This article explores the prospects for the EU to develop a coherent policy regarding climate engineering (CE). To this end, we explore the most significant legal parameters derived from EU law from which such a future EU policy would have to arise. Obviously, in view of the principle of conferral, it must first be established if the EU enjoys competences to initiate a discrete policy on climate engineering. The mere fact that the EU presides over a plethora of climate mitigation and adaptation instruments is not sufficient to conclude that it likewise has competence to initiate a policy of intentional environmental change. Rather, precisely because climate engineering is such a different response to climate change than anything undertaken before, we must establish whether that difference is of a nature so as to rule out a future EU policy on climate engineering.

Financial regulation is an issue where differences between the EU and US are highly sensitive. Indeed, EU and US apply in a different manner the financial standards adopted at international level by the Basel Committee and have different systems of financial supervision.

Due to these significant differences between the two systems, it is very difficult for the EU and US to reach an agreement on common financial standards within the TTIP negotiations. Actually, as the differences in regulation between the two systems are an obstacle to the access of the financial operators of each Party to the market of the other Party, the absence of common standards in this sector could nullify the efficacy of norms of market access that will be probably contained within the TTIP.

Moreover, in a risk regulation perspective, considering the weight that the US and EU financial relationship have on the global system and taking account of the effect of destabilization that could be generated by the divergent requirements imposed to the credit institutions on the two sides of the Atlantic, the lack of common financial standards between the EU and US could have a great impact on global financial stability.

European law of risk regulation is commonly intended to be limited to the European regulation in the internal market. However, risk is also regulated in Europe by human rights law, which is often left aside in this area. In fact, disregard for the risk entailed by certain manmade activities as well as by natural events, may imply restrictions to, inter alia, the right to life and the right to respect for private and family life enshrined in the European Convention on Human Rights. This article aims at studying the manner in which this Convention regulates risk through human rights norms. It provides an overview of the standards set by the European Court of Human Rights in this field.

The European Securities and Markets Authority (ESMA) has received considerable academic attention for its newly acquired regulatory powers and the issues of legitimacy and controls concerning its far-reaching powers. ESMA's supervisory tasks are not less impressive but they are underinvestigated. In light of the recent English judgment on the exercise of ESMA's inspection powers in the UK, this article focuses on the question of judicial control over inspection power of ESMA. It shows that judicial control has been established in principle. However, the existing legal framework based on different national procedures allows ESMA escaping judicial control by chance or on purpose. This article argues for the necessity of addressing the identified controlling gap by, for instance, eliminating the differences or conditioning inspection-related discretion and promoting judicial cooperation. Since EU and national enforcement powers have become increasingly shared, the system of control cannot remain completely separated, as it is the case today. How the EU supervisor is to be controlled should not be up to the EU supervisor to choose.

Climate engineering in general and solar radiation management (SRM) in particular raise profound and complex political, legal, social, and ethical questions that go well beyond technical feasibility issues. We consider three such questions. First, can existing EU decision-making processes accommodate sufficient public engagement to ensure legitimate decisions on SRM? Second, does politics influence the choice of legislative procedure for SRM regulation? Third, does the choice of legislative procedure influence the likelihood of SRM implementation? Three main conclusions emerge from our analysis. First, existing EU decision-making processes can – given certain conditions – accommodate considerable public engagement and hence ensure legitimate decisions on SRM. Second, politics matters; indeed, the EU's choice of legislative procedure concerning SRM may well become subject to political negotiations. Finally, the choice of legislative procedure may substantially influence the likelihood of SRM implementation.

In the context of the UK Supreme Court decision in Sienkiewicz v Greif (2011) this article discusses the question whether so-called “naked statistical evidence” can satisfy the civil standard of proof in English law, the “balance of probabilities”. It argues that what is required to satisfy the standard is a judicial belief that causation is more likely than not, rather than a categorical belief that causation occurred. Whether such a belief is justified depends on the weight of the evidence as well as the degree of probability it purports to establish, but there is no reason of principle why epidemiological evidence alone should not satisfy this standard.

Cross-border surrogacy transactions [CBST] entail several risks for the participants and the resulting child and, consequentially, for their states. In the absence of clear standards or coherent legal rules, the global industry depends on private contracts, the result of negotiations between parties from different countries with unequal bargaining power, which distributes risks and benefits unfairly. In this article I suggest a Fair Trade model as an instrument for the regulation of these transactions.

