The Italian Law Journal | ItaLJ

4 THE ITALIAN LAW JOURNAL NO. 2 (2018)

ESSAYS

Sustainability and Civil Law

by E. Caterini

The legal system shifts its parameters. Democracy is not only a decision-making instrument, it is also a value. The mandatory commitment of social relations imposed the need for all of us to ensure ‘the minimum subsistence’, with no avoidance for any of us to fulfil the duty of solidarity. Sustainability has become the social analysis of law.  […]

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Let’s Disagree to Disagree. Relevance as the Rule of Inter-Order Recognition

by F. Fontanelli

Santi Romano’s intuitions on legal pluralism ring truer now than ever. This article explains the notion of inter-order relevance and repositions it in the current scenario of global legal disorder. Drawing from a series of recent episodes of high stakes clashes between legal orders, the article demonstrates that, ultimately, there is no normative robustness to pluralism. […]

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All You Need Is Control.
Italian Perspectives on Acquisitive Prescription of Immovables

by F. Mezzanotte

The aim of this paper is to shed some new light on the classic topic concerning the constitutive elements of possession. The cultural diatribe originated with the juxtaposed views of Savigny and Jhering does not seem to have resulted, at least in Italy, in settled positions in the current academic landscape, with subjectivist and objectivist scholars […]

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The Allegation and Proof of Foreign Law in Spain After the New International Legal Cooperation Act

by A. Ortega Gimenez

The purpose of this paper is to explain the ‘new’ regime of allegation and proof of foreign law in the Spanish courts following the International Legal Cooperation in Civil Matters Act.  As foreign law has historically been considered by our case law as a ‘procedural fact’, the International Legal Cooperation Act comes to enshrine this system in Art 33. […]

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Reasonableness and Balancing in Recent Interpretation by the Italian Constitutional Court

by G. Perlingieri

The constitutional case-law of the last few years confirms the unbreakable bond between interpretation and balance, and the impossibility, for the purposes of application, of interpreting without balancing and balancing without interpreting. The paper criticizes both those who advocate for an abstract distinction between the ‘legislative’ balance and the ‘judicial’ balance, […]

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Responsible Credit in European Law 

by U. Reifner

Responsible Credit has been the lesson G20 drew from the world financial crisis in 2008. The crisis had indeed started with subprime credit in the USA. Its toxic contents contaminated all other financial products which are all based on a credit relation. This principle has conquered not only bank supervision but also contract law and seems to be able to prevent exploitation of States by private enterprises.  […]

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‘Ties that Bind’: Maintenance Order After Divorce in Italy 

by G. Terlizzi

This article aims to describe the changes and uncertainties among judges and interpreters concerning the rules on after-divorce maintenance from when they were first introduced up to the most recent judgement by Italian Court of Cassation Joint Divisions. Since the first statute on divorce, back in 1970, maintenance has been the object of heated debate due to the difficulty of balancing two opposing needs: […]

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Old and New Trends in School Liability

by E. Tuccari

The paper investigates the double ‘contractual relationship’ (due to the enrollment of minors in school and to the ‘social contact’ between teachers and pupils), reflecting on the liability of the educational institutes in cases of damage inflicted by pupils on themselves and damage caused to a pupil by a third party.   […]

 

HARD CASES

Libya’s Pull-Backs of Boat Migrants: Can Italy Be Held Accountable for Violations of International Law?

by G. Ciliberto

In the aftermath of the migration crisis, the European Union and its member states adopted a series of policies aimed at reducing migratory pressure. A sample of these measures is the Italy-Libya Memorandum of Understanding of 2 February 2017. Under this commitment, Libya agreed to perform interception and return of boat migrants on high seas, an operation known as pull-back or push-back by proxy. […]

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Do Adopted Children Have a Right to Know Their Biological Siblings?

by A. Cocco

The Court of Cassation, with decision no 6963 of 20 March 2018, ruled on the adoptee’s right to know his/her origin. The Court ruled that when the adoptee asks for information about his/her biological history, he/she has the right to know not only the identity of the parents, but also that of any adult biological sibling. The latter must be consulted and asked to consent to the disclosure of their identity to the petitioner.   […]

 

MALEBOLGE

Reform of Non-Profit Organisations in Italy:
Strengths and Weaknesses 

by M. D'Ambrosio

Non-profit organisations in Italy have been reorganised through the Third Sector Code and additional legislation. However, the reform does not seem to be able to produce any of its desired effects. Even if it is too soon to come to any definitive conclusions on the reform, since the implementation procedure has not yet been completed, it is possible to draw some conclusions about the legislator’s approach.  […]

 

CORPORATE AND FINANCIAL MARKETS LAW

State-Appointed Directors, Related-Party Transactions and Corporate Opportunities in ‘Open’ State-Owned Companies

by M.M. Cossu

State shareholding in Italy has features which are linked both to the quantitative significance of the phenomenon and to the fact that special powers of appointment and removal of directors and members of the board of statutory auditors may be entrusted to the state as well as other public entities, such as municipalities, by means of the articles of association. These special powers have no equal in other legal systems. […]

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Foreign Capital in Chinese Telecommunication Companies: From the Variable Interest Entity Model to the Draft of the New Chinese Foreign Investment Law

by G. Santoni

The VIE (Variable Interest Entity) model allows offshore companies that control Chinese companies operating in restricted business areas, such as Internet operations, to be listed abroad. In fact, the Chinese legislator has excluded foreign investors from certain companies. Unlike legal systems, the criterion to determine the existence of foreign investments is the acquisition of shares. […]

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The Evolving Role of the Board: Board Nomination and the Management of Dissenting Opinions

by M. Stella Richter jr and F. Ferdinandi

In recent years, significant steps ahead have been taken in Italy to enhance corporate governance standards. The traditional commonplace, describing the Italian system as hostile to investors’ activism, is no longer accurate. This paper aims at (re)starting a discussion about the issues of board nomination and the management of dissenting opinions, […]

 

SHORT SYMPOSIUM: SOME FOOD FOR THOUGHT AFTER MASTERPIECE CAKESHOP

A Foolish Inconsistency: Religiously and Ideologically Expressive Conduct

by M.R. Dimino

TIn Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, Masterpiece’s owner, Jack Phillips, argued that forcing him to bake a wedding cake for a same-sex wedding would violate both his right to free speech and his right to the free exercise of religion, both of which are protected by the First Amendment to the US Constitution.  […]

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Discrimination Based on Sexual Orientation and Religious Freedom in European Contract Law

by L.E. Perriello

Santi Romano’s intuitions on legal pluralism ring truer now than ever. This article explains the notion of inter-order relevance and repositions it in the current scenario of global legal disorder. Drawing from a series of recent episodes of high stakes clashes between legal orders, the article demonstrates that, ultimately, there is no normative robustness to pluralism. […]