Contracting worlds : the many autonomies of private law

Deutsche Fassung: Vertragswelten: Das Recht in der Fragmentierung von private governance regimes. Rechtshistorisches Journal 17, 1998, 234-265. Italienische Fassung: Mondi contrattuali. Discourse rights nel diritto privato. In: Gunther Teubner, Diritto policontesturale: Prospettive giuridiche della pluralizzazione dei mondi sociali. La città del sole, Neapel 1999, 113-142. Portugiesische Fassung: Mundos contratuais: o direito na fragmentacao de regimes de private governance. In: Gunther Teubner, Direito, Sistema, Policontexturalidade, Editora Unimep, Piracicaba Sao Paolo, Brasil 2005, 269-298

The Italian Constitutional Court’s Ruling against State Immunity when International Crimes Occur: Thoughts on Decision No 238 of 2014

The tension between access to justice and jurisdictional immunity of States is one of the most debated topics in current public international law. The present essay aims to explore the Italian Constitutional Court’s opinion on this matter, in particular after its recent judgment no. 238 of 2014, in which the Court stated that Italy is no longer bound by the rule on State immunity in the case of civil proceedings dealing with damages caused by the Nazi army during World War II. Studying the Court’s reasoning and the arguments provided in order to compel Italy not to implement the ICJ judgment in the Jurisdictional Immunities of the State could provide a new point of view in the International Community, based on domestic constitutional norms, about the fundamental need to protect the rights of the human being, even to the detriment of a international customary rule

European Principles Governing National Administrative Proceedings

It is critical that the process of developing general principles of Community administrative law continue, notwithstanding the marked diversity of supranational administrative proceedings. Because Community law has traditionally been focused on activities relevant to the common market, an asymmetry between the regulation of market-related administrative proceedings and other types of administrative proceedings has developed

Governance: A Soft Revolution with hard Political and Legal Effects

El supuesto básico de este artículo es que la gobernanza señala un alejamiento de los dos pilares del proyecto moderno: la democracia representativa y las instituciones legislativas. La gobernanza, como fenómeno institucional complejo, que va mucho mas allá de la participación, ha desestructurado sensiblemente los dos principales puntos de referencia de la democracia moderna: pueblo y territorio. Su trato inclusivo y abierto no ha impedido el surgimiento de un lado oscuro, hecho de modos exclusivos: un teatro sin publicidad. Desde la perspectiva de las transformaciones este artículo pone en evidencia la emergencia de una normatividad cambiante y fluida, capaz de adaptarse a las especificidades y a la variabilidad de situaciones y procesos, ofuscando inevitablemente la misma primacía de la legislación.The basic assumption of this article is that governance marks a departure from the two pillars of the project of modernity: representative democracy and legislative institutions. Governance, as a complex institutional phenomenon that goes far beyond participation, has significantly deconstructed the two main points of reference of modern democracy, that is, people and territory. Furthermore, its inclusive and open nature has not prevented the emergence of a dark side, made of exclusive modes: a theater without publicity. From the perspective of transformations, this article highlights the emergence of a changing and fluid normativity, one capable of adapting to the specificity and the variability of situations and processes, inevitably eclipsing the primacy of the legislation itself

"Law Reporting" in Europe in the Early-Modern Period: Two Experiences in Comparison

The article challenges the cliché handed down to us by the European legal tradition of a marked contrast between ‘common law’, assumed as case-law/anti-doctrinal law, always opposed to ‘civil law’, seen as doctrinal/non case-law. Focusing on English and Italian legal historiography on the Great Tribunals and the collections of their decisions on both sides of the Channel, the article attempts to show that the traditional paradigm cannot be applied tout court to the medieval and early-modern period. In particular, the article highlights that the European Continental Great Tribunals’ decisiones, credited with binding force by such powerful and authoritative courts, can be considered – in broad sense – nothing else than ‘case-law’

Transfer of Company’s Registered Office and Forum-Shopping in International Insolvency Cases: an Important Decision from Italy

The Italian Supreme Court (Corte di Cassazione) has issued an important decision on companies’ freedom of establishment in the European Union (EU) and on jurisdiction over insolvency proceedings. It was a typical forum-shopping case in insolvency situations, in which a company decides to shift its registered office abroad before a court from its original country declares the insolvency. The Cassazione did not apply EC-Regulation 1346/2000 on cross-border insolvency, but declared the company as liquidated because of the transfer of the registered office. This solution leaves many questions unclear, both under EC-freedom of establishment and under jurisdiction rules for cross-border insolvenc

Forms of European Administrative Action

Chiti examines the various forms of European administration and their associated administrative law systems. Chiti recounts the history of administration and of administrative law in the European Community, examines the main types of administrative action in the Community, and highlights the novel elements and the shortcomings of European administrative law today

The ideal of the certainty in law: the skin and the heart of law

The doubt about certainty like an absolute value in law and as an ideal full in legal system (argument about impossibility) is a controversial fact in contemporary legal theory. In this text I examine some contemporary doctrines about the classic understanding (in critical sense) of this ideal. I have selected the most representative doctrines: doctrine about "open texture of Law" (H.L.A. Hart), starting point in this discussion; doctrine about "Il Diritto mite" (G. Zagrebelsky), from the continental European legal tradition at present; and doctrine about "vagueness in Law" (T.A.O. Endicott), this doctrine is the most recent, from the Anglo-Saxon legal tradition. Finally, in Conclusions, I analyze if this doubt (argument about impossibility) contaminates (in some sense) to the concept of law or to the characteristics that describe law in the contemporary Constitutional State

Health and safety at work: the prevention model in Italy. WP C.S.D.L.E. “Massimo D’Antona”.IT – 408/2020

A research itinerary aimed at clarifying the substantive content and the type of prevention that shapes the rules for the protection of health and safety of workers in the Italian legal system. The focus will be on the difference between primary and secondary prevention in the warranty of fundamental right