The Fair Trade model addresses market failures and the externalization of risks. The basic principles of Fair Trade include trading process according to proper standards of quality and ethics based on a certification mechanism, a minimum price to producers, direct purchasing, transparent rules and fair distribution. In addition to quality and ethics, Fair Trade is a developmental tool, ensuring more of the economic benefits to producers in the global south.

Applying these elements on the cross-border surrogacy market can be fruitful for the regulation of risks entailed in CBST. Certification of surrogacy services can ensure proper medical standards and fundamental rights, and decrease health risks; direct purchasing through democratically elected surrogates’ co-operatives could improve the surrogates’ power of negotiation and decrease contractual risks; a minimum price could guarantee a greater income to surrogates, and social premium could be used to fund communal projects and help surrogates to improve their social position. Finally, transparency can address administrative risks and ensure that children’s rights are not violated.

The impact of TTIPleaks on the negotiations of and debate about the Transatlantic Trade and Investment Partnership (TTIP) has been more limited than its name and announcement would lead us to expect. This is, first, because the leaked ‘consolidated documents’ only show the European Union's (EU) and United States’ (US) positions on a number of negotiating areas but does not unveil concessions made by either side in the pursuit of a compromise. Therefore, it contains little surprising information for observers of the negotiations. But a second reason for the lack of uproar is that for only about half of the expected chapters in TTIP a text has been leaked, either because there is no consolidated text yet for the other issues in the negotiations or because Greenpreace did not get hold of it. One of the chapters lacking in the TTIPleaks is on ‘Trade and Sustainable Development’. This is an interesting issue area because the advocates often argue that this chapter will help ensure that TTIP upholds and strengthens social and environmental standards.

This special issue assembles five articles ensuing from a conference on “The Man and the Machine: When Systems Take Decisions Autonomously”, which took place on June 26 and 27, 2015, at the University of St. Gallen in Switzerland.

The aim of the conference was to explore the broader implications of artificial intelligence, machine learning and autonomous robots and vehicles. Alphabet's Deep Mind is just one example about Whom we know, at least a little, and who, we are told, will be good. Autonomous vehicles are also about to enter the market and our phones have begun to verbalize at us. Private drones are being regulated by the US Federal Aviation Administration. The five papers in this special issue address some of the legal issues the broader development raises.

The first article is on “The Implications of Modern Business-Entity Law for the Regulation of Autonomous Systems” and is written by Shawn Bayern.

This paper suggests how the regulation of Solar RadiationManagement (SRM) field research in Europe could be designed to maximise the possibility of securing legitimacy. It argues that legitimacy is maximised when regulatory frameworks are legal, and also responsive, flexible, deliberative and inclusive. By adopting an ‘incorporated’ approach to assessing the risk of Solar Radiation Management (SRM) field research, the EU can import elements of ‘directly deliberative polyarchy’ into its otherwise orthodox constitutional regulatory approach thereby maximising legitimacy. The argument is new in so far as it juxtaposes two conceptions of procedural legitimacy – one institutional and the other functional – in the context of significant scientific uncertainty in the technocratic regulatory paradigm of the EU. The significance of the work is that it draws on these conceptions of legitimacy to advance a pragmatic model of institutional design which comprises procedures that maximise legitimacy with minimal disruption to the EU's institutional balance of powers.

Linking the European Union Emissions Trading System (EU ETS) to the Chinese national ETS promises considerable economic and political benefits. However, different policy choices regarding cap setting between the systems are likely to impede a potential linking. A striking distinction is that the EU ETS relies upon an absolute cap, while the Chinese national ETS appears to apply an ‘intensity-based cap’ during the early stages. The current linking literature focuses on mapping legal barriers in general and has not yet focused on EU and China, let alone the intricacies of policy design. This article seeks to fill this gap by concentrating on (static and dynamic) efficiency and environmental effectiveness implications of linking and cap design. From the analysis of the cap we derive policy implications for a hypothetical ETS linking between the EU and China. In response, comprehensive and predictable regulation is needed to ensure the attainment of ETS targets and thus facilitate better regulation.

According to the World Health Organization (hereinafter, WHO), 38 million people die each year as a consequence of non-communicable diseases (hereinafter, NCDs). NCDs are mainly caused by diet-related factors, but also by physical inactivity and abuse of certain substances. In particular, overweight and obesity reportedly affect more than 10% of men and 14% of women globally and kill as many as 2.8 million people every year.

