Publications List

Including full-text links

BOOKS

Artificial Legal Entities: Essays on Legal Agency and Liability
(Wolters Kluwer 2019) 292 pp
co-authored with K Beran and others

PAPERS

Scholarly articles

Public Interest Damages
(2020) 40 Legal Studies (FirstView)

This article argues that punitive, nominal, contemptuous, vindicatory, and disgorgement damages (commonly referred to as non-compensatory damages) can be collectively analysed as public interest damages because all these awards are justified by violations of public interests in addition to violations of the claimant’s rights. To the extent they are awarded in the public interest, non-compensatory damages feature a distinctively public element in private law. In contrast with compensatory damages, public interest damages are justified by ‘non-correlative wrongdoing’, ie infringements of interests which are valuable to the community rather than to the claimant. This helps us to understand how public interest damages differ from traditional damages awards and why public interest damages should be treated as an exceptional remedy. In support of these claims, the article offers an original analytic framework of reasons that justify damages awards.
Commerce in Data and the Dynamically Limited Alienability Rule
(2020) 21(5) German Law Journal 924–43
co-authored with G Malgieri

Commerce in some data is, and should be, limited by the law because some data embody values and interests—in particular, human dignity—that may be detrimentally affected by trade. In this Article, drawing on the Roman law principles regarding res extra commercium, we investigate the example of personal data as regulated under the EU Charter and the GDPR. We observe that transactions in personal data are not forbidden but subject to what we call a dynamically limited alienability rule. This rule is based on two dynamic variables: The nature of data and the legal basis for commercially trading such data at a primary or secondary level. Accordingly, in order to deal with such dynamism and the uncertainty it poses, we propose a general two-stage reasonableness test that should help legal practitioners, judges, and lawmakers to consider when trade in data is illicit and who, if anyone, shall be held responsible for this mischief. Finally, we show how the two-stage test and the limited alienability rule can advance European contract law and help enforce legal principles associated with such data extra commercium in automated and autonomous data trading systems.
Ownership of Personal Data in the Internet of Things
(2018) 34(5) Computer Law & Security Review: The International Journal of Technology Law and Practice 1039–52

This article analyses, defines, and refines the concepts of ownership and personal data to explore their compatibility in the context of EU law. It critically examines the traditional dividing line between personal and non-personal data and argues for a strict conceptual separation of personal data from personal information. The article also considers whether, and to what extent, the concept of ownership can be applied to personal data in the context of the Internet of Things (IoT). This consideration is framed around two main approaches shaping all ownership theories: a bottom-up and top-down approach. Via these dual lenses, the article reviews existing debates relating to four elements supporting introduction of ownership of personal data, namely the elements of control, protection, valuation, and allocation of personal data. It then explores the explanatory advantages and disadvantages of the two approaches in relation to each of these elements as well as to ownership of personal data in IoT at large. Lastly, this article outlines a revised approach to ownership of personal data in IoT that may serve as a blueprint for future work in this area and inform regulatory and policy debates.
How Does the Substantial Modification of a Public Contract Affect its Legal Regime?
(2015) 24(3) Public Procurement Law Review 90–105
co-authored with J Brodec

This article outlines the fundamental consequences for the legal regime of public contracts which result from the substantial modifications of such contracts within the meaning of EU law. The authors conclude that an EU law-compliant understanding of the term 'substantial modification to public contracts' may result, in some national legal systems, in the 'privative novation' of the original contract, ie in its complete discharge and replacement with a new contract. However, this may be associated with a number of negative implications impairing the principle of legal certainty, thereby indirectly affecting the efficient functioning of the EU’s internal market. This conclusion appears to be contrary to the objectives pursued by the doctrine of indirect effect of EU law. The authors show some viable solutions to this problem, both from the position of contracting authorities and courts, and from the perspective of the member states in the forthcoming implementation of the new EU Public Procurement Directives.
Exemplary Damages: A Genuine Concept?
(2014) 6(2) European Journal of Legal Studies 189–206

In this article I examine the concept of exemplary damages. Unlike many other studies this paper omits policy reasons and focuses primarily on the very concept of exemplary damages. My aim is thus not to argue for or against this remedy but rather to show whether or not it is a coherent and genuine legal category. Following relevant case law I will develop a conceptual definition of exemplary damages under English law of tort. This, I argue, is subject to three types of critical arguments – an argument from insufficiency, from positive exclusivity and from negative exclusivity – that highlight its incoherence. With respect to problematic aspects of the concept I compare exemplary damages under English law to germane Czech law which helps to show the relevance of ontology to law of damages. I suggest that from certain ontological perspective, we can reinterpret exemplary damages in a more coherent and acceptable manner. I conclude that such an understanding of exemplary damages makes them immune to the previous critique and also to the objection of ‘ordre public’ in private international law.

