__Abstract__ In this issue of Erasmus Law Review, the focus is on a particularly interesting piece of EU legislation, the 2005 Unfair Commercial Practices Directive. The Directive has been implemented in the EU Member States and some years have passed since its entry into force. Therefore, an assessment of the experiences with the Directive is in order. It seems that there are a number of issues that deserve further exploration.
One of the ways in which legal services are financed, and indeed shaped, is through private insurance arrangement. Two contrasting types of legal expenses insurance contracts (LEI) seem to dominate in Europe: before the event (BTE) and after the event (ATE) legal expenses insurance. Notwithstanding institutional differences between different legal systems, BTE and ATE insurance arrangements may be instrumental if government policy is geared towards strengthening a market-oriented system of financing access to justice for individuals and business. At the same time, emphasizing the role of a private industry as a keeper of the gates to justice raises issues of accountability and transparency, not readily reconcilable with demands of competition. Moreover, multiple actors (clients, lawyers, courts, insurers) are involved, causing behavioural dynamics which are not easily predicted or influenced. Against this background, this paper looks into BTE and ATE arrangements by analysing the particularities of BTE and ATE arrangements currently available in some European jurisdictions and by painting a picture of their respective markets and legal contexts. This allows for some reflection on the performance of BTE and ATE providers as both financiers and keepers. Two issues emerge from the analysis that are worthy of some further reflection. Firstly, there is the problematic long-term sustainability of some ATE products. Secondly, the challenges faced by policymakers that would like to nudge consumers into voluntarily taking out BTE LEI.
This paper is devoted to a complex set of issues relating to the functions of tort law in distinguishing acceptable and unacceptable risks. Often, such risks are brought about by deliberate organisational design choice. On many occasions, legislators and courts are called upon to assess which of these design choices are acceptable and which are not. By evaluating a number of recent legislative drafts and proposals I present an out-line of what seems to be becoming a standard of "organisational liability" for organ-isational failure. Moreover, I put forward a threefold typology of risks in tort law which seems to go a long way in categorizing tort law cases involving organisa-tional design risks. Finally, I call the reader"s attention to the fact that tort law is in need of rational recalibration with regard to the "ranking of risks", as it seems that some risks are inconsistently categorized as either acceptable or unacceptable.
Autonomy is generally regarded as the fundamental right of individuals to shape their own future through voluntary action. In private law, it is associated with freedom of contract and the concept of casum sentit dominus (the loss lies where it falls). As such, it is opposed to legal paternalism, briefl y defi ned as instances in which legislation or the courts interfere with the individual's decision-making process on the grounds that otherwise decisions will not be made in the individual's own best interests. Traditionally, legislation protecting the estate of minors and mentally disabled individuals against the consequences of their actions is considered the prime example of paternalism. However, such protection against the risks of succumbing to weakness and extortionary practices is nowadays ubiquitous in Western society. The level of protection differs from domain to domain. The prohibition of trading in humans as a commodity – ranging from slavery to prostitution and selling organs – seems to have little in common with restrictions on freedom of contract in marital and family issues or with gambling regulation, but the essential commonality is the substitution of voluntary individual decision-making with the decision that the legislator or court finds the most appropriate. Obviously, there is no strict definition of paternalism. Indeed, the definitions used may provide an indication of the author's own views. If paternalism is defined in terms of governments assuming the power to determine what is best for citizens because the latter cannot be trusted to make decisions in their own best interests, it may be concluded that the author is somewhat sceptical of such state intervention. Some define paternalism as coercive intervention with the behaviour of individuals in order to prevent them from causing harm to themselves. Some authors focus on the grounds of justification for intervention as the defining element in paternalism: state intervention is paternalistic if it purports to increase the individual's welfare and happiness or to further his or her interests, needs and values. The authority for interfering is thought by some to lie in the mere coercive powers of the state, whereas others take a more sophisticated approach by arguing that paternalism may be founded on a hypothetical contract with the individual.
