Pub Date : 2023-08-10DOI: 10.1163/27725650-03020002
F. Peirone
Within the broader discourse regarding the nature, evolution, and health of the rule of law in the EU the recent emphasis of the EU institutions on the topic of anti-corruption has gone unnoticed for a long time. Still, hidden by the technicalities and the apparent non-binding nature of the EU indications on how to fight corruption in Member treatys, this is quite a prolific trend, as it further develops the EU with the necessary anti-corruption tools. In particular, the EU proclaims that a key element of the rule of law is an impartial application and effective enforcement of the law, as ensured by an adequate anti-corruption framework.
{"title":"Another Brick in the Building of the EU Rule of Law: Anti-Corruption","authors":"F. Peirone","doi":"10.1163/27725650-03020002","DOIUrl":"https://doi.org/10.1163/27725650-03020002","url":null,"abstract":"\u0000Within the broader discourse regarding the nature, evolution, and health of the rule of law in the EU the recent emphasis of the EU institutions on the topic of anti-corruption has gone unnoticed for a long time. Still, hidden by the technicalities and the apparent non-binding nature of the EU indications on how to fight corruption in Member treatys, this is quite a prolific trend, as it further develops the EU with the necessary anti-corruption tools. In particular, the EU proclaims that a key element of the rule of law is an impartial application and effective enforcement of the law, as ensured by an adequate anti-corruption framework.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"111 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117197393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-08DOI: 10.1163/27725650-03020001
Elena Corcione
In the context of the European Convention on Human Rights, the doctrine of autonomous concepts seems to perfectly embody the dogma of the limited relevance of domestic law before international courts, since it postulates that classifications and qualifications in national laws have a relative value and may only constitute a starting point for the Court’s interpretation. Traditionally, domestic law is merely considered as part of the State conduct subject to the Court’s judicial review vis-à-vis conventional obligations. However, the purported independence of autonomous concepts from domestic law is far from absolute in practice, since the process of interpretation of autonomous concepts may contemplate consensus arguments, possibly leading to support or disincentivize autonomous interpretation. The article explores the weaknesses and strengths of this possible approach, which ultimately serves the purpose of avoiding the adoption of autonomous concepts completely detached from national legal systems and preventing criticism of illegitimate judicial law-making.
{"title":"Is There a Role for Domestic Law in the Interpretation of the European Convention on Human Rights?","authors":"Elena Corcione","doi":"10.1163/27725650-03020001","DOIUrl":"https://doi.org/10.1163/27725650-03020001","url":null,"abstract":"\u0000In the context of the European Convention on Human Rights, the doctrine of autonomous concepts seems to perfectly embody the dogma of the limited relevance of domestic law before international courts, since it postulates that classifications and qualifications in national laws have a relative value and may only constitute a starting point for the Court’s interpretation. Traditionally, domestic law is merely considered as part of the State conduct subject to the Court’s judicial review vis-à-vis conventional obligations. However, the purported independence of autonomous concepts from domestic law is far from absolute in practice, since the process of interpretation of autonomous concepts may contemplate consensus arguments, possibly leading to support or disincentivize autonomous interpretation. The article explores the weaknesses and strengths of this possible approach, which ultimately serves the purpose of avoiding the adoption of autonomous concepts completely detached from national legal systems and preventing criticism of illegitimate judicial law-making.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125543419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-05DOI: 10.1163/27725650-03010012
Michela Chianese
On 4 and 6 November 2022, the Italian Ministry of Home Affairs, in agreement with the Ministry of Defense and the Ministry of Infrastructures and Transport, issued two inter-ministerial decrees effectively prohibiting two ngo humanitarian vessels from staying in Italian territorial waters for a longer period than “necessary”. As the former Minister of Home Affairs stated, such decrees were the “first act” of a policy aimed at calling on flag countries to respect their international law obligations. In the context of a press release, the Minister even stated that migrants saved at sea and in need of international and complementary protection could be informed of the possibility to apply for asylum on board of the rescuing vessels. The present comment offers an evaluation of the compatibility of such policy, finally given legal status in the Italian Law Decree n. 1/2023, under international law, bearing in mind both what it is legally required of shipmasters vis-à-vis rescued migrants and State obligations under international law.
