Human Rights Protection Against Private Expropriation: The case of a squeeze-out rule
Title: Human Rights Protection Against Private Expropriation: The case of a squeeze-out rule
Author: MARCISZ, Ewa Maria
Citation: Florence : European University Institute, 2012
Series/Number: EUI LLM theses; Department of Law
The thesis below provides a study on a squeeze-out rule. It is analyzed in the context of other rules of modern private law which allow for deprivations of property rights for the benefit of private individuals. A squeeze-out rule is confronted with those trends in the theory of rights, which perceive property rights as securing the domain of liberty, control and autonomy and, most importantly, with Article 1 of the First Protocol to the European Convention on Human Rights. In accordance with the Article 1 of the First Protocol, three conditions must be satisfied before a person might be deprived of their possessions: the taking must be in the public interest; it must be subject to conditions provided by law; and it must be subject to the conditions provided by the general principles of international law. As it seems that the second and third condition have been met, the research focused on analyzing whether the justification of a squeeze-out rule amount to public interest, as understood in the jurisprudence of the European Court of Human Rights, and whether as a consequence this rule can still be upheld on public interest grounds. Public interest is presented in the thesis as a conceptual solution to the tension between property and private takings, requiring a balancing test between public and private interests. To accomplish that the thesis primarily endeavors to explain the mechanism of a squeeze-out rule. Further, it presents the jurisprudence of the European Court of Human Rights on the public interest prerequisite. The jurisprudence is finally confronted with the most common doctrinal and judicial justifications of a squeeze-out rule. Since, the field seems to be largely dominated by the law and economics reasoning, the thesis confronts efficiency arguments with the public interest prerequisite. To provide a comprehensive context of the analysis, the thesis additionally attempts at juxtaposing two approaches towards private expropriation rules – the traditional approach of company law and the approach supported in this thesis, namely human rights approach. Hopefully, the thesis manages to show how adopting the latter is inevitable.
Supervisor: Prof. Fabrizio Cafaggi, EUI; Award date: 3 December 2012
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