Pub Date : 2023-05-05DOI: 10.1163/27725650-03010005
Yota Negishi
I am honored to be invited to this symposium featuring on my recent book and to receive comments from two distinguished experts, Sabrina Ragone and Jorge Contesse; for this I sincerely thank Editors-in-Chief, in particular Giuseppe Martinico, for convening this fantastic symposium. Taking this opportunity, I would like to illustrate the whole picture of this project for readers. The first section identifies the research problem and explains about the main topic, namely, the doctrine of conventionality control (1). Next, the second section provides a summary of the contents of each chapter (2). Finally, the third section presents the most original contribution of this book, that is, the trapezium model of the relationship between international and domestic law (3).
{"title":"A Normative Model of Conventionality Control","authors":"Yota Negishi","doi":"10.1163/27725650-03010005","DOIUrl":"https://doi.org/10.1163/27725650-03010005","url":null,"abstract":"\u0000I am honored to be invited to this symposium featuring on my recent book and to receive comments from two distinguished experts, Sabrina Ragone and Jorge Contesse; for this I sincerely thank Editors-in-Chief, in particular Giuseppe Martinico, for convening this fantastic symposium. Taking this opportunity, I would like to illustrate the whole picture of this project for readers. The first section identifies the research problem and explains about the main topic, namely, the doctrine of conventionality control (1). Next, the second section provides a summary of the contents of each chapter (2). Finally, the third section presents the most original contribution of this book, that is, the trapezium model of the relationship between international and domestic law (3).","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"45 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":"132509419","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: 10.1163/27725650-03010014
A. Baraggia
The Italian general elections of September 2022 introduced several interesting novelties in Italian politics. Indeed, the election’s results – which marked the victory of a new governing coalition led by Brothers of Italy, a far-right party, together with the League, Forza Italia, and Noi Moderati – represent a turning point in Italian politics, a significant shift in the political spectrum. In this brief essay, I will tackle the implications of such a shift: after a quick overview of the constitutional guarantees of the Italian system, which, I argue, can protect Italian democracy from illiberal shifts, I will focus on one of the most interesting aspects of the new government, the attitude towards the EU and international law.
2022年9月的意大利大选为意大利政治带来了一些有趣的新事物。事实上，这次选举的结果——标志着由极右翼政党意大利兄弟党(Brothers of Italy)领导的新执政联盟的胜利，以及联盟党、意大利力量党(Forza Italia)和现代党(Noi Moderati)——代表了意大利政治的一个转折点，是政治光谱上的一个重大转变。在这篇简短的文章中，我将处理这种转变的影响:在快速概述意大利制度的宪法保障之后，我认为，这可以保护意大利民主免受非自由主义的转变，我将关注新政府最有趣的一个方面，即对欧盟和国际法的态度。
{"title":"The Italian Right-Wing Government and the EU: an Interesting Case Study","authors":"A. Baraggia","doi":"10.1163/27725650-03010014","DOIUrl":"https://doi.org/10.1163/27725650-03010014","url":null,"abstract":"\u0000The Italian general elections of September 2022 introduced several interesting novelties in Italian politics. Indeed, the election’s results – which marked the victory of a new governing coalition led by Brothers of Italy, a far-right party, together with the League, Forza Italia, and Noi Moderati – represent a turning point in Italian politics, a significant shift in the political spectrum. In this brief essay, I will tackle the implications of such a shift: after a quick overview of the constitutional guarantees of the Italian system, which, I argue, can protect Italian democracy from illiberal shifts, I will focus on one of the most interesting aspects of the new government, the attitude towards the EU and international law.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"458 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":"125851203","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: 10.1163/27725650-03010007
Sabrina Ragone
This contribution addresses conventionality control in its double dimension, encompassing international law and constitutional law. It focuses on the comparative methodological issues when equating the Inter-American and the European systems of protection of human rights, taking into account the progressive “Europeanization” of the former’s case law. Then, it critically examines the question of judicial authority of domestic and international courts in multilevel systems, to raise a few points concerning the complex relationship between international courts and states.