{"title":"The Role of Flag States of ngo Vessels under Italy’s New Migration Policy","authors":"Michela Chianese","doi":"10.1163/27725650-03010012","DOIUrl":"https://doi.org/10.1163/27725650-03010012","url":null,"abstract":"\u0000On 4 and 6 November 2022, the Italian Ministry of Home Affairs, in agreement with the Ministry of Defense and the Ministry of Infrastructures and Transport, issued two inter-ministerial decrees effectively prohibiting two ngo humanitarian vessels from staying in Italian territorial waters for a longer period than “necessary”. As the former Minister of Home Affairs stated, such decrees were the “first act” of a policy aimed at calling on flag countries to respect their international law obligations. In the context of a press release, the Minister even stated that migrants saved at sea and in need of international and complementary protection could be informed of the possibility to apply for asylum on board of the rescuing vessels. The present comment offers an evaluation of the compatibility of such policy, finally given legal status in the Italian Law Decree n. 1/2023, under international law, bearing in mind both what it is legally required of shipmasters vis-à-vis rescued migrants and State obligations under international law.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125666941","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-05DOI: 10.1163/27725650-03010015
Nickson Mayieka Oira
The book review analyzes the work of two renowned scholars who have highlighted how fundamental constitutional amendments could take place through interpretation of statutes by the judicial arm of government or through legislation without invoking the formal constitutional amendment processes. Such constitutional changes are fundamental and therefore transform the polity of a society without involving the constituent power. It is crystal clear from the authors that constitutional revolution is not so much about the process of change but about the significance of the changes made.
{"title":"Fundamental Constitutional Changes Without Participation of the Constituent Power","authors":"Nickson Mayieka Oira","doi":"10.1163/27725650-03010015","DOIUrl":"https://doi.org/10.1163/27725650-03010015","url":null,"abstract":"\u0000The book review analyzes the work of two renowned scholars who have highlighted how fundamental constitutional amendments could take place through interpretation of statutes by the judicial arm of government or through legislation without invoking the formal constitutional amendment processes. Such constitutional changes are fundamental and therefore transform the polity of a society without involving the constituent power. It is crystal clear from the authors that constitutional revolution is not so much about the process of change but about the significance of the changes made.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133664123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-05DOI: 10.1163/27725650-03010006
J. Contesse
In Conventionality Control of Domestic Law: Constitutionalised International Adjudication and Internationalised Constitutional Adjudication, Yota Negishi advances a theory of conventionality control, a doctrine of interaction between international human rights law and national law, that puts at the center of such interaction the pro persona principle. This commentary analyses Negishi’s work, highlighting its major contributions and noting what it sees as problematic areas of the theory, in particular, the over reliance on the principle, and its use as a mechanism to allocate judicial competences. The commentary notes how the Inter-American Court of Human Rights’ use of the principle can explain some of its most expansive caselaw, a caselaw that has come under scrutiny by members of the Court and that deserves serious attention by legal scholars.
{"title":"Conventionality Control and the Limits of Pro Persona Jurisprudence","authors":"J. Contesse","doi":"10.1163/27725650-03010006","DOIUrl":"https://doi.org/10.1163/27725650-03010006","url":null,"abstract":"\u0000In Conventionality Control of Domestic Law: Constitutionalised International Adjudication and Internationalised Constitutional Adjudication, Yota Negishi advances a theory of conventionality control, a doctrine of interaction between international human rights law and national law, that puts at the center of such interaction the pro persona principle. This commentary analyses Negishi’s work, highlighting its major contributions and noting what it sees as problematic areas of the theory, in particular, the over reliance on the principle, and its use as a mechanism to allocate judicial competences. The commentary notes how the Inter-American Court of Human Rights’ use of the principle can explain some of its most expansive caselaw, a caselaw that has come under scrutiny by members of the Court and that deserves serious attention by legal scholars.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124647489","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-05DOI: 10.1163/27725650-03010010
Maria Antonia Panascì
This case note recounts and critically analyzes a judgment with which the Italian Corte di Cassazione has pronounced itself on the acquisition of Italian citizenship jure sanguinis by descendants of Italian ancestors who had allegedly renounced their citizenship upon tacit acceptance of mass naturalization in Brazil. The case note argues that the judgment has effectively resorted to the preclusion of inferences from silence to protect the fundamental status of citizenship from loss. Nonetheless, it claims that the relationship between national rules on modes of acquisition of citizenship and EU citizenship should have been better framed.
