introduction-to-legal-aspects-of-projects-summary.pdf

lOMoARcPSD|11547315 Introduction To Legal Aspects of Projects Summary Introduction to Project Finance and Legal Aspects of Projects (Technische Universiteit Delft)...

lOMoARcPSD|11547315 Introduction To Legal Aspects of Projects Summary Introduction to Project Finance and Legal Aspects of Projects (Technische Universiteit Delft) Scannen om te openen op Studeersnel Studeersnel wordt niet gesponsord of ondersteund door een hogeschool of universiteit Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315 Introduction To Legal Aspects of Projects Lecture 1: Course introduction and EU law Sources of law: 1. Treaties 2. Written law 3. Unwritten law 4. Case law Treaties: International agreement between two or more states.  A treaty consists of international law when it contains rules of conduct  Those rules of conduct are between states: they are not applicable on civilians unless rules are self-executing. Written law: Law made by a body invested with the power of law-making. Unwritten law:  Customary law  General principles of law Case law:  Jurisprudence  Interpretation of legal rules  No principle of precedent Extraordinary characteristics of the EU:  Transfer of sovereignty  Own legal system  Priority before national law EU institutions European council Legislative:  Council of the EU (members depends on subject)  European parliament  (European commission) Executive:  European commission  (Council of the EU) Judicial: Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315  Court of Justice of the EU Intergovernmental:  Decisions by public bodies consisting of government people  Only be bound by their own will  Execution and supervision by member states them selves Supranational:  Decisions by public bodies consistent of independent members  Can be bound against their will  Execution and supervision by organs of organisation EU Law:  Regulation  Directive  Decision  Dualism (transformation law needed)  Monism Lecture 2: Dutch (national) Law Objective law: Set of rules and regulations that are allowed in the Netherlands.  Public & Private law o Public law: regulates organization and relation government – civilian o Private law: regulates relation civilian – civilian  Contract law = private law  Mandatory & Regulatory law o Mandatory law: legal rules from which parties may not be deviate otherwise act null o Regulatory law: legal rules from which parties may deviate based on mutual agreement  Material & Formal law o Material law: legal rules that regulate content of law o Formal law: legal rules that regulate way material law is being enforced Subjective law: The specific right of a person/entity, comes from objective law. Legal subject and legal object Legal subjects:  Natural person  Legal entity according to private law  Legal entity according to public law Legal authority: Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315  Certain group of persons that is an independent bearer of rights and obligations Legal object:  The objects of the rights The judicial system  Right to access to justice and legal assistance: a fair trial Law of civil procedures; fundamental rules:  Right to access to justice and legal assistance  Initiative and autonomy of parties  Examination/hearing of both parties  Decision within reasonable time  Public  Motivated jurisdiction Absolute competence: 1. Sub-district or district court 2. Court of Appeal 3. Supreme court Relative competence: Main rule: the judge of the court of the legal district of the accused Extra options:  Labour location  Wrongful act  Fixed asset Sector competence: Sub-district court  Labour agreements, CAO, Rent agreements, Consumer(credit)agreements  25.000,-  Obligatory legal representation Different procedures:  Standard = Summons  Urgency = Summary Alternative dispute resolutions:  Mediation  Binding opinion Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315  Arbitration (often in construction disputes) Lecture 3: Contract law 3 stages: 1. Freedom of contract 2. Unilaterally termination allowed if extraordinary expenses are compensated 3. Unilaterally termination is conflicting with principle of reasonable and fairness when negotiations progressed so far that both parties may expect that a contract would come to stand. a. Still unilaterally termination  Commandment to continue to negotiate or compensation for damages including profit lost Contract = agreement = Act whereby one or more parties enter into an obligation towards one or more parties Principles of contracts:  Freedom of contract  Consensus Content prescribed by: 1. What parties have agreed upon 2. Law 3. Common practice 4. Reasonableness and fairness Legal act:  Multilateral: 2 rights, 2 obligations  Unilateral: 1 right, 1 obligation Offer and acceptance: Agreement comes into being by means of offer and acceptance. Offer valid when:  Valid declaration of intention  The person that offers has the capacity to exercise his rights  The essentials of the upcoming agreement Acceptance (declaration of intention which connects to the offer) valid when:  Valid declaration of intention  The person that accepts has the capacity to exercise his rights Incapacity Unable to perform inviolable legal acts.  