Abstract In a thriving crypto-assets market, crypto exchange platforms play a pivotal role. Indeed, such trading systems are instrumental to the matching of demand and supply (trading) as well as the transfer of tokens (settlement and post-trading). Yet, there is currently no bespoke regulatory framework applicable to crypto exchange, raising pressing questions on whether and how those platforms are regulated. This article examines the Italian regulatory framework applicable to crypto-exchange platforms. It shows that the present regulatory engagement with crypto exchanges relates to the qualification of the crypto assets traded. Depending on such qualification, different financial regimes could be triggered.
{"title":"The Legal Characterization of Crypto-Exchange Platforms","authors":"Andrea Minto","doi":"10.1515/gj-2020-0085","DOIUrl":"https://doi.org/10.1515/gj-2020-0085","url":null,"abstract":"Abstract In a thriving crypto-assets market, crypto exchange platforms play a pivotal role. Indeed, such trading systems are instrumental to the matching of demand and supply (trading) as well as the transfer of tokens (settlement and post-trading). Yet, there is currently no bespoke regulatory framework applicable to crypto exchange, raising pressing questions on whether and how those platforms are regulated. This article examines the Italian regulatory framework applicable to crypto-exchange platforms. It shows that the present regulatory engagement with crypto exchanges relates to the qualification of the crypto assets traded. Depending on such qualification, different financial regimes could be triggered.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"137 - 156"},"PeriodicalIF":0.0,"publicationDate":"2021-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46134859","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}
Abstract This study analyses the setting aside of arbitral awards for contradicting public policy according to the Turkish International Arbitration Act. In a setting aside action, the arbitral award is not scrutinized on its merits; rather, only certain grounds are taken into consideration. One ground that judges evaluate on their own motion is being against public policy. We believe that a more international public policy understanding that is in harmony with the needs and requirements of international arbitration should be adopted.
{"title":"Setting Aside Arbitral Awards for Contradicting Public Policy According to the Turkish International Arbitration Act","authors":"Asli Bayata Canyas","doi":"10.1515/gj-2021-0038","DOIUrl":"https://doi.org/10.1515/gj-2021-0038","url":null,"abstract":"Abstract This study analyses the setting aside of arbitral awards for contradicting public policy according to the Turkish International Arbitration Act. In a setting aside action, the arbitral award is not scrutinized on its merits; rather, only certain grounds are taken into consideration. One ground that judges evaluate on their own motion is being against public policy. We believe that a more international public policy understanding that is in harmony with the needs and requirements of international arbitration should be adopted.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"157 - 175"},"PeriodicalIF":0.0,"publicationDate":"2021-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2021-0038","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42991241","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}
Abstract EU Directive 2017/541 led to a sort of Copernican revolution in the definition of the system to combat international terrorism. There is not only the definition of the guidelines for a coherent system to combat the phenomenon, but it is explicitly envisaged the need for a compliance with fundamental freedoms, breaking the widespread idea that security and rights cannot coexist in a balanced system. The analysis of the national implementation of international and European legal framework returns the image of domestic systems strongly influenced by the past forms of terrorism experienced at a domestic level. From this point of view, the case-study of the definition of the crime of participation in a terrorist group in the Italian system appears to be paradigmatic of the aforementioned need to find a sustainable balance between the effectiveness of the response and the protection of fundamental rights and guarantees. The experience in the field of political terrorism but above all of mafia-type associations allowed doctrine and jurisprudence to rely on an already mature elaboration of the constitutive elements of the crime even if it was necessary to evaluate the peculiarities of the terrorist phenomenon. Unlike the mafia-type association, the terrorist group is much more liquid as it is not based on a rigid structure divided into roles but on networks active at transnational level and resulting from the connection between different autonomous cells. As a result Italian case law, not differently from what happened in other national systems, has been oriented to a strong enhancement of the psychological element in the forms of personal adherence to the ideology of Jihad and to a wide application of the crime of participation even in presence of hardly appreciable contributions from a material point of view. These forms of extensive interpretation – also derived from guidelines developed in the context of mafia-type associations and forms of so-called external conspiracy – has not only driven to forms of “subjectivization” of the crime but made participation in a terrorist group the attractive black hole of all minor hypotheses of non-associative offenses. Through the reference to the Italian experience and some solutions adopted by jurisprudence, this article aims at assuming how the use – or better the history repeating – of the classic causation model could be a useful solution to recover the legality of the crime of participation and to restore autonomous space for the application of the minor hypotheses already provided by the same Directives 541/2017 in a sustainable balance between collective security and protection of fundamental principles.
