The Italian Review of International and Comparative Law最新文献_第9页

Three Views of a Secret: Missed Opportunities in the echr’s Recent Case-Law on International Commercial Arbitration 一个秘密的三种观点:欧洲人权委员会近期国际商事仲裁判例法错失的机遇

The Italian Review of International and Comparative Law Pub Date : 2022-02-02 DOI: 10.1163/27725650-01020001

F. Seatzu, Paolo Vargiu

{"title":"Three Views of a Secret: Missed Opportunities in the echr’s Recent Case-Law on International Commercial Arbitration","authors":"F. Seatzu, Paolo Vargiu","doi":"10.1163/27725650-01020001","DOIUrl":"https://doi.org/10.1163/27725650-01020001","url":null,"abstract":"\u0000The recent judgment of the European Court of Human Rights (ECtHR) in Beg v. Italy has addressed the question of the applicability of the right to fair trial, as defined in Article 6 of the European Convention on Human Rights (echr), to arbitral proceedings. The judgment has clarified that the scope of Article 6 echr extends to international commercial arbitration. However, a number of questions remain unanswered, especially about the relationship between arbitral tribunals and domestic courts, the significance of fair trial in voluntary proceedings, whether a State is responsible to monitor the respect of due process in arbitral proceedings conducted within its territory and to what extent. Moreover, the ECtHR failed, notwithstanding its foray into the field of arbitration, to clarify the meaning of “impartiality” and “independence” as requirements to sit in arbitral tribunals within the context of Article 6 echr. This article provides an analysis of the judgment in Beg v. Italy and highlights, in light of the questionable approach taken by the ECtHR in the case, the uncertainty that affects the scope of application of Article 6 echr with regard to arbitral proceedings.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"130 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128301741","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}

引用次数: 0

The European Union and International Arbitration 欧盟与国际仲裁

The Italian Review of International and Comparative Law Pub Date : 2022-01-27 DOI: 10.1163/27725650-01020017

{"title":"The European Union and International Arbitration","authors":"","doi":"10.1163/27725650-01020017","DOIUrl":"https://doi.org/10.1163/27725650-01020017","url":null,"abstract":"One of the aims of the European Union (EU) has been to establish an area of “freedom, security and justice” founded, inter alia, on the freedom of circulation of people, goods and capitals, in which legal decisions rendered in a Member State are free to circulate within the Union. The functioning of this legal order is based on the mutual trust between domestic courts, according to which, as a matter of principle, all decisions rendered in a Member State are not to be reviewed in other Member States. Automatic circulation of judgments should possibly incentivize the recourse to domestic systems of justice and, in the opinion of the EU institutions, all domestic courts within the Union should be seen as equal and apt to grant an equivalent level of justice. However, individuals and companies carrying out business activities still seem (at least partially) to distrust domestic systems of justice and to prefer recurring to international arbitration, which is sometimes perceived as a more neutral and efficient system of dispute settlement, more suitable for international commercial litigation. This consideration applies both in the field of purely commercial disputes – involving two private parties – as well in international investment arbitration – involving a foreign investor, on the one hand, and the host State where the former decided to carry out its business, on the other. In the last decade, the EU, for its part, has confronted with the continuous recourse to international arbitration on several occasions. As regards the outcomes, however, a clear distinction has to be drawn between international commercial litigation and investor-State dispute settlement (isds). As to international commercial arbitration, the EU legislator has been quite reluctant in regulating it within the normative framework of EU regulations on private international law. Arbitration is, indeed, expressly excluded by the Regulation No 1215/2012 (Brussels I-bis) and the extension of this exclusion is","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116037671","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}

引用次数: 0

Multilateral Principles in a Bilateral World 双边世界中的多边原则

The Italian Review of International and Comparative Law Pub Date : 2021-10-15 DOI: 10.1163/27725650-01010004

L. Mistelis, G. Rao

{"title":"Multilateral Principles in a Bilateral World","authors":"L. Mistelis, G. Rao","doi":"10.1163/27725650-01010004","DOIUrl":"https://doi.org/10.1163/27725650-01010004","url":null,"abstract":"\u0000Multilateralism in international investment law is a multifaceted concept with a complex and eventful history. Multilateralism is a paradigm for international investment relations and is also present in the caselaw of investment arbitral tribunals, regardless of whether they consider bilateral or multilateral investment treaties. Indeed, in most cases, they interpret treaty provisions as part of a multilateral system. Further, multilateralism is present every time States act in concert with other States or consider other States’ investors’ legitimate interests.\u0000It also emerges that, in some instances, multilateralism has become mandatory. For example, this is the case concerning sustainable development or climate change. In these areas, international law requires multilateralism. States are under an obligation to co-operate for purposes of achieving or promoting multilateral solutions. However, concerning the international investment law context, such a concept is not present. The general assumption is that States’ participation in multilateral practises is left to their discretion: it is voluntary or consensual. In this article, we question that assumption.\u0000In this article, we offer a brief review of multilateral experiences in international investment law in the 20th century and provide an analysis of multilateralism in a historical context. Then we turn our attention to the current state of affairs to appreciate it in light of the past. Further, we discuss the future, and in particular, mandatory multilateralism in international law with respect to sustainable development. Here we identify the principles, which might justify mandatory multilateral approaches. Finally, we consider whether the principles justifying mandatory multilateralism in international law are applicable in the context of international investment law as well. We attempt to answer this question in the affirmative and point out further areas of research.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115123763","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}

引用次数: 0

Soft Law in International Investment Law and Arbitration 国际投资法与仲裁中的软法

The Italian Review of International and Comparative Law Pub Date : 2021-10-15 DOI: 10.1163/27725650-01010005

G. Adinolfi

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The New Italian Model Bit Between Current and Future Trends 新意大利模型介于当前和未来趋势之间

The Italian Review of International and Comparative Law Pub Date : 2021-10-15 DOI: 10.1163/27725650-01010006

M. Malaguti

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Art. 11 of the Italian Constitution between text and context 意大利宪法第11条的文本与上下文之间的关系

The Italian Review of International and Comparative Law Pub Date : 2021-10-15 DOI: 10.1163/27725650-01010012

L. Cappuccio

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Russian Diplomatic Espionage in Italy 俄罗斯在意大利的外交间谍

The Italian Review of International and Comparative Law Pub Date : 2021-10-15 DOI: 10.1163/27725650-01010010

C. Milo

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Environmental Disasters and Humanitarian Protection: A Fertile Ground for Litigating Climate Change and Human Rights in Italy? 环境灾难与人道主义保护:意大利气候变化与人权诉讼的沃土?

The Italian Review of International and Comparative Law Pub Date : 2021-10-15 DOI: 10.1163/27725650-01010008

F. Vona

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State Immunity and Serious Violations of Human Rights: Judgment No. 238 of 2014 of the Italian Constitutional Court Seven Years on 国家豁免和严重侵犯人权:意大利宪法法院2014年第238号判决书，七年过去了

The Italian Review of International and Comparative Law Pub Date : 2021-10-15 DOI: 10.1163/27725650-01010003

C. Focarelli

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Borrowing to Survive: Investigating the Functioning of the Court of Justice of the EU through Comparative Law 借债求生存:用比较法考察欧盟法院的职能

The Italian Review of International and Comparative Law Pub Date : 2021-10-15 DOI: 10.1163/27725650-01010013

Orlando Scarcello

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