Fundamental rights increasingly determine the balance between public and private interests within both market regulation and private law, shaping the relationship between these two forms of legal discourse. This chapter takes stock of the case law of national, international, and supranational courts on the horizontal effect of fundamental rights and explores the potential of such rights to contribute to reconciliation between market regulation and private law. It shows that fundamental rights can play a double role in this context. On the one hand, fundamental rights can reinforce the regulatory dimension of private law, prompting courts to rebalance the interests of the parties to private law relationships in the light of public virtues. On the other hand, fundamental rights can enable courts to bring regulatory measures in line with the traditional private law reasoning focused on individual preferences and interpersonal justice. In both instances, courts may step beyond what the EU or national legislators intended to achieve through public regulation in terms of reorienting private law relationships towards the common good or enhancing interpersonal justice. Fundamental rights thus serve as a two-way bridge between market regulation and private law.

Justice between private individuals has commonly been viewed as a matter for civil courts. In recent years, however, regulatory agencies have played a role in providing redress to aggrieved individuals in mass damage cases. This chapter examines how regulatory enforcement deals with and should deal with the issue of private law remedies for regulatory violations. It focuses on the actual and desirable role of national and European regulatory agencies, which typically use administrative law means to deter regulatory breaches, in providing compensation to victims of mass violations of EU private law. The chapter presents three models of the relationship between regulatory enforcement powers and private law remedies within the operation of administrative agencies – separation, complementarity, and substitution – and discusses their main characteristics, manifestations, and implications. Each model is analysed in terms of its potential to reconcile the pursuit of the public interest in deterring regulatory violations with a traditional private law concern to ensure interpersonal justice by compensating their victims. The models also reflect and address the tension between uniformity and diversity in the remedial domain. The chapter concludes by elucidating the practical relevance of its findings in the broader context in which regulatory agencies operate in different jurisdictions.

Abstract: This chapter examines post-judgment procedures in international law that aim at (or can be used for) compliance adjudication and the applicable remedies. Specific procedures for compliance adjudication exist in regional trade agreements as well as in some multilateral treaties establishing adjudication mechanisms. Additionally, ad hoc agreements to submit disputes to adjudication sometimes permit adjudication on implementation or compliance. States have occasionally resorted to these provisions. A few ICs, and in particular the Inter-American Court of Human Rights, have themselves established the permissibility of compliance adjudication. In a few cases, states have sought to employ requests for interpretation to obtain rulings on compliance. The chapter concludes by considering the permissible scope of review and the remedies applicable at the compliance stage, including the lawfulness of remedy repetition and remedy escalation.

Chapter 7 sets forth proposed speech-protective and pro-competitive reforms of trademark registration and enforcement laws for consideration by governments. Among other things, legislatures could allow challenges to the validity of a mark on any ground at any time, and not allow a registrant’s right to use the mark to become incontestable. Legislatures should also consider whether to categorically exclude certain expression with substantial inherent value from trademark registration and protection; not register proposed marks without proof they are distinctive, not functional, and are genuinely used and perceived as a source-identifying mark; and clarify that weak marks with substantial inherent value only have a narrow scope of trademark protection. They should also require proof this use of another’s mark is likely to cause confusion and material harm for trademark liability, and consider adopting fair use tests requiring a higher threshold for infringement liability and/or more affirmative defenses for certain informational, expressive, or decorative uses of marks. For example, one recommended defense is for any noncommercial use of a mark other than as a designation of source for the accused infringer's goods, services, or message. Trademark remedies and secondary trademark liability rules should also take free speech interests into account.

This chapter surveys the international legal framework governing transnational corporations (TNCs) and human rights. It begins with a brief history of the corporation, traces the rise of transnational corporate power since the 1970s, and offers a definition of the TNC. It then outlines the various ways in which corporate activities can adversely affect human rights, drawing on some of the most notorious incidents of recent decades. The chapter highlights the persistent difficulty of regulating corporations at the international level and describes the current regime under which states bear primary responsibility for preventing and remedying human rights abuses within their territories, including those committed by businesses. Since 2010, several states have introduced modern slavery legislation requiring companies to conduct due diligence on their operations and supply chains.

