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Moritz Brinkmann - European Insolvency Regulation

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Moritz Brinkmann (Hrsg.)

European Insolvency Regulation

Reihe: Beck International

Band 2020

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Article 38. Decision to open secondary insolvency proceedings S. 324-331

„… 15.08.2019 13:06:27 3B2 9.1.580; Page size: 160.00mm 240.00mm Article 38 Decision to open secondary …” „… concerning the decision to open secondary proceedings. The first paragraph deals with the duty of the court …” „… 38(2) EIR).1 1 Mangano, in Bork/van Zwieten, Commentary on EIR, Art. 38, mn. 38.03. Decision to open …”

Article 5. Judicial review of the decision to open main insolvency proceedings S. 70-73

„… 15.08.2019 12:56:38 3B2 9.1.580; Page size: 160.00mm 240.00mm Article 5 Judicial review of the decision to …” „… decision opening main insolvency proceedings on grounds of international jurisdiction. 2. The decision …” „… b) Effects on discharge decisions …”

Article 39. Judicial review of the decision to open secondary insolvency proceeding S. 332-333

„… 15.08.2019 13:06:30 3B2 9.1.580; Page size: 160.00mm 240.00mm Article 39 Judicial review of the decision to …” „… challenge the decision to open secondary insolvency proceedings before the courts of the Member State in …” „… practitioner appointed in the main proceeding may challenge the decision to open secondary proceedings on the …”

Article 4. Examination as to jurisdiction S. 64-69

„… accordance with national law without a decision by a court, Member States may entrust the insolvency …” „… insolvency practitioner shall specify in the decision opening the proceedings the grounds on which …” „… ................................................................................................ ................................... 4 D. Duties with respect to the decision to open insolvency proceedings, Article 4 (1) EIR …”

Section 2. Coordination S. 465-514

„… decision, which law is relevant for the procedure, and what substantial requirements an application has to …” „… connection with the decision on participation (and non-participation, respectively) in group coordination …” „… such decision do not, however, cease retroactively2. 3According to the priority rule in Article 62 EIR …”

Article 34. Opening of proceedings S. 267-277

„… being opened; the decision to open secondary proceedings has been regulated; a new article has been …” „… introduced on the right to obtain a judicial review of the decision to open secondary proceedings. C. The …” „… construction de l’ordre juridique de l’Union européenne, p. 275. This objective is at the heart of the decision …”

Article 52. Preservation measures S. 405-410

„… ................................................................................................ ......... 11 2. Court decision on the request …” „… administrator to secure assets in other jurisdictions.9 4 In its Eurofood decision, the CJEU held that any …” „… decision by a court in a Member State that is premised on a petition for opening proceedings based on a …”

Article 24. Establishment of insolvency registers S. 226-238

„… of the decision opening insolvency proceedings is to be lodged in accordance with Article 5, or a …” „… respondents (75 %) agreed that the absence of mandatory publication of the decision opening insolvency is a …” „… decisions of insolvency proceedings in a national electronic register and define common categories for …”

Article 17. Protection of third-party purchasers S. 191-194

„… accordance with the court decisions of the CJEU,11 the “opening of insolvency proceed- 5 Mankowski, in …” „… of the EIR did not just include a decision by the issuing court that is formally described as an …” „… opening decision under the law of the Member State that applies to that court decision. Rather, it also …”

Article 16. Detrimental acts S. 162-190

„… this decision might suggest that it should also apply to the question at hand in the interest of a …” „… _Chapter_I.3d from 15.08.2019 12:57:31 3B2 9.1.580; Page size: 160.00mm 240.00mm throughout court decisions …” „… proceedings were opened are applicable.37 Others, citing a decision by the OLG Naumburg,38 opine that the …”

Article 3. International jurisdiction S. 47-63

„… aware of the internal decision-making-process, the COMI of the subsidiary may be located at the seat of …” „… the holding company. When third parties lack information about the way the decision-making process …” „… , the internal decision-making process within a corporate group is irrelevant for the place of …”

Article 2. Definitions S. 33-46

„… decisions in the course of such proceedings; (7) “judgment opening insolvency proceedings” includes: (i) the …” „… decision of any court to open insolvency proceedings or to confirm the opening of such proceedings; and (ii …” „… ) the decision of a court to appoint an insolvency practitioner; (8) “the time of the opening of …”

Article 22. Proof of the insolvency practitioner’s appointment S. 217-219

„… the original decision appointing it or by any other certificate issued by the court which has …” „… prove his appointment by presenting a certified copy of the court’s appointment decision or any other …” „… as such. It does not relate to other decisions by which some powers may be conferred on the …”

Regulation (EU) 2015/848 of the European Parliament and of the Council – Recitals S. 11-24

„… . (34) In addition, any creditor of the debtor should have an effective remedy against the decision to …” „… open insolvency proceedings. The consequences of any challenge to the decision to open insolvency …” „… specified time period. In order to allow the insolvency practitioners involved to take an informed decision …”

Introduction S. 1-10

„… decisions are facilitated. This makes it – even though subject to exceptions, such as Articles 8 and 10 EIR …” „… example, bestows upon the creditors the right to “challenge the decision opening main insolvency …” „… secondary proceedings. This blocking effect avoids (at least to some extent) conflicting opening decisions …”

Article 19. Principle S. 199-206

„… recognising State.5 Instead it honours the origin of the decision and transfers the effects into the other …” „… no. 7 EIR as including “the decision of any court to open insolvency proceedings or to confirm the …” „… opening of such proceedings; and the decision of a court to appoint an insolvency practitioner”. This …”

Article 6. Jurisdiction for actions deriving directly from insolvency proceedings and closely linked with them S. 74-82

„… (mentioning in this sense also a decision from the Hof Amsterdam, 3 November 2009, LJN BL8405 (NLD …” „… )); Mankowski/ Willemer, RIW 2009, 674 et seq. In this sense also the BGH in its decision closing the Deko Marty …” „… where the decision must be enforced in a non-EU country because the defendant’s place of residence is …”

Article 46. Stay of the process of realisation of assets S. 378-385

„… before it has begun could also effectively halt a decision over the course of the secondary proceedings …” „… to consider two issues in its decision whether to grant the request: 14 Reinhart, in Münchener …” „… having jurisdiction and venue is to base its decision on the stay of the realisation of assets solely on …”

Article 8. Third parties’ rights in rem S. 125-131

„… accordance with the court decisions of the CJEU,6 a two-stage test must be applied. Otherwise, the danger is …” „… also in particular covered by Article 8 EIR.13 13In the CJEU decision dated 26 October 2016,14 the …” „… regard see Mankowski, RIW 2017, 93; Court decision following the CJEU ibid. Germany: BGH, Beschl. v …”

Article 45. Exercise of creditors’ rights S. 367-377

„… recourse for cases in which the insolvency practitioner breaches a duty of care in his decision-making …” „… court decision does not provide any real authority on the issue, as the matter discussed here was …” „… neither a critical issue in the decision nor was it examined at length by the court. 24 Mankowski, in …”

Article 32. Recognition and enforceability of other judgments S. 258-263

„… ............................................................... 13 1. Court decisions by the CJEU …” „… developed autonomously and should be interpreted broadly in order to encompass all relevant decisions. 6The …” „… 32(2) EIR and is thus fully covered by the Brussels Ia Regulation. 1. Court decisions by the CJEU 14The …”

Article 51. Conversion of secondary insolvency proceedings S. 400-404

„… proceedings may request a binding court decision in respect of a conversion of the type of secondary …” „… the EIR amended Article 37 EIR 2000. The decision to limit the purpose of secondary proceedings to …” „… , the conversion is mandatory. Article 51(1) EIR does not grant the court discretion in the decision.10 …”

Article 36. Right to give an undertaking in order to avoid secondary insolvency proceedings S. 282-314

„… – non-exhaustive – list of aspects may play a role in the decision-making process of an insolvency practitioner:53 …” „… decision-making process of an insolvency practitioner may be subject to specification,118 such as measures …” „… take place until the court has taken a decision on the challenge. 8. Local creditors may apply to the …”

Article 84. Applicability in time S. 527-530

„… initial affirmative opening decision sets the relevant date for the application in time.7 Therefore, if a …” „… will govern the insolvency proceedings. Hence, the appeal or the subsequent decision by the court of …” „… criticism on this decision see Fuchs, NZI 2018, 667, 667. 11 J. Schmidt, in Mankowski/Müller/J. Schmidt …”