Book chapters

Three Problematic Assumptions about Public Interests in Law
in L Tichý and M Potacs (eds),
Public Interest in Law
(Intersentia 2021)

This chapter discusses three problematic assumptions about public interests in law. First, it is often thought that the concept of public interest is well-established, even though no satisfactory definition of the concept exists. Second, it is often thought that matters of public interest can be identified by asking what it is that the members of the public have mutual concern for, even though it is in the public interest to protect some matters in which some members of the public need not to have their stake. Third, it is often thought that public interests need to be contrasted with private interests, even though most legally protected interests cannot be classified as either public or private. In order to address these common assumptions about legally protected public interests, the present chapter suggests that we strictly distinguish the questions about how the concept of public interest is to be defined, how public interests are to be identified, and what matters are in the public interest. Finally, it suggests that the notion of public interest does not serve as an objective statement of fact, but a highly contextual label that marks the distinct normative consequences associated with the conclusion that an individual matter is to be regarded as public interest.
Personalised Dissemination of Legal Information
in G Peruginelli and S Faro (eds),
Knowledge of the Law in the Big Data Age
(Series: Frontiers in Artificial Intelligence and Applications)
(IOS press 2019) 91–100

A proper functioning of any legal system requires people to know the law. Our knowledge of the law, however, depends on how legal information are communicated. Currently, however legal information are communicated rather poorly. We are still missing opportunities that Big Data and algorithms offer in relation to how the law is published, disseminated, and accessed. This Chapter focuses on dissemination of legal information. It argues that we should strive for personalised dissemination. By highlighting and analysing examples from the history of legal publication, it argues that the shift to personalised dissemination of legal information does not pose a threat to the existing legal systems. Instead, it could enhance the overall efficiency and sustainability of our legal communication, increase our knowledge of the law, while reducing the total costs. The Chapter therefore makes a case for a new era in publication and communication of the law – the era of personalised dissemination of legal information.
Vicarious Liability of Juristic Persons: A Historical, Comparative and Philosophical Study
in K Beran and others,
Artificial Legal Entities: Essays on Legal Agency and Liability
(Wolters Kluwer 2019) 91–100

This chapter advances two claims regarding vicarious liability. First, that every legal system must be capable of theoretically devising the idea of vicarious liability (as opposed to direct liability and responsibility). Second, that juristic persons and other artificial legal entities may be liable only vicariously for wrongs committed by other persons, who ultimately must be human beings. To cast new light on the concept of vicarious liability, this chapter analyses the changing relationship of the terms liability (in Czech: 'ručení') and responsibility (in Czech: 'odpovědnost') in the historical development of Czech law from the beginning of the 19th century until mid-20th century. This development was marked not only by radical changes in the posited law and by the problematic connections of the Czech legal terminology with the German one (especially with the terms Haftung and Verantwortung), but especially by the normative theory of law, internationally known especially thanks to Hans Kelsen’s writings. A peculiarity of the Czech tradition in the normative theory of law ( analysed in this chapter primarily through the pioneering work of František Weyr, whose publications are mostly unknown in English-speaking countries) is that it has arrived at the concept of vicarious liability by analysing the abstract nature of legal duties, i.e. regardless of any positive legal system. This happened already in the 1930s, although the Czech normative theory of law did not take into account any developments in the common law systems with which the concept of 'vicarious liability' is typically associated. This chapter presents and develops the 'normativist' theory of vicarious liability to arrive at the two main claims set out above.

SHORTER PIECES

Case notes and comments

Data Protection, the Value of Privacy and Compensable Damage
(2020) 79(3) The Cambridge Law Journal

Comments on Lloyd v Google LLC [2019] EWCA Civ 1599, [2020] QB 747.
CPR Pt 36: Enhanced Interest Should Not Function as Punitive Damages for Malicious Defence
(2019) 38(2) Civil Justice Quarterly 168–79

This note critically comments on the Court of Appeal’s decision in OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195. By introducing a penal element to the enhanced interest rate pursuant to CPR Pt 36, the Court of Appeal has extended the justificatory reasons for those awards beyond compensation. This note argues that Petrom-like awards should not be ordered in the future and that the Civil Procedure Rule Committee should amend the CPR accordingly. One issue is that the Petrom award was based on analogical application of the CPR, which implies that the Court of Appeal’s reasoning was in fact not governed by CPR Pt 36. Another issue is that the existing common law principles—as the next best source of law for the Court of Appeal’s decision—do not support the ruling either. This is because, first, the Petrom award was made in respect of the defendant’s malicious defence even though malicious defence does not constitute a common law tort. Secondly, the penal element in Petrom functioned as punitive damages even though the existing common law principles regarding punitive damages prevent courts from making such awards in similar cases.

Book reviews

Online Courts and the Future of Justice (OUP 2019) by Richard Susskind
(2020) 83 The Modern Law Review (Early View)

Reviews Richard Susskind's book Online Courts and the Future of Justice (Oxford University Press 2019).
Humans as a Service (OUP 2018) by Jeremias Prassl
(2018) 3 Oxford Business Law Blog (13 November)

Reviews Jeremias Prassl's book Humans as a Service: The Promise and Perils of Work in the Gig Economy (Oxford University Press 2018).

These links will take you to my other academic profiles.



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