A Comparison between Shale Gas in China and Unconventional Fuel Development in the United States: Health, Water and Environmental Risks

A comparison between Shale Gas in China and Unconventional Fuel Development in the United States: Health, Water and Environmental Risks. Brooklyn Journal of International Law, Vol. 41, No. 2, 2016, pp. 579-655.
Paolo Davide Farah
Riccardo Tremolada

China is believed to have the world's largest exploitable reserves of shale gas, although several legal, regulatory, environmental, and investment-related issues will likely restrain its exploitation. China's capacity to face these hurdles successfully and produce commercial shale gas will have a crucial impact on the regional gas market and on China’s energy mix, as Beijing strives to decrease reliance on imported oil and coal, and, at the same time, tries to meet growing energy demand and maintain a certain level of resource autonomy. The development of the unconventional natural gas extractive industry will also provide China with further negotiating power to obtain more advantageously priced gas. This article, which adopts a comparative perspective, underlines the trends taken from unconventional fuel development in the United States, emphasizing their potential application to China in light of recently signed production-sharing agreements between qualified foreign investors and China. The wide range of regulatory and enforcement problems in this matter are increased by an extremely limited liberalization of gas prices, lack of technological development, and barriers to market access curbing access to resource extraction for private investors. This article analyzes the legal tools that can play a role in shale gas development while assessing the new legal and fiscal policies that should be crafted or reinforced. It also examines the institutional settings’ fragmentation and conflicts, highlighting how processes and outcomes are indeed path dependent. Moreover, the possibilities of cooperation and coordination (including through U.S.-China common initiatives), and the role of transparency and disclosure of environmental data are assessed. These issues are exacerbated by concerns related to the risk of water pollution deriving from mismanaged drilling and fracturing, absence of adequate predictive evaluation regulatory instruments and industry standards: this entails consequences for social stability and environmental degradation which are inconsistent with the purposes of sustainable development.

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A Dispute Resolution Centre for the BRICS?

Dias Simões, Fernando, A Dispute Resolution Centre for the BRICS? (June 2017). in Rostam J. Neuwirth, Alexandr Svetlicinii and Denis de Castro Halis (eds.), The BRICS-Lawyers’ Guide to Global Cooperation (Cambridge University Press, 2017 Forthcoming).
Fernando Dias Simões

Over the last decades, international arbitration has become the foremost technique for resolving disputes between states, individuals and corporations. The expansion of the market for international arbitration is evidenced by the multiplication of arbitral institutions around the world. Some of these institutions specialize in certain types of disputes, focusing on specific markets or trade networks. The BRICS governments are currently discussing the establishment of an arbitral institution for the resolution of commercial and investment disputes among the BRICS nations. The creation of a specialized arbitral institution may be beneficial for disputing parties if the dispute settlement mechanism suits their particular socio-economic idiosyncrasies and legal needs. This article discusses how a BRICS-centered arbitral institution should be structured to cater to the needs and expectations of its end-users.

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A Guardian and a Friend? The European Commission's Participation in Investment Arbitration

Dias Simões, Fernando, A Guardian and a Friend? The European Commission's Participation in Investment Arbitration (June 2017). Michigan State International Law Review, 25(2), 2017, pp. 233-303.
Fernando Dias Simões

The figure of amicus curiae is a central feature of contemporary investor-state arbitration law and practice. Over the last several years the European Commission has taken part in a number of arbitral proceedings that touched upon matters of European Union Law. This phenomenon is part of the European Union’s broader incursion into the realm of investment law. The participation of an entity with legislative and political functions in investment arbitrations raises complex questions regarding the nature of the interests that this entity pursues and the potential impact that its involvement might have in the dispute settlement mechanism. This paper examines the participation of the European Commission (EC) in investor-state arbitrations and assesses its impact in the overall mechanism of investor-state dispute resolution. It is argued that the EC is fundamentally a distinct type of amicus, as it pursues interests different from those of traditional amici, and should therefore be accorded extended participatory rights.