Article 86. Information on national and Union insolvency law S. 535-536

„… civil and commercial matters established by Council Decision 2001/470/EC1, and with a view to making the …” „… legislations and procedures relating to insolvency are 1 Council Decision 2001/470/EC of 28 May 2001 …”

Article 13. Contracts of employment S. 152-155

„… “employment relationship” must be interpreted autonomously according to the court decisions of the CJEU,7 …” „… to the common market” is lacking.16 To this extent, however, the court decisions of the CJEU must be …” „… noted. In its decision dated 16 January 2014,17 the court was posed with the question whether the …”

Article 50. Subsequent opening of the main insolvency proceedings S. 396-399

„… CJEU’s holding in the Eurofood case must also be kept in mind: Any decision by a court in a Member State …” „… ] to the Regulation” is to be considered a decision to open insolvency proceedings pursuant to Article …” „… 19.7 Many decisions to commence interim insolvency proceedings and appoint an interim insolvency …”

Titelei/Inhaltsverzeichnis

„… ................................................................................................ ......... 64 Article 5. Judicial review of the decision to open main insolvency proceedings …” „… secondary insolvency proceedings........................................ 315 Article 38. Decision to open …” „… Article 39. Judicial review of the decision to open secondary insolvency proceeding …”

Article 1. Scope S. 25-32

„… 1(1) EIR are relevant for the decision of the legislator whether a given type of proceedings under …” „… compromise their rights such as the right to have the opening decision reviewed pursuant to Article 5 EIR. 16 …” „… .18 The decision not to register the opening of proceedings pursuant to § 270 b InsO has, however, the …”

Article 28. Publication in another Member State S. 249-251

„… judgment opening insolvency proceedings and, where appropriate, the decision appointing the insolvency …” „… specifying the insolvency practitioner and the decision appointing him where appropriate, and (c) whether the …”

Article 43. Cooperation and communication between insolvency practitioners and courts S. 358-364

„… decision. B. Right and obligation to cooperate and communicate 3Like Articles 41 and 42 EIR, Article 43 EIR …” „… persists until the competent body ascertains the inadmissibility in a final and binding decision.13 The …” „… , Art. 43, mn. 6: communication of court orders, decisions of creditors’ committees and creditors …”

Article 42. Cooperation and communication between courts S. 348-357

„… decisions in the course of such proceedings”. From a German perspective, this definition comprises judges as …” „… 13:06:40 3B2 9.1.580; Page size: 160.00mm 240.00mm decisions to be taken by him in his proceeding.38 …” „… Austria did not decide independently. Of course, the other judges did not dictate his decision, but due to …”

Article 9. Set-off S. 132-135

„… decision to open proceedings becomes effective, irrespective of whether the decision is final or not. The …”

Article 41. Cooperation and communication between insolvency practitioners S. 336-347

„… on the decisions taken in the respective proceedings by the competent persons, authorities and bodies …” „… According to a recent decision of the German Federal Court of Justice, these provisions do apply mutatis …” „… S.p.A. [2011] EWHC 15 (Ch). For a sceptical analysis of this decision see Wessels, in Bork/van Zwieten …”

Article 35. Applicable law S. 278-281

„… Member States. This practice developed significantly after the CJEU’s decision in Centros and generally …” „… CJEU Case C-339/07, Seagon v Deco Marty, ECLI:EU:C:2009:83. See also the more recent decisions in CJEU …”

Article 10. Reservation of title S. 136-140

„… the time at which the decision on the opening of proceedings becomes effective, irrespective of …” „… whether this decision is final or not. III. Purchased assets are situated in another Member State than …”

Article 7. Applicable law S. 83-124

„… debt relief subject to a condition of residence in the Member State concerned”.59 Yet, this decision …” „… Icelandic insolvency law.117 This decision seems correct for two reasons: First, the Icelandic law is likely …” „… discontinuance of pending arbitration proceedings.145 This decision seems correct, in particular since …”

Article 30. Costs S. 254

„… publication or the registration abroad was triggered by the decision of the liquidator. Secondly, they …”

Annex A S. 545-548

„… Ireland has subsequently agreed to be bound by that Regulation (Commission Decision (EU) 2017/1518 of 31 …”

Article 53. Right to lodge claims S. 411-413

„… .............................................................................................. 6 A. Purpose 1Article 53 EIR is an expression of the general decision of the European legislator to …”

Article 79. Responsibilities of Member States regarding the processing of personal data in national insolvency registers S. 518-520

„… national databases and for decisions taken to make such data available in the interconnected register that …”

Article 33. Public policy S. 264-266

„… another Member State where the decision to open the proceedings was taken in flagrant breach of the …”

Article 37. Right to request the opening of secondary insolvency proceedings S. 315-323

„… of his right under Article 37(1) EIR. This decision is to be based upon the interests of the …” „… decision from 2011, approved the right of a German provisional liquidator to request the opening of French …”

Article 25. Interconnection of insolvency registers S. 239-241

„… final decision relating to the search criteria in the implementing act(s) should be in compliance with …”

Article 31. Honouring of an obligation to a debtor S. 255-257

„… Article 2 no. 8 EIR. Whether a court’s decision constitutes an “opening” is to be determined by …”

Article 11. Contracts relating to immoveable property S. 141-144

„… right of acquisition or use must relate. Following the court decisions of the CJEU that European Union …”

Article 20. Effects of recognition S. 207-210

„… . Consequentially, the judgment or decision on recognition in itself is usually not subject of a separate judgment …”

Article 47. Power of the insolvency practitioner to propose restructuring plans S. 386-389

„… decision-making bodies (for example: creditors’ committee, creditors’ assembly) and receive court approval, to the …”

Article 27. Conditions of access to information via the system of interconnection S. 244-248

„… form via the European e-Justice Portal. The decision on the request for access to the information or …”

Article 54. Duty to inform creditors S. 414-418

„… specification by CJEU decisions exists. However, there are indications for its meaning in European secondary law …”

Article 55. Procedure for lodging claims S. 419-426

„… follows to also accept and base a conclusive decision on any additional evidence that was furnished …”

Section 1. Cooperation and communication S. 427-464

doi.org/10.17104/9783406759031

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Peter Theiner

Robert Bosch

2019

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The decision to create the Robert Bosch Foundation S. 399-403

„… 399 The decision to create the Robert Bosch Foundation ments in a manner that was highly …” „… his “strictly democratic […] outlook.”70 The decision to create the Robert Bosch Foundation Among …” „… acceptance of the given but rather a creative response to new challenges.” 401 The decision to create the …”

Setting the course for corporate governance S. 190-192

„… that, when it came to strategic questions, decision-making powers still rested with him. He was known …” „… for giving his employees considerable leeway in terms of development and decision-making, leading …” „… , far-reaching decisions about the development of corporate governance had been made. Bosch had reason to hope …”

Social policies at Bosch S. 64-69

„… performance” for “the least possible utilization of mental and physical powers” from this decision.263 This …” „… decision: “The shorter the working hours, the higher the quantity and quality of the work.”264 By …” „… alone in German industry with his decisions relating to working hours. Not only Frese and Abbe had …”

Civic pride and patronage S. 69-76

„… directors decision-making power over how the funds would be used. At the same time, the specifications were …” „… decision-making about causes and donations, as well as to testing need 75 Civic pride and patronage and …” „… implementing decisions, by hiring the young salesman Hans Walz in 1911 as his project manager for charitable …”

Education and life world S. 20-29

„… planned. In his memoirs, Robert Bosch did not comment critically on his father’s business decision …” „… . Nonetheless, a skeptical undertone can be discerned in his characterization of his father’s decision to no …” „… constants in Robert Bosch’s daily routine as an adult. But in his reflections about his father’s decision …”

Armaments boom and concerns S. 273-287

„… importance. He had surrounded himself with leaders and had given them decision-making power. There is no …” „… , Building up Armaments, and Resistance of the Second World War. These opinions and decisions cannot be …” „… with the outbreak of the war.128 The decision in the summer of 1938 to expand and proactively diversify …”

The Bosch-Goerdeler connection S. 335-346

„… decision-making capacity with force of character.”449 Goerdeler, however, trusted the determination of Army Chief …” „… circle made the irrevocable decision to actively resist the Nazi regime. It rather appeared to be a …” „… sort of pact to overthrow the regime. Whether one can trust his assertion of an early decision to …”

Take off, company founding, and a "chokehold" S. 39-46

„… product of patient waiting for the municipal council’s pioneering decisions, as 43 Take off, company …” „… founding, and a “chokehold” important as the intertwining of municipal political decisions and the …” „… unusual: He stuck with his decision to wear woolen clothing, with a high-waisted skirt and a wide-brimmed …”