{"title":"Conventionality Control Between International and Constitutional Law","authors":"Sabrina Ragone","doi":"10.1163/27725650-03010007","DOIUrl":"https://doi.org/10.1163/27725650-03010007","url":null,"abstract":"\u0000This contribution addresses conventionality control in its double dimension, encompassing international law and constitutional law. It focuses on the comparative methodological issues when equating the Inter-American and the European systems of protection of human rights, taking into account the progressive “Europeanization” of the former’s case law. Then, it critically examines the question of judicial authority of domestic and international courts in multilevel systems, to raise a few points concerning the complex relationship between international courts and states.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"18 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":"132587183","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: 10.1163/27725650-03010003
N. K. Okyay
The hybrid clause is an optional dispute resolution clause that offers the parties to a contract, for resolving their dispute, an option between state courts and arbitral tribunals. The combination of two different dispute resolution mechanisms, litigation and arbitration, raises the issue of determining the international or regional instruments applicable to this clause, such as Brussels I bis Regulation. As a matter of fact, the Recast of Brussels I Regulation, in line with its predecessors, excludes arbitration from its material scope. Since the hybrid clause contains an option to arbitrate, this exclusion raises the question of the applicability of the Regulation to this form of optional dispute resolution clause.
{"title":"The Applicability of the Brussels I bis Regulation to Hybrid Dispute Resolution Clauses","authors":"N. K. Okyay","doi":"10.1163/27725650-03010003","DOIUrl":"https://doi.org/10.1163/27725650-03010003","url":null,"abstract":"\u0000The hybrid clause is an optional dispute resolution clause that offers the parties to a contract, for resolving their dispute, an option between state courts and arbitral tribunals. The combination of two different dispute resolution mechanisms, litigation and arbitration, raises the issue of determining the international or regional instruments applicable to this clause, such as Brussels I bis Regulation. As a matter of fact, the Recast of Brussels I Regulation, in line with its predecessors, excludes arbitration from its material scope. Since the hybrid clause contains an option to arbitrate, this exclusion raises the question of the applicability of the Regulation to this form of optional dispute resolution clause.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"2447 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":"127476625","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: 10.1163/27725650-03010004
F. Sorace
As a consequence of the cjeu’s decisions in Achmea, Komstroy, and pl Holdings, the enforcement of intra-EU investment awards has now become subject to serious challenges based on EU law. At the same time, the enforcement system under the icsid Convention is designed to prevent challenges at the enforcement stage. The article analyzes the potential clash between contrasting obligations under EU law and international law from the perspective of Italian law. To this end, it draws from the experience of other EU courts in the context of the Micula saga as well as from the only available example of enforcement of an icsid award in Italy. The article considers the various possible approaches to the intra-EU issue and then examines the compatibility of the icsid enforcement system with the Italian Constitution.
{"title":"Enforcing an icsid Award Issued in an Intra-EU Investment Arbitration: An Italian Law Perspective","authors":"F. Sorace","doi":"10.1163/27725650-03010004","DOIUrl":"https://doi.org/10.1163/27725650-03010004","url":null,"abstract":"\u0000As a consequence of the cjeu’s decisions in Achmea, Komstroy, and pl Holdings, the enforcement of intra-EU investment awards has now become subject to serious challenges based on EU law. At the same time, the enforcement system under the icsid Convention is designed to prevent challenges at the enforcement stage. The article analyzes the potential clash between contrasting obligations under EU law and international law from the perspective of Italian law. To this end, it draws from the experience of other EU courts in the context of the Micula saga as well as from the only available example of enforcement of an icsid award in Italy. The article considers the various possible approaches to the intra-EU issue and then examines the compatibility of the icsid enforcement system with the Italian Constitution.","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":"127670963","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: 10.1163/27725650-03010009
Michele Grassi
This note examines a recent judgment of the Corte di Cassazione, in which the Court rejected an opposition against the enforcement of a final judgment that was purportedly irreconcilable with later rulings of the Court of Justice of the European Union (“cjeu”) and the European Court of Human Rights (“ECtHR”) on very similar cases. The impact of judgments rendered by international tribunals on domestic procedural rules concerning res judicata often raises complex issues. This is mainly due to the difficult balance between the principle of legal certainty on one hand, and the principles of legality and effectiveness of European Union (“EU”) law and the human rights protection system, on the other. Nonetheless, in the case under review, the rules and principles developed through the years by the cjeu and the Italian Corte Costituzionale, that will be analysed in this note, provided clear guidance to the Corte di Cassazione.
