Pub Date : 2019-11-21DOI: 10.6092/ISSN.2531-6133/10023
Błażej Kuźniacki
This study concentrates on the Court of Justice of the European Union (CJEU) case law in order to reconstruct from it an interpretative guidance for the proper understanding and thus application of general anti-abuse rule included in Article 6 ATAD (the ATAD’s GAAR). Although Article 6 aims to harmonises general anti-abuse rule in the domain of tax law among all MSs, its wide scope and its phraseology raises a plethora of issues, in particular in respect of its proper – EU compatible – understating and thus application. The analysis of the relevant CJEU case law, as undertaken in this paper, will set a scene for the question of compatibility of the ATAD’s GAAR with the concept of abuse developed by the CJEU in cases regarding abusive practices of taxpayers. This piece aims to contribute in determining the reasonable understanding of the core elements of the ATAD’s GAAR in accordance with the EU primary law, as interpreted by the CJEU. This may provide the readers with a useful interpretative guideline to the ATAD’s GAAR, which could be of an assistance not only for tax authorities, but by all stakeholders, including taxpayers, courts, and MSs’ legislative bodies.
{"title":"The C.J.E.U. Case Law Relevant to the General Anti-Avoidance Rule (G.A.A.R.) Under the Anti-Tax Avoidance Directive (A.T.A.D.)","authors":"Błażej Kuźniacki","doi":"10.6092/ISSN.2531-6133/10023","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/10023","url":null,"abstract":"This study concentrates on the Court of Justice of the European Union (CJEU) case law in order to reconstruct from it an interpretative guidance for the proper understanding and thus application of general anti-abuse rule included in Article 6 ATAD (the ATAD’s GAAR). Although Article 6 aims to harmonises general anti-abuse rule in the domain of tax law among all MSs, its wide scope and its phraseology raises a plethora of issues, in particular in respect of its proper – EU compatible – understating and thus application. The analysis of the relevant CJEU case law, as undertaken in this paper, will set a scene for the question of compatibility of the ATAD’s GAAR with the concept of abuse developed by the CJEU in cases regarding abusive practices of taxpayers. This piece aims to contribute in determining the reasonable understanding of the core elements of the ATAD’s GAAR in accordance with the EU primary law, as interpreted by the CJEU. This may provide the readers with a useful interpretative guideline to the ATAD’s GAAR, which could be of an assistance not only for tax authorities, but by all stakeholders, including taxpayers, courts, and MSs’ legislative bodies.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"4 1","pages":"261-282"},"PeriodicalIF":0.3,"publicationDate":"2019-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43146545","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 : 2019-10-28DOI: 10.6092/ISSN.2531-6133/10402
C. Stern
It is said that no book on the common law surpasses the importance of Sir William Blackstone’s Commentaries on the Laws of England. But it is also said that the Commentaries is of questionable merit, with aspects of it downright incoherent. The most fundamental element of the Commentaries to attract this disparaging characterization is its discussion and use of what it usually calls “the law of nature” — and what we these days usually call “natural law.” Does the Commentaries perpetrate a mistake — actually many mistakes — of natural law? This article answers that it is not the Commentaries, but rather its critics that perpetrate mistakes of natural law. The mistakes arise from the expectation that Blackstone’s natural law would take after Thomas Aquinas’s (or even Christopher St. German’s) natural law. But readers of the Commentaries who allow Blackstone his own way with natural law will find it a valuable treatment that animates the whole. Blackstone’s natural law owes much to two influences, Roman law and the Anglican Church. The second influence is the more distinctive and guides Blackstone’s response to the first. Both led Blackstone to view the natural law as an order immanent in human law, an order especially prominent within the common law. Seen in this light, natural law provides the foundation for the Commentaries and a foundation for understanding law in our own day.