New approaches to company communications S. 192-199

„… one day be the decision center for the strategic guidance of the company, on the one hand, and …” „… Far-reaching structural decisions were also made at Bosch after the First World War in the field of company …” „… , however, the Bosch-Zünder had been on the side of democracy. The editorial decision to “reject any 196 …”

Conspiracy, failure, and late honor S. 392-399

„… memoranda. Instead, they both conveyed their political thinking through decisions made, situated responses …” „… accomplish- 399 The decision to create the Robert Bosch Foundation ments in a manner that was highly …” „… his “strictly democratic […] outlook.”70 The decision to create the Robert Bosch Foundation Among …”

In the maelstrom of the war economy S. 315-327

„… making investment decisions and choosing locations for factories based on business considerations and …” „… , Bosch felt that it had to reconsider the decision, which had been made in 1938, to build a new factory …” „… exclusively on business decisions – and not on “any recent or cyclical developments.”391 “Also the current …”

Social policies in the firm S. 199-202

„… matters he did not want his decision-making capacity as a businessman or his responsibility challenged …” „… ’ demand to take part in decisions about company matters. This was not an argument against bonuses and …”

Anger and restraint S. 97-106

„… triggering moment for Germany’s decision to go to war, the general mobilization of the Russian Empire was …” „… political alliances and actions. Its decision to take the side of the French-Russian alliance in the July …” „… the decision to go to war had been irrevocably made.39 Compared to the prewar level of 1913, the …”

A new clinic S. 301-305

„… philanthropic decision found unanimous support. From childhood, Robert Bosch had known about naturopathic ideas …” „… its decision to provide his hospital foundation from 1916 with a further endowment of 3.5 million …”

No system change without free elections S. 165-170

„… dedication of the broader population, but showed no admiration for the military decision makers at the time …” „… urgently overdue.25 Retrospective historical criticism of the decisions made in the revolution of 1918/19 …”

Change through rapprochement and European integration S. 211-222

„… among the decision-makers in Berlin, the cool assessment of new State Secretary von Bülow was …” „… From the perspective of supporters and patrons of the pan-European idea, some important decisions lay …” „… . Coudenhove-Kalergi’s decision to press forward with the draft of a constitution had already led to tensions with …”

A backlog of reforms, Taylorism, and a strike S. 76-82

„… decision-making bodies of social security, or to prevent such influence in general, in the case of key …” „… summarized the result of his theological laymen’s speculations by saying that he had to make his decisions …”

Great hardship and philanthropic foundations S. 106-127

„… effects. The foundation’s advisory council, the decision-making body, was comprised of its chairman Robert …” „… , which had occurred some time before, and also in light of the decision-making structures in Berlin …” „… was a political decision made to begin construction on 113 Great hardship and philanthropic …”

Councils, socialization, and company statutes S. 173-187

„… employer’s responsibility and decision-making capacity on matters of product development, production, and …” „… republic, these were decisions of major historical importance, made even in advance of the national …” „… assembly that would create the constitution. In their normative content, these decisions already point to …”

"Mitteleuropa " S. 141-148

„… matter as possible before decisions were made. The historian Wolfgang Schieder characterized Friedrich …” „… decisions of the executive branch. The intransparent information policies of the government became a …”

For the republic and international understanding S. 238-254

„… only possible due to the communists’ tactical decision to decisively weaken the republican camp by …” „… require the common “pathos of the decision and radical dichotomies,”398 and it was not about the …” „… In the Weimar Republic decisions: a liberal party in the political center could only be credible and …”

"Enforced conformity" and illusions S. 265-273

„… the decision that Jäckh would be negotiating the closure of the college with Propaganda Minister …” „… . For now, I will be brief and confirm that the decisions that were made yesterday and today will …”

Still for peace and cooperation S. 327-335

„… “Feuerbach Speech” was an unusually brave decision to stand one’s ground and, from the perspective of the …” „… a definitive moment at which Robert Bosch and his narrower circle made the irrevocable decision to …”

Successes, expansion, and internationalization S. 46-56

„… decisions and results of companies like Daimler, Siemens, and Bosch. Among such decisions was also quickly …”

No conversion and a Liberal encyclopedia S. 82-92

„… and to justify his decisions. He did manage to succeed in this with his older daughter Margarete …” „… tenaciously as Robert Bosch wished to see his room to maneuver in business decisions remain untouched during …”

Crisis, renewal, and securing the company's future S. 228-238

„… of directors was reduced from 11 to six members, whereas the actual decision-making center shifted to …” „… of with a qualified employee base after the crisis. In this respect, the decision for reduced hours …”

Titelei/Inhaltsverzeichnis S. 1-8

„… late compensation for the victims 385 Conspiracy, failure, and late honor 392 The decision to create …”

Preface S. 9-13

„… decisions that the country could adopt after its liberation from the “criminals.” The present book takes …”

A memorandum before the last offensive S. 154-156

„… circumstances vividly in factual speech to voters seeking orientation, in allowing decisions to ripen by means …”

Thinking beyond the war: The German College for Political Science S. 156-158

„… allowing decisions to ripen by means of discourse, to prevent “hero worship”255 as well as the “boasting …”

The Democratic Popular Union S. 170-173

„… decisions made in the revolution of 1918/19 would therefore also benefit from a look at sociopolitical ideas …”

The company and the effects of the war S. 187-190

„… meantime, far-reaching decisions about the development of corporate governance had been made. Bosch had …”

The transfer of power S. 254-260

„… the leadership of a fanatical Nazi. The decision was therefore made not to show open resistance, but …”

A "wall of protection" for the firm S. 260-265

„… of a fanatical Nazi. The decision was therefore made not to show open resistance, but to engage in …”

Peace resolution and the fall of the chancellor S. 148-154

„… and decisions. The Volksbund für Freiheit und Vaterland [People’s League for Freedom and Fatherland …”

The bursting of the "bubble" S. 158-165

„… population, but showed no admiration for the military decision makers at the time. Above all: it was clear to …”

Forced labor at Bosch and late compensation for the victims S. 385-392

„… decisions that were particularly unfavorable to those seeking compensation. In point of fact, the claims of …”

Business as a cover for resistance S. 346-381

„… a decision with regard to Poland. Bosch saw that Britain was “in a difficult situation,” but …” „… others. This framework, which was not insignificant in shaping decision processes in London, was also …” „… (“I felt as if I were walking with destiny”),642 the decision had been made to mercilessly fight …”

Searching for peace S. 202-211

„… that the Allies proclaimed and due to the decisions made in the Versailles Treaty, soon entered a …”

The company, the "Nazi wave"– an anniversary and the Bosch-Zünder S. 292-301

„… representatives of the regime, a new philanthropic decision found unanimous support. From childhood, Robert Bosch …”

Travels and reforms S. 29-39

„… likely factor in his decision to go to the United States was that it enabled him to work in a nation …”

Bosch and his Jewish fellow citizens S. 305-315

„… company’s political-moral decisions that Hans Walz was already supporting the harried musician at the point …”

Notes S. 405-470

doi.org/10.17104/9783406741463

Marco Stief - Supplementary Protection Certificates (SPC)

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Marco Stief (Hrsg.)

Supplementary Protection Certificates (SPC)

Reihe: Beck International

Band 2021

Treffer in den folgenden Teilen:

A. Selected Decisions of the European and National Case Law S. 185-252

„… notification of thedecision granting marketing authorisation was given to the addressee of the decision.Grounds …” „… ANNEXESA. Selected Decisions of the European and National Case LawA1. Court of Justice of the …” „… ensure the holder of the basic patent ofA. Selected Decisions of the European and National Case Law187 …”

P. The SPC in The Netherlands S. 156-164

„… After submission of the dossier, the MEB has 210 days to reach a final decision. Thisperiod may be …” „… allows for oral explanation. After a positivefinal decision the marketing authorization is issued …” „… the author’sknowledge, no Dutch Court decisions are available relating to the specific issue ofproduct …”

Q. The SPC in Switzerland S. 165-184

„… ”) decision of 11 June 201823 are to be applied in the respectivecase-by-case assessment to be in accordance …” „… with the case law of the CJEU analogously,as it is laid down in the decisions on Art. 3 lit. a of the …” „… . 469/2009.2915 According to the Panitumumab decision of the FAC of 18 August 2011, the funda-mental idea of the …”

N. The SPC in France S. 137-146

„… N. The SPC in FranceBibliography: Schmitt, Bloch Première décision relative aux certificats …” „… toconsider that a product is protected by the basic patent.9 Before the CJEU decisions in the Medeva3 and Eli …” „… the CJEU rendered its decisions, the position of the French IP Office onArticle 3(a) drastically …”