Abstract: This chapter examines the system of remedies applied in WTO dispute settlement, sometimes called ‘prospective’ or ‘forward-looking’. This system integrates remedy repetition and remedy escalation, with remedies being issued sequentially: initial rulings (Mere Adjudication and Declarations of Breach) are followed by the possibility of compliance adjudication, and, where this is insufficient, the prospect of escalation through authorised trade retaliation (Permissible Responses). While authorised retaliation is often seen as the key WTO remedy, the practice shows that it is rarely implemented. Instead, the system’s strength lies in mobilising the deterrent effect of remedy escalation together with the reputational costs of declared non-compliance. The chapter considers the historical evolution of remedies applied in international trade law, from the GATT 1947 to the current Dispute Settlement Understanding, analysing their central components and practical applications. The design of the WTO’s system of remedies, which seeks to mobilise the various layers of pro-compliance forces of international law, provides an analytical framework for the subsequent chapters assessing the remedial practice of international courts in the face of non-compliance.

There are many reasons why Roman law probably shouldn’t be included in a study tracing the origin of rights. Roman law, first of all, was the law of an ancient slaveholding civilization, built on a ruthless legacy of war and conquest. As any student of Roman law will know, slavery was interwoven into the fabric of Roman law, making it impossible to understand fully how the Roman legal system operated without recognizing the everyday legal reality of Roman slavery. Practically every aspect of Roman law depended on whether those subject to it were legally free or slave. Given this illiberal legacy of slavery and the basic inequality of status encoded into Roman law, it’s difficult to see how Roman law could plausibly serve as a model for theorizing rights.

There is a statutory right for employees not to be unfairly dismissed. The right usually requires a qualifying period of continuous employment, and claim has to be made to an employment tribunal within three months of the effective date of termination. The employee has to prove dismissal has occurred, though resignation in response to a fundamental breach of contract by the employer counts as constructive dismissal. The courts have interpreted the statutory test of fairness to require proof that the employer acted outside of the range of reasonable responses to the fault of the employee. Some reasons for dismissal are automatically unfair. The normal remedy for unfair dismissal in practice is not reinstatement but a modest award of compensation for which there is an upper limit.

Based on international standards, the EU Directive on Working Time, implemented in the Working Time Regulations, places limits on the working week, mandates rest periods each day and each week, and provides for paid annual leave. These rights are subject to various exclusions for certain types of employment, permit some opt-outs by terms in the contract of employment, and also permit collective agreements to modify the rights. The chapter considers these various matters, and concludes by examining the weak remedies provided by health and safety inspectors and some civil claims.

This chapter outlines to what extent which kinds of remedies are available to the successful applicant. Albeit the differences in the wording of the various IAT statutes, it argues that it is possible to map out guiding principles for the assessment of the remedies to be granted, including remedies inherent in IATs’ powers. Moreover, it offers a critical analysis of the legal framework and its implementation by IATs in relation to the right to an effective remedy.

Technological disruption leads to discontent in the law, regarding the limited remedies that are available under private law. The source of the problem is a ‘private law’ model that assumes that the function of law is to correct wrongs by compensating individuals who are harmed. So, the model is based on (i) individual claimants and (ii) financial redress. If we copy this private law model into our regulatory regimes for new technologies our governance remedies will fall short. On the one hand, the use of AI can affect in a single act a large number of people. On the other hand, not all offences can be cured through awarding money damages. Therefore, it is necessary to rethink private remedies in the face of AI wrongs to make law effective. To achieve this, the mantra of individual compensation has to be overcome in favor of a social perspective should prevail including the use of non-pecuniary measures to provide effective remedies for AI wrongs.

Companies come into existence through registration. As discussed in Chapter 4, for a company to be registered it must have a constitution and/or have adopted all or some of the replaceable rules set out in the Corporations Act. The constitution and/or replaceable rules establish the internal rules that govern how the company operates. This chapter discusses the importance of these rules, whom they bind, and how they can be amended. It also discusses the rules that apply when there is a variation of the rights attaching to shares.