{"title":"A Mistake of Natural Law: Sir William Blackstone and the Anglican Way","authors":"C. Stern","doi":"10.6092/ISSN.2531-6133/10402","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/10402","url":null,"abstract":"It is said that no book on the common law surpasses the importance of Sir William Blackstone’s Commentaries on the Laws of England. But it is also said that the Commentaries is of questionable merit, with aspects of it downright incoherent. The most fundamental element of the Commentaries to attract this disparaging characterization is its discussion and use of what it usually calls “the law of nature” — and what we these days usually call “natural law.” Does the Commentaries perpetrate a mistake — actually many mistakes — of natural law? This article answers that it is not the Commentaries, but rather its critics that perpetrate mistakes of natural law. The mistakes arise from the expectation that Blackstone’s natural law would take after Thomas Aquinas’s (or even Christopher St. German’s) natural law. But readers of the Commentaries who allow Blackstone his own way with natural law will find it a valuable treatment that animates the whole. Blackstone’s natural law owes much to two influences, Roman law and the Anglican Church. The second influence is the more distinctive and guides Blackstone’s response to the first. Both led Blackstone to view the natural law as an order immanent in human law, an order especially prominent within the common law. Seen in this light, natural law provides the foundation for the Commentaries and a foundation for understanding law in our own day.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"4 1","pages":"325-366"},"PeriodicalIF":0.3,"publicationDate":"2019-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41404176","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 : 2019-08-23DOI: 10.6092/ISSN.2531-6133/9782
Ioana Vasiu, Lucian Vasiu
This article highlights the importance of copyright industries for the developed economies and argues that criminal copyright infringement is a widespread offense, producing major economic losses for stakeholders, negatively impacting creativity, and raising significant cybersecurity and rule of law concerns. The article explains why there is a need for criminal protection of copyright protection and outlines the U.S. framework. In a comprehensive approach, based on a large corpus of data, consisting of cases brought to federal courts, in violation of Section 506 of Title 17 of the U.S. Code, and press releases and reports by law enforcement and industry groups, Section 3 describes the forms and extent of the phenomenon. Section 4 discusses essential aspects involved in the prosecution of these cases. Based on the number of cases brought to courts versus the criminal copyright infringing reports and estimates, the article concludes that this criminal phenomenon is significantly under-prosecuted and proposes a number of measures that could improve the criminal protection of copyrighted works.
{"title":"Criminal Copyright Infringement: Forms, Extent, and Prosecution in the United States","authors":"Ioana Vasiu, Lucian Vasiu","doi":"10.6092/ISSN.2531-6133/9782","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/9782","url":null,"abstract":"This article highlights the importance of copyright industries for the developed economies and argues that criminal copyright infringement is a widespread offense, producing major economic losses for stakeholders, negatively impacting creativity, and raising significant cybersecurity and rule of law concerns. The article explains why there is a need for criminal protection of copyright protection and outlines the U.S. framework. In a comprehensive approach, based on a large corpus of data, consisting of cases brought to federal courts, in violation of Section 506 of Title 17 of the U.S. Code, and press releases and reports by law enforcement and industry groups, Section 3 describes the forms and extent of the phenomenon. Section 4 discusses essential aspects involved in the prosecution of these cases. Based on the number of cases brought to courts versus the criminal copyright infringing reports and estimates, the article concludes that this criminal phenomenon is significantly under-prosecuted and proposes a number of measures that could improve the criminal protection of copyrighted works.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"4 1","pages":"229-260"},"PeriodicalIF":0.3,"publicationDate":"2019-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41581801","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 : 2019-06-20DOI: 10.6092/ISSN.2531-6133/9561
João Batista Lazzari
This article assumes that proper training of magistrates is essential for society to have a democratic, independent judiciary and to provide a fair process, as judges ultimately pronounce on life, freedoms, rights, duties and assets of citizens. From this perspective, the present study aims to identify the pedagogical principles and guidelines to be observed for effective training of magistrates. In order to obtain a satisfactory answer to the presented problem the inductive method was used, concluding that the training of magistrates must be of a practical and multidisciplinary form, aiming at transmitting professional values and techniques that complement the legal formation and must seek the development of capacities and competences capable of providing efficiency and legitimacy in the judicial proceedings. Judicial training, therefore, is paramount in order for magistrates to be able to perform their tasks properly and to understand the human and social realities with which the justice system interacts.
