SCHOOL OF LAW – HANOI VIETNAM NATIONAL UNIVERSITY CIVIL LAW DEPARTMENT --0-0— CAO HOANG MAI THE ENVIRONMENTAL TORT LAW GRADUATION THESIS HANOI – 2022 SCHOOL OF LAW – HANOI VIETNAM NATIONAL UNIVERSITY CIVIL LAW DEPARTMENT --0-0— CAO HOANG MAI THE ENVIRONMENTAL TORT LAW GRADUATION THESIS SUPERVISOR: Doctor Nguyen Thi Phuong Cham HANOI – 2022 GUARANTEE I hereby declare that this paper is my own researching. The researche and materials used in the report have clear sources, the research results are my honest work. Sincerely! GUARANTEE Cao Hoang Mai 3 Table of Contents INTRODUCTION. Reason of choosing this topic.
Purpose, methology and scope of researching. TORTS IN THEORIES. The Concept of Tort Liability .Elements of Tort Liability. THE THEORY OF ENVIRONMENTAL POLLUTION LIABILITY .Economic Tort Theories in clarifying tortfeasor and causation .The concept and Function of Toxic Tort Law .Definition of toxic tort.Characteristic of toxic tort.
Relationship of Toxic Tort Law and the economic tort theories. VIETNAMESE'S LAW IN ENVIRONMENTAL POLLUTION TORT LIABILITY .The 2015 Vietnamese Civil Code .The 2020 Environmental Protection Law .Case stydy in Environmental Liability .1Case no 84/2017/DS-PT of the People's Court of Ba Ria - Vung Tau province (BR-VT) on Compensation for damage caused by environmental pollution. Case 84/2019/DS-PT dated July 30, 2019, of the People's Court of Bac Giang province. Analysis 2 hereinbefore verdicts.
Controverise of Vietnamese regulations. COMPARATIVE LAW IN THE US THROUGH CASE STUDIES AND PROPOSAL SOLLUTIONS. Case study in comparison with 2 US verdicts .The In re Agent Orange Product Liab. the United States, 588 F.Toxic Tort Risk And Suggested Methods For Companies To Manage Toxic Tort Risks.
Cost of damage to a victim. Reasons why companies avoid toxic tort risks.Reason for managing risk. Method to manage risk. Rationale for choosing this topic Since 2020, the Federal Reserve System (FED) and the World bank have published a lot of requirements on lending which are related to climate change.
According to changes at both national and international levels, the Vietnamese regulation would change to catch up with the international law. Currently, in Vietnam, the number of environmental tort cases is low and the environment is not considered as important a factor as it should be. This low proportion of environmental tort litigation may be because Vietnamese business owners tend to disregard this aspect of the law when they run a business. In most environmental tort cases, plaintiffs would only claim for property damages, for example in the Vedan case or Fomosa case.
However, as people increasingly pay more attention to the environment and their health, the environmental tort is developing rapidly not only around the world but also in Vietnam. Especially, when the 2020 Vietnamese Environmental Law replaced the 2014 Environmental law, a substantial number of new regulations impacted on the business market and local companies. Thus, the reason for choosing this topic is not only to find the best method to protect the environment, but also to protect enterprises. The natural environment and its sustainability can impact society at a large scale, especially to future generations.
Thus, investigation of environmental tort law is directly relevant to ensuring better protection of the environment. From the perspective of businesses, legal changes related to the environment can heavily affect the way companies operate, and mitigating risks that come with new requirements is highly important. This thesis aims to explore and suggest to businesses effective methods to balance the spending on managing environmental tort’s risk and their economic benefits. Recent research Recently, most of the researchs in Vietnam on environmental tort is focused on its academic and social aspects of law.
Some Vietnamese researchers have believed that changing regulations would be the best way to protect the environment and punishments might be a considerable method to prevent or alleviate pollution from 6 businesses. However, changing the regulation itself may not be the only means available to achieve this objective, there are various other methods to protect the environment which is related to tort litigation. One notable theory is the economical tort theory. In this thesis, the economical tort theory will be analyzed and discussed to suggest effective methods for companies to manage enviromental tort risks.
Purpose, methodology and scope of researching The thesis uses theoretical research methods, normative analysis methods, historical methods, comparative jurisprudence methods, and synthetic methods to solve problems in the most reasonable and clear way. This graduation thesis researches into the environmental tort at the academic aspect and legal practicing aspect. From the theorical aspect, this paper firstly analyzes general elements of tort liability and noticeable or special characteristics of environmental tort liability. Other tort characteristics is only analyzed briefly and not considered the most important part of this paper.
Next, this thesis introduces general economic tort theories and the relationship of these economic theories in finding the liability of defendants. Thỉdyly, from the practical aspect, after reviewing Vietnamese regulation and legal practices, this paper compares the Vietnamese legal system to the US environmental tort regulations by analyzing 2 US verdicts to suggest some changes in Vietnamese tort regulations. The most important part of this graduation thesis is the environmental tort risk to company and the way to manage it effectively. Since the cost of environmental tort litigation is very high, reducing the risk would be preferable to finding the method to tackle the issue when it happened.
