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International Environmental Damages On Private International Law

Posted on:2010-06-30Degree:DoctorType:Dissertation
Country:ChinaCandidate:E Y LiuFull Text:PDF
GTID:1116360278471589Subject:International Law
Abstract/Summary:PDF Full Text Request
With the rapid development of modern technology and globalization, the environmental torts incidents affect more than one state. Prevention methods are the best way to settle the environmental issues. However, prevention methods could not completely eliminate the occurrence of environmental torts incidents. In fact, the environmental torts incidents occur occasionally, as a result, remedies should be provided as well. Compared with tort dispute in general, there are sharp differences among relevant national statutes and judicial practices in different countries that make the settlement of the international environmental disputes much more difficult. Hence, a systematic and thorough study on private international law issue of international environmental tort has a theoretical value and practical significance.International environmental torts mean that one of parties is non-citizen or foreign legal person, or one of parties is the subsidiary of multinationals in host country, or it is a trans-boundary environmental incident. The starting point of the dissertation is how to help the victims of international environmental incident get compensation through litigation in national court. The dissertation focuses on the private international law issues of international environmental tort, including standing parties, jurisdiction, applicable law and recognition and enforcement of judgment. With the study of national statutes of foreign countries and international treaties, the dissertation aims to provide some improvement of Chinese environmental damages system.The introductory chapter is mainly concerned about the theoretical and practical significance of the study on private international law issue of international environmental damages. Through systematic and thorough analyzing, the dissertation reveals theoretical grounds and standpoint of international instruments, national statutes and judicial practices. Compared with all kinds of remedies, the dissertation shows that the better way to protect victims is the civil litigation which meets the development trend of international environmental law. Through case study and comparing analysis, basing on judicial cases and international treaties, the dissertation aims to find a better way to protect victims in order to make a few valuable contributions to Chinese legislation and judicial practice.Chapter I gives general ideas about the private international environmental law. It mainly contains the connotation of international environmental harm and environmental damages, the principle of imputation, constitutive requirements and the development trend of environmental damages.Chapter II elaborates the standing of parties of international environmenatal damages law. The standing parties consist of the right parties and the responsibility parties. The right parties mean the person who has the right to seek compensation for damage or injury from which he personally has suffered. With the environmental deterioration and the improvement of environmental awareness among the people, the standing parties are extended to cover the person who was affected indirectly by environmental pollution in some countries. The responsibility parties mean the person who is liable to compensate. With the development of liability insurance, beside civil liable party, insurers and financial sponsors are standing responsibility parties as well according to the statutes and treaties. State, as a special civil subject, not only can claim damages representing the public, but also can be liable for the transboundary environmental damages.Chapter III focuses on jurisdiction of international environmental tort dispute. Almost every state executes jurisdiction basing on territorial contact, in which the domicile or habitual residence of defendant and the place of tort are main connections and provided in international instruments and national statues. The most complicated problem among environmental damages is how to execute jurisdiction over multinationals. Although host countries try to execute jurisdiction over multinationals by "pierce the corporate veil", there are many legal impediments for host countries to do so because of the complex construction of multinationals. Contrary to the effort of host countries, the home countries of multinationals often reject to hear the cases concerning the environmental tort in host countries according to "forum non convenience". Though the phenomenon has been changing in recent years, "forum non convenience" is the way for multinational to escape justice. Due to the fact that the international society advocate social responsibility of corporation and multinationals are concerned about their corporate image, the parties willing to settle the disputes by non-lawsuit.Chapter IV discusses the conflict of law rule in the field of environmental damage liability. The applicable law may decide substance issues, such as if the victims could get the compensation and the amount of compensation and so on, hence courts treat it with great caution. Although the elastic point of contact is the development trend of private international law, the law of place of tort plays a very importance role in environmental damages disputes. The law favorable for the injured party also is often applied, which demonstrates the human concern of modern private international law. The transboundary environmental tort cases may concern the effects of administrative authorization abroad. Generally the effects of administrative authorization abroad should be decided by the law of the state that issued the authorization, and the court of the country in which the damage occurs has no power to issue an injunction, but the permits would not exclude liability of permitholder. Genrally court will require the permitholder polluted to compensate for the losses of the injured.Chapter V concerns about the recognition and enforcement of environmental damage judgments. Getting a judgment only is the first step of litigation procedures. Enforcement of judgment is the aim of litigation. Due to the fact that the recognition and enforcement of judgments concerns the judicial supremacy, there are lots of difficulties to make a unified treaty, as a result that there is no general international treaty until now. Environmental damage judgment as money judgment is one of judgments in civil and commercial matters in nature, so it can be recognized and enforced basing on international treaties and principle of reciprocity. In fact, the court of some countries may make punitive damages awards in environmental tort and such kind of awards always are refused to enforce because punitive damages are considered the sovereignty of criminal proceedings and contrary to public policy of forum state. In order to settle the conflict, international society intended to make a unified treaty on transbandary environmental damages, but it failed at last.Chapter VI focuses on Chinese environmental damages system. In the chapter, auothor analyses exsiting Chinese environmental damages system and try to improve it. Chinese law provides that only the direct affected persons are standing parties. Due to the underdeveloped liability insurance, except ocean oil pollution, the liable party in China means the injuring party. Chinese law stipulates that the jurisdiction mainly is executed by the court of place of environmental tort; the applicable law mainly chooses the law of place of tort. However, many Chinese laws have outdated and don't meet the requirement of economic development. In order to settle the conflict between human and environment, China should broaden the standing parties, spread liability insurance, set up forum non convenience in time with the increase of the oversea investment, provide the law favorable for victims as applicable law, strengthen public policy and procedure justice instead of de facto reciprocity as the basic term of recognition and enforcement of judgment.
Keywords/Search Tags:International Environmental Damages, Subject, Jurisdiction, Application Law, Recognition and Enforcement of Judgments
PDF Full Text Request
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