{"title":"For an Effective Training of Magistrates","authors":"João Batista Lazzari","doi":"10.6092/ISSN.2531-6133/9561","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/9561","url":null,"abstract":"This article assumes that proper training of magistrates is essential for society to have a democratic, independent judiciary and to provide a fair process, as judges ultimately pronounce on life, freedoms, rights, duties and assets of citizens. From this perspective, the present study aims to identify the pedagogical principles and guidelines to be observed for effective training of magistrates. In order to obtain a satisfactory answer to the presented problem the inductive method was used, concluding that the training of magistrates must be of a practical and multidisciplinary form, aiming at transmitting professional values and techniques that complement the legal formation and must seek the development of capacities and competences capable of providing efficiency and legitimacy in the judicial proceedings. Judicial training, therefore, is paramount in order for magistrates to be able to perform their tasks properly and to understand the human and social realities with which the justice system interacts.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"4 1","pages":"206-228"},"PeriodicalIF":0.3,"publicationDate":"2019-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44408392","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 : 2019-05-09DOI: 10.6092/ISSN.2531-6133/9425
Basheer Alzoughbi
This paper examines the legal status and historical context of the city of Jerusalem, specifically addressing the prohibition on establishment or maintenance of diplomatic missions within the Holy City. This will be undertaken firstly by exploring Security Council resolution 478 of August 1980, and secondly through a discussion of State practice and opinio juris. This paper was inspired by the recent developments regarding the conduct of the United States of America, the Republics of Guatemala and Paraguay in relocating their embassies from Tel Aviv to Jerusalem in May 2018. Unlike the Republic of Paraguay, which subsequently restituted its embassy to Tel Aviv in September 2018, the United States of America and the Republic of Guatemala have hitherto maintained their embassies in Jerusalem. This paper adopts a comparative approach by drawing on the particularities of Southern Rhodesia (Zimbabwe), South West Africa (Namibia) and Kuwait. It gradually examines the crux of the matter regarding the merits of the case initiated by Palestine against the United States of America in September 2018: namely the customary international diplomatic law underpinning the prohibition on establishing embassies in Jerusalem under the Vienna Convention on Diplomatic Relations. It further explores equally important issues relating to questions of jurisdiction of the International Court of Justice and admissibility of the application.
{"title":"The Relocation of the U.S. Embassy from Tel Aviv to Jerusalem (Palestine v. United States of America): a Commentary on the Merits of the Case, Jurisdiction of the International Court of Justice and Admissibility of Palestine's Application","authors":"Basheer Alzoughbi","doi":"10.6092/ISSN.2531-6133/9425","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/9425","url":null,"abstract":"This paper examines the legal status and historical context of the city of Jerusalem, specifically addressing the prohibition on establishment or maintenance of diplomatic missions within the Holy City. This will be undertaken firstly by exploring Security Council resolution 478 of August 1980, and secondly through a discussion of State practice and opinio juris. This paper was inspired by the recent developments regarding the conduct of the United States of America, the Republics of Guatemala and Paraguay in relocating their embassies from Tel Aviv to Jerusalem in May 2018. Unlike the Republic of Paraguay, which subsequently restituted its embassy to Tel Aviv in September 2018, the United States of America and the Republic of Guatemala have hitherto maintained their embassies in Jerusalem. This paper adopts a comparative approach by drawing on the particularities of Southern Rhodesia (Zimbabwe), South West Africa (Namibia) and Kuwait. It gradually examines the crux of the matter regarding the merits of the case initiated by Palestine against the United States of America in September 2018: namely the customary international diplomatic law underpinning the prohibition on establishing embassies in Jerusalem under the Vienna Convention on Diplomatic Relations. It further explores equally important issues relating to questions of jurisdiction of the International Court of Justice and admissibility of the application.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"4 1","pages":"114-205"},"PeriodicalIF":0.3,"publicationDate":"2019-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47990630","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 : 2019-05-03DOI: 10.6092/ISSN.2531-6133/9420
A. García
The recurring allegations of human rights violations directly or indirectly caused by the activities of MNEs pose many challenges and particularly affect developing States in contexts of fragility and conflict. In such situations, transnational corporate structures, limited liability veils, fragmented jurisdictions and unwilling or unable States are overwhelmingly quoted as the main obstacles for a fairer globalization. This article is aimed at shedding some light on the last of these factors: why some States seem to be unable or unwilling to protect human rights, in general terms and with regard to transnational corporate activities. A proper and pertinent Corporate Social Responsibility can help break this vicious circle, but companies need a paradigm shift to reasonably operate in those difficult circumstances.