{"title":"Breaking the Ancestral Silence: Recognition of Citizenship by Descent Despite the Great Brazilian Naturalization","authors":"Maria Antonia Panascì","doi":"10.1163/27725650-03010010","DOIUrl":"https://doi.org/10.1163/27725650-03010010","url":null,"abstract":"\u0000This case note recounts and critically analyzes a judgment with which the Italian Corte di Cassazione has pronounced itself on the acquisition of Italian citizenship jure sanguinis by descendants of Italian ancestors who had allegedly renounced their citizenship upon tacit acceptance of mass naturalization in Brazil. The case note argues that the judgment has effectively resorted to the preclusion of inferences from silence to protect the fundamental status of citizenship from loss. Nonetheless, it claims that the relationship between national rules on modes of acquisition of citizenship and EU citizenship should have been better framed.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126083382","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-05DOI: 10.1163/27725650-03010013
Luca Bartolucci
The paper analyzes the conditionality mechanism triggered by the Next Generation EU and by the National Recovery and Resilience Plan. In particular, the interpretation used sees in the nrrp the last stage of the process of conditionality and as a development of the concept of external constraint. Finally, the nrrp is related to the monetary policies of the ecb and to the reform of European economic governance.
{"title":"The nrrp as a “Self-Restraint” and as a Development of the (Spending) Conditionality Mechanism","authors":"Luca Bartolucci","doi":"10.1163/27725650-03010013","DOIUrl":"https://doi.org/10.1163/27725650-03010013","url":null,"abstract":"\u0000The paper analyzes the conditionality mechanism triggered by the Next Generation EU and by the National Recovery and Resilience Plan. In particular, the interpretation used sees in the nrrp the last stage of the process of conditionality and as a development of the concept of external constraint. Finally, the nrrp is related to the monetary policies of the ecb and to the reform of European economic governance.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127222029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-05DOI: 10.1163/27725650-03010011
Pierfrancesco Rossi
In Judgment No. 18801 of 2022, in the context of an employment dispute with a foreign State, the Corte di Cassazione declined to give effect to a contract clause conferring exclusive jurisdiction to the courts of the employer State and upheld Italian jurisdiction. With this decision, which was based on the limitations on party autonomy in respect to contracts of employment set forth in the EU Brussels I Regulation, the Court drastically departed from recent precedents where it had declined jurisdiction in the presence of similar contract clauses. Such precedents, in their turn, stood in stark contrast to the earlier jurisprudence of the Court, where jurisdiction had been affirmed based on the Brussels I Regulation. This contribution argues that this ruling constitutes a welcome and much-needed turnaround, bringing the Court’s case law back into line with EU law and the case law of the European Court of Justice and significantly improving the judicial protection afforded to employees of foreign States in Italy – a veritable return to normalcy in employment disputes with foreign States.
{"title":"The Interplay of State Immunity and Contractual Forum Selection Clauses in Employment Cases: Return to Normalcy","authors":"Pierfrancesco Rossi","doi":"10.1163/27725650-03010011","DOIUrl":"https://doi.org/10.1163/27725650-03010011","url":null,"abstract":"\u0000In Judgment No. 18801 of 2022, in the context of an employment dispute with a foreign State, the Corte di Cassazione declined to give effect to a contract clause conferring exclusive jurisdiction to the courts of the employer State and upheld Italian jurisdiction. With this decision, which was based on the limitations on party autonomy in respect to contracts of employment set forth in the EU Brussels I Regulation, the Court drastically departed from recent precedents where it had declined jurisdiction in the presence of similar contract clauses. Such precedents, in their turn, stood in stark contrast to the earlier jurisprudence of the Court, where jurisdiction had been affirmed based on the Brussels I Regulation. This contribution argues that this ruling constitutes a welcome and much-needed turnaround, bringing the Court’s case law back into line with EU law and the case law of the European Court of Justice and significantly improving the judicial protection afforded to employees of foreign States in Italy – a veritable return to normalcy in employment disputes with foreign States.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125453599","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-05DOI: 10.1163/27725650-03010008
Yota Negishi
This rejoinder is to provide author’s answers to the questions posed by commentators. The first issues is the analytical scope and methods in comparison between the Inter-American and European Courts of Human Rights. The author particularly responds to the lack of analysis on social rights. The second issue is the political backlashes against the judicial control by human rights courts. The author replies that the role of “political”conventionality control complementing the judiciaries is of importance.
