly liable to such misconceptions. These attitudes are contrasted with a statement of the actual liberties and constraints of probability and decision theory and the view according to which this theory is normative.

Description: Judges have long had a central role in developing and enforcing effective laws for the protection of the environment and ensuring access to justice for its champions. The response of British judges to the problems created by the Industrial Revolution in the 19th century, using the tools of the domestic common law, has been mirrored in recent years by the responses of judges round the world to the environmental challenges of their own countries, using a range of legal mechanisms, derived from their varied constitutions or statutory codes. In developing and enforcing those laws, judges have needed to temper principle with realism, and progress has often been slow. They have sometimes been criticised for not respecting the proper limits of the judicial role, when dealing with issues of political controversy or allocation of economic resources. With the support of United Nations Environment Programme, judges have been at the forefront in programmes for improving judicial capacity in the field of environmental law, and for sharing skills and experiences. Although the legal frameworks may differ, many of the problems and their solutions are of universal application. The emerging principles can be seen as the foundation of a system of ‘common laws of the environment’ suitable for the daunting environmental challenges of the modern world.

Description: This article argues that requiring operators to hold financial security, such as insurance, bonds or guarantees, to cover their environmental liabilities offers considerable regulatory potential to restrict the incentives for environmental irresponsibility created by the doctrine of limited liability. It is contended that this regulatory potential derives from the fact that the incentive structures created by various financial security measures could motivate operators to reduce their environmental risk, this being defined as the probability that their activities will cause an environmental accident. It is concluded that the measures which appear to exhibit the greatest potential to reduce environmental risk do so through the contractual governance of the operator’s behaviour and the provision of economic incentives to improve safety levels and/or financial standing. This finding raises the prospect of third party providers of financial security functioning as ‘surrogate’ regulators of the operator’s activities. In doing so, they may augment the monitoring and enforcement capabilities of public regulators, thereby creating a more robust regulatory regime.

Description: Proposals for climate engineering—intentional large-scale interventions in climate systems—are increasingly under consideration as potential additional responses to climate change, yet they pose risks of their own. Existing international regulation of large-scale field testing and deployment is considered inadequate. This article looks to the closest existing analogy—nuclear power—for lessons, and concludes that climate engineering research will most likely be promoted and will not be the subject of a binding multilateral agreement in the near future. Instead, climate engineering and its research will probably be internationally regulated gradually, with an initially low degree of legalisation, and through a plurality of means and institutions. This regulation is expected to proceed from norms, to non-binding and non-legal policies, and then to relatively soft multilateral agreements which emphasise procedural duties. Any eventual agreements will have trade-offs between their strength and breadth of participation. Intergovernmental institutions could play important facilitative roles. Treaties regarding liability and non-proliferation of global deployment capability should be considered.

Description: In September 2011, President Barack Obama announced that the USA would implement the Extractive Industries Transparency Initiative (EITI), a global movement that seeks to give citizens of resource-rich nations the economic information and understandings they need to formulate public policy. Two years later, it is not yet clear whether the USEITI (US EITI) Multi-Stakeholders Group (MSG)—a group of 21 selected representatives from government, industry and civil society who are responsible for overseeing US EITI actions—can fulfil the promise of the global EITI and the US President. In the USA, information at the project level is limited by commercial confidentiality, while limitations on federal income tax disclosures and the absence of state revenue data handicap pursuit of comprehensive economic compilations that are essential to informed policy deliberations. Unresolved issues before the US MSG include the need to provide the public with information that is both project-specific and comprehensive. US EITI MSG performance to date suggests that the civil sector, operating at a knowledge handicap compared with its industry and government counterparts, lacks the resources necessary to work out critical details in a manner that would protect the public interest. Using US EITI MSG records on US national data and the state of Alaska’s experience with oil and gas as empirical reference points, this article examines the gap between theory and practice that plagues the ongoing deliberations as the USA prepares its formal application to join the global EITI movement, and offers recommendations to help close that gap.

Description: Transparency in the extractive industries is no longer exceptional. It is becoming the norm. This is a relatively recent development, and the Extractive Industries Transparency Initiative (EITI; http://www.eiti.org ) has played a leading role in mobilizing governments, industry and civil society in advancing this agenda. This article reflects on the development of the EITI and explores its potential to contribute to national debates about the management of the extractive industries. The work by the Nigerian EITI (NEITI) is an example of how information about the revenue flows from the sector can help stimulate debate and reform. As the EITI grows, there is a need to strengthen our standard, incentivize innovation and recognize achievement. A central challenge remains: how to harness transparency to promote accountability. There is a rising tide of data, but more needs to be done to make it useful. The EITI has made a good start, and the EITI movement needs to seize the opportunity to use EITI to encourage deeper reform in the management of the sector.

Description: The US Department of Interior (DOI) is leading the effort to bring the United States into compliance with the international Extractive Industries Transparency Initiative (EITI). The USA proposal would have DOI fully disclose payments received, by company, for rents, royalties and bonuses for energy production and extraction on federal lands. The USA application seeks voluntary data from the larger payors, to be reconciled with DOI's data by a third-party entity. In this article, the President and CEO of the Independent Petroleum Association of America describes the history of EITI, the implementation process, and the impact on independent oil and natural gas producers.

Description: As the global surge in prices for oil, gas and minerals continues, it is clear that Africa’s natural resources could set the continent firmly on a path to prosperity. Instead, however, much of Africa’s resource wealth fails to benefit its true owners, citizens throughout Africa. The most recent Africa Progress Report, Equity in Extractives: Stewarding Africa’s natural resources for all , outlines ways to ensure that Africa’s people get a better deal for their oil, gas and minerals at various stages of the process, including negotiation, implementation and public spending.

Description: Europe's energy companies power societies and employ many thousands of Europeans and non-Europeans worldwide. These companies connect the supplying nations, rich in natural resources, with markets surging with demand for petroleum and natural gas, enabling our technology-driven world to function and prosper. Within the FT rankings of the top 100 listed companies, seven companies are European oil, gas or mining companies (BHP, Shell, BP, Total, Rio Tinto, Eni, Statoil), while four are US companies and nine are companies domiciled in the so-called BRIC-countries. These large multinationals have hundreds of subsidiaries and worldwide operations across more than 100 countries. They are governed by a number of regulatory and legislative authorities, including, in Europe, the legal framework and authorities of the EU. In June 2013, the EU's legislators, the European Parliament and the Council of the EU, agreed on the revised Transparency and Accounting Directives with rules that apply to major corporations in general, and to those in the extractive and primary logging industries in particular. These new pieces of EU law require major companies to disclose certain information on a country-by-country basis. The nature and rationale of these ground-breaking new laws are explained further.