F. Specific Practical Problems S. 42-56

„… ).52 Gassner PharmR 2011, 361 with references to national decisions.Part I. Generals of the …” „… referred to as ‘Salt Issue’ in the literature and were the subject of theFarmitalia decision by the CJEU in …” „… Stief124Subsequent to the Farmitalia decision, the German courts found the specificallyauthorised …”

O. The SPC in Italy S. 147-155

„… importante decisione della Commissione dei Ricorsi, Rivista di DirittoIndustriale, 2003, 293; Sena, I Diritti …” „… – without consent of thepatentee – infringes such basic patent. ECJ decision Medeva (C‐322/10) impacted …” „… subsequent ECJ decision Eli Lilly (C‐492/12)1, according towhich it is not necessary for the active …”

L. The SPC in Germany S. 97-110

„… active ingredients.15 This (pre-Medeva) decision by theBGH to reject SPC applications in such situations …” „… is in line with the position taken bythe CJEU in Yeda.168In its (pre-Medeva) decision Sumatriptan the …” „… , namely regarding the application ofthe CJEU case law Medeva, Eli Lilly and Teva, are the decisions …”

B. Substantive Granting Prerequisites S. 13-31

„… similar interpretation problem occurs in the above-mentioned Gilead decision,which is pre-Medeva, where …” „… already. Prior pending Certificateapplications would thus be harmless. Multiple CJEU decisions were …” „… basic patent and thus confuses invention and product.According to the CJEU decision Royalty Pharma, this …”

M. The SPC in the United Kingdom S. 111-136

„… ” post-Completion Day CJEU decisions.As such, even though post-Completion Day CJEU referrals will not be binding …” „… law as atCompletion Day remains binding on UK Courts, any subsequent CJEU decisions (savefor any …” „… Courts remainbound by past CJEU decisions as if they had been made by their own superior courts).However …”

K. Recent Developments S. 69-96

„… with the numerous, sometimes questionableCJEU decisions in this context. An adjustment of the SPC …” „… special interest with respect to all the CJEU decisions since 1992concerning the interpretation of the …” „… the CJEU decisions Medeva,24 Eli Lilly25 andTeva,26 however, there is at least a judicial definition …”

B. Selected Legal Sources S. 253-354

„… 9(1).Article 18. AppealsThe decisions of the authority referred to in Article 9(1) or of the bodies …” „… those provided for in national law against similar decisions taken in respectof national patents.Article …” „… require a fee to be payable upon application for a certificate.Article 17. Appeals1. The decisions of the …”

G. Grant Procedure S. 57-64

„… national patent law in determining the scope of protectionof the basic patent – decisions regarding the …” „… ProcedureStief 59by means of national or EU law. However, the CJEU decision Seattle Genetics, whichaddressed …” „… issue (decision to grant), the date of notification (commu-nication to the applicant)17 or the date of …”

Titelei/Inhaltsverzeichnis

„… case law raises more questions than it answers,potentially resulting in decisions being implemented in …” „… status quo between these countries as well as anoverview of regulations and case law decisions made at EU …” „… ................................................................................................ .............. 184AnnexesA. Selected Decisions of the European and National Case Law …”

C. Calculation of Term S. 32-37

„… addressee of the deci-sion.”2418 CJEU Hässle v. Ratiopharm, C‐127/00 [Annex A1.IV.].19 See supra, mn. 71.20 …” „… https://www.ipo.gov.uk/p-challenge-decision-results-bl?BL_Number=O/418/13 (last accessed on 30 November 2020).24 Emphasis added, CJEU Seattle Genetics v …” „… positive term anymore, the CJEU did not create anexception for such cases in its decision. The determined …”

A. Purpose, History and Legal Character of the Certificate S. 4-12

„… E.g. in Germany: this is in what the utility model results in many cases according to the decisionBGH …” „… Supplementary Protection Certificate Scheme – The Decision of the PatentsCourt in Re Aktiebolaget Draco, EIPR …” „… with a marketing authorisation applica-tion. Depending on legal constraints and a strategic decision on …”

doi.org/10.17104/9783406779275

Wolfgang Kahl, Marc-Philippe Weller - Climate Change Litigation

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Wolfgang Kahl (Hrsg.), Marc-Philippe Weller (Hrsg.)

Climate Change Litigation

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III. Climate change litigation guiding investment risk assessment & decision-making S. 173-182

„… . Climate change litigation guiding investment risk assessment & decision-making 11Of potential relevance to …” „… practices and implicates investment decision-makers. Indeed, as a result of growing pressure from civil …” „… investment decision-making. Both public and private enterprises and institutional investors among others are …”

IV. Litigation relating to the obligation of governments and public bodies to address climate change S. 262-269

„… the context of decision-making. In Citizens of Riverdale Hospital v. Bridgepoint Health Services, a …” „… second step, the decision-maker taking the assessment into account, if the particular project should be …” „… decision-makers are left to occur in a vacuum.”93 35 The Panel’s obligation under the CEAA is not to comment on …”

III. Formal role of NGO’s in climate litigation against the state S. 516-525

„… construction). These can be cases evolving around approval decisions or other administrative decisions for …” „… targets. A decision like in New South Wales, Australia has not yet occurred in Germany. The Land …” „… decisions in accordance with paragraphs 1 to 5 (i.e. normally projects “Vorhaben” which require an …”

II. Climate change through the environmental impact assessment process S. 290-299

„… , which must then be assessed by the decision-maker. Importantly, legislation will list factors that a …” „… decisionmaker must consider in making their decision. To date, these statutes do not require governments to …” „… the Environment & Heritage & Ors16 the decision-maker determined that two large coal mines did not …”

III. Litigating the transition to a low carbon society: clean energy, airports, and fracking S. 311-319

„… maker to accept those objections”.41 The decision-maker does 31 Jones, Climate Law, Vol. 6, No. 3–4 …” „… for decision-makers to consider broader policy implications of climate change. More recently, in 2019 …” „… challenged. With it being removed, local decision-makers would not be able to take it into consideration. 44 …”

IV. Local court cases that are relevant to climate change litigation in Italy S. 333-335

„… , since they normally prefer to avoid interfering so directly in governmental and political decisions. It …” „… it is likely that the proposers will request at least the same decision as in the Netherlands: that …” „… (‘last judgment’) was announced, two recent decisions of the Regional Administrative Court (TAR) of …”

IV. Climate litigation in Brazil: analyses of cases S. 281-286

„… Change Law in the country. The jurisprudence presents few interesting cases, mainly a decision by the …” „… decision is in conflict with the provisions of the Climate Change National Policy Act (Act 12,187/2009 …” „… , such decision is in conflict with a precedent from the STF itself, which, interpreting the Article 225 …”

IV. Evaluation: the legitimate functions of courts in climate protection S. 76-80

„… need for action. The awareness of judges for the situatedness of their decisions in a political and …” „… social environment can even be traced in some of the landmark climate change decisions: In Massachusetts …” „… v. EPA, for example, Justice Stevens began the reasoning of the majority decision with a description …”

II. NGO independent access to court as exception to the rule – the German standing rules in a nutshell S. 513-516

„… exercise of rights.57 49 Convention on access to information, public participation in decision-making and …” „… expropriation (e.g. as a result of a planning approval decision according to § 74 Administrative Procedure Act …” „… (VwVfG)) will justify a full judicial review of the legality of the administration’s decision, including …”

II. Climate change litigation in public law S. 338-346

„… have been launched in France. Objective litigation has developed in large part due to the decision of …” „… ., Décision n° 2019-771 QPC, 29/03/2019, Vermilion REP. 12 Cons. const., Décision n° 2019-808 QPC, 11/10/2019 …” „… on the French territory. In its decision, the Council of State suggested that “the general interest …”

IV. Innovations in investment law & policy related to clean energy, climate change and sustainable development S. 182-196

„… investment decisions, a measure to combat climate change is rarely dressed as such. Therefore, understanding …” „… protection in these decisions is often not packaged as such but is distilled from the protection of ‘measures …” „… in investment law decisions on matters pertaining to climate change, clean energy and sustainable …”

III. “Giudizio universale” (the last judgment): a high-profile case to be litigated by the first months of 2020 S. 329-333

„… . On the merits, the judicial decision granting this request would have important meaning in principle …” „… practical consequences would be limited, since, as mentioned above, a judicial decision of mere verification …” „… decision of the Dutch Supreme Court in the Urgenda case. As discussed in other contributions to this volume …”