{"title":"Implementing the EU Directive 2017/541 on Combating Terrorism in a Sustainable Balance Between Efficiency, Security and Rights: The Case Study of the Participation to a Terrorist Group","authors":"G. Morgante, Roberta De Paolis","doi":"10.1515/gj-2020-0082","DOIUrl":"https://doi.org/10.1515/gj-2020-0082","url":null,"abstract":"Abstract EU Directive 2017/541 led to a sort of Copernican revolution in the definition of the system to combat international terrorism. There is not only the definition of the guidelines for a coherent system to combat the phenomenon, but it is explicitly envisaged the need for a compliance with fundamental freedoms, breaking the widespread idea that security and rights cannot coexist in a balanced system. The analysis of the national implementation of international and European legal framework returns the image of domestic systems strongly influenced by the past forms of terrorism experienced at a domestic level. From this point of view, the case-study of the definition of the crime of participation in a terrorist group in the Italian system appears to be paradigmatic of the aforementioned need to find a sustainable balance between the effectiveness of the response and the protection of fundamental rights and guarantees. The experience in the field of political terrorism but above all of mafia-type associations allowed doctrine and jurisprudence to rely on an already mature elaboration of the constitutive elements of the crime even if it was necessary to evaluate the peculiarities of the terrorist phenomenon. Unlike the mafia-type association, the terrorist group is much more liquid as it is not based on a rigid structure divided into roles but on networks active at transnational level and resulting from the connection between different autonomous cells. As a result Italian case law, not differently from what happened in other national systems, has been oriented to a strong enhancement of the psychological element in the forms of personal adherence to the ideology of Jihad and to a wide application of the crime of participation even in presence of hardly appreciable contributions from a material point of view. These forms of extensive interpretation – also derived from guidelines developed in the context of mafia-type associations and forms of so-called external conspiracy – has not only driven to forms of “subjectivization” of the crime but made participation in a terrorist group the attractive black hole of all minor hypotheses of non-associative offenses. Through the reference to the Italian experience and some solutions adopted by jurisprudence, this article aims at assuming how the use – or better the history repeating – of the classic causation model could be a useful solution to recover the legality of the crime of participation and to restore autonomous space for the application of the minor hypotheses already provided by the same Directives 541/2017 in a sustainable balance between collective security and protection of fundamental principles.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"49 - 106"},"PeriodicalIF":0.0,"publicationDate":"2021-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48404480","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}
Abstract The blurring of international barriers has impacted the nature and complexity of tortious claims and, in particular, those concerning product liability. Products manufactured in one country are often sold or used in another State – and there is often a separation in time and space between the occurrence of the harmful behaviour the resultant injury. For this reason, countries across the globe have increasingly considered it inappropriate to subject such claims to the same mechanism to identify the governing law that applies to other tortious claims of different nature such as negligence, nuisance or defamation. The EU, the UK, Australia, Canada, and India’s BRICS partners – Russia and China – are examples of legal systems that have developed a special conflict of law rules on the applicable law in product liability claims. In contrast, the principles of Indian private international law do not contain any special rule. The applicable law is determined on the basis of a uniform principle that extends to all cross-border disputes on tort. The paper provides a critical evaluation of the mechanism to identify the applicable law in international disputes on product liability. It highlights the predicaments in extending the uniform rule to product liability claims and demonstrates how it debilitates access to justice and is not suitable for disputes that arise from accidents caused by products such as autonomous vehicles, which incorporate new technology. Consequently, the paper suggests workable solutions to develop the Indian conflict-of-law rules on the subject.
{"title":"The Question of the Applicable Law in Cross-Border Claims on Product Liability: Reflections from India","authors":"Saloni Khanderia","doi":"10.1515/gj-2021-0025","DOIUrl":"https://doi.org/10.1515/gj-2021-0025","url":null,"abstract":"Abstract The blurring of international barriers has impacted the nature and complexity of tortious claims and, in particular, those concerning product liability. Products manufactured in one country are often sold or used in another State – and there is often a separation in time and space between the occurrence of the harmful behaviour the resultant injury. For this reason, countries across the globe have increasingly considered it inappropriate to subject such claims to the same mechanism to identify the governing law that applies to other tortious claims of different nature such as negligence, nuisance or defamation. The EU, the UK, Australia, Canada, and India’s BRICS partners – Russia and China – are examples of legal systems that have developed a special conflict of law rules on the applicable law in product liability claims. In contrast, the principles of Indian private international law do not contain any special rule. The applicable law is determined on the basis of a uniform principle that extends to all cross-border disputes on tort. The paper provides a critical evaluation of the mechanism to identify the applicable law in international disputes on product liability. It highlights the predicaments in extending the uniform rule to product liability claims and demonstrates how it debilitates access to justice and is not suitable for disputes that arise from accidents caused by products such as autonomous vehicles, which incorporate new technology. Consequently, the paper suggests workable solutions to develop the Indian conflict-of-law rules on the subject.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"19 - 47"},"PeriodicalIF":0.0,"publicationDate":"2021-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2021-0025","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66793679","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}
Abstract Islamic jurisprudence (fiqh) is flexible and open to respond to the dynamics of time. This paper aims to reveal the Indonesian Islamic jurisprudence implementation from the perspective of the objectives of Islamic law (maqashid al-syari’ah). Using historical and social analysis, this study finds that Indonesian Islamic jurisprudence has been adapted to the Indonesian people’s cultural values. Here, maqashid al-syari’ah perspective is used to resolve seemingly conflicting arguments and establish laws for the cases which are linguistically not covered within Al-Qur’an and Hadith. The findings of this study imply that the Indonesian Islamic jurisprudence does not contradict the Islamic law sources.