In an article that made waves when it was first published in 1996, judge Easterbrook scorned the idea that the technological reality of cyberspace justified talk about or a need for ‘Cyber Law’. Just as there is no need for a ‘Law of the Horse’ merely because horses give rise to legal claims, he argued, conventional legal principles and reasoning are sufficiently accommodating to absorb new legal challenges that arise in the wake of cyberspace. We may likewise doubt the need for a ‘Law of the Mammoth’, even though technologies emerge that harbour the prospect of bringing back the woolly mammoth from extinction, reversing climate change, and creating new life forms. Cyber Law is now firmly established, of course, and Easterbrook also appears to have lost the academic debate from the likes of Lawrence Lessig. That fact notwithstanding, the onus to show that the time has come for a Law of the Mammoth clearly is on those staking the claim.

Nonhuman autonomous systems are not legal persons under current law. The history of organizational law, however, demonstrates that agreements can, with increasing degrees of autonomy, direct the actions of legal persons. Agreements are isomorphic with algorithms; that is, a legally enforceable agreement can give legal effect to the arbitrary discernible states of an algorithm or other process. As a result, autonomous systems may end up being able, at least, to emulate many of the private–law rights of legal persons. This essay demonstrates a technique by which this is possible by means of limited liability companies (LLCs), a very flexible modern type of business organization. The techniques that this essay describes are not just futuristic possibilities; as this essay argues, they are already possible under current law.

This section aims to update readers on decisions related to marketing products of modern biotechnology (e.g., GMOs, animal clones) at EU level and on national measures concerning their production. Special attention is devoted to problems of competence between Member States and the EU in regulating biotechnology issues; the institutional dynamics of decision making regarding products derived from modern biotechnology; the relationship between the EFSA and the EU institutions on green biotech-related issues; the evolution of EU regulatory framework and of national attitudes towards the risks and benefits of biotechnology derived products and their production. This section will also delve into the interaction between the EU legislation and WTO law regarding advances in the application of biotechnology within the agri-food value chain.

In February 2016, the Feasibility Report on options for an EU ecolabel scheme for fishery and aquaculture products was published. The study did not make a strong case for the introduction of a seafood EU Ecolabel and it is unlikely that the European Commission will pursue this policy option. We argue that sustainability information on seafood should not be framed through the EU Ecolabel debate. The more pressing issue concerns self-declared sustainability claims on seafood products. As a possible solution, we propose to address these by re-invigorating the labelling rules on seafood information in the Regulation on the Common Organisation of the Markets in Fishery and Aquaculture Products.

Directive (EU) 2015/412 allows Member States to restrict the cultivation of genetically modified seed or propagating material, although their placing on the market has been authorized. This so-called opt-out is meant to resolve the current Member States’ conflict about gene technology by facilitating differences of states concerning cultivation regulations. The concept has at the same time the potential to pioneer a general reorientation of European and even global principles of free trade. Where as trade restrictions on grounds of health and environmental protection could thus far only be justified on a strict scientific basis, a variety of risk perceptions and evaluations are now made acceptable. The article explores what grounds may justify cultivation restrictions beyond those identified in a concrete environmental risk assessment. Two categories are suggested: general environmental concerns weighing systemic effects and uncertainty, and trans-environmental concerns such as the use-value of genetically modified plants, the avoidance of costs resulting from policies of coexistence with conventional plants, the halting of agricultural industrialisation, and ethical considerations. It is further examined if cultivation restrictions based on such grounds are compatible with the EU rules of free movement of goods and relevant WTO agreements. The pertinent report of a WTO-Panel on genetically modified plants is scrutinized for this purpose and a dissenting interpretation developed.

Recent advancement in technology in the domain of Autonomous Intelligent Systems (AIS) shall eventually lead to autonomous technology that can perceive, learn, decide and create without any human intervention. Already now there are robots that create better versions of robots and computer programmes that produce other computer programmes. Although the ability to create is a quality that has traditionally been considered a human capacity, the sudden increase in the level of complexity of such systems as well as their learning abilities, shall ultimately render human intervention in the process of creation redundant. This makes the need to address creative agents and the challenges they bring ever more evident. This contribution assesses the output of AIS as Creative Agents and its relation to the EU framework for Intellectual Property.