Who Takes the Lead?: Comparative Insights on Arbitrability, the Delegation Clause, and the Supreme Court of the United States

The purpose of this article is to evaluate the possible implications emerging from a U.S. Supreme Court decision on arbitrability and the delegation clause

In Praise of Reconciliation: the In-Court Settlement as a Global Outreach for Appropriate Dispute Resolution

A sense of crisis in the administration of civil justice is widespread. Whether the typical difficulties faced by many countries unfold in excessive costs and delays, they have stark implications for the effectiveness of the procedural systems and access to justice. Several new institutions evolved to deal with this state of crisis. Amongst them, the judicially-led settlement, which has the peculiarity of being an alternative tool, despite being performed in the courtroom, made inroads worldwide. However, the pro-adjudication rhetoric raised and continue to raise severe qualms of parties’ coercion and judicial partiality resulting from the judge’s dual role as conciliator and decider. This Article deals with the matter by aiming for a triple result. First, it is intended to show how the general trend toward in-court settlement highlights the urgency of embodying a new philosophy of distributive justice in civil procedure at a global level. To this effect, rather than securing only substantive justice, the justice systems need to be devoted to dealing with cases justly, equally, and proportionally. Secondly, it will show how advocating settlement does not necessarily mean an efficiency-based claim. On the contrary, it represents a plea for “justice” by resulting in quality-oriented outcomes. Lastly, drawing from the repository of the Continental European civil procedure rules, it will sketch the proper tools to prevent the judges’ promotion of settlement from flowing into an indirectly forced settlement and negatively impacting their impartiality. The relevant outcomes will show how judicially-led settlement represents, at a global level, a form of appropriate (rather than alternative) dispute resolution method

Is Federal Rule of Civil Procedure 19(b) Too Discretionary?

The courts are entrusted with the implementation of required joinder of parties under Federal Rule of Civil Procedure 19. Indeed, the courts have substantial discretion to determine, under the considerations listed in Rule 19(b), whether to continue the litigation without the person who should be joined in pending litigation or to dismiss the action because such a person cannot be joined. Therefore, the courts are asked to weigh the factors under Rule 19(b) and recognize that one factor can be more important than others in a given case or other factors not listed in Rule 19(b) can be important in a particular case. The exercise of this discretionary power is crucial in understanding when the required joinder of parties is actually feasible. There is a range of possibilities for how narrowly or broadly judges might exercise this power. Whether an individual judge exercises this power broadly or narrowly in a particular dispute, she always needs to wait for cases to come to her. Nevertheless, this question has deep roots in American legal tradition. The concept of judicial discretion under Rule 19(b) has gradually focused not only on the protection of the interests of absent persons as well as those already before the courts from the risk of legal or practical damage but also on the protection of public interests in an adequate—meaning, efficient, coherent, and final—judgment. The comparative analysis of Rule 19(b) and legal rules governing the required joinder of parties in Italian and German legal systems suggests some thoughts about a better way to define the judicial discretion in determining whether a person who should be joined is actually indispensable—that is, essential to dismiss the action when that person cannot be joined. According to Italian and German legal traditions, persons can be qualified as indispensable to the purpose of required joinder of parties when their interest to be joined in pending litigation is strictly embedded in the factual specificities of the case. Since the civil law tradition is rights-focused, these specificities are mainly described in terms of co-ownership of individual rights, so that the adjudication must be coherently rendered in favor of all the co-owners of a given right. Such an approach seems to be a useful means of fortifying the American doctrine of judicial discretion under Rule 19(b)

In praise of reconciliation: the in-court settlement as a global outreach for appropriate dispute resolution