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A Short Comment on the Report of the UN Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises

Letnar Cernic, Jernej, A Short Comment on the Report of the UN Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (October 20, 2009). Libertas Working Paper 02/2009.
Jernej Letnar Černič

A short comment on the 2009 report of the UN Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Professor John Ruggie to the United Nations Human Rights Council, “Business and human rights: Towards operationalizing the 'protect, respect and remedy' framework” AH/HRC/8/5, April 22, 2009.

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Amicus Curiae in the Trans-Pacific Partnership

Dias Simões, Fernando, Amicus Curiae in the Trans-Pacific Partnership (2017). American Business Law Journal, 54(1), 2017, pp. 161-238.
Fernando Dias Simões

This article discusses the provisions of the Trans-Pacific Partnership on amicus curiae participation.

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Bilingual Topographical Signs of Different Sizes are Unconstitutional

Letnar Cernic, Jernej, Bilingual Topographical Signs of Different Sizes are Unconstitutional (2011). The Vienna Journal on International Constitutional Law, 2011 (1), pp. 89-93.
Jernej Letnar Černič

On 24 June 2010, the Austrian Constitutional Court rendered its most recent decision in a series on bilingual topographical signs in the Austrian province of Carinthia in V 9/10-9. The Court held that the difference in size between the German and Slovenian topographical signs for Bleiburg-Pliburg, Drveša vas- Ebersdorf and Žvabek were illegal and unconstitutional. Recall that the Austrian Constitutional Court had already held, on 13 December 2006, that the difference in size between bilingual topographical signs in German and in Slovenian in those places was illegal and unconstitutional and that this had to be resolved. However, this decision was put aside and bilingual topographical signs of different sizes remained in place.

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Book Review of 'Suzannah Linton (ed.): Hong Kong's War Crimes Trials, OUP, 2013, 264 pp.'

Letnar Cernic, Jernej, Book Review of 'Suzannah Linton (ed.): Hong Kong's War Crimes Trials, OUP, 2013, 264 pp.' (December 15, 2014). Dignitas - Slovene Journal of Human Rights, nr. 63-64 (2014), pp. 165-167.
Jernej Letnar Černič

Hong Kong’s War Crimes Trials are some of the domestic war trials after the Second World War that have so far been forgotten by domestic and international researchers. They included the prosecution of individuals for violations of the law of armed conflict during the Second World War in South East Asia. Edited by Suzannah Linton, the book offers a clear, authoritative and comprehensive introduction to the subject of Hong Kong’s War Crimes Trials.

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Book Review of Danilo Türk's 'Temelji Mednarodnega Prava' (Foundations of International Law)

Letnar Cernic, Jernej, Book Review of Danilo Türk's 'Temelji Mednarodnega Prava' (Foundations of International Law) (June 15, 2009). Global Law Books, June 2009.
Jernej Letnar Černič

This treatise is the first on public international law in Slovenian by a Slovenian author. Although such a book has been long awaited by students, academics and practitioners of international law in Slovenia, it was worth waiting for despite its minor weaknesses. Both the choice of the book title - ‘Foundations of International Law’ - and its length indicate the author’s attempt to present the topic comprehensively and broadly but only in its most essential characteristics.

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Book Review of Jan Paulsson's Denial of Justice in International Law

Letnar Cernic, Jernej, Book Review of Jan Paulsson's Denial of Justice in International Law. Global Law Books, April 2007.
Jernej Letnar Černič

International law regarding the denial of justice has in past centuries attracted the greatest minds of international legal scholarship. Scholars such as Hugo Grotius and Charles De Visscher have discussed the concept. The last book on this subject was published by Alwyn V. Freeman in 1938. Denial of Justice in International Law by Jan Paulsson is hence an important and necessary contribution to the study of international law, since it tries to shed new light on the subject that has been neglected in past decades. This book offers an original and comprehensive approach to one of the most salient concepts of international law. It arose from the Hersch Lauterpacht memorial lectures given by the author at the Faculty of Law, University of Cambridge, in the autumn of 2003.

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Book Review: Gentian Zyberi, The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles

Letnar Cernic, Jernej, Book Review: Gentian Zyberi, The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles (December 1, 2010). Australian International Law Journal, Vol. 17, pp. 283-287, 2010.
Jernej Letnar Černič

This monograph is one of the first on the contribution of the International Court of Justice (‘ICJ’) to interpreting and developing international human rights and humanitarian law rules and principles. Although such a book has been long awaited by academics, students and practitioners of human rights and public international law worldwide, it has been worth the wait despite its minor weaknesses.

