The Italian Law Journal | ItaLJ

7 THE ITALIAN LAW JOURNAL NO. 1 (2021)

 

 

HISTORY AND PROJECTS

The Chinese Civil Code and ‘Fascination’ with Roman Law. A Conversation with Oliviero Diliberto

by C. Crea and O. Diliberto

The Civil Code of the People’s Republic of China came into force on 1 January 2021 following a long and complex gestation lasting decades and involving many failed attempts at different times in Chinese history. [...]

 

ESSAYS

Atheism and the Principle of Secularism in the Italian Constitutional Order

by F. Alicino

More diverse and more militant nonreligious groups are contributing to change the socio-cultural landscape of a growing number of constitutional democracies. Many of these groups and their various components (hard and soft atheists, agnostics, rationalists, humanists, secularists) are claiming to enjoy the protection of religious freedom, […]

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The Protection of Choreographies Under Copyright Law: A Comparative Analysis

by A. Borroni and G. Carugno

The legal literature on intellectual property has rarely focused on choreographies. Choreographic works are different from other works protected under copyright law, because they consist in a limited number of standardised building blocks (musical notes, dance steps and movements) which are then each time arranged in an original, creative, and reproducible combination. […]

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Advancing the Rule of Law: Creating an Independent and Competent Judiciary

by L.A. Di Matteo, G. Mykhailiuk and N. Mykhailiuk

An independent and competent judiciary is an essential element in rule of law systems. The rule of law continues to be tested, even in countries where the principle has been firmly entrenched as in the United States. The judicial reform movement in Ukraine offers a case study in the creation of such a system. […]

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Contract Automation from Telematic Agreements to Smart Contracts

by A.M. Gambino and A. Stazi

Technology creates new opportunities for socio-economic relations, commercial exchange and to overcome national borders, allowing to conclude and execute agreements more quickly regardless of the distance between the parties. However, technology also tests the contractual institution as it requires to adapt it to immediate, transnational, automatic uses, and to the legal issues that consequently arise. […]

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The Trust Experience in San Marino Between Ius Commune and International Models

by D. Mantucci and L.E. Perriello

San Marino trust law is embedded in a consolidated civil law tradition stretching back to the ius commune system of fiduciary instruments, thereby making it possible to trace, to a large extent, an itinerary related to common law trusts, and to challenge unwarranted allegations (now, fortunately, fading away) that trusts cannot be transplanted into civil law countries. […]

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Innovation Partnerships and Italy’s Participation in the European Space Economy Plan

by L. Marraccini

The present study intends to analyse the development process of the Space Economy, firstly at EU level, so as to subsequently examine the characteristics, especially the legal ones, that characterise the Italian Plan for the Space Economy, for the implementation of which the Innovation Partnership was used, in particular for the enactment of the Mirror GovSatCom Programme. […]

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From the Emissions Trading System to the Role of Private Law in Environmental Protection. Notes for Research

by A. Nervi

The essay moves from a description of the emission trading system, as regulated by international agreements and European directives, focusing on the measures contemplated therein. Starting from these premises, two aspects come to attention: […]

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Questioning Representative Sovereignty:
The Italian Head of State in ‘Post-State’ Constitutional Law

by G. Vosa

The Italian constitutional order is undergoing a slight but salient shift as regards the role of the Head of State, who is called on to take delicate political positions while acting as a liaison between the national and supranational stages. This work aims to investigate this shift and its consequences to analyse how a State’s constitutional structure evolves as confronted with the post-State reality […]

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Online Unfair Commercial Practices:
A European Overview

by M. Zarro

The supranational economic paradigm considers the weak user a tool for the realization of the market: through his choices (contracts) he rewards companies that contribute to offering products at the best quality-price ratio, thus playing a central and propulsive role in the European common market. […]

 

HARD CASES

Early Repayment of Loans Under EU Law: The Lexitor Judgment

by E. Baffi and F. Parisi

Recent changes in EU law provide flexibility and protection to consumers, facilitating early repayment of loans, when the consumer is no longer interested in continuing a credit relationship. From an economic point of view, early repayment of loans should be facilitated, because it allows money that is no longer needed to be put to other desirable uses. [...]

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Nothing New Under the Digital Platform Revolution? The First Italian Decision Declaring the Employment Status of a Rider

by M. Falsone

In 2020, an Italian tribunal classified a food-delivery rider working via a digital platform as an employee for the first time. Italian courts and scholars have struggled with new, ambiguous legal notions with the aim of (re)shaping the border between subordination and self-employment. […]

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Science at the Italian Bar:
The Case of Hydroxychloroquine

by P. Monaco

Due to the increasing number of legal questions which cannot be answered without recourse to scientific knowledge, the issues surrounding the relation between science and the law have become a hot topic in legal debate. For this reason, it is not surprising that the tragedy of COVID-19 is raising many questions for lawyers to be debated in court. […]

