The Italian Law Journal | ItaLJ

4 THE ITALIAN LAW JOURNAL NO. 1 (2018)

 

 

HISTORY AND PROJECTS

Italy in Egypt and Historical Influences on Egyptian Codification

by G.M. Piccinelli

The presence of a large community of Italians in Egypt has assumed a meaningful dimension from the mid-XIX to the mid-XX century. Even if its economic and social profile was generally modest, it succeeded in creating schools, places of worship and meeting attended also by the Egyptian élites and by the members of other nationalities. [...]

 

ESSAYS

Italian Constitutional Court, Kelsen’s Pure Theory and Solving ‘Hard’ Cases 

by Z. Akhtar

The legal system is a kernel of rules in which the crucial role is that of the law making body. The most important factor in the promulgation of laws is the ability to challenge any unfair or unjust law by invoking the powers of judicial review. In Italy, which practices a Civil law jurisdiction there is a constitutional court that conducts the judicial review of laws that concern the citizens.  […]

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General Remarks on Civil Liability in the European Context

by G. Alpa

This article considers the evolution of the civil liability system in Europe from the perspective of the establishment and application of rules deriving from regulations and directives that define special types of torts. Neither the EU rules nor the principles developed by the Court of Justice always identify all the necessary components of the tortious act. […]

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Unfair Contract Terms Before the Italian Competition Authority (ICA)

by M. Angelone

The newly-introduced Art 37-bis of the Consumer Code provided the Italian Competition Authority (ICA) with new powers aimed at scrutinizing – ex ante or ex post – the unfairness of the terms included in standard contracts between traders and consumers. This paper analyses the legislative provision (as supplemented by secondary regulation) in view of the decisions adopted by the ICA […]

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The Prohibition of Discrimination as a Limit on Contractual Autonomy

by G. Carapezza Figlia

The essay analyzes the progressive assertion of non-discrimination as a principle within Italian and European contract law. After having examinated the legislative concept of contractual discrimination, the scope of the prohibition and the extent of its impact, the Author shows that the direct applicability of the principle of equality within private law relations is inseparable from the issue of the review of contractual autonomy […]

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Claims-Made Insurance Policies in Italy: The Domestic Story and Suggestions from the UK, Canada and Australia

by F. Delfini

Liability insurance contacts can be divided into two main categories: loss occurrence based and claims-made based. While the Italian Civil Code (ICC) only considers and determines insurance contracts on a loss occurrence basis, since the end of the 20th century, the claims-made model has taken control of the market. This reception has posed various issues in the domestic legal system on which the Italian Supreme Court has recently ruled several times. […]

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The Italian Marriage: Crisis or Tradition?

by R. Fadda

Numerous reforms of Italian family law have been enacted in recent years regarding marriage, which reinforce the freedom of the spouses and which have provoked a crisis of the institution itself. The tendency emerging from the new laws reveals an accentuation of the married couple’s autonomy and of the public authority’s limited role in the different phases of marriage.  […]

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The Recoverability of the Loss of the Right to Life per se: A Brief European Overview

by P. Sanna

Traditionally, with a few exceptions, in Europe, decisions of the courts have denied the recoverability of the loss of the right to life per se (and the subsequent transfer of the claim from the primary victim to his/her heirs).  […]

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Will Formalities in the Digital Age: Some Comparative Remarks

by I. Sasso

The work proposes to examine current testamentary will formalities in light of the digital revolution that has swept through modern society these past decades. The analysis will concentrate on the extent to which each of the three forms of ordinary testamentary will governed by Italian law is compatible with new electronic and digital technologies.  […]

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Apathy Revisited

by C. Skach

Contemporary world events, characterized by violence and extremism, force us to revisit the potential uses and abuses of political apathy in democracy. This article unravels the concept of apathy, placing it within its semantic field, qualifying it with respect to different political contexts, and making it relative to its possible conceptual opposites.[…]

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The GDPR and the LIBE Study on the Use of Hacking Tools by Law Enforcement Agencies

by G. Ziccardi

Digital information is, today, at the center of the cultural, social, technological and political discussions, above all with reference to its protection. In the age of big data, automated processing of information, large-scale use of algorithms and profiling systems, the risk of losing control over data and the fear of activities carried out in violation of the rights of the individuals, are very real. […]

 

HARD CASES

Res Iudicata in Breach of the ECHR:
The Italian Constitutional Court’s Point of View

by C. Petta

In the judgment no 123 of 2017 the Italian Constitutional Court declared inadmissible the question of constitutionality stemming from a Code of Administrative Procedure provision (Art 106) in the part in which it does not provide for the possibility to review a ruling in cases of conflict between domestic judgments and judgments of the Court of Strasbourg.[…]

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The Duty to Inform and Voidable Investment Orders

by M. Semeraro

The definition of the relationship between framework contracts and individual investment orders has always been the subject of debate both in legal scholarship and in case law, as it is functional to the solution of various application issues.  […]

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‘A Case with Peculiarities’: Mixed Same-Sex Marriages Before the Supreme Court

by M.M. Winkler

This article examines the judgment of the Italian Supreme Court (Corte di Cassazione) no 11696 of 14 May 2018 concerning the legal status of mixed same-sex married couples under Italian law. It explores the problems relating to the recognition and the civil status registration in Italy of couples of the same sex where one spouse is a foreigner and the other is Italian. […]

 

ITALIAN CONSTITUTIONAL COURT'S SELECTED JUDGMENTS OF 2017