Minors (under 18 and not (formerly) married) Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315  Persons placed under legal restraint Contract defects:  Mental disturbance  Defects of intention Mental disturbance:  Person that is permanent or temporarily disturbed and in that state makes a declaration  This declaration is assumed to be made under mental disturbance if the legal act is unprofitable for the mentally disturbed  Consequence: voidable act (unless successful appeal to the court/principle of justified belief) Defects of intention:  During determination of intention the acting party was influenced by certain circumstances  Intention formed defectively 1. Threat 2. Fraud 3. Abuse of circumstances 4. Error Intention and declaration; 3 options:  Intention and declaration corresponds; legal act is formed  Intention and declaration do not correspond; counterparty successfully appeals to justified belief; legal act is formed  Intention and declaration do not correspond; counterparty does not appeal; legal act is not formed  voidable or null Null or voidable:  Null  act has never existed, not enforceable as a legal act  Voidable  act can be annulled by person protected by law Failure: When debtor falls short in any way of what he agreed up on. Claims:  Fulfilment  Rescission  Damages o Debtor has to be in default  Notice of default has been served  Fulfilment permanently impossible  After deadline expires  From a communication know that debtor does not intend to fulfil obligations Limitations:  5 years from the day that you have learned about the failure  5 years from the day that you are entitled to the claim Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315 Lecture 4: Procurement Law Public procurement law:  Regulated process leading to the award and conclusion of a public contract  Open up to the market for competition  Equal opportunities for market operators Public procurement law: 1. Contracting authority wants to purchase supplies, works or services 2. Contracting authority starts a tender/procurement procedure 3. Interest economic operators can submit a bid 4. Contracting authority evaluates all bids and chooses the best economic operator and motivated decision Sources of procurement law:  EU directive  Dutch Public Procurement Law 2016  Jurisdiction from European courts and national courts  Principles of law Start public procurement procedure when 4x yes: 1. Contracting authority? 2. Applicable government contract? a. Government contract for works b. Government contract for supplies c. Government contract for services Pecuniary interest: contract holder will receive a remuneration for its supplies, services and works Contracting authority will be allowed to legally oblige the government contract holder to execute the government contract 3. Above market threshold? a. Below threshold? Principles of procurement law still applicable! 4. No exceptions applicable?; exempted from procurement law a. Purchasing or rental of property b. Hiring government officials c. Legal support d. Inhouse contracts Principles of procurement law:  Non-discrimination o No discrimination based on nationality  Supported docs allowed from other EU member  No denial based on language  No preference of local/national producers Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315  Equal treatment o All economic operators and candidates must be treated equally and have the same opportunities to win contract  Transparency o Allows parties to verify actions of contracting authority o Allows contracting authority to justify decisions o Objective bid evaluation o Contracting authority must motivate every step o Prevents favouritism, discrimination and an unfair tender process  Proportionality o Technical requirements, selection criteria, selection award, exception ground, all must be in balance with the characteristics and size of the contract Choice of procedure:  Size contract  Transaction/Implementation  Amount of interested economic operators  Desired result  Complexity  Characteristics of market Procedures below threshold = national procurement procedure  Contracting authority is free to choose which procedure, but with regard to principles of procurement law  Not only national companies National procurement procedure  Mostly simple procedures  Limited amount of money involved, thus less interest foreign operators  Less regulated by law, but follow principles of procurement (Proportionality, Non- discrimination, Equal treatment, Transparancy) Procedures above threshold = European procurement procedure 1. Open procedure a. Every economic operator can submit a bid b. Might amount in overload of candidates and bids c. Relatively simple tenders (purchase of supplies) d. Relatively fast procedure 2. Restricted procedure a. Comparable with open procedure