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Book Review: The Oxford Companion to International Criminal Justice

Letnar Cernic, Jernej, Book Review: The Oxford Companion to International Criminal Justice (August 24, 2009). International Law Observer, March 2009.
Jernej Letnar Černič

International criminal law falls within the areas of international law which have progressively developed in the past two decades. This field of law has come a long way since its first steps in Nuremberg and Tokyo after the Second World War and the more recent establishment and functioning of ad hoc tribunals in the Hague and Arusha and the permanent International Criminal Court. In this way, international criminal law has taken confident and decisive steps towards becoming a full-fledged discipline of international law, and towards ridding itself of non-compliance problems so common to the (non-)functioning of general international law. It must be noted, however, that the status of international criminal law as a full-fledged and independent discipline has never been questioned by its practitioners and scholars. In this sense, the Oxford Companion to International Criminal Justice confirms that international criminal law has come of age and become a full standing discipline within international law.

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Building in the Light of Private Law Principles

Cofola 2012: The Conference Proceedings: sborník příspěvků z mezinárodní konference: 17. - 19. máj 2012, Brno, Masarykova univerzita, 2012, ISBN 9788021059290, p. 1351-1361.
Tivadar Ötvös

The article deals with the actual legislative problems of buildings and other constructions in the private (civil) law. It underlines some shortcomings of several provisions of the Civil Code of Slovakia in the terms of their coherence with the principles of private law. The absence of the right to build, denial of "superficies solo cedit" and other solutions overcome by development of the legal system a long time ago create a deficit of legal certainty, the elimination of which should be the primary objective of the recent recodification process in civil law.

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Case Concerning the Application of the Convention on the Prevention of the Crime of Genocide (Bosnia and Herzegovinia v. Serbia and Montenegro) (2007) - Catching the Conscience of the Judges

Letnar Cernic, Jernej, Case Concerning the Application of the Convention on the Prevention of the Crime of Genocide (Bosnia and Herzegovinia v. Serbia and Montenegro) (2007) - Catching the Conscience of the Judges (February, 11 2009). Australian International Law Journal, Vol. 14, pp. 255-261, 2007.
Jernej Letnar Černič

Earlier this year, on 27 February, a mass demonstration was held in Sarajevo, where 10,000 victims of the Srebrenica genocide expressed their disillusionment with the judgment of the International Court of justice ('ICJ') handed down a day earlier. On 26 February 2007, the ICJ had delivered its decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) {'Genocide Convention Case (Merits)'). One of the victims in the demonstration carried a banner where it was ironically written that 8,000 Bosnian Muslim men were killed by 'aliens'. This is just one indication that the ICJ's decision will have far-reaching consequences regarding the stability of this troubled region. This article examines the decision from a substantive point of view and attempts to shed new understanding on the decision.

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Caught Between WTO Rules and Climate Change: The Economic Rationale of ‘Green’ Subsidies

K. Mathis and B.R. Huber (Editors), Economic Analysis of Law in European Legal Scholarship, Vol. 4, Springer, 2017, pp 379-404
Elena Cima

Given the dominant role still played by fossil fuels in our economy and the economic challenges faced by renewable energy producers, the transition to renewable energy sources will be essentially impossible without major changes in government policies and significant investment in the development of these new sources. This paper focuses on the economic rationale behind renewable energy subsidisation and aims to explore whether the economic logic behind the adoption of such policies is mirrored in the international regulation of subsidies, as intended in the WTO agreements, as well as in the interpretation of the relevant provisions provided by the WTO panels and Appellate Body. In particular, the WTO discipline of subsidies overlooks the fact that, even when an industry is a net beneficiary of government financial support, those benefits may be socially justifiable in case the industry in question is a source of positive externalities. The core issue is therefore to determine whether a particular measure distorts or rather corrects the market process, that is whether it decreases or increases the efficiency of resource allocation. Focusing on the role that economics can play both in legal interpretation and in law-making, this contribution identifies possible solutions to the current shortcomings of the WTO Subsidies Agreement.