{"title":"A (Not Always) Difficult Balance between Legal Certainty and Legality: The Effects of cjeu and ECtHR Case Law on National Res Judicata","authors":"Michele Grassi","doi":"10.1163/27725650-03010009","DOIUrl":"https://doi.org/10.1163/27725650-03010009","url":null,"abstract":"\u0000This note examines a recent judgment of the Corte di Cassazione, in which the Court rejected an opposition against the enforcement of a final judgment that was purportedly irreconcilable with later rulings of the Court of Justice of the European Union (“cjeu”) and the European Court of Human Rights (“ECtHR”) on very similar cases. The impact of judgments rendered by international tribunals on domestic procedural rules concerning res judicata often raises complex issues. This is mainly due to the difficult balance between the principle of legal certainty on one hand, and the principles of legality and effectiveness of European Union (“EU”) law and the human rights protection system, on the other. Nonetheless, in the case under review, the rules and principles developed through the years by the cjeu and the Italian Corte Costituzionale, that will be analysed in this note, provided clear guidance to the Corte di Cassazione.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"1 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":"132723844","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: 10.1163/27725650-03010001
A. Kalantzi
Avoiding lis pendens within the EU has always been considered a guarantee for effective judicial cooperation. However, since arbitration is excluded from the scope of European procedural law, questions have been raised as to how parallel arbitral and state court procedures will be regulated. This article aims to illustrate the mechanisms that have been proposed to resolve this issue outside the European Regulations’ scheme with a focus on parallel arbitrations. Under this scope, the author attempts to discuss the potential solutions that have been introduced in respect to “lis pendens” between an arbitral tribunal and a state court as well as their effectiveness. Taken the tie from this analysis, the last part of this article focuses on the issue of parallel arbitral procedures and whether conflicts of jurisdiction can be resolved by using the same mechanisms as adopted in the case of parallel the arbitral and state court proceedings.
{"title":"Parallel Arbitral Proceedings: An Analysis of the Issue of Parallel Arbitrations in International Commercial Arbitration within the European Legal Space","authors":"A. Kalantzi","doi":"10.1163/27725650-03010001","DOIUrl":"https://doi.org/10.1163/27725650-03010001","url":null,"abstract":"\u0000Avoiding lis pendens within the EU has always been considered a guarantee for effective judicial cooperation. However, since arbitration is excluded from the scope of European procedural law, questions have been raised as to how parallel arbitral and state court procedures will be regulated. This article aims to illustrate the mechanisms that have been proposed to resolve this issue outside the European Regulations’ scheme with a focus on parallel arbitrations. Under this scope, the author attempts to discuss the potential solutions that have been introduced in respect to “lis pendens” between an arbitral tribunal and a state court as well as their effectiveness. Taken the tie from this analysis, the last part of this article focuses on the issue of parallel arbitral procedures and whether conflicts of jurisdiction can be resolved by using the same mechanisms as adopted in the case of parallel the arbitral and state court proceedings.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"21 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":"133845772","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 : 2022-12-23DOI: 10.1163/27725650-02020014
M. La Manna
The book review tackles Judge Aitala’s recently published International Criminal Law textbook and addresses its main features both against the background of existing textbooks and in light of the different conceptual and methodological toolkits used by international lawyers, on the one hand, and criminal lawyers, on the other, in their daily activities. It its purported that the two different groups should not think of icl as a bone of contention, but as an opportunity to cooperate and put to good use their respective knowledge and competence, instead.
