University of Bologna Law Review

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Ykpaiha 2022
Legitimate Aims, Illegitimate Aims and the E.Ct.H.R.: Changing Attitudes and Selective Strictness
This article aims to trace the recent changes in the case law of the European Court of Human Rights, pertaining to the legitimate aim test, which has so far not been appropriately considered in existing jurisprudence. It first shows that the legitimate aim test is not just a paper tiger, and has a bigger bite than it has been given credit for, especially for the last ten years. Furthermore, despite its “procedural turn”, the Court has recently been more inclined to take the legitimate aim disputes to a factual level by questioning the governments’ assertions of legitimate aims with regard to not only their legal justificatory capacities but also as to their factual accuracy. However, this shift towards a stricter, more sceptical approach is only observable against certain member states. This finding aligns with recent scholarship on the Court’s differentiated approach towards Member States, often called “the variable geometry”
Sale of Quotas for Greenhouse Gas Emissions as a Type Civil Sale and Purchase Contract
Controlling Shareholders and Intra-Group Transactions: A Special Framework
Legal Aspects of Review of Valid Rulings in Criminal Proceedings in Connection with Significant Violations of Substantive or Procedural Provisions of the Law
The aim of this article is to review the existing discipline of legal institutes in connection with significant violations of substantive or procedural legal norms and its significance in criminal proceedings in the Republic of Latvia and the Republic of Lithuania, their common and different features, problems and case law. The basis of the research is the analysis of regulatory enactments, court rulings, findings and opinions. The research is based on analytical and synthesis methods study of the correlations and differences in the legal regulation of criminal procedural law, comparative method comparison of specific legal regulations in the criminal procedural law of the Republic of Latvia and the Republic of Lithuania. The analytical method has been used to research, clarify and then evaluate the content of legal principles, terms, legal norms. The method has also been used to analyse court decisions. This method makes it possible to identify the main issues at stake in the content of specific legal provisions and to highlight their novelty, relevance or shortcomings. Statistical data processing methods have also been used in the research to collect and analyse data on a specific category of criminal cases in the Republic of Latvia and the Republic of Lithuania. The study analyses the case law of the Republic of Latvia and the Republic of Lithuania in cases where rulings have been re-examined after their entry into force. Data on such cases are summarised in four illustrations (figures). During the study, it has been established that the regulation of criminal procedure for the review of a judgement after its entry into force is similar in both countries, but the results of the reviewed cases are different. The criminal procedure regulations of the Republic of Latvia and the Republic of Lithuania, which provide for a new review of existing rulings if there exist significant violations of substantive or procedural law, are important to reach a fair decision by eliminating such significant violations committed by courts of first instance or appellate courts. Consequently, justice is achieved and the person’s right to a fair trial is ensured. However, a balance must also be struck between how to ensure the legal force of a valid judgement in accordance with the principle of res judicata, and how to guarantee the rights of individuals to a fair trial. When reviewing an existing decision, the Supreme Court must consider the balance between ensuring the legal force of a valid court judgement in accordance with the principle of res judicata, and guaranteeing the rights of individuals to a fair trial if significant violations of substantive or procedural norms of law come to the fore after the judgement has entered into force
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 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