- PublicationSources of Law and Legal Protection(EUT Edizioni Università di Trieste, 2012)Dipartimento di Scienze Giuridiche, del Linguaggio, dell’Interpretazione e della Traduzione Sezione Scienze Giuridiche. Università degli Studi di TriesteIn Spring 2012 a series of lectures was held at the Faculty of Law of the University of Trieste, focusing on selected relevant aspects related to the various legal subjects that are normally taught in the ordinary courses of our Faculty (Constitutional Law, History of Law, European and Comparative Law, Private International Law, Italian Private Law, Criminal Law). The lectures were mostly given in foreign languages by Italian and foreign colleagues, in particular young academics. Later it was decided to collect and publish some of the lectures in a volume: Sources of Law and Legal Protection. Triestine Lectures, adding a limited number of contributions delivered at two different conferences. This volume will be the first of a series designed to collect teaching materials, mostly in English and German, to be distributed in the academia. The internationalization and globalization pose a challange to law: also university education should strive to master it. The contributions reveal a clear scientific approach in dealing with the various subjects. The purpose of this book is to create a channel for the circulation of writings by young academics. Therefore it was considered appropriate to establish a scientific committee of external referees, as a means to guarantee the high quality of the individual contributions.
- PublicationThe Gaza Situation as a Test Bench for International Justice(EUT Edizioni Università di Trieste, 2012)Meloni, ChantalThe Israeli military operation against the Gaza Strip of 27 December 2008 – 18 January 2009 (so-called Operation Cast Lead) started a critical debate at the international level on the alleged war crimes and crimes against humanity committed in Gaza. In September 2009 the UN Fact Finding Mission on the Gaza Conflict presented its results: the Goldstone Report, named after the president of the mission, found that grave violations of international law, humanitarian law and human rights had been committed by both sides of the conflict, but in particular by the Israeli side. The report also denounced the possible commission of war crimes and crimes against humanity and called for proper accountability mechanisms at the national and international level. The report’s conclusions and recommendations were endorsed by the UN Human Rights Council and by the General Assembly amidst high political pressure. In case of lack of proper domestic investigations and prosecutions, it was recommended the recourse to international justice mechanisms, and in particular to the ICC. The ICC Prosecutor in fact had opened a preliminary examination of the situation, but difficulties arose because of the uncertain status of Palestine under international law. In the meanwhile, the principle of universal jurisdiction seems to represent the only available, although difficult, option in the search for justice and accountability. The Gaza situation can be seen as a test case for international justice and sheds a light on the role of international institutions in the difficult mix of law and politics that is the feature of international justice.
- PublicationCapacity and Contract: National Law and Proposal for a Common European Sales Law(EUT Edizioni Università di Trieste, 2012)Ulessi, CristinaThe paper concerns the topic of contracts entered into by a person suffering from mental incapacity. The matter is analysed considering the rules of invalidity given in three legal systems (Italy, France and United Kingdom) and their limits as well as the broader framework where incapacity has to be seen (CESL). It is argued that the special rules of invalidity and the traditional distinction between capacity and incapacity will lose their importance in the light of the attention paid by the new instruments to bargaining power abuse.
- PublicationPatto di famiglia e tutela individuale del legittimario(EUT Edizioni Università di Trieste, 2012)Maccari, Maria VirginiaLaw 55/2006 (entitled “Amendments to the Civil Code dealing with “Patto di Famiglia”), which came into force on March 16th 2006, amended the Italian Civil Code by creating the legal institute of “patto di famiglia”, which aims at allowing the transfer of enterprise or shareholdings during the life of the enterpreurner and entails an exception to inheritance rules. Many interpretative problems arise from the unclear phrasing of the new regulation; among these the most relevant one - both in theory and in practice - relates to the identification of the necessary parties of the “patto di famiglia”, whose defect of consent leads to voidness of the contract. In particular, it is not certain whether the spouse and the persons entitled by law to a share of the deceased’s estate to whom the enterprise and/or the shares are not assigned must participate to the contract. Namely, since the first paragraph of article 768-quater CC, provides that “the spouse and any person who would be entitled by law to a share of the deceased’s estate existing at the time of the conclusion of the agreement must participate to the agreement”, some authors argue that the persons entitled by law to a share of the deceased’s estate should give their consent to the “patto di famiglia”, while, according to others, those have just to be informed of its conclusion. Three theories were formulated with regard to articles 768 bis, 768 quater, paragraph 1 and 768 paragraph 1 CC. According to both first and second theory, the persons entitled by law to a share of the deceased’s estate must be a party to the “patto di famiglia”, however, while according to the former their participation is not essential, for the latter the lack of the participation of the persons entitled by law to a share of the deceased’s estate existing at the time of the conclusion of the agreement makes the contract void. A third point of view assumes the ‘patto di famiglia’ as a special contract for the benefit of third parties: the participation to the contract of any person who is not assignee of the enterprise and/or the shares and would be entitled by law to a share of the deceased’s estate is considered to be required by art. 768 quater CC for a different purpose than the participation of the disposing ascendant and assignee descendant (art. 768 bis). Namely, whilst the presence of the latters is necessary for the validity of the contract, the agreement of the persons who would be entitled by law to a share of the deceased’s estate and are not assignees is required in order to make the agreement enforceable towards them and to convert the share of the testator’s estate reserved by law for certain heirs into the right to receive its monetary value, which has to be calculated considering the enterprise and/or the shareholdings’ value. This paper analyses the matter above and the role of the persons who would be entitled by law to a share of the deceased’s. The research leads to the conclusion that the participation of the persons entitled by law to a share of the deceased’s estate non-assegnees is required for the validity of the contract. The regulation of “patto di famiglia” appears to be inspired by the criterion of the compulsory involvement at law of all persons entitled by law to a share of the deceased’s estate existing at a given time, because of the relevancy of the their interests at stake: far from being considered mere parties of the contract, they must be regarded as essential parties instead, whose consent is necessary for the validity of the “patto di famiglia” (Art. 1418, paragraph 1, of the Civil Code). Therefore, if one of the persons entitled by law to a share of the deceased’s estate cannot or does not want to participate to the agreement, it will not be possibile to conclude the “patto di famiglia” ; instead, the enterprises’s and/or the enterprises shareholdings’ transfer should be guaranteed by using different kinds of contractual agreements. This conclusion also seems to be confirmed by the unsuccessful attempts made to amend the Italian “patto di famiglia” regulation over 2011 and 2012. Namely, all the legislative initiatives providing the amendment of Art. 768, letter d) CC, concerning the “participation” to the ‘patto di famiglia’, layed out the possibility for the agreement to be drawn up also without the presence of all the persons entitled by law to a share of the deceased’s estate. Such proposals seem to confirm the fact that the regulation now in force subordinates the validity of the “patto di famiglia” to the consent of the persons entitled by law to a share of the deceased’s estate.
- PublicationThe role of the Principle of Effective Judicial Protection in the EU and its Impact on National Jurisdictions(EUT Edizioni Università di Trieste, 2012)Ravo, Linda MariaThe complex features of the EU system of judicial protection and its effectiveness on the side of the individual have been raising over time more and more interest among scholars. Effective judicial protection is an essential element in all legal orders, in so far as it allows individuals to enforce their rights and obtain redress. The European Union is no exception. Conferring of an increasing number of rights liable to be claimed by individuals and being characterised by a rather complex system of legal remedies, construed upon a complementary role of the Court of Justice of the European Union and national courts, the EU faces an urgent need of finding a way to ensure effectiveness of judicial protection within its legal order. Against this background, the present contribution aims at addressing the consistency and the relevance of the EU general principle which should fulfil this need. The principle of effective of judicial protection was drawn by the Court of Justice from a fundamental right enshrined in the common constitutional principles of Member States and protected by Articles 6 and 13 ECHR, as well as by Article 47 of the EU Charter of Fundamental Rights. As interpreted and applied by the Court, such principle is intended as imposing on both Member States and EU institutions an obligation to provide the claims with adequate procedural tools, against or beyond those provided, respectively, by national and EU law. The study offers an insight on the consistency of the principle with particular reference to its impact on national law, and proposes a reconstruction where its nature as expression of a fundamental right of the individual is enhanced. After having illustrated the sources and the scope of application of the principle in general terms, the analysis turns to its various applications , elaborated over time by the Court of Justice. The core part of the contribution offers a crytical analysis of selected case–law of the Court of Justice, paying particular attention to the judicial scrutiny that the different applications of the principle may entail. The purpose is pointing out a certain evolution towards an approach where the principle of effective judicial protection seems to be intended by the Court as the source of a fundamental right of the individual, protected as such by the EU legal order. On these grounds, the conclusive remarks will point out the advantages and the challenges that this approach may imply, in terms of providing for adequate remedies for the individual while granting, at the same time, effectiveness of EU law and coherence within the different levels of judicial protection.