II. Litigating climate targets: holding the government to account S. 308-311

„… regarding litigating climate targets. Second, a review of decisions in spheres of public body …” „… activity where it is alleged that climate change issues arise. Third, a review of decisions of public …” „… bodies in relation to some activity that will be carried out by the private sector, where the decision …”

II. Analysis: structures of judicial involvement in climate protection S. 66-72

„… or participation rights in environment-related decision-making processes,63 concerning compliance …” „… the Colombian authorities had failed to protect the Amazon region from deforestation, in a decision …” „… the Ogoniland decision of 2001 that the Nigerian government’s involvement in oil production at the …”

II. Greenhouse gas reduction obligations of EU Member States under EU law S. 219-221

„… coordinated in the Burden Sharing Decision 2002/358/EC (for the period 2008‐2012)10 and in the …” „… Effort-Sharing-Decision 406/2009/EC (for the period 2013‐2020).11 Both legal acts allocated duties of greenhouse …” „… bundled their NDCs to the goals of the PA in the common EU 3 See Council Decision of 25 April 2002 …”

III. The Paris Agreement in the courtroom S. 208-215

„… , Preamble; Decision 1/CP.21, para 110–114, 121, 122; cf van Asselt, 6 Clim Law 2016, 91 …” „… of a coalition of environmental groups in Norway, which challenges the licensing decision for …” „… petroleum activities in the Barents Sea. They argue that the decision was contrary to the right to a healthy …”

II. The Paris Agreement and the legal nature of its provisions S. 200-208

„… . Accordingly the parties explicitly recognized this shortfall, which is quantified in the decision adopting the …” „… Decision 1/CP.21, para 17. 31 Winter, 9 TEL 2020, 137 (144). 32 Crosland, 24(5) Env. Liability 2016, 1 (5 …” „… accompanying decision according to which Art. 8 of the Agreement does not involve or provide a basis for any …”

III. Contextualization: factors influencing the role of courts S. 72-76

„… rights in environment-related decision-making processes,63 concerning compliance with climate change …” „… debate but also within judicial decisions addressing climate change.73 20While all kinds of courts can …” „… international law. The Leghari decision referred to international environmental principles and the Urgenda …”

V. Perspective climate litigation to enforce climate law S. 525-530

„… legal interests are affected by the decision, either of its own motion or on application. 71The legal …” „… its emissions in 2016‐2018. Like the 2009 burden sharing decision, the EU Climate Change Regulation …” „… effort sharing decision of 2009 and only in first instance will prove to be the standard for judicial …”

III. Litigation relating to the authority of the federal government to address climate change S. 258-262

„… decision-making. In Citizens of Riverdale Hospital v. Bridgepoint Health Services, a citizens group challenged the …” „… legislative decisions that apply to general matters.36 12 On appeal, Syncrude advanced two errors in the …” „… Federal Court’s decision. First, Syncrude argued that the RFRs were not a valid exercise of criminal law …”

I. Introduction S. 324-325

„… prosecuted. Secondly, between 2017 and 2019 a number of local Court decisions addressed cases directly …” „… rights and thus capable of informing decisions in countries like Italy. In the same vein, see recently …” „… GHG emission for the period 2017–2020 (Decision 2013/ 162/UE, further revised by Decision 2017/1471/UE …”

III. Climate protection and current corporate law S. 455-464

„… make any corporate decision –, the business judgment rule under § 93 (1) cl. 2 AktG also does not apply …” „… decision.59 While the details may be contested, it is nevertheless widely recognized that the corporate …” „… concerning the structure of the compliance system and the decision on concrete compliance measures and that …”

IV. Criminal prosecution of climate activism: an emerging area of climate litigation S. 319-322

„… approach” to decisions made by environmental decision-makers.102 As discussed earlier, Plan B v BEIS or …” „… activist.79 In practice, it may indeed come to a different decision now as a result of litigation and …” „… % emissions reduction to a net-zero target. The original decision making for the ANPS, that were the subject …”

IV. The legal problems of positive obligations S. 88-95

„… decision-making processes. IV. The legal problems of positive obligations 26 The debate on how human rights are …” „… Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), adopted in …” „… decision (UK: Plan B) or in decisions by lower courts (Switzerland: KlimaSeniorinnen; Ireland: Friends of …”

II. The Urgenda case S. 365-372

„… system of government, the decision-making on greenhouse gas emissions belongs to the government and …” „… , 165–189. De Graaf/Jans, The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Climate …” „… Van der Veen/De Graaf 3. The Supreme Court decision 12As we already stated, the Supreme Court upheld …”

II. Random sampling: Lliuya v. RWE – approaching liabilities for climate damages inductively S. 23-26

„… damages in glacial regions in the South American Andes (infra mns 3, 8, 43). The last centuries’ decisions …” „… been 5 LG Essen, Judgement of 15.12.2016, 2 O 285, NVwZ 2017, 734. 6 OLG Hamm, Decision of 30.11.2017 …” „… , I-5 U 15/17, ZUR 2018, 118; OLG Hamm, Decision of 23.08.2018 (partly amending the former order). 7 …”

III. The Jurisprudence of the European Court of Human Rights S. 85-88

„… any case.23 As the governmental decision-making process concerns complex issues of environmental and …” „… legislator is higher because this implies a restriction of democratic decision-making processes. IV. The …” „… vs. The Netherlands.38 Mostly the national courts rejected the claims in a final decision (UK: Plan B …”

VI. Liability under German law S. 398-403

„… BGH in the forest damage decision (Waldschadensurteil), BGH, judgment of 10.12.1987 – III ZR 220/86 …” „… decision (Waldschadensurteil),202 the regional court denies an individual causal relationship: In the case …” „… more diffuse”, which is why the principles of the forest damage decision also apply in the RWE case.204 …”

III. Public law litigation S. 244-250

„… much larger amounts of greenhouse gases (at least 75,000 tons per year). 35 In a 5–4 decision, the …” „… conventional pollutants, it must control greenhouse gases. This decision makes it clear that the Supreme Court …” „… making the actual decision.34 39The key question for our purposes is how climate change factors into NEPA …”

I. Introduction S. 218-219

„… Sharing Decision 2002/358/EC (for the period 2008‐2012)10 and in the Effort-Sharing-Decision 406/2009/EC …” „… bundled their NDCs to the goals of the PA in the common EU 3 See Council Decision of 25 April 2002 …” „… Decision 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community, of the …”

II. International policy & treaty commitments to climate justice & investment in carbon neutral/negative sustainable development S. 169-173

„… . Climate change litigation guiding investment risk assessment & decision-making 11Of potential relevance to …” „… developing country, a technical expert review team may not assess the State’s decision to apply it or …” „… (fn. 1), art. 13. 13 Ibid. art. 13(2). 14 UNFCCC, Decision 18/CMA.1 Modalities, procedures and …”

V. What can investor-led action achieve? S. 477-486

„… seen increased reporting that is both comparable and decision-useful for investors.113 Furthermore …” „… spotlight (1.). Meanwhile, however, corporate decisions are also discussed widely in the public domain …” „… climate damages – Germany as an international pioneer? 478 Duve/Hamama 2. Corporate decisions and the …”

V. Conclusions and the future climate litigation in the UK S. 322-324

„… relatively ‘hands off’ deferential approach” to decisions made by environmental decision-makers.102 As …” „… in the UK has usually tried to steer clear of the politics of environmental decision making. Thornton …” „… prosecuted. Secondly, between 2017 and 2019 a number of local Court decisions addressed cases directly …”

V. Arbitral institutions and climate change S. 114-118

„… influence the strategy and economic decisions of the company. A variety of attempts are being made to oblige …” „… companies to act in a climate-friendly manner or make management liable for corporate decisions or …” „… to safeguard assets by an entrepreneurial decision, – breach of information duties regarding climate …”

V. Conclusion S. 286-288

„… and the Judiciary”.56 71 The decision of the STJ was unanimous in the sense of condemning the …” „… and Humberto Martins also participated in this decision. 72 The precedents of the STJ, in this …” „… National Policy of Climate Change. On the other hand, the aforementioned decision by the STF, declaring the …”

I. Introduction S. 306-308

„… of such decisions. 6In the UK, many instances of climate litigation stem from judicial review, where …” „… the claimants ask the court to review the lawfulness of a decision or action made by a public body …” „… decisions that implement or purport to implement regulations directly concerning climate change. This type …”