{"title":"Corporate Social Responsibility, Business Opportunities and States’ Fragility or Failure: Colombia and DR Congo","authors":"A. García","doi":"10.6092/ISSN.2531-6133/9420","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/9420","url":null,"abstract":"The recurring allegations of human rights violations directly or indirectly caused by the activities of MNEs pose many challenges and particularly affect developing States in contexts of fragility and conflict. In such situations, transnational corporate structures, limited liability veils, fragmented jurisdictions and unwilling or unable States are overwhelmingly quoted as the main obstacles for a fairer globalization. This article is aimed at shedding some light on the last of these factors: why some States seem to be unable or unwilling to protect human rights, in general terms and with regard to transnational corporate activities. A proper and pertinent Corporate Social Responsibility can help break this vicious circle, but companies need a paradigm shift to reasonably operate in those difficult circumstances.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"4 1","pages":"72-113"},"PeriodicalIF":0.3,"publicationDate":"2019-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44594121","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 : 2019-04-22DOI: 10.6092/ISSN.2531-6133/9359
Y. Dautaj, Bruno Gustafsson
This paper outlines arbitral tribunals’ power to order provisional measures under the auspices of I.C.S.I.D. Arbitration; that is, investor-state arbitration. The scope of a tribunal’s power is cumbersome to discern, especially when there are possible interferences with state sovereignty. More recently, tribunals have ordered provisional measures to suspend a domestic criminal investigation or proceeding. Is this an infringement on a states sovereign prerogatives or a response to, for example, dilatory tactics by a rogue state? The crux of the issue is this: a state will always be in a position to utilize its prosecutorial powers in order to frustrate the arbitration by putting immense pressure on the investor, its employees, or its witnesses, in other words: “playing games” in local courts. In order to guarantee procedural integrity of the arbitration and, as a corollary, the legitimacy of investor-state arbitration in its entirety, the provisional measure is a practical tool that can be used effectively. On a similar vein, “sovereignty” should not force tribunals to tie their hands when serious interference with the arbitral procedure is making the procedure unfair at best,or a nullity at worst. However, legal text both empowers and constrains the tribunal. The I.C.S.I.D. Convention only allows a tribunal to “recommend” provisional measures. As seen in light of investor-state case law, in an informal (perhaps de facto) stare decisis context, a number of tribunals seem to have justified the ordering of provisional measures. In the shadow of this construction lurks the de-legitimizing of the entire investor-state arbitration system. At the same time, rogue sovereigns playing games in local courts have the same de-legitimizing effect.
{"title":"Provisional Measures in Investor-State Arbitration: States Playing Games in Local Courts by Invoking the Trump Card (Police Powers)","authors":"Y. Dautaj, Bruno Gustafsson","doi":"10.6092/ISSN.2531-6133/9359","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/9359","url":null,"abstract":"This paper outlines arbitral tribunals’ power to order provisional measures under the auspices of I.C.S.I.D. Arbitration; that is, investor-state arbitration. The scope of a tribunal’s power is cumbersome to discern, especially when there are possible interferences with state sovereignty. More recently, tribunals have ordered provisional measures to suspend a domestic criminal investigation or proceeding. Is this an infringement on a states sovereign prerogatives or a response to, for example, dilatory tactics by a rogue state? The crux of the issue is this: a state will always be in a position to utilize its prosecutorial powers in order to frustrate the arbitration by putting immense pressure on the investor, its employees, or its witnesses, in other words: “playing games” in local courts. In order to guarantee procedural integrity of the arbitration and, as a corollary, the legitimacy of investor-state arbitration in its entirety, the provisional measure is a practical tool that can be used effectively. On a similar vein, “sovereignty” should not force tribunals to tie their hands when serious interference with the arbitral procedure is making the procedure unfair at best,or a nullity at worst. However, legal text both empowers and constrains the tribunal. The I.C.S.I.D. Convention only allows a tribunal to “recommend” provisional measures. As seen in light of investor-state case law, in an informal (perhaps de facto) stare decisis context, a number of tribunals seem to have justified the ordering of provisional measures. In the shadow of this construction lurks the de-legitimizing of the entire investor-state arbitration system. At the same time, rogue sovereigns playing games in local courts have the same de-legitimizing effect.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"4 1","pages":"27-71"},"PeriodicalIF":0.3,"publicationDate":"2019-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46359653","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 : 2019-02-14DOI: 10.6092/ISSN.2531-6133/9065
E. Tulyakov
The main purpose of this paper is to familiarise the reader with how foreign investors are protected in Uzbekistan under its BITs. Thus, the paper will analyse BIT clauses of Uzbekistan and investor-state dispute resolution mechanisms available under Uzbek BITs. Throughout the following paper, the reader will notice that although Uzbek BITs contain some provisions inherent in modern BITs in terms of investor-state dispute settlement there is still room for improvement. Therefore, recommendations for improvement will be provided at the end of this article.