{"title":"Rejoinder from the Author","authors":"Yota Negishi","doi":"10.1163/27725650-03010008","DOIUrl":"https://doi.org/10.1163/27725650-03010008","url":null,"abstract":"\u0000This rejoinder is to provide author’s answers to the questions posed by commentators. The first issues is the analytical scope and methods in comparison between the Inter-American and European Courts of Human Rights. The author particularly responds to the lack of analysis on social rights. The second issue is the political backlashes against the judicial control by human rights courts. The author replies that the role of “political”conventionality control complementing the judiciaries is of importance.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126621529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-05-05DOI: 10.1163/27725650-03010002
Aygun Mammadzada
Arbitration is a legal promise between the contracting parties, and they should hold their promises. If there is any breach of that promise or any attempt to breach, the violating party should bear the outcomes. Upon a breach of an arbitration agreement, remedies become more crucial than ever to refrain the other party from commencing parallel court proceedings. Together with a stay and damages, a party seeking an effective remedy may benefit from an anti-suit injunction issued by either the court or tribunal. This paper examines the application perspectives of the mutual trust principle to arbitral proceedings while speculating upon anti-suit measures granted by an arbitral tribunal. The discussions particularly highlight the rebirth of the issue in the EU following the Gazprom case and the relevance/irrelevance of the latter to the West Tankers scenario. Considering the reasonings in the respective cases, the paper emphasizes uncertainty about the effectiveness of arbitral anti-suit injunctions and their enforcement. Upon identifying major normative gaps and shortcomings created by the essence of the existing legal rules, the paper reveals possible practical complexities and likely ineffectiveness of such measures. The findings suggest that uncertainties might be ultimately resolved by the revisions of the law which are on the horizon and reassessment of West Tankers by the cjeu or possible revision of the existing Brussels Recast Regulation taking scrutiny of the Gazprom judgment. At this juncture, the paper will briefly delve into the impact of Brexit on anti-suit injunctions in support of arbitration and its implications for arbitration rules and practice in the changing landscape.
{"title":"Arbitral Anti-Suit Measures: Implications of Mutual Trust","authors":"Aygun Mammadzada","doi":"10.1163/27725650-03010002","DOIUrl":"https://doi.org/10.1163/27725650-03010002","url":null,"abstract":"\u0000Arbitration is a legal promise between the contracting parties, and they should hold their promises. If there is any breach of that promise or any attempt to breach, the violating party should bear the outcomes. Upon a breach of an arbitration agreement, remedies become more crucial than ever to refrain the other party from commencing parallel court proceedings. Together with a stay and damages, a party seeking an effective remedy may benefit from an anti-suit injunction issued by either the court or tribunal.\u0000This paper examines the application perspectives of the mutual trust principle to arbitral proceedings while speculating upon anti-suit measures granted by an arbitral tribunal. The discussions particularly highlight the rebirth of the issue in the EU following the Gazprom case and the relevance/irrelevance of the latter to the West Tankers scenario. Considering the reasonings in the respective cases, the paper emphasizes uncertainty about the effectiveness of arbitral anti-suit injunctions and their enforcement. Upon identifying major normative gaps and shortcomings created by the essence of the existing legal rules, the paper reveals possible practical complexities and likely ineffectiveness of such measures. The findings suggest that uncertainties might be ultimately resolved by the revisions of the law which are on the horizon and reassessment of West Tankers by the cjeu or possible revision of the existing Brussels Recast Regulation taking scrutiny of the Gazprom judgment. At this juncture, the paper will briefly delve into the impact of Brexit on anti-suit injunctions in support of arbitration and its implications for arbitration rules and practice in the changing landscape.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"327 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132199298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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