The following suggested risk management methods would be based mainly on economic tort theories that is mentioned in the secound chapter. Thesis structure This thesis comprises of 4 parts, not including the introduction , which are: Chapter 1: Torts in Theories Chapter 2: The Theory of Environmental Pollution Liability Chapter 3: Vietnamese Law in Environmental Pollution Tort Liability 7 Chapter 4: Comparative Law in the U.S Legal System Through Case Studies and Proposal Sollutions 8 CHAPTER 1. TORTS IN THEORIES Tort law1 is not only a common and universal legal term but also a complex legal area that has various types of itself. Since Tort law adjusts the non-contractual breaching duty of a person who harms another’s right, Tort law is based on various legal theories which could easily be changed to adjust with the reality of cases.
In addition, law researchers in Common Law and Civil Law systems have a different view of the point about Tort law which classifies Tort law into much more types of itself. Most law researchers agree that Tort law is based on 3 or 4 elements which are Illegal act, damage/injury, causation, and in some type of Tort, Fault is the final compulsory element. Based on these elements, Tort law in the Common law system can be divided into Trespass, Nuisance, Negligence, … Environmental Tort law, which could be called Toxic Tort Law, is broad, complex, and overlapping. Toxic tort law has unique characteristic and difficulties which make it harder to litigation and win than usual cases.
In addition, to show cause in toxic tort cause might usually be the most difficult part which is money and time costly. Within this chapter, in the purpose of making clear about the foundational theory which most nearly related to the toxic tort law, I would take into consideration the tort theories of the Common law system, particularly the US legal system. In addition, toxic tort law in this paper would only be referred to the personal physical injury due to exposure to toxic. The Concept of Tort Liability A tort is a classy and popular definition that is used commonly over the world.
It is hard to define exactly what “tort” is. The term “tort” was firstly invented by French lawmakers. A tort can be defined as any legally wrongful act which violates rights protected by law 2. This act is not only different from breaching contract 1 In each legal system, the term “tort” might be changed into other terms, although they are all in the same meaning, so, in this thesis I would only use the term “tort” for only.
2 Rachael Mulheron, Principles of Tort Law, 4th edn (Cambridge University Press, 2020) <https://doi. 9 behavior but also might be brought a lawsuit against a wrongful behavior person3. In another word, without a contract, if A has an act that harms a legally right of B, the victim, could sue A for that wrongful behavior. In modern research, researchers believe that tort law is a set of right that B hold when B is harmed by a wrongful act of A.
This point of view which is based mainly on economic tort law theories would make clear the loss of B. Both the classical and modern viewpoints present that the tort focuses mainly on the wrong act of the injurer which may harm the legal right of another.4 According to the conventional definition, the major goal of tort law is to separate tort law from other laws such as contract law, criminal law, and so on. The first goal of tort law is to recompense the victim for the harm incurred as a result of the unlawful behavior of violated person. There is no contractual link between the violation and the victim, or there is a little relationship that is not as close as a contractual tie5.
Up to now, the difference between contract law and tort law which has been made clear through the relationship of parties is being blurred. Another essential aim of tort law is to support and enforce contractual obligations, as well as to prevent contract violations. The contract then has no trouble adjusting for errors of omission6. The idea of consideration, which is founded on mutual commitments, is crucial in contract law, and failure through omission to follow the conditions of a promise is a breach of contract that the law will attempt to rectify7.
In addition, tort law is a useful way to protect justice which is an utmost important role of the legal system. To make clear the definition of tort law, the history of the tort law should be taken into consideration shortly. Tort law is not a strange definition in our society which has a long and complex history. Babylon’s government-regulated that “An eye for an eye and a tooth for a tooth”.
Based on the Exodus, this point of view was also mentioned in the no 21:22-25: 3 Winand Emons, ‘An Introduction to the Legal and Economic Theories of Torts’, 129. Smith, ‘Modularity and Morality in the Law of Torts’, Journal of Tort Law, 4. 7 Allan Beever, ‘What Does Tort Law Protect ?’, Singapore Academy of Law Journal, 626. 10 “If people are fighting and hit a pregnant woman and she gives birth prematurely but there is no serious injury, the offender must be fined whatever the woman’s husband demands and the court allows.
23 But if there is serious injury, you are to take life for life, 24 eyes for an eye, tooth for tooth, hand for hand, foot for foot, 25 burns for burn, wound for wound, bruise for bruise”. This point of view could be known as the original form of the tort law since both the state and religion, which played the most important role in history, allowed individuals to revenge on the person who harmed the injured person. In the 19th BC, the term “tort” became much more popular, then in the next century, it remarkably expanded in the field of compensation for unintentional injury. When a person commits legal unlawful conduct or breaches a legal duty, the breach is redressable through an action for unliquidated damages, law would provide a remedy8.
Elements of Tort Liability Through the evolution of "tort law," two major legal systems in the world, the Civil law system, and the Common law system established two distinct tort law based- theories. Tort Law in the civil law system, particularly French law, is founded on the distribution justice theory.