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Charanne and Construction Investments v. Spain: Legitimate Expectations and Investments in Renewable Energy

Dias Simões, Fernando, Charanne and Construction Investments v. Spain: Legitimate Expectations and Investments in Renewable Energy (June 2017). Review of European, Comparative and International Environmental Law, Forthcoming .
Fernando Dias Simões

The award in Charanne and Construction Investments v. Spain is the first decision in a growing cluster of investment arbitrations relating to the enactment of legislative measures reducing or withdrawing economic support mechanisms previously introduced in support of renewable sources of energy. These disputes raise the question of whether investors can seek compensation under investment treaties when governments encourage investment via economic support schemes, but decide to reduce or eliminate them after the investment has been made. This case note focuses on the most noteworthy aspects of the Charanne decision: the requirements for breach of the standards of investment protection (namely, the prohibition of expropriation and the fair and equitable treatment standard); and the conditions for the protection of the investors’ legitimate expectations. The conclusions reflect on the tribunal’s finding that in the absence of specific commitments, international investment law does not require States to freeze regulatory frameworks.

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China and WTO: Chinese Cultural Traditions in the WTO Context

Farah, Paolo Davide, China and WTO: Chinese Cultural Traditions in the WTO Context (L'Adesione Della Cina All'Organizzazione Mondiale Del Commercio: Ovvero Come Conciliare Cultura E Diritto). Rivista Trimestrale Mondo Cinese, Vol. 124, pp. 34-42, August-September 2005.
Paolo Davide Farah

China's accession to the WTO represents a goal achieved after nearly fifteen years of exhausting negotiations. A special precautionary instrument, the Transitional Review Mechanism (TRM), was included in the Protocol of China's Accession to the WTO, as requested by the US and supported by the EU. The TRM has the objective of monitoring and enforcement of implementation of WTO commitments, promoting transparency and the exchange of information in trade relations with China. China is lowering the expectations of some of the WTO members for the outcome of the TRM. It follows that the WTO members' participation in the review had declined in favour of bilateral negotiations which result in the best means to overcome many problems in China's WTO compliance. It is necessary to try to understand if there are comprehensive and justifiable reasons for China to delegitimize the multilateral system at the WTO in general and in the TRM context. According to some scholars, the general Chinese behaviour not in favour of the TRM could be explained with reference to the Chinese cultural tradition, where the best way to resolve the disputes was through mediation and conciliation. China is a high-context society, where the central role is played by collective entities and groups and not by individuals. A key element in the Chinese mentality (such as in other Asian, Middle East and South American countries) is the concept of preserving group harmony and maintaining one's public image. The best behaviour is to try to avoid any direct confrontation, such as bringing a lawsuit.

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China and the WTO: International Obligations and Cultural Barriers

Revue de l'Antenne Franco-Chinoise, 2006
Paolo Davide Farah

China's accession to the WTO represents a goal achieved after nearly fifteen years of exhausting negotiations. A special precautionary instrument, the Transitional Review Mechanism (TRM), was included in the Protocol of China's Accession to the WTO, as requested by the US and supported by the EU. The TRM has the objective of monitoring and enforcement of implementation of WTO commitments, promoting transparency and the exchange of information in trade relations with China. China is lowering the expectations of some of the WTO members for the outcome of the TRM. It follows that the WTO members' participation in the review had declined in favour of bilateral negotiations which result in the best means to overcome many problems in China's WTO compliance. It is necessary to try to understand if there are comprehensive and 'justifiable' reasons for China to delegitimize the multilateral system at the WTO in general and in the TRM context. According to some scholars, the general Chinese behaviour not in favour of the TRM could be explained with reference to the Chinese cultural tradition, where the best way to resolve the disputes was through mediation and conciliation. China is a high-context society, where the central role is played by collective entities and groups and not by individuals. A key element in the Chinese mentality (such as in other Asian, Middle East and South American countries) is the concept of preserving group harmony and maintaining one's public image. The best behaviour is to try to avoid any direct confrontation, such as bringing a lawsuit.