{"title":"Islamic Jurisprudence Implementation in Indonesia: Perspective of the Objectives of Islamic Law","authors":"A. Rohayana, Ali Muhtarom","doi":"10.1515/gj-2020-0078","DOIUrl":"https://doi.org/10.1515/gj-2020-0078","url":null,"abstract":"Abstract Islamic jurisprudence (fiqh) is flexible and open to respond to the dynamics of time. This paper aims to reveal the Indonesian Islamic jurisprudence implementation from the perspective of the objectives of Islamic law (maqashid al-syari’ah). Using historical and social analysis, this study finds that Indonesian Islamic jurisprudence has been adapted to the Indonesian people’s cultural values. Here, maqashid al-syari’ah perspective is used to resolve seemingly conflicting arguments and establish laws for the cases which are linguistically not covered within Al-Qur’an and Hadith. The findings of this study imply that the Indonesian Islamic jurisprudence does not contradict the Islamic law sources.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"403 - 415"},"PeriodicalIF":0.0,"publicationDate":"2021-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0078","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48390126","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}
Abstract The virtually immediate information propagation has reduced the gap of knowledge once existing between MNEs and customers (i.e. Rana Plaza collapse, 2013). Consumers begin playing an important role in supporting workers. Their growing social awareness has clear economic consequences. MNEs have tried to react to the loss of social reputation, mainly adopting (and imposing to their suppliers) codes of conduct and ethics providing a minimum standard for decent work standards. This article aims to analyze the social reputation and social sustainability that have recently attracted stakeholders’ interest, from different points of view (MNEs, consumers, government and non-government organizations, unions). Those “new” forms of social initiatives (code of conduct, social ranking, consumers campaign, boycotting) are informative and could help to spread ILO labour standards. Clearly, they can represent only an additional support for workers who are struggling in the typical conflict between Work and Capital. The tendency to use a single parameter for assessing the social sensitivity of the MNEs, valid both for the countries “in development” and for those “already developed” risks to lead to a “race to the bottom” trend.
{"title":"The Value of “Social” Reputation: The Protection of MNE Workers from the Consumer’s Perspective","authors":"M. Giaconi, L. Giasanti, S. Varva","doi":"10.1515/gj-2020-0076","DOIUrl":"https://doi.org/10.1515/gj-2020-0076","url":null,"abstract":"Abstract The virtually immediate information propagation has reduced the gap of knowledge once existing between MNEs and customers (i.e. Rana Plaza collapse, 2013). Consumers begin playing an important role in supporting workers. Their growing social awareness has clear economic consequences. MNEs have tried to react to the loss of social reputation, mainly adopting (and imposing to their suppliers) codes of conduct and ethics providing a minimum standard for decent work standards. This article aims to analyze the social reputation and social sustainability that have recently attracted stakeholders’ interest, from different points of view (MNEs, consumers, government and non-government organizations, unions). Those “new” forms of social initiatives (code of conduct, social ranking, consumers campaign, boycotting) are informative and could help to spread ILO labour standards. Clearly, they can represent only an additional support for workers who are struggling in the typical conflict between Work and Capital. The tendency to use a single parameter for assessing the social sensitivity of the MNEs, valid both for the countries “in development” and for those “already developed” risks to lead to a “race to the bottom” trend.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"22 1","pages":"1 - 17"},"PeriodicalIF":0.0,"publicationDate":"2021-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0076","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47481118","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}
Abstract In today’s society, a dense network of laws and regulations presides the actions of all people. And it is so extensive that any number of activities – including the formation of contracts – is capable of breaking the law. This is why it is even more important, nowadays, to reconsider the issue of contracts that violate legal rules. The trend in favor of flexible remedies reveals that the rigidity of the more traditional solutions might not be the best choice in this day and age.