This chapter addresses the rights of company members to protect their own interests or those of the company. The chapter focuses on the rights of shareholders in a company limited by share capital, but the principles and rules discussed here apply equally to members of companies limited by guarantee. The legal protections and remedies discussed here can arise in a number of situations.

This chapter is concerned principally with the legal remedies that can be sought by minority shareholders. We will see that these are mainly found in the Corporations Act, but we begin by looking at the common law history behind the statutory provisions. Then we turn to the statute, the three main remedies being actions for oppression and unfairness, the statutory derivative action, and the winding up remedy. The chapter then looks at three other forms of legislative action: injunctive relief, access to company information, and the use of civil proceedings by ASIC.

The chapter explains the increasing frequency of so-called morality clauses imposed by sponsors in sponsorship agreements with professional tennis players. The aim of these clauses is to restrict players from particular conduct that reflects negatively on the product sponsored. The chapter explains the contractual nature of these clauses and provides an explanation as to how a violation of these restrictions may bring about a right of termination on the part of the sponsor. In the particular tennis context, the chapter explains the impact of social media and the digital world. It goes on to provide examples of morality clauses in tennis endorsement agreements.

Chapter 14 on Intergenerational Equity sheds light on how this principle, which posits a responsibility to ensure that future generations inherit a habitable planet, has been invoked in climate cases to date. The authors examine how this principle has been interpreted and applied across different jurisdictions, highlighting the notable contributions of jurisprudence from the Global South in shaping the development and understanding of the principle. Through an examination of leading cases from around the world, they illuminate how courts in these jurisdictions have infused their decisions with a consideration for future generations, thereby advancing a more inclusive and long-term perspective on climate justice. The authors distil instances of emerging best practice where the principle of intergenerational equity has been invoked to guide legal reasoning and judicial decisions in climate cases. They underscore the potential of this principle to shape future climate litigation, particularly as the impacts of climate change increasingly span across generations.

Chapter 18 offers a critical analysis of the types of remedies sought in climate cases and examines their implications within the legal landscape. Drawing on a comprehensive analysis of climate lawsuits from around the world, the authors provide insights into the diverse range of remedies that have been sought to address the adverse impacts of climate change. They then shed light on the different considerations and approaches that courts have taken when determining appropriate remedies. In their exploration of emerging best practices, the authors highlight instances where courts have adopted innovative and transformative approaches to remedies in climate litigation. They examine creative legal mechanisms that go beyond traditional compensatory measures and explore the potential of remedies such as injunctive relief, restitution, and declaratory judgments to address the multifaceted challenges posed by climate change.

A number of factors must be considered when reflecting on State responsibility and they are assessed in this chapter. First, what constitutes an internationally wrongful act for which a State may be responsible? Second, what conduct may be attributed to the State? Third, what reparation must a State make in the event it is held responsible for a wrongful act? Fourth, what defences might be available to a State that would preclude a finding of wrongfulness? Related issues such as diplomatic protection, nationality of claims, and the exhaustion of local remedies are also considered in this chapter.

This chapter explores the intricate legal concepts of co-ownership and neighbour relations under Chinese property law. The first section delves into co-ownership, explaining its categories: co-ownership by shares and common ownership. It discusses the rights and obligations of co-owners, the management of co-owned property and the legal remedies available for disputes. The chapter highlights how co-ownership can be established through contracts, partnerships and familial relationships, and examines how these relationships influence the management and division of property.

The second section focuses on neighbour relations, covering the concept and content of neighbour rights. It outlines the principles governing these rights, such as facilitating production and ensuring convenient living while balancing fairness and reasonableness. The chapter discusses the impact of civil customs on neighbour relations, providing case studies to illustrate how local practices influence legal decisions. By examining these elements, the chapter provides a comprehensive overview of how co-ownership and neighbour relations are regulated, emphasising the importance of harmony and co-operation in property management and dispute resolution.