II. The perspective of economic analysis and legal functionalism S. 452-455

„… the context of non-binding decisions. How far does this discretion extend? Can it intensify, becoming …” „… good in climate protection when making company decisions?11 3. Delimiting the object of study 5 The …” „… or production decisions when using resources have a direct impact on the use and productivity of …”

III. Climate change litigation in private law S. 346-363

„… https://www.amisdelaterre.org/wp-content/uploads/2020/03/decision-tgi-nanterre-30012020-adt-survie-c-total.pdf. 50 The GHG Protocol Corporate …” „… stakeholders to make their decisions on the basis of criteria under CSR/ESG: corporate law reporting (aa) and …” „… transparency rules in 2010 so that shareholders and investors can make their decisions based on CSR criteria …”

IV. Suitability of arbitration proceedings for climate change disputes S. 105-114

„… compensation to the USA and that there was also an obligation to reduce pollution. This was the first decision …” „… decisions.57 Thus, disputes resulting from CDM projects and the certification process of projects can be …” „… of the Adaptation Fund on an interim basis. The Decision -/CMP.10 by the Conference of the Parties …”

III. Legal remedies which may be used in climate litigation in Brazil S. 279-281

„… decision-making processes, see Kahneman, Thinking, Fast and Slow, 2011. 35 Recent and interesting perspectives on …” „… Change Law in the country. The jurisprudence presents few interesting cases, mainly a decision by the …” „… decision is in conflict with the provisions of the Climate Change National Policy Act (Act 12,187/2009 …”

VI. Conclusion S. 530-535

„… a fair exercise of discretionary decisions. In Germany, for large infrastructure projects, the …” „… this context and, if necessary, the effect of the Demand Act on later approval decisions will also be …” „… the subject of legal disputes. In a recent decision, the Federal Administrative Court155 argued that a …”

I. Introduction: the judicialization of climate change governance S. 64-66

„… , in: Paddock/Glicksman/Bryner (eds.), Decision Making in Environmental Law, Elgar Encyclopedia of …” „… parliamentary discussion. They are part of the reasoning of the Lahore High Court in the Leghari decision issued …” „… policy framework.2 2The Leghari decision constitutes but one of numerous proceedings in which courts …”

III. Jurisdiction S. 125-138

„… case, one could therefore argue that the decision of a court in State A awarding damages because of …” „… of the decision still Art. 16 no. 1 Brussels Convention) to a case where cross-border emissions from …” „… famous decision in Bier/Mines de Potasse47 that it is both the place where the defendant acted and the …”

II. Regulatory and planning framework on climate change in Italy S. 325-329

„… GHG emission for the period 2017–2020 (Decision 2013/ 162/UE, further revised by Decision 2017/1471/UE …” „… target, compared to 2005 (Decision 2009/406/EU – the socalled Effort Sharing Decision), for emissions not …” „… Italy’s 2017 National Energy Strategy. They commend Italy for its decision to phase out coal power by 2025 …”

I. Introduction S. 363-365

„… Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change, Journal of Environmental …” „… ..................................................................... 10 3. The Supreme Court decision …” „… Climate Agreement offer citizens and non- Jans, The Urgenda Decision: Netherlands Liable for Role in …”

II. State immunity and “political question doctrine” S. 123-125

„… .), Encyclopedia of Private International Law Vol. II, 2017, 896 (897). 17 Cf for example the decision of the …” „… decisions of the state authorities within their sovereign executive or legislative powers – they are not …” „… , ECLI:NL:HR:2019:2006; as to the decision of the lower instance (Gerechtshof Den Haag) cf Wegener, ZUR 2019, 3 …”

I. Introduction S. 380-382

„… in 1987, in its famous “forest damage decision” (Waldschadensurteil), the German Federal Court of …” „… liability law before the civil courts. Different motivations can underlie the decision to bring a civil …” „… seq. 2 OLG Hamm, decision of 30.11.2017 – I-5 U 15/17, ZUR 2018, 118. 3 The industrial revolution …”

III. Key frameworks: ‘sustainability’, ‘environmental justice’ – and ‘ecological justice’ S. 26-33

„… environmental decisions” 11 In their textbook on (U.S.) Environmental Law and Policy, James Salzman and Barton H …” „… ” for “evaluating environmental decisions”, the others being “ethics (environmental rights)” and …” „… a socio-economic ‘geopolitics’ approach to environmental policy decisions, partially accompanied and …”

IV. Legal effects S. 502-505

„… Peruvian farmer, this should apply even more with regard to the EDA. In other words: the final decision on …” „… another decision on the basis of the information at its disposal.86 Before making its decision, it must …” „… discretion.90 56 The authority’s decision must satisfy the principle of proportionality in particular. The …”

3. The role of the legislature and the judiciary S. 538-539

„… jurisdiction.29 But to date, it has not taken any decision directly concerning climate change.30 The same …” „… . 6. Part 6. Conclusions 538 Kahl/Weller 9To date, the majority of court decisions dealing with …” „… Nevertheless, these decisions carry great ideational weight. The actions spur public debate and can influence …”

3. Response measures to climate change S. 13-14

„… chill to influence legislators and decision-makers. 64 In this situation, it is to be expected that …” „… of various objectives and can lead to sensitive legal and political decisions. As with the example of …” „… courts will be forced to take legal decisions with political implications. A development of more active …”

IV. Financial sanctions within the infringement procedure as liability mechanism S. 223-224

„… .33 There is a duty to give reasons for a decision to not open the infringement procedure, though.34 …” „… complements the compliance tools that are already included in the Burden-Sharing-Decision 2009/406/EC and the …” „… the applicants in the EU’s first landmark decision on state liability law.48 Whether this doctrine is …”

VII. Summary S. 403-405

„… plant or place of the corporate management decision) is located on domestic territory. 4. Pursuant to …” „… , Klimahaftungsrecht, 434 et seq. 214 OLG Hamm, decision of 30.11.2017 – I-5 U 15/17, ZUR 2018, 118. 215 OLG Hamm …” „… , decision of 7.2.2018 – I-5 U 15/17, available at https://germanwatch.org/de/14198 (last consulted on …”

IV. Major legal issues S. 14-17

„… legislators and decision-makers. 64 In this situation, it is to be expected that courts will be forced to take …” „… to sensitive legal and political decisions. As with the example of Vattenfall and Germany, the threat …” „… legal decisions with political implications. A development of more active European courts would mirror …”

Titelei/Inhaltsverzeichnis

„… .................................................................................... 169 III. Climate change litigation guiding investment risk assessment & decision‐making …” „… ’............ 26 1. Integrative frameworks for “evaluating environmental decisions …” „… ................................................................................................ ................... 210 4. Adjudication in planning decisions …”

I. Introduction S. 168-169

„… assessment & decision-making …” „… Decisions of International Courts and Tribunals, Routledge, 2017, https://doi-org.ezp.lib.cam.ac.uk …” „… % annual capacity growth in recent years.5 1 UNFCCC, Decision 1/CP.21: Adoption of the Paris Agreement (29 …”

III. Why is investor-led action needed? S. 471-475

„… analysis and decision-making processes, consistent with their investment time horizons; – Encourage high …” „… sustainability (2.); third, they can stay invested and influence the corporate decision-making process (3.). 1 …” „… talent.10 6And yet, a lot of the day-to-day decisions in the corporate and investment world have been …”

V. Conclusion S. 95-97

„… acknowledged in many decisions that human rights may include a duty to enact new legislation, no petition …” „… fundamental rights Gross 95 forum.83 Even if a case is lost, it may have influence on decisions in government …” „… final decisions by highest national courts or regional human rights courts will be delivered. If …”

III. Responsible party S. 496-502

„… .law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-casedocuments/2016/20161215_Case-No.-2-O-28515-Essen-Regional-Court_decision.pdf. 66 …” „… decision72 to take evidence by means of expert reports is remarkable. The hearing of evidence extends in …” „… , supra (fn. 65), mn. 42. 69 BGH, judgment of 10 December 1987 – III ZR 220/86; BVerfG, decision of 26 May …”

III. The law of delict S. 412-423

„… famous decision on acid rain involving harm to forest owners. The court insisted on a strict application …” „… courts were not the competent institutions for such a task.27 This decision sets the standard for proof …” „… in its famous Anastasia decision (BGHZ 53, 245) a degree of certainty that is useful for practical …”

III. EU Member State liability within the non-ETS sector: the obligation to purchase surplus allocations from other Member States as financial sanction S. 221-223

„… non-ETS sector. Both the Effort Sharing-Decision 406/2009/EC and the Effort Sharing- Regulation 2018/842 …” „… Germany, the looming prospect of liability payments under the EU-Burden- Sharing-Decision 2009/406/EC and …” „… the procedure to the next step or drop the case.33 There is a duty to give reasons for a decision to …”

