The Italian Law Journal | ItaLJ

3 THE ITALIAN LAW JOURNAL NO. 2 (2017)

HISTORY AND PROJECTS

Carlo Cattaneo and Gaetano Salvemini: The Modernity of their Federalism

by E. Arban

Federalism and federal solutions in Italy have never enjoyed much popularity, although they have been discussed at different times as viable solutions for a country fragmented along socio-economic and linguistic lines. This mistrust can be partially explained by the fact that federalism has been often misunderstood and construed as synonymous with division and disintegration of the territory.  [...]

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Nel Buio delle Folti Tenebre dell’Ordinamento.
Justice and Law in the Provinces of the Kingdom of Naples During the Modern Era (17 th Century)

by A. Di Falco

This work focuses on the Neapolitan Jus Regni and judicial activities of the baronial courts in the Kingdom of Napoli during the early modern period; and in particular, the thorny activity of applying the law in the provincial territories in which individual cases could be subject to different procedural methods deriving from the statutory legislation in effect in each. […]

 

ESSAYS

The Constitutional Impact of the Exceptio Inadimpleti Contractus

by A.M. Benedetti

This article deals with the proposition that the exception of non-performance – suspending the execution of a given performance – engages the enjoyment of constitutionally-protected rights. Using inspiration from interesting Colombian jurisprudence, the author believes that, in such cases, the control over the use of the exceptio inadimpleti contractus can no longer be entrusted  […]

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Unioni Civili: Same-Sex Partnerships Law in Italy

by N. Cipriani

This essay analyzes the main aspects of legge 20 May 2016 no 76, which allowed same-sex partnership in Italy. In particular, it seeks to reflect upon the elements that most differentiate the regulation of same-sex partnerships from that of marriages, in order to better understand whether these differences are entirely justified and reasonable. […]

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Constitutional Axiology and Party Autonomy

by F. Criscuolo

The Italian Constitution is based on strong values of personalism and solidarity. As a matter of fact, autonomy, freedom and right of self-determination are not absolute values, but values among other values. The Contract, as source of rules governing economic relations, should be subjected to a test of worthiness (meritevolezza) according to the constitutional values […]

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Financial and Energy Contracts: New Demands for the Regulation and Categorization of Contracts

by C. Ferrari

According to recent European regulations, certain kinds of contracts, mostly derivatives with an underlying energy product, risk being included, by virtue of the predominance afforded to the financial aspects, within the realm of financial contracts and consequently subject to the full extent of the legislation governing the latter. […]

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The Civil Wrong Between Private Relationships and Social Order

by A. Lasso

A new approach to the functions of liability allows the observation of civil wrong from two different perspectives: the relationship between the wrongdoer and the injured party and the system of values in its natural aspiration to stability. The unjust harm caused by the wrongdoer may entail the reinstatement of the victim’s property and the concomitant protection of important social interests. […]

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Wrongful Birth and Wrongful Life Actions
(The Experience in Portugal as a Continental Civil Law Country)

by V.L. Raposo

This article presents a brief overview of how medical liability for wrongful birth and wrongful life issues is addressed under continental civil law in Portugal. It analyses the requisites for tort liability (wrongfulness, culpability, causation and damage), then explores how these elements operate in wrongful birth and life lawsuits. […]

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Godzilla and the Japanese Constitution: A Comparison Between Italy and Japan

by J. Tsuji

The Japanese movie ‘Godzilla’ illuminated controversial issues related to the existence of the Self Defense Force (SDF) under the current Japanese Constitution. In this movie, the Japanese Government sent the SDF, emergency power, and leadership of the prime minister to fight against an external enemy, Godzilla. […]

 

CORPORATE LAW SECTION

Corporate and Financial Markets Law: A New Section

by M. Ventoruzzo

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The Expanding Boundaries of MiFID’s Duty to Act in the Client’s Best Interest: The Italian Case

by L. Enriques and M. Gargantini

MiFID requires investment firms to act in accordance with the best interests of their clients. This overarching principle shapes firms’ professional conduct in at least two ways. First, it sets a general standard firms have to comply with when dealing with their clients and its breach may lead to civil remedies for clients or administrative sanctions for investment firms. […]

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Principals vs Principals: The Twilight of the ‘Agency Theory’

by F. Denozza and A. Stabilini

In this article, we maintain that the agency theory of the corporation, that has dominated the corporate law debate for the last four decades, offers a trivial and reductive description of the problems of the corporation, ignores the most significant phenomena and offers a distorted picture of issues that the law must solve. […]

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The 2016 Italian Consolidated Law on Public Entities Owned Companies: Towards a More Consistent Private Law Approach

by M. Allena and F. Goisis

This article aims to analyze the model of company emerging from the new Italian consolidated law on public entities owned companies of 2016, coming to the conclusion that, especially given the principles of the legislative delegation and the European Union law requirements, such companies are characterized as fully for profit and private. […]

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The Legal Transplant into Italian Law of the Procédure d’Alerte. Duties and Responsibilities of the Companies’ Bodies

by F. Pernazza

The Italian Law on Bankruptcy of 1942 has been amended and integrated several times on specific subjects, but until now, the total reform proposal has failed. Finally, in October 2017, a statute has been approved that establishes new principles on the entrepreneurial crisis and insolvency and delegates powers to the the Government to enable it to elaborate an organic reform of rules and procedures. […]

 

HARD CASES

Suicide: Not in the Wrong Moment, Please!

by C. Baldus and P.-C. Müller-Graff

The authors welcome the landmark decision of the Corte Costituzionale as the right step in the right moment. With a special accent on EU Law and Roman Law, they point out Italy’s role in European Legal Science. The EU law paradigm of linguistic equality fits perfectly to Europe’s long-term common interest, before and after Brexit. […]

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The Grand Chamber’s Stand on the Punitive Damages Dilemma

by L. Coppo

It is a truth universally acknowledged that corrective justice is the pillar on which the whole system of remedies rests in principle and modern tort liability revolves around the idea of compensation. Deeply anchored to that conception, Italian case law has been impervious to punitive damages, on the grounds of their alleged inconsistency with public policy, until its latest developments. […]

 

SHORT SYMPOSIUM ON THE RIGHT TO BE FORGOTTEN: AN ITALIAN OVERVIEW

Privacy in Europe after Regulation (EU) No. 2016/679: What Will Remain of the Right to be Forgotten?

by F. Di Ciommo

Regulation (EU) no 2016/679 (hereinafter ‘GDPR’), which will become applicable throughout the EU from next May and will replace Directive 95/46/EC, contains the first legislative embodiment of the right to be forgotten. In other words, the personal right that, thanks also to the well known Google Spain case, has captured the attention of operators and academics alike. […]

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Privacy or Transparency? A New Balancing of Interests for the Right to be Forgotten in the Field of Personal Data Published in Public Registers

by O. Pollicino and G. De Gregorio

The European Court of Justice, in a decision dated 9 March 2017, dealt with the right of individuals to request of the authority responsible for maintaining the companies register the elimination (‘right to be forgotten’) of personal data concerning them entered in that register. […]

 

BOOK REVIEWS

Review of a monograph: Das Grundbuch im Europa des XXI. Jahrhunderts edited by Arkadiusz Wudarski

by J. Gołaczyński