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China's Water Environmental Management Towards Institutional Integration. A Review of Current Progress and Constraints vis-a-vis the European Experience

Journal of Cleaner Production, 113 (2016) 285-298, Elsevier, SCI
Paolo Davide Farah

In recent years, China has launched ambitious measures to tackle water pollution. As political commitment and public investment soared, Chinese environmental scientists and practitioners have engaged in a substantial debate on the reorganization of the country's water management system. Domestic discussion has largely revolved around best practices adopted abroad, particularly in the European Union (EU), where the Water Framework Directive (WFD) has introduced an integrated management model based on the core concept of unity of the water cycle. This paper seeks to contribute to this debate, by appraising the regulatory, administrative, monitoring, and public participation dimensions of China's water environmental management. Related progress and constraints are discussed in the evolving context of Chinese environmental policies, against the background of the relevant EU experience. Regulatory and administrative coordination and integration, and the adoption of a watershed-based management model, appear at present as essential prerequisites to overcome the fragmentation of China's water environmental management. Despite recent efforts in this direction, institutional rationalization is still hampered by the persistence of conflicting interests and attributions among government bodies concurring to law making and implementation.

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China’s Participation in the World Trade Organization: Trade in Goods, Services, Intellectual Property Rights and Transparency Issues

EL COMERCIO CON CHINA: OPORTUNIDADES EMPRESARIALES, INCERTIDUMBRES JURIDICAS, pp. 83-121, Aurelio Lopez-Tarruella Martinez, ed., Editorial Tirant le Blanch, Valencia (Spain), 2010
Paolo Davide Farah
Elena Cima

During the negotiations and after the accession China has started a massive process of amendment of its domestic laws and regulations regarding all the sectors covered by WTO rules. As any new member of the WTO, China needed to reform the main sectors of its legislation on: trade in goods, trade in services, trade-related intellectual property rights and to start to deeply apply the more general WTO transparency principle. The paper analyses in particular the TRIPs implementation in China.

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China’s role and contribution in the global governance of climate change: institutional adjustments for carbon tax introduction, collection and management in China

Journal of World Energy Law and Business, Oxford University Press, Volume 8, Issue 6, December 2015
Paolo Davide Farah
Deng Haifeng
Anna Wang

As global climate change and its adverse effects have caused serious consequences, the Chinese Government is speeding up on energy saving and emissions reductions, becoming much more active on the climate and environment front. According to the work schedule of the Ministry of Finance, construction of the environmental protection tax system is one essential part of the forthcoming green tax reform in China. On 10 June 2015, the Cabinet’s Legislative Affairs Office issued a Draft Environmental Protection Tax Law of the People’s Republic of China (hereinafter referred to as the ‘Draft EPT Law’) to solicit opinions and comments. This action received much attention and prompted discussion both at home and abroad. The Draft EPT Law shows the trend of transforming pollution charges into tax, and starts a green reform in administrative management by means of financial tools. Though the law does not include carbon dioxide with taxable pollutants, it leaves space for future carbon taxation. With the increase of green reform in the future, carbon tax will no doubt be put on the priority list of the Chinese Government, at which point the Government will face three major challenges. First, the current unsatisfactory tax system environment will jeopardize carbon tax. It is necessary to repeal the overlaps between the Draft EPT Law and carbon tax, other energy taxes and non-environmental taxes, and introduce carbon tax into the current tax system without throwing off the order of the overall tax structure. Secondly, in spite of the design of the new tax structure, the administrative organization of tax management remains a very critical problem. It will be necessary to establish an orderly interactive relationship horizontally between the environmental agency and tax agency, and vertically between the central and the local authorities. Thirdly, a new carbon tax will cause economic slowdown in the short term. In addition to offering tax rebates, reductions and subsidies, a system of penalties could offset negative effects and optimize positive outcomes of emission reduction.

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Chinese Investment in Southern Africa with a Macanese Accent?