A sense of crisis in the administration of civil justice is widespread. Whether the typical difficulties faced by many countries unfold in excessive costs and delays, they have stark implications for the effectiveness of the procedural systems and ac- cess to justice. Several new institutions evolved to deal with this state of crisis. Amongst them, the judicially-led settlement, which has the peculiarity of being an alternative tool, despite being performed in the courtroom, made inroads world- wide. However, the pro-adjudication rhetoric raised and continue to raise severe qualms of parties’ coercion and judicial partiality resulting from the judge’s dual role as conciliator and decider. This Article deals with the matter by aiming for a triple result. First, it is intended to show how the general trend toward in-court settlement highlights the urgency of embodying a new philosophy of distributive justice in civil procedure at a global level. To this effect, rather than securing only substantive justice, the justice systems need to be devoted to dealing with cases justly, equally, and proportionally. Secondly, it will show how advocating settle- ment does not necessarily mean an efficiency-based claim. On the contrary, it rep- resents a plea for “justice” by resulting in quality-oriented outcomes. Lastly, draw- ing from the repository of the Continental European civil procedure rules, it will sketch the proper tools to prevent the judges’ promotion of settlement from flowing into an indirectly forced settlement and negatively impacting their impartiality. The relevant outcomes will show how judicially-led settlement represents, at a global level, a form of appropriate (rather than alternative) dispute resolution method

Reducing Disparities in Civil Procedure Systems: Towards a Global Semi-Adversarial Model

It is commonly perceived that the main difference between adversarial and non-adversarial systems of civil procedure is the party charged with the duty to gather facts and evidence. Generally speaking, in adversarial systems, it is the lawyers who gather facts and collect evidence while in non-adversarial systems, like continental Europe, it is the judges who bear that responsibility. Although this dichotomy exists, it is fundamentally flawed to conclude that the non-adversarial systems, such as the Continental ones, differ from the American system because of the inquisitorial method both in fact-gathering and evidence-gathering. The real differences, as we will demonstrate, are mainly the parties’ roles in the preliminary phase of the lawsuit, the methods of discovery, the judge’s involvement in the case, and the techniques for examining non-documentary evidence. Both systems present advantages and drawbacks regarding efficiency (cost-saving) and efficacy (truth-finding) in the administration of justice. Suppose the procedural divergence is not entirely irreconcilable. Can they complement each other? In this respect, we specifically ask if an adversary system can help the most troubling aspects of non-adversary practices. If so, is it possible to reconcile the non-adversarial model with a preliminary phase typical in adjudication in the adversarial system? The recent Italian reform on civil procedure allows us to shed light on these questions. This more adversarial proceeding emerging from new Continental trends might seem particularly exciting for two reasons. Firstly, it introduces a stimulating new framework to reshape the debates about civil justice reform in an adversary system. Secondly, it suggests a new way of thinking about traditional domestic and country-specific rules and outlines a unified model of a semi-adversarial system

The americanization of the Italian civil proceedings?

While the pandemic was winding down, European countries received substantial funds from the E.U. government to address the increasing economic distress caused by the lockdown period. Consequently, the former Italian government devised an ambitious plan that regards civil justice reform as a strategic tool for gradually obtaining financial resources from the E.U. The approved reform encompasses various aspects, including the renewed framework of the civil proceeding and specific attention to A.D.R., like negotiation or mediation. Considering the core elements of this recent reform, one might question whether the new Italian civil proceeding resembles fundamental aspects of the U.S. civil process, despite historical divergences stemming from the inquisitorial and adversarial models of justice. This notion delineates the basis of the article’s title, which seeks to explore a two-fold comparison. Firstly, the article aims to elucidate how several key elements of the reform in civil proceedings mirror certain foundational aspects and cornerstones of the U.S. pretrial phase, as provided at Federal Level. It endeavors to provide a technical explanation of this comparison, while carefully emphasizing that it does not entail a mere formal transplantation of rules, but rather a shared commonality in the framework and available decision-making tools (such as summary judgment, motion to dismiss, and judicially-led settlement). To this effect, a new semi-global model of civil justice is emerging spontaneously. Secondly, the article aspires to undertake a broader comparative analysis, capitalizing on the growing criticism of the U.S. civil justice system. It intends to caution both systems to improve their future interpretation and application of their rules

Observation of muonic Dalitz decays of chib mesons and precise spectroscopy of hidden-beauty states

The decays of the χb1(1P), χb2(1P), χb1(2P) and χb2(2P) mesons into the Υ(1S)μ+μ− final state are observed with a high significance using proton-proton collision data collected with the LHCb detector and corresponding to an integrated luminosity of 9 fb−1. The newly observed decays together with the Υ(2S) → Υ(1S)π+π− and Υ(3S) → Υ(2S)π+π− decay modes are used for precision measurements of the mass and mass splittings for the hidden-beauty states