b. Contracting authority invites a selected group of economic operators to submit a bid i. Based on clear objective criteria; principle of transparency c. To limit the amount of economic operators and bids d. Might be useful for example for army materials etc. Example open procedure: 1. Contract notice and tendering guidelines published 2. Information rounds and answers published Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315 3. For restricted procedure: contracting authority selects the economic operators that are allowed to bid 4. Economic operators submit a bid 5. Contracting authority evaluates the submissions; three steps to assess the bid a. Exclusion grounds b. Selection criteria c. Award criteria 6. Contracting authority awards the preliminary contract a. Stand still period of 20 days 7. Contracting authority sign contract with winning candidate a. After 20 days no longer legal proceeding possible Lecture 5: IP rights Rights protecting such intangible creation of human intellect.  Trade name rights  Trade mark rights  Copyright  Patent law  Design right  And more Trade name rights: A trade name is the name under which a company trades.  Unique  Not misrepresent  Not the same  Not confusing Trade mark rights: A trade mark is a right to distinguish one good from another. Invalid if:  Lacks distinguishable properties  Contrary to public policy/principle of morality  Misleading  Hasn’t been used for 5 years  Product name  National flag or banner  Protected geographical region IP Law: enforcement  Take initiative  Civil procedure o Summary proceeding to end violation Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315 o Levy attachment on profits of good  Within EU borders? Customs  Last resort: criminal law in specific situations Labour law Being a good employee and employer. General principles of contract law:  Freedom of contract  Consensus  Intention and declaration Different levels of mandatory law:  Deviation only allowed in favour of the employee  Deviation is allowed by CAO  Deviation is allowed in individual contracts Resignation – Temporary contracts: Main rule: contract ends at the end of the contract period and not earlier. Employee:  During the probationary period  Before end of contract: mutual agreement  Before end of contract: possibility agreed upon in contract Employer:  During the probationary period  Before end of contract: mutual agreement  Via UWV; when reason is economical or long term work disability  Immediate dismissal  Notice of employer one month in advance is mandatory (for contract > 6 months!!) Resignation – permanent contracts: Employee:  During probationary period  Before end of contract: mutual agreement  In compliance with notice period Employer:  During probationary period  Before end of contract: mutual agreement  Via UWV; when reason is economical or long term work disability  Immediate dismissal Immediate dismissal:  Pressing reason Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315  Dismissal is given immediately  Pressing reason is announced to employee immediately  Not legitimate? Damages Compensation: In principle for every employee whose contract gets ended unwillingly after minimum period of 24 months. No compensation when:  Reason of dismissal is severe actions of employee o Theft, fraud, embezzlement  Person is under 18 years old when contract ends and maximum work schedule is 12 hours/week  Employee retirement age  Bankruptcy of employer Lecture 6: Administrative law Relationship between government and civilians.  The exercise of powers by public authorities 1. Organizing society 2. Judicial protection for citizens against acts of administration  General administrative law act  Legal protection of civilians Principles of proper administration:  Due care  Prohibition bias  Detournement de pouvoir  Detournement de Arbitrariness  Proportionality  Reasoning  Good faith  Legal certainty  Equality 3 B’s:  Public law act o Decision means a written decision of an administrative authority constituting a public law act o General acts  Generally binding regulations  General public acts o Individual acts  Administrative authority o A-organ: an organ or legal entity which has been established under public law Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315 o B-organ: Another person of body which is invested with any public authority  Interested party o A person who’s interest is directly affected by a decision  Interest because decision addressed to you  Interest because you fulfil OPERA criteria  Interest because represent general and collective interests o OPERA:  Objective  Personal  Her own  Direct  Current Why B’s important?  