Dias Simões, Fernando, Chinese Investment in Southern Africa with a Macanese Accent? (September 1, 2013). in Monitoring Regional Integration in Southern Africa Yearbook 2012, André du Pisani, Gerhard Erasmus and Trudi Hartzenberg (Eds), Trade Law Centre (Tralac), Stellenbosch, 2013, pp. 232-250.
Fernando Dias Simões

Involvement in international cooperation platforms is one of China’s key interests. One of the most important vectors of this policy concerns the promotion of high-level contacts between China and Portuguese-speaking countries, especially Angola and Mozambique, two of China’s most important partners in Africa. Macau plays an important role as an economic cooperation service platform between China and the Lusophone world. In this article we analyse the advantages of Macau as a seat for arbitration of commercial disputes concerning trade between Chinese, Angolan and Mozambican companies, and discuss possible avenues for improvement of the current legal framework.

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Civil Law Principles in a European Context

Súkromné právo v európskej perspektíve - zborník z konferencie: [február 2011], Trnava, Trnavská univerzita, 2011, ISBN 9788080824778, p. 131-142.
Tivadar Ötvös

In this article the author deals with the position of the principles of civil law in the current european integration processes. This topic is not only actual, but also essential according to the harmonisation efforts in the whole private law section. There are chosen parts of civil law analysed in this article from the view of the principles and their role on the european level. The author emphasises the trends to create a catalog of principles (especially in contract law), which would be useful in legal relationships with international components. In the future this catalog could also be the basic of the Code of European Private Law, about which there are already discussions among legal experts.

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Classification of Private Law Principles

Míľníky práva v stredoeurópskom priestore - Zborník z medzinárodnej vedeckej konferencie doktorandov a mladých vedeckých pracovníkov [marec 2013], Bratislava, Univerzita Komenského, 2013, ISBN 978-80-7160-368-9, p. 283-292
Tivadar Ötvös

Principles, which are highly emphasized in the present, are generally the basics (also) of the whole private law area. The goal of this article is to create a complete taxology on the base of value orientation, and mutual derivative relations. On the basis of choosing two fundamental axiological pillars (liberty, justice), horizontal branches were made, which were connected to a vertical dimension regarding several deductive methods. These deductive methods allow to derive from main principles several subordinate ones.

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Comment on Cassazione 12 March 2013, n. 6093

Giurisprudenza Italiana, 2013, 2590 ff.
Carlo Vittorio Giabardo

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Comment on Cassazione 17 January 2013, n. 1020

Giurisprudenza Italiana, 2013, 1863 ff.
Carlo Vittorio Giabardo

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Comment on Tribunale Reggio Emilia, 10 May 2012

Giurisprudenza Italiana, 2013, 920 ff.
Carlo Vittorio Giabardo

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Commentary on Italian Supreme Court, Delta Impianti Srl v Colacem Spa

Commentary on Italian Supreme Court, Delta Impianti Srl v Colacem Spa, March 5, 2014, 7(3) Global Competition Litigation Review, 2014, R-36.
Riccardo Tremolada
Mario Siragusa

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Commentary on Italian Supreme Court, P.C. v Ordine dei Farmacisti della Provincia di Caserta

Mario Siragusa, Riccardo Tremolada et a., Commentary on Italian Supreme Court, P.C. v Ordine dei Farmacisti della Provincia di Caserta, February 8, 2013, 7(3) Global Competition Litigation Review, 2014, R-34.
Riccardo Tremolada
Mario Siragusa

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Commercial Arbitration in the Portuguese-Speaking World: Opportunities and Challenges

Dias Simões, Fernando, Commercial Arbitration in the Portuguese-Speaking World: Opportunities and Challenges (June 2014). Young Arbitration Review, edition 14, 2014, pp. 30-33.
Fernando Dias Simões

This article discusses how Portuguese-speaking countries may take advantage of the linguistic and cultural bond that unites them to create an arbitration market. Apart from Brazil and Portugal, arbitration is still almost nonexistent in the Portuguese-speaking world. This article discusses the advantages that could result from a serious investment in international commercial arbitration by these countries and the challenges they face.

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Comparative Law in Theory and Practice. Mauro Cappelletti’s Methodology in Comparative Civil Justice and the Coercive Powers of Courts as a Case Study

in L. CADIET, B. HESS, M. REQUEJO (eds.), Approaches to Comparative Procedural Law: The Pluralism of Methods, Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, Nomos Verlag Publisher, 2017, 67-91. (ISBN: 978-3848743094).
Carlo Vittorio Giabardo

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Conflict Between Intellectual Property Rights and Human Rights: A Case Study on Intangible Cultural Heritage

Oregon Law Review, Vol. 94, No. 1, 2015
Paolo Davide Farah
Riccardo Tremolada

The ability to protect and safeguard cultural heritage is of vital importance to some communities. Without the ability to maintain control over these expressions, external subjects could freely appropriate them, which could negatively affect the community’s identity, spirituality, and general well-being. Increasing awareness regarding cultural heritage provides momentum to better define a legal framework for the protection of the intangible goods that constitute cultural heritage. It is fundamental to ascertain whether the current intellectual property rights (IPR) regime represents an adequate model of protection vis-à-vis intangible cultural heritage (ICH). The culture’s unique concerns, which variably affect ICH, make it difficult to compare the rationales for these two legal domains. These concerns are pivotal in elaborating the need for legal protection. Not only does misuse and misappropriation of ICH cause economic damage, but it also violates the community’s human rights and identity. Accordingly, a range of issues must be taken into consideration, starting with the desirability of the commodification, or “reification,” which would allow communities to control the commercialization of their ICH through the current IPR regime. To adequately address concerns about commodification, a legal framework must be developed that can guarantee adequate advantages for the countries and communities where the intangible goods originate. This legal framework must, in due time, boost the efforts of these communities to promote a self-sustainable model of economic development and lead them through the inevitable social policy changes that would accompany new ICH protections. Therefore, our study aims to clarify theoretical and practical legislative tools available to help the actors concerned ascertain how to exploit, trade, and market their own resources and heritage within the global market. Bearing in mind that there are numerous potential legal remedies or amendments to the current legal regime covering the protection of cultural heritage, it is not conceivable to tackle this issue as one uniform hurdle. Each community’s ICH concerns are extremely specific, and, as a result, it may be appropriate to apply ad hoc legal remedies to some, but not all, circumstances involving ICH. This analysis consists of five Parts. Part I defines fundamental concepts associated with ICH. Part II looks at ICH as a continuous process of social involvement that helps preserve cultural identification. Part III analyzes the current forms of protection available for cultural expression and knowledge. Part IV discusses the shortcomings of adopting a single, all-embracing, umbrella solution and analyzes ways in which the current IPRs can help protect ICH. And finally, Part V proposes ways to modify and improve the current IPRs to protect ICH more efficiently.

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Considerazioni sparse in tema di tutela processuale degli small claims, comment on Cassazione 27 January 2017, n. 2168 (ord.)

Giurisprudenza Italiana, 2017, 1598 ff.
Carlo Vittorio Giabardo

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Consumer Behavior and Sustainable Development in China: The Role of Behavioral Sciences in Environmental Policymaking

Dias Simões, Fernando, Consumer Behavior and Sustainable Development in China: The Role of Behavioral Sciences in Environmental Policymaking (September 2016). Sustainability, 8(9), advance access published in 6 September 2016, doi:10.3390/su8090897.
Fernando Dias Simões

China’s astonishing economic development over the last decades has produced a momentous impact on the country’s environmental equilibrium. Chinese officials are now confronted with the need to tackle environmental problems without disrupting the country’s development. The Chinese government seems keen on striking a balance between these two apparently contradictory goals by promoting the concept of “ecological civilization”, a notion that emphasizes the importance of individual behavior. Over the last few years, environmental policymaking worldwide has been giving a lower profile to the role of the State and placing increasing responsibility for many environmental issues on citizens/consumers. Individuals are increasingly perceived as agents for environmental change and their behaviors are subject to tighter scrutiny. Due to the emergence of a consumer society in China, individual behaviors are increasingly a source of environmental problems and a key component of efficient and long-lasting solutions. Accordingly, Chinese policymakers should recognize the environmental significance of individual behaviors and look beyond traditional policy tools. This article argues that Behavioral Sciences can offer important lessons and help in designing new strategies that can speak directly to the Chinese people as a source of environmental harm, thus reducing their impact on the environment.

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Corporate Human Rights Obligations Under Stabilization Clauses

Letnar Cernic, Jernej, Corporate Human Rights Obligations Under Stabilization Clauses (February 22, 2010). German Law Journal, Vol. 11, No. 2, pp. 210-229, 2010.
Jernej Letnar Černič

Lawyers, economists and social scientists alike have for a number of years agreed that foreign investment has the potential to act as a catalyst for the enjoyment of an individual’s fundamental human rights, particularly in developing countries. This article discusses and critically analyses corporate human rights obligations and the lack thereof under stabilization clauses in foreign investment contracts. The balance of this article is devoted to exploring three main issues relating to corporate human rights obligations and stabilization clauses. First, stabilization clauses in foreign investment agreements are examined in relation to corporate obligations and responsibility for fundamental human rights. In doing so the substantive and procedural dimension of stabilization clauses is analysed. Second, using the concrete examples of the Mineral Development Agreement between Mittal Steel and the Government of Liberia Mittal Steel Agreement and of the Baku‐Tblisi‐Ceyhan Pipeline Project as case studies, this article considers an application of stabilization clauses in foreign investment contracts in relation to the fundamental human rights obligation of states and of corporations. Third, a proposal for reform in the form of a fundamental human rights clause is introduced. To be clear, the argument here is that the fundamental human rights obligations of investors, particularly of corporations, must be included in foreign investment agreements.

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Corporate Obligations Under the Human Right to Water

Letnar Cernic, Jernej, Corporate Obligations Under the Human Right to Water (March 22, 2011). Denver Journal of International Law and Policy, Vol. 39, No. 2, pp. 303-345, Spring 2011.
Jernej Letnar Černič

Almost a billion people do not have access to clean and safe water. Access to safe drinking water and sanitation is increasingly being considered a fundamental human right. Corporations play an important role in the realization of the right to water. For example, they can become violators of the right to water where their activities deny access to clean and safe water or where water prices increase without warning. Corporations can have a positive or negative impact on the human rights of individuals, wider communities and indigenous peoples. This paper argues that corporations bear a certain responsibility for the realization of the human right to water, which can be derived from international as well as national (constitutional) law. Corporate obligations under the human right to water can potentially be based on the right to water as set in national law and in the international human rights treaties and in corporate codes of conduct. It is asserted that this responsibility is different and separate from the responsibility of state governments and should never undermine state obligations to observe the human right to water. In short, the paper argues that corporations have an obligation to respect, protect and fulfil the right to water deriving primarily from national legal orders.

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Corporate Responsibility for Human Rights

Letnar Cernic, Jernej, Corporate Responsibility for Human Rights (June 27, 2008). Libertas Working Paper No. 1/2008.
Jernej Letnar Černič

A Review Essay on the 2008 report of the UN Special Representative of the Secretary-General on the issue of human rights and Transnational corporations and other business enterprises, Professor John Ruggie to the United Nations Human Rights Council, Protect, Respect and Remedy: a Framework for Business and Human Rights AH/HRC/8/5, 7 April 2008.

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Corporate Responsibility for Human Rights: A Critical Analysis of the OECD Guidelines for Multinational Enterprises

Letnar Cernic, Jernej, Corporate Responsibility for Human Rights: A Critical Analysis of the OECD Guidelines for Multinational Enterprises (December 17, 2008). Hanse Law Review (HanseLR), Vol. 3, No. 1, September 2008.
Jernej Letnar Černič

When an individual has suffered a violation of her human rights by or involving corporations, she should have recourse to a court or quasi-judicial mechanism to enforce responsibility of perpetrator. It appears that the victims of human rights violations by or involving corporations have presently a limited access to a court either in their home country or in the country where the corporation in question is registered or, indeed, in the international arena. The present article attempts to clarify whether existing implementation procedures under the OECD Guidelines for Multinational Enterprises are effective and whether they could serve as a point of departure for enforcing human rights obligations of corporations. The OECD Guidelines for Multinational Enterprises are the only international corporate responsibility instrument that has been formally adopted by states. In this way, the OECD Member States are obliged to establish National Contact Points, which have primary responsibility to ensure the implementation of the OECD Guidelines for Multinational Enterprises at the national level. In this way, the present article argues national implementation of the OECD Guidelines remains a challenge in a number of countries. To this end, it examines a growing number of jurisprudence under the National Contact Points relates to human rights and it investigates challