University of Bologna Law Review

Latest documents

  • Securitizing Notes of Small Businesses and Needy Workers
  • A New International Crime of Ecocide?
  • Law in a Time of Corona: Global Pandemic, Supply Chain Disruption and Portents for 'Operationally-Linked (but) Legally Separate' Contracts

    The novel coronavirus (Covid-19) pandemic has resulted in the disruption of activities in major centres of global production, with adverse portents for contractual obligations across global supply chains. The global pervasiveness and dynamic propagation of the risks arising from contractual failures provides an opportunity to reconsider the nature and impact of mechanisms for excusing failure to perform contractual obligations under adverse circumstances (Excuse). Such mechanisms include those found in the general law (for example, frustration in common law and analogous doctrines in civil law traditions) and contractual clauses (for example, Force Majeure and hardship clauses). Establishing extant rights and obligations under current contracts may provide only limited illumination on how parties will address these failures. Principles in economics of contract (e.g. incomplete contract and transaction cost theories) and the commercial reality of global supply chains both suggest that parties tend to lean towards contract- and relationship-saving adjustments, rather than strict enforcement of rights. Therefore, this article analyses the doctrinal and contractual regimes of Excuse with a view to assessing their respective scopes for transaction and relationship saving. It also highlights the peculiar nature of supply chain relationships wherein exchange partners enter into a sequence of dyadic relationships aimed at delivering a good or service to the end user. The tension between that operational logic and the legal principle of privity of contract makes these relationships – undergirded as they are by what we call "operationally-linked (but) legally separate" (O.L.L.S.) contracts – peculiarly vulnerable to mismatches in their Excuse regimes. Mismatches occur where failure to perform a determinant contract is more easily or much earlier excusable than in a dependent contract within the same chain operation. This may, in turn, exacerbate risks of supply chain disruptions in a pandemic scenario. The article designs a framework by which the doctrine-contract complex in the regimes may be used to test the dynamic scenarios of a global pandemic for the purpose of scanning for such mismatches. This framework will be useful in both post-event circumstances, as parties embark on relationship-saving negotiations, and in designing ex ante risk management measures. Through the understanding of the peculiarity of supply chain relationships and the O.L.L.S. contracts, this article also proposes to open up new directions in which the insights therefrom might be useful. An example suggested and prefatorily explored in this article is in the "governance beyond privity" conundrum in the context of supply chain disruption. Another is its potential contribution to the emerging multifactorial approach to determining frustration of contract in some common law courts

  • The Conflict of International Agreements in Air Law: A Reasonable Plea for Conventional Uniform Rules

    This note surveys the roots of a phenomenon called "conflict of international agreements", which forms a distinctive source of legal uncertainty in trans-border disputes, with a particularly high incidence in the field of air law. The authors suggest that the conflict of international agreements should be understood as an added layer of legal complexity in trans-border air law disputes, beyond the customary questions around applicable law and jurisdictional competence that are commonplace in private international law. The first part of this study maps the main factors that have led to the emergence of this peculiar conflict in the domain of air law. Among them are the following: the fact that national air law legislations have typically been developed by catching up with prior international regulatory initiatives (to the point of inserting, in national provisions, named references to specific treaties); the development of international air law through different generations of treaties with non-overlapping memberships; the possibility for different degrees of membership within the same treaty, and the succession of states. All these factors contribute to the possibility that a judge, tasked with a trans-border air law dispute, might first need to determine the international agreement under which the dispute falls, to settle preliminary questions of applicable law or jurisdiction. Or that he or she might end up—after following the trail of foreign legislation when settling a conflict of laws—having to apply treaties that might not be compatible with the international obligations of his or her jurisdiction of belonging. The second part of this study then looks at a sample of existing strategies for resolving such uncertainty, by looking at the Vienna Convention on the Law of Treaties, the jurisprudence of the French Conseil d'État, and doctrinal commentary. As a result, the study finds that the horizontality of international law and the difficulty posed by non-overlapping treaty memberships (so that different rules apply to different sets of states) is, at present, insurmountable. This leaves the possibility open, for instance, that a competent court might have to choose between (i) deferring to private international law norms that might lead to the application of incompatible treaties binding in a foreign legal system, and (ii) applying the different treaties ratified by the state of the competent court. This is what case-by-case decision-making at the point of adjudication might entail, in the absence of a renewed impetus for harmonisation. It is on this basis that the authors conclude with a reasoned plea for new initiatives aiming at greater uniformity in international air law

  • The Right to Dignity of the Surrogate Mother

    This article explores a different perspective on the right to dignity of the surrogate mother in commercial surrogacy arrangements under international human rights norms and philosophical principles. Here, I examine the concept of human dignity under the lenses of contemporary legal theory reflecting on the right to self-determination of the surrogate mother. This dignity-based approach serves for analysing how International Human Rights Law enables women to enter commercial surrogacy agreements on the basis of their contractual freedom, their reproductive rights, on the prohibition of non-discrimination and their labour rights. Under the lenses of economics and law, I examine how this practice carries the potential to empower the economic emancipation of women and their access to the labour market. Dignity as rights-constraining will reflect on the other side of surrogacy. I investigate the exploitative character of this practice and how it could present human rights abuses for the surrogate mother. Specifically, I focus my analysis on how surrogacy contracts could violate the bodily autonomy of the surrogate and potentially maintain gender inequality and reinforce gender stereotypes. After recognizing certain concerning aspects of individual surrogacy arrangements, I question whether outlawing surrogacy is the right response to this practice

  • Is a Requirement to Wear a Mask Economically Valid During COVID-19?

    Two of the most important categories of government intervention in response to COVID-19 are business closures and mask mandates. The scientific literature supports the efficacy of mask-wearing to reduce the transmission of respiratory viruses (including COVID-19). However, the efficacy is greater in stopping outbound transmission (meaning that my mask protects you) than inbound transmission (meaning that my mask protects me). Evidence suggests that the full benefits to society of wearing masks are far greater than the full costs to society of wearing masks. The author argues that mask-wearing is far more cost effective than business closures in controlling the spread of COVID-19. Moreover, the author argues that highly infectious diseases have an externality dimension. The person infected with COVID-19 makes a decision regarding whether to wear a mask based on their own perceived costs and benefits of mask-wearing, but that decision has consequences for those they come in contact with: the infected person’s decision not to wear a mask imposes costs on others that are external to the infected person’s decision process not to do so. The author further argues that some possible methods by which to deal with such an external cost (individual negotiations, a tax on spreading COVID-19, or as subsidy for wearing masks) are impractical. This makes a mask-wearing government mandate economically valid

  • The Price of Transitional Justice: A Cost-Benefit Analysis of its Mechanisms in Post-Revolution Phase

    Transitional Justice [hereinafter T.J.] in the post-revolution phase refers to the policies that aim to deal with the autocratic past-regime violations against its people to achieve accountability and democracy and promote human rights and the rule of law. To achieve these goals, the United Nations, within its Rule of Law Initiative, issued in 2010, a set of five mechanisms that work as guidelines for nations recovering from conflicts. I argue that whatever the mechanism or combination selected by a society transforming from an autocracy into democracy is, the nature of these mechanisms requires a trade-off between multiple considerations. To explain this inevitable trade-off, I go through each mechanism in detail, analyze it from both legal and economic perspectives, and then provide a basic cost-benefit analysis. I suggest that transitional justice as a constitutional arrangement requires a holistic approach in its adoption and application because this initial cost-benefit analysis cannot be standardized for all cases. I also suggest that transitional justice policies that take into account proportionality, a combination of different mechanisms, customization of the mechanisms upon the relevant case, and adopting these policies in the formality of basic or organic laws may be expected to have the most effective outcomes achieving the goals of T.J. with the least legal complications

  • What COVID-19 does to our Universities
  • What Is Next for Digital Trade in a Post-Brexit Britain? - Examining the Regulation of Data Flows Under G.A.T.S. & Possible Implications of G.D.P.R. on Britain as a Third Country

    Data, much like other currencies, flows cross-border -from one jurisdiction to the other. However, it is hard to regulate the privacy aspects surrounding such free-flowing data by rules strictly based on jurisdiction. This article thereby begins by discussing the importance of data protection regulations like the General Data Protection Regulation (G.D.P.R.), followed by a brief analysis of the General Agreement on Trade in Services’ pivotal role in regulating data flows and digital trade, and how it can be further used in checking the World Trade Organisation consistency of various data protection requirements resorted by the European Union (E.U.) so far under the G.D.P.R.. Lastly, the note examines how, post the Brexit transition period, the situation will change for the United Kingdom (U.K.) as it has become a third country for the E.U. data protection regime, with the authors critiquing the various models, including the recent Draft U.K.-E.U. Comprehensive Free Trade Agreement, that may help the U.K. in attaining an “adequacy” status, which is requisite for the continuation of an unconstrained digital trade with the E.U.

  • Challenging the Undesired Outcome of FIOST Clauses on Cargo Interests

    Loss of, or damage to goods is a frequent occurrence in the shipping industry, which may often occur as a result of improper cargo-handling operations during loading, discharging or even stowing. This highly concerns cargo interests, as they will seek to reimburse their loss from their carriers under bills of lading. Often, the bill of lading may well contain terms of a charterparty by way of incorporation that allow the carrier to contract out their cargo-related operations. Once this is the case, the cargo interest is unjustly left without a remedy for loss of, or damage to his goods vis-à-vis the carrier under English law. This paper, instead of challenging the correctness of the law firmly established concerning the transfer of these obligations via Free In and Out Stowed and Trimmed (FIOST) clauses, rather, aims to propose ideas to tackle the impact arising out of the status quo under English law. Finally, it offers some plausible suggestions for cargo interests to surmount this undesired outcome

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