I. Introduction S. 289-290

„… for Decision: Bylong Coal Project (SSD 6367), New South Wales Government, Sydney, 18 September 2019 …” „… 13. Legislation/Treaties: Administrative Decisions (Judicial Review) Act 1977 (Cth); Charter of Human …” „… 4. New development – Rocky Hill decision.............................................. 35 5. Future …”

7. France S. 546-548

„… https://www.amisdelaterre. org/wp-content/uploads/2020/03/decision-tgi-nanterre-30012020-adt-survie-c-total.pdf (last …” „… Following this decision, multinational companies could now also be held accountable before British courts …” „… final instance, the previous decisions of the District Court of Den Haag143 and the Appellate Court of …”

I. Introduction S. 450-452

„… ; Bachmann, Comment on the decision of the LG München I of 10.12.2013 – 5 HK O 1387/10, ZIP 2014, 579 …” „… non-binding decisions. How far does this discretion extend? Can it intensify, becoming the managing director’s …” „… making company decisions?11 3. Delimiting the object of study 5 The following study will concentrate on …”

V. Conclusion S. 335-336

„… European Decisions are directly applicable in each Member State and binding on both citizens and companies …” „… Environment had duly implemented the decision of 15 July 2007, supplementing the National Plan by means of the …”

V. Applicable law S. 392-398

„… the harmful event (corporate management decisions of the parent) and focus on the last act that …” „… decision, in other words at the place of its effective administrative headquarters.158 Where this issue is …” „… not based on the corporate subsidiaries’ decisions but rather on the sued parent company’s management …”

II. Climate change disputes S. 99-100

„… climate-damaging decisions or merely obtain information associated with climate change. This chapter will examine …” „… reached, state jurisdiction is often the only way to obtain a binding and enforceable decision. As an …”

IV. Times, spaces (and agents) of global warming S. 33-43

„… , health or welfare such as certain siting decisions with regard to LULUs (supra mn. 17). 35 Nicholas Low …” „… . Supreme Court’s decision in Massachusetts v. Environmental Protection Agency92 and the Dutch Urgenda 85 Cf …” „… purely local environmental conflicts, e.g., siting decisions about where to carry out locally harmful …”

V. Conclusion: potential and limitations of judicial climate protection S. 80-81

„… climate change and court decisions, especially decisions of international courts, can potentially also …”

4. Duties of protection S. 539-540

„… 9To date, the majority of court decisions dealing with climate change have been issued by national …” „… connection with climate change at the merits level.43 Nevertheless, these decisions carry great ideational …”

V. Contents and limits S. 54-58

„… Sadeleer, Pro Natura p. 414 et seq. 64 Administrative Court of Appeal Munich, decision of 15 May 2018, 22 …” „… consumers. Examples are problems of industry with transition to new requirements 65 See ECJ, decisions cited …” „… in fn. 60. 66 Oberlandesgericht Hamm, Decision of 30 November 2017 – I-5 U 15/17, Lliuya vs. RWE …”

4. Private enforcement S. 554-558

„… individual case, in order thus to exert pressure to act on political decision-makers and market participants …” „… and general terms that, taken on their own, they are not suited to be justiciable decision rules that …” „… , https://www.ecchr.eu/en/glossary/strategic-litigation/ (last consulted on 1.4.2020). 205 Cf OLG Hamm, decision of 30.11.2017 – I-5 U 15/17, ZUR 2018 …”

1. Sustainability and environmental justice S. 537-538

„… conditions for evaluating environmental and climate decisions, whose different emphases complement each other …” „… have jurisdiction.29 But to date, it has not taken any decision directly concerning climate change.30 …”

5. United Kingdom S. 545-546

„… actions against multinational corporations.116 In a landmark decision in 2019, the UK Supreme Court 103 …” „… in UK courts.117 Following this decision, multinational companies could now also be held accountable …”

III. Arbitration proceedings S. 100-105

„… of a company, hold the management board liable for climate-damaging decisions or merely obtain …” „… the only way to obtain a binding and enforceable decision. As an alternative, most national procedural …” „… the state may be ordered to pay compensation on the basis of political decisions, may be decided by a …”

VI. Conclusion S. 427-429

„… approach to global warming. It forces an either/or-decision on the problem of climate change, while what is …” „… Policy 2017, 98; De Graaf/Jans, The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous …”

8. Netherlands S. 548-549

„… , available at https://www.amisdelaterre. org/wp-content/uploads/2020/03/decision-tgi-nanterre-30012020 …” „… . Thus, the Hoge Raad confirmed, in the final instance, the previous decisions of the District Court of …”

I. Introduction: global warming’s spatiotemporal strangeness – “tricky” to imagine S. 23

„… ’ ............................................................................................ 11 1. Integrative frameworks for “evaluating environmental decisions” . 11 2. First encounters, some …” „… damages in glacial regions in the South American Andes (infra mns 3, 8, 43). The last centuries’ decisions …”

V. Conclusion S. 269-271

„… judicial review of the government of Ontario’s decision to set a target for reducing its GHG emissions by …” „… States. 58 Third, court decisions addressing matters relating to climate change have generally …”

V. Liability of EU Member States under Francovich doctrine? S. 224-236

„… complements the compliance tools that are already included in the Burden-Sharing-Decision 2009/406/EC and the …” „… the applicants in the EU’s first landmark decision on state liability law.48 Whether this doctrine is …” „… 275/32. J. Liability of EU Member States under EU law Purnhagen/Saurer 229 – Decision No 406/2009/EC on …”

1. Addressing the causes of climate change S. 7-12

„… the decision and the Dutch Supreme Court upheld in 2019 the judgment of the District Court.23 38 The …” „… Agreement.27 This case builds on the landmark Urgenda decision. In the suit against Shell, plaintiffs extend …” „… Advisory Opinion (AO) on Environment and Human Rights which is a potentially significant decision in its …”

I. Introduction S. 469-470

„… : https://www.unenvironment.org/resources/emissions-gap-report-2019; United Nations Environment Programme, Forest or fuel: decision time for Germany, 18 …” „… : https://www.unenvironment.org/news-and-stories/story/forest-or-fuel-decision-time-germany; Vanguard Group, Inc., Vanguard Investment Stewardship: 2019 Annual Report, 2019, available at …” „… decisions and the public arena ............................................ 34 3. Adopting climate …”

IV. International jurisdiction of national courts S. 387-392

„… companies but on the prior management decision by the parent company to put these plants into operation at …” „… decision of the RWE AG as parent company. The latter is therefore responsible for its subsidiary’s …” „… regulation no. 1215/2012, mn. 3. 96 BGH, decision of 30.11.2009 – II ZR 55/09 mn. 7 et seq., IPRax 2010, 533 …”

I. Introduction S. 509-513

„… ?.......................................................................... 44 aa) The decision of the VG Berlin of 31.10.2019 .......................... 45 bb) Repercussions …” „… /jaguar-argentina-legal-rights-gran-chaco-endangered. 2 See on the term: Fischer-Lescano, ZUR 2018, 205. 3 Administrative Court Hamburg, decision of 22 …” „… , 881; Frank (fn. 21); Frank, NVwZ 2018, 960. 30 Higher Regional Court (OLG) Hamm, decision of …”

I. Introduction S. 430-431

„… , The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change, Journal …” „… Environmental Law and Policy 2017, 98 et seq.; De Graaf/Jans, The Urgenda Decision: Netherlands Liable for Role …”

IV. Choice of Law S. 138-149

„… However, in Brystol-Myers Squibb Co. v. Superior Court of California, 582 U.S. (2017), a decision on the …” „… , not the place where the emitting corporation’s decisions are made.130 49dd) Scope of the applicable …” „… those administrative decisions which prohibit or prescribe a certain conduct can qualify as local data …”

V. Potential role for litigation in national courts S. 17-21

„… Netherlands [2015] C/09/456689/HA ZA 13–1396. An English translation of the decision is available at …” „… governance, courts and human rights Voigt 17 constitutional provision. The decision is currently under appeal …”

II. Climate law and governance in Canada S. 255-258

„… common law, to legislative decisions that apply to general matters.36 12 On appeal, Syncrude advanced two …” „… errors in the Federal Court’s decision. First, Syncrude argued that the RFRs were not a valid exercise of …”

III. Legal nature S. 48-51

„… only argue in one direction; they do not determine a particular decision but allow for a plurality of …” „… decisions. By contrast, a rule contains a definite command or empowerment.18 Moreover, a high degree of …”