{"title":"A Comparative Viewpoint on Illegal Contracts: In Favor of Flexibility and Proportionality","authors":"R. E. Cerchia","doi":"10.1515/gj-2021-0001","DOIUrl":"https://doi.org/10.1515/gj-2021-0001","url":null,"abstract":"Abstract In today’s society, a dense network of laws and regulations presides the actions of all people. And it is so extensive that any number of activities – including the formation of contracts – is capable of breaking the law. This is why it is even more important, nowadays, to reconsider the issue of contracts that violate legal rules. The trend in favor of flexible remedies reveals that the rigidity of the more traditional solutions might not be the best choice in this day and age.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"447 - 479"},"PeriodicalIF":0.0,"publicationDate":"2021-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2021-0001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46237415","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}
Abstract Despite the consolidated body of public international law on children’s rights and armed conflict, why do armed rebel groups and state forces deploy children in armed conflict, particularly in Somalia? First, due to the lack of alternative sources of income and livelihood beyond armed conflict, children join the army due to coercive recruitment by commanders of armed groups. Their participation in armed conflict generates a fleeting and false sense of material security and belongingness in a group. Second, many Somali children were born in an environment of existential violence and material insecurity that normalized and routinized violence, thereby motivating them to view enlistment in armed conflict as morally permissible and necessary for existential survival.
{"title":"Children in Armed Conflict: A Human Rights Crisis in Somalia","authors":"S. Regilme, Elisabetta Spoldi","doi":"10.1515/gj-2020-0083","DOIUrl":"https://doi.org/10.1515/gj-2020-0083","url":null,"abstract":"Abstract Despite the consolidated body of public international law on children’s rights and armed conflict, why do armed rebel groups and state forces deploy children in armed conflict, particularly in Somalia? First, due to the lack of alternative sources of income and livelihood beyond armed conflict, children join the army due to coercive recruitment by commanders of armed groups. Their participation in armed conflict generates a fleeting and false sense of material security and belongingness in a group. Second, many Somali children were born in an environment of existential violence and material insecurity that normalized and routinized violence, thereby motivating them to view enlistment in armed conflict as morally permissible and necessary for existential survival.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"365 - 402"},"PeriodicalIF":0.0,"publicationDate":"2021-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0083","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43202028","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}
Abstract Properly balancing between public and private interests is one of the most significant and complex challenges presented by modern insolvency law. The European Union insolvency law has recently embraced that challenge, by reinforcing the role that private actors, such as creditors and stakeholders, are called upon to play within the context of insolvency proceedings. That approach to insolvency has gradually reduced the impact of public actors, such as judges and public officers, in managing the debtor’s financial difficulties. The individual consent seems to be the new way of facing the debtor’s insolvency. First, this Article examines the role of individual consent in insolvency proceedings in terms of economic efficiency. It focuses on the tendency to favor agreements between the debtor and creditors or the insolvency practitioner in several European legal systems when they increase the likelihood to produce efficient results for both the parties. The second part of this Article focuses on the European Regulation on cross-border insolvency proceedings no. 848/2015. I offer some critical thoughts about the unilateral undertaking under article 36 of the European Regulation. It represents a relevant means of managing the debtor’s cross-border insolvency through an agreement between the insolvency practitioner in the main insolvency proceedings and local creditors in order to avoid the opening of inefficient secondary proceedings.
{"title":"The Role of Consent in European Cross-Border Insolvency Proceedings: The Unilateral Undertaking under Article 36 EIRR","authors":"M. Gaboardi","doi":"10.1515/gj-2020-0002","DOIUrl":"https://doi.org/10.1515/gj-2020-0002","url":null,"abstract":"Abstract Properly balancing between public and private interests is one of the most significant and complex challenges presented by modern insolvency law. The European Union insolvency law has recently embraced that challenge, by reinforcing the role that private actors, such as creditors and stakeholders, are called upon to play within the context of insolvency proceedings. That approach to insolvency has gradually reduced the impact of public actors, such as judges and public officers, in managing the debtor’s financial difficulties. The individual consent seems to be the new way of facing the debtor’s insolvency. First, this Article examines the role of individual consent in insolvency proceedings in terms of economic efficiency. It focuses on the tendency to favor agreements between the debtor and creditors or the insolvency practitioner in several European legal systems when they increase the likelihood to produce efficient results for both the parties. The second part of this Article focuses on the European Regulation on cross-border insolvency proceedings no. 848/2015. I offer some critical thoughts about the unilateral undertaking under article 36 of the European Regulation. It represents a relevant means of managing the debtor’s cross-border insolvency through an agreement between the insolvency practitioner in the main insolvency proceedings and local creditors in order to avoid the opening of inefficient secondary proceedings.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"21 1","pages":"417 - 446"},"PeriodicalIF":0.0,"publicationDate":"2021-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/gj-2020-0002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43814197","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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