{"title":"Bilateral Investment Treaties of Uzbekistan: Investor-State Dispute Resolution","authors":"E. Tulyakov","doi":"10.6092/ISSN.2531-6133/9065","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/9065","url":null,"abstract":"The main purpose of this paper is to familiarise the reader with how foreign investors are protected in Uzbekistan under its BITs. Thus, the paper will analyse BIT clauses of Uzbekistan and investor-state dispute resolution mechanisms available under Uzbek BITs. Throughout the following paper, the reader will notice that although Uzbek BITs contain some provisions inherent in modern BITs in terms of investor-state dispute settlement there is still room for improvement. Therefore, recommendations for improvement will be provided at the end of this article.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"108 11","pages":"1-26"},"PeriodicalIF":0.3,"publicationDate":"2019-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41295054","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 : 2018-12-13DOI: 10.6092/ISSN.2531-6133/8773
Jens Hillebrand Pohl
In recent years, investment treaty practice and arbitral case law have increasingly recognized government transparency as an obligation of international investment law. Yet, there could hardly be less of a consensus regarding what level of transparency is required, with case law ranging from one strand requiring “total transparency” to another merely prohibiting “complete lack of transparency”. This apparent paradox seems to be about to change. Some of the most recent treaty practice appears to endorse the latter, restrictive interpretation of transparency. How come? This article sets forth two arguments: First, transparency is in part a binary concept, similar to many other familiar and related legal concepts, such as good faith, lack of arbitrariness and due process, and that transparency could thus, without contradiction, be said to be either “total” or “completely lacking” and nothing in between. Second, restrictive case law and the most recent treaty practice refuses to recognize as a legal requirement the concept of transparency as denoting a gradual quality of the law and of the administration of law.
{"title":"Openness in international investment law : Too much of a good thing?","authors":"Jens Hillebrand Pohl","doi":"10.6092/ISSN.2531-6133/8773","DOIUrl":"https://doi.org/10.6092/ISSN.2531-6133/8773","url":null,"abstract":"In recent years, investment treaty practice and arbitral case law have increasingly recognized government transparency as an obligation of international investment law. Yet, there could hardly be less of a consensus regarding what level of transparency is required, with case law ranging from one strand requiring “total transparency” to another merely prohibiting “complete lack of transparency”. This apparent paradox seems to be about to change. Some of the most recent treaty practice appears to endorse the latter, restrictive interpretation of transparency. How come? This article sets forth two arguments: First, transparency is in part a binary concept, similar to many other familiar and related legal concepts, such as good faith, lack of arbitrariness and due process, and that transparency could thus, without contradiction, be said to be either “total” or “completely lacking” and nothing in between. Second, restrictive case law and the most recent treaty practice refuses to recognize as a legal requirement the concept of transparency as denoting a gradual quality of the law and of the administration of law.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"3 1","pages":"219-231"},"PeriodicalIF":0.3,"publicationDate":"2018-12-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43586079","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 : 2018-09-16DOI: 10.6092/issn.2531-6133/8467
Gilson Jacobsen, João Batista Lazzari
This study seeks to identify the contemporary challenges of the judiciary and the need for training of judges focused on skills aimed at resolving these adversities. To demonstrate this approach, it points out the importance of judicial creativity in face of the disorderly urban development with the exclusion of the poorest people. The study concludes that the Magistrate's Judicial Schools for Training and Improvement have the role of establishing training activities that combine legal techniques with knowledge of management, socioeconomics and creativity. The paper also encourages socio-judiciary research programs and exchanges with universities, so that judges are encouraged to enroll in Master and Doctoral courses, and possibly attend a second graduation.
{"title":"Magistrates Training: Why to Crave for More Creative Cities and Judges?","authors":"Gilson Jacobsen, João Batista Lazzari","doi":"10.6092/issn.2531-6133/8467","DOIUrl":"https://doi.org/10.6092/issn.2531-6133/8467","url":null,"abstract":"This study seeks to identify the contemporary challenges of the judiciary and the need for training of judges focused on skills aimed at resolving these adversities. To demonstrate this approach, it points out the importance of judicial creativity in face of the disorderly urban development with the exclusion of the poorest people. The study concludes that the Magistrate's Judicial Schools for Training and Improvement have the role of establishing training activities that combine legal techniques with knowledge of management, socioeconomics and creativity. The paper also encourages socio-judiciary research programs and exchanges with universities, so that judges are encouraged to enroll in Master and Doctoral courses, and possibly attend a second graduation.","PeriodicalId":36563,"journal":{"name":"University of Bologna Law Review","volume":"3 1","pages":"152-171"},"PeriodicalIF":0.3,"publicationDate":"2018-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47806648","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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