Index S. 561-566

„… 52–54 Property law A 4 et seq., 7, 33 Property right Q 23 Protect Decision (Ruling) Y 42 et seq., 53 et …” „… Significant harm G 22, 26, 38, 41 et seq., 45 et seq., 52 Siting decisions A 17, 34, 46, 53 Social adequacy T …”

II. Climate change law and litigation in Brazil S. 274-279

„… decision-making processes, see Kahneman, Thinking, Fast and Slow, 2011. 35 Recent and interesting perspectives on …” „… /world/asia/xi-jinping-china-president-obama-summit.html?_r=1 (accessed on: 01/02/2019). 31 Sunstein/Thaler, Nudge: Improving Decisions about Health, Wealth …”

IV. Passive legal status of NGO’s S. 525

„… legal interests are affected by the decision, either of its own motion or on application. 71The legal …”

6. Italy S. 546

„… Following this decision, multinational companies could now also be held accountable before British courts …”

2. Role of the NGOs S. 550

„… the framework of corporate decisions: Protecting climate and environmental concerns may improve …”

2. Polluter-pays principle S. 538

„… jurisdiction.29 But to date, it has not taken any decision directly concerning climate change.30 The same …”

IX. Conclusion S. 446-447

„… Vorstands und Aufsichtsrats bei Compliance-Untersuchungen, ZGR 2014, 76; Bachmann, Comment on the decision …”

1. USA S. 543-544

„… (3.) a decision granting the application would offer at least partial legal redress (redressability …”

4. Australia S. 544-545

„… potential for climate actions against multinational corporations.116 In a landmark decision in 2019, the UK …”

3. Corporate climate responsibility S. 550-551

„… the framework of corporate decisions: Protecting climate and environmental concerns may improve …”

II. Climate change arrived in the investment community S. 470-471

„… talent.10 6And yet, a lot of the day-to-day decisions in the corporate and investment world have been …”

VI. Conclusion S. 486-487

„… enforce decisions which otherwise would not be taken by the company, arbitration or litigation may serve …”

1. Environmental Damage Act S. 549-550

„… management discretion of the management board within the framework of corporate decisions: Protecting climate …”

2. Basic right or state objective: climate protection in the national constitutions? S. 552-553

„… generally complex, multipolar decisions of the legislature, which involve a weighing process and must also …”

3. Emission reduction objectives in the constitution? S. 553-554

„… generally complex, multipolar decisions of the legislature, which involve a weighing process and must also …”

IV. Conclusion and outlook S. 215-217

„… provisions. In administrative planning decisions the impacts of the project might be assessed against the …”

5. Conclusion S. 558-561

„… Higher Regional Court of Hamm, see OLG Hamm, decision of 30.11.2017 – I-5 U 15/17, ZUR 2018, 118 …”

I. Introduction S. 337-338

„… awareness among the population and decision-makers. Yet the number of climate cases filed in French courts …”

IV. Conclusion and prospects S. 464-466

„… part of the management board’s management discretion, within the framework of corporate decisions …”

IV. Time for investor-led action S. 475-477

„… towards sustainability (2.); third, they can stay invested and influence the corporate decision-making …”

IV. State liability under international and European law S. 541-543

„… (3.) a decision granting the application would offer at least partial legal redress (redressability …”

I. Introduction S. 82-83

„… , citizens’ groups and individuals have tried to speed up the procedure of democratic decision making by …”

II. Constitutional foundations S. 83-85

„… individuals have tried to speed up the procedure of democratic decision making by bringing cases into national …”

IV. Tort liability S. 250-252

„… decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative …”

I. Introduction S. 535-537

„… decisions, whose different emphases complement each other: Sustainability emphasizes “time”, while …”

I. Introduction S. 254-255

„… decision to purchase “diesel multiple units” on a new rail system, arguing that the respondent had an …”

I. Introduction S. 199-200

„… .............................................................................................. 50 4. Adjudication in planning decisions........................................................ 52 5 …”

I. Introduction S. 272-274

„… , The Price of Inequality, Penguin Books Ltd. 2013; Sunstein/Thaler, Nudge: Improving Decisions about …”

II. Challenges (and possibilities) for global governance and international law S. 3-7

„… international goals and targets would help decision-making and implementation at the national level, to adopt …”

I. Introduction S. 120-123

„… International Law Vol. II, 2017, 896 (897). 17 Cf for example the decision of the German Constitutional Court …”

IV. Concluding observations: Necessary features of a regime on international environmental liability S. 161-166

„… Decisions of International Courts and Tribunals, Routledge, 2017, https://doi-org.ezp.lib.cam.ac.uk …”

II. Jurisdictional issues S. 238-244

„… court assumed for purposes of decision that the plaintiffs would suffer injury-in-fact from climate …”

VII. Causation S. 439-445

„… Section 287 ZPO can be applied in such cases. However, the significance of the decision is limited to …”

II. The concept of environmental damage S. 489-496

„… decision not to require a “damaged party”. 11The liability for environmental damages under public law …”

III. Development of a regime on environmental liability: From liability for transboundary harm to genuine international environmental liability S. 152-161

„… development of an international liability regime for environmental damages, are the decisions of the UN …”

doi.org/10.17104/9783406779237

Rolf J. Daxhammer, Mate Facsar, Zsolt Alexander Papp - Behavioral Finance

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Rolf J. Daxhammer, Mate Facsar, Zsolt Alexander Papp

Behavioral Finance

2023

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Section III – The Homo Economicus Humanus within the information and decision-making process S. 171-266

„… Section III – The Homo Economicus Humanus within the information and decision-making process 6 …” „… Information and Decision-Making Process In this chapter, you will learn the basis of the information and …” „… decision-mak-ing process and understand which perceptual disturbances can prevent mar-ket participants from …”

Section IV – Applications of Behavioral Finance and Recent Developments S. 267-360

„… advised and advising mar-ket participants can be influenced in their decision-making by the applica-tion …” „… information and decision-making process of the individual market partici-pant (see section III). As a matter …” „… risk/return detrimental effects during the information and decision-making process. The knowledge of the …”

Introduction S. 15-20

„… suboptimal decisions can have an impact on the investor in the decision-making process. In this context, the …” „… equity investment process. The focus is on the phases of decision-making. It is shown which heuristics …” „… are used by investors and investment advisors in the dif-ferent phases of the decision-making process …”

Dedication S. 7-14

„… ...................................................................................... 169 Section III – The Homo Economicus Humanus within the information and decision-making process …” „… ......................................................... 171 6 Information and Decision-Making Process .................................... 171 6.1 Phases of …” „… the information and decision-making process .......................... 171 6.1.1 Information …”

Glossary S. 361-372

„… exam-ines cognitive and emotional rules of thumb that are used to facilitate decision-making. Behavioral …” „… decision-making process that can systematically re-sult from the application of certain rules of thumb (heuristics …” „… cognitive and emotional heuristics in decision-mak-ing. 65, 81, 286 Information Efficiency Measure of a …”

Section I − The Homo Economicus in the center of Traditional Finance S. 21-80

„… should not affect the preference of the decision-maker. If we now look at the decision-making process …” „… with a market participant who is more in line with reality, with observed decision-mak-ing, and who …” „… leading scientists. Depending on the prevailing opinion, psychological influences on the decision-making …”

Section II Recurring speculative bubbles - triggered by the Homo Economicus Humanus S. 81-170

„… decision-making process. If a scenario is in the consciousness of the decision-maker, the probability of its …” „… the third section, reflects a decision-making process under uncertainty, in which a de-cision is made …” „… : organizational decision-making. In 1942, he began a second education in economics at the University of Chicago …”

Literature S. 373-400

„… . / Koscik, T.R. / Bechara, A. / Tranel, D. (2011). The amygdala and decision–making. Neuropsychologia, Vol …” „… . (1959) Theories of Decision-Making in Economics and Behavioural Science. The American Economic Review …” „… and other Investment Decisions in: Baker H. / Nofsinger J. (eds.) Behavioral Finance: Investors …”

Index S. 401-403

„… Decision-Making 40, 240, 280 Selective Perception 40, 276 Self-Attribution Bias 242, 280 Self-Control Bias 254 …” „… decisions. He/she uses heuristics and shortcuts and is prone to the influence of emotions. This sounds …”

Titelei/Inhaltsverzeichnis S. 1-4

„… decisions. He/she uses heuristics and shortcuts and is prone to the influence of emotions. This sounds …”

doi.org/10.24053/9783739881195-0

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