{"title":"International Criminal Law: Bone of Contention or Interdisciplinary Cooperation Opportunity?","authors":"M. La Manna","doi":"10.1163/27725650-02020014","DOIUrl":"https://doi.org/10.1163/27725650-02020014","url":null,"abstract":"\u0000The book review tackles Judge Aitala’s recently published International Criminal Law textbook and addresses its main features both against the background of existing textbooks and in light of the different conceptual and methodological toolkits used by international lawyers, on the one hand, and criminal lawyers, on the other, in their daily activities. It its purported that the two different groups should not think of icl as a bone of contention, but as an opportunity to cooperate and put to good use their respective knowledge and competence, instead.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"120 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124163091","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 : 2022-12-23DOI: 10.1163/27725650-02020006
C. Milo
International courts and tribunals are frequently faced with the need to fill lacunae in their own rules of procedure. Among the many tools at the disposal of adjudicative bodies, external precedent emerges as one of the most flexible and intuitive, allowing to “borrow” from the procedure of other bodies. This paper offers an overview of how international courts and tribunals use external precedent on procedural matters in the context of a number of typical gap-filling techniques. To this end, it delves into the possibility of employing external precedent as a subsidiary means for the determination of rules of law, as an instrument for carrying out systemic interpretation, and as a way of invoking and delimiting inherent powers. Through this analysis, the paper questions the view according to which recourse to external precedent necessarily contributes to the legitimacy of international courts and tribunals. It shows that, at least in procedural matters, this nexus is not straightforward and varies according to the context in which reference to external precedent is made.
{"title":"Tackling Lacunae in International Courts and Tribunals’ Procedure: The Role of External Precedentf","authors":"C. Milo","doi":"10.1163/27725650-02020006","DOIUrl":"https://doi.org/10.1163/27725650-02020006","url":null,"abstract":"\u0000International courts and tribunals are frequently faced with the need to fill lacunae in their own rules of procedure. Among the many tools at the disposal of adjudicative bodies, external precedent emerges as one of the most flexible and intuitive, allowing to “borrow” from the procedure of other bodies. This paper offers an overview of how international courts and tribunals use external precedent on procedural matters in the context of a number of typical gap-filling techniques. To this end, it delves into the possibility of employing external precedent as a subsidiary means for the determination of rules of law, as an instrument for carrying out systemic interpretation, and as a way of invoking and delimiting inherent powers. Through this analysis, the paper questions the view according to which recourse to external precedent necessarily contributes to the legitimacy of international courts and tribunals. It shows that, at least in procedural matters, this nexus is not straightforward and varies according to the context in which reference to external precedent is made.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129227015","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 : 2022-12-23DOI: 10.1163/27725650-02020012
A. Spagnolo
The Russian aggression against Ukraine provoked an unprecedented response from “Western” States, which promptly and increasingly transferred weapons to the latter State. The present article, looking in particular at the Italian domestic practice, argues that supplying weapons to Ukraine is legitimate under ius ad bellum, since Ukraine is lawfully exercising its right to self-defence. This conclusion will be reached through an analysis of the arguments advanced by Russia to justify the “special military operation” launched on the 24 February 2022.
{"title":"The Armed Attack Against Ukraine and the Italian Reaction From a Ius ad Bellum Perspective","authors":"A. Spagnolo","doi":"10.1163/27725650-02020012","DOIUrl":"https://doi.org/10.1163/27725650-02020012","url":null,"abstract":"\u0000The Russian aggression against Ukraine provoked an unprecedented response from “Western” States, which promptly and increasingly transferred weapons to the latter State. The present article, looking in particular at the Italian domestic practice, argues that supplying weapons to Ukraine is legitimate under ius ad bellum, since Ukraine is lawfully exercising its right to self-defence. This conclusion will be reached through an analysis of the arguments advanced by Russia to justify the “special military operation” launched on the 24 February 2022.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125691256","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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