An interested party may appeal to the district court against a decision  Decision means a written decision of an administrative authority constituting a public law act Specific decision: allocation plan  General public act  Consists of: regulations, explanation and illustration  Procedure: 1. Participation 2. Consultation 3. Design allocation plan 4. Determination 5. Reactive indication 6. Coming in to force and irrevocable allocation plan Administrative legal protection: The one who has the right to appeal against a decision (interested party!) to an administrative authority shall lodge an objection against the decision BEFORE lodging an appeal. Objection:  Lodge objection addressed to authority that made the decision  Validation ex nunc: situation now  Effectivity (efficiency, balanced) and legality (procedures and no conflict with law) At least consists of:  Date  Name and address of applicant  Signature  Mentioning decision against which objection is  If possible enclose duplicate of decision  Mention grounds of objection Procedure: Objection  Hearing  Report  (advice)  Decision on objection Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315 Appeal in court:  Validation ex tunc: evaluation of facts and circumstances when primary decision was made  Legality (procedures, no conflict with (un)written law)  Judge does not decide whether decision that has been made was a good decision! Compensation of damage:  Lawful act of administration can cause damage  Example Lawful act = decision  Minister can award financial compensation Causes of damages:  Decisions on road alteration, alteration of allocation plan permits  Noise  View damage  Particulate matter  Reduced accessibility Sources of damages:  Depreciation  Loss of business  Transport: detours  Reduced living enjoyment Procedure: 1. Request for compensation is being filled 2. Authority checks if this is about compensation 3. Authority creates expert committee 4. Expert committee hears both parties 5. Expert committee tests request on criteria of compensation 6. Expert committee draws concept and definitive advice 7. Authority decides on request; follow committee of decide otherwise Criteria compensation:  Causality o Damage causes by sources of damage  Abnormal burden o 2% normal social risk; value of property ex. House o 15% normal entrepreneurial risk; average annual turnover  Foreseeability o Right-thinking and acting civilian, any cause to take certain developments into account? Lecture 7: Environmental law Government’s care focused on habitability of the country and protection and improvement of the environment. Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315 Project EIA:  Directive shall apply to the assessment of environmental effects of Public and Private projects which are likely to have significant effects on the environment  Before consent is given an assessment is conducted EIA what projects: Annex I: EIA obligated Annex II: MS decides on a case-by-case basis based on thresholds or criteria Annex III: Selection criteria for Annex II 1. Characteristics of the project 2. Location of project 3. Characteristics of impact EIA – information  Description of project  Description of measured envisaged  Data to assess main effects  Outline of alternatives  Non-technical summary of submitted information EIA exception:  Projects serving national defense purposes  Exceptional circumstances  MS has to decide case-by-case Plan/Program EIA: MS have to make sure that plans or programs that are likely to have significant effects on the environment are made subject to an EIA. SEA: Purpose not know future, help build a desirable future  facilitator of decision making EIA: Intervention project need to be known, adequate level of detail  command and control tool Article Environmental law Short-term objective: narrow the gap between positive research facts and negative feelings around EIA in the Netherlands. Results 3 groups: Gedownload door Denisa Arsene ([email protected])  lOMoARcPSD|11547315  Selectivity o Screening less obligatory EIA o Scoping to limit time and costs of EIA o Re-use of earlier impact statements for efficiency  Flexibility o More differentiation, need for examples, experiments and knowledge o Land use planning need greater! o Selective post project analysis leads to more adaptability to the needs of competent authority and case itself  Procedural streamlining o EIA-procedure into licensing procedure under ‘Environmental Protection Act’ o To make procedure more efficient Ex-ante IAs: examine potential of an action; integral part of decision-making; IAs effective tool for modern, evidence-based policy making, providing a structured framework for handling policy problems. Ex-post IAs: examine impacts of government actions after they have already been implemented. EIA purposes:  Short term: in the short term EIA aims to inform the process of decision-making by identifying the potentially significant environmental, social and economic effects and risks of projects.  Long term: in the long term, EIA aims to promote sustainable development by ensuring that development proposals do not undermine critical resource and ecological functions or the well-being, lifestyle and livelihood of the communities and peoples who depend on them. Open Restricted Negotiating procedure Competitive dialogue Gedownload door Denisa Arsene ([email protected])