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State Immunity and European Civil Procedural Law – Remarks on the Judgment of the CJEU of 7 May 2020, C-641/18, LG v Rina SpA and Ente Registro Italiano Navale

by B. Wołodkiewicz

In European procedural law, the existence of jurisdiction implies that a case must be heard by a court, which may be in collision with the obligation to decline jurisdiction when the defendant relies on state immunity. In its recent judgment of 7 May 2020, C-641/18, the Court of Justice of the European Union ruled on the relationship between state immunity and the exercise of jurisdiction resulting from the Brussels I Regulation. […]

 

MALEBOLGE

‘From Paris with Love’: Transnational Public Policy and the Romantic Approach to International Arbitration

by G. Zarra

This article discusses the concept of imperative norms (either public policy or mandatory rules) in the context of international commercial arbitration. It demonstrates that, as of today, arbitrators are perfectly suited to apply domestic imperative norms and that they have to carry out the difficult task of applying – or at least taking into account – all the imperative norms that may affect the enforceability of the award. [...]

 

CORPORATE AND FINANCIAL MARKETS LAW

(In)efficient Cost Allocation in Italian Proxy Contests

by G.N. Antichi

The research aims to examine the regulatory model adopted in Italy relating to Proxy solicitation. It will be verified whether Proxy solicitation, as actually regulated, adapts to the high level of ownership concentration that characterizes the Italian stock exchange and therefore provides adequate solution for agency’s problems to which these ownership structures give rise. […]

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Shifting the SME Corporate Model Towards Sustainability: Suggestions from Italian Company Law

by L. Marchegiani

While Corporate Social Responsibility (CSR) is currently at the center of debates regarding company law all over the world, the discourse on this topic remains predominantly focused on large enterprises operating at a multinational level. The purpose of this paper is to introduce some reflections on the relationship between CSR and smaller companies. […]

 

SHORT SYMPOSIUM: ‘THE TERRIBLE DUTY. LEGITIMACY AND USEFULNESS OF PUNISHMENT’

Introduction

by M. De Caro and F. Toto

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The Therapeutic Function of Punishment in Aristotle

by F. Farina

In the Nicomachean Ethics Aristotle describes punishment as a sort of cure. However, a well-defined and complex theory of punishment is nowhere to be found in Aristotle’s works: all mentions of punishment occur in works significantly different in focus and the argumentative contexts also vary. […]

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Punishment Not War: Limits of a Paradigm

by L. Foisneau

The distinction between punishments and acts of hostility is central to Hobbes’s theory of punishment in his three political treatises, but also in the ‘Dialogue of the Common-Laws’ and ‘The Questions concerning Liberty, Necessity and Chance’. Such a distinction is not, as Agamben would have it, the expression of the equivalence between sovereignty and exception, […]

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‘Public Enemy’?
Difficulties in Rousseau’s Theory of Punishment

by F. Toto

This article focuses on references to the issue of punishment disseminated in the Social Contract. Through the analysis and contextualization of these references, it aims primarily to frame Rousseau’s theory of punishment within the broader context of his political theory. […]

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How to Punish?
The Deontology of Punishment in the Enlightenment Philosophy

by D. Ippolito

The article faces the penal problem in the Enlightenment philosophy, proposing a three-step approach: 1) detection of the normative principles elaborated in the debate on the right to punish; 2) clarification of the theoretical foundation and the political scope of such principles; 3) examination of the relationship between these principles and different types of penalties. […]

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Kant on Punishment: Between Retribution, Deterrence and Human Dignity

by F. Fantasia

This article aims at offering an organic understanding of different elements of the Kantian philosophical-juridical conception of punishment. After analyzing Kant’s argument in favour of the legitimacy of the punishment, I will single out two distinct levels of analysis: on the one hand, that of the conditions of punishability in general, where the function of punishment as retribution is outlined; […]

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The Necessity for Punishment in Hegel as a Right of Freedom

by S. Tortorella

The article presents the theory of punishment in the Elements of Philosophy of Right focusing on Abstract Right and Administration of Justice. The first part of the essay underlines how punishment allows restoration of the universality of right and plays a role of education to the universal, directed against the natural and immediate will. […]

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Nietzsche, La Mettrie, and the Question of the Legitimacy of Punishment: A Hidden Source?

by M. Piazza

Friedrich Nietzsche (1844-1900), starting from the years of Human, All Too Human (Menschliches Allzumenschliches: 1876-1878) elaborates a conception of punishment based on an organic reflection on the origin of morality, the function of custom, the critique of remorse and the origin of justice, a reflection that then finds a definitive reworking at the time of On the Genealogy of Morality (Zur Genealogie der Moral: 1887). […]

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The Mith of Re-Education

by P. Gonnella

The prison model has won, as it has developed from the sixteenth-century workhouses to the ten million detainees currently imprisoned in the world. Despite these huge numbers, our penal and penitentiary legal framework is all about the myth of re-educational treatment. The treatment model is progressively overflowing, as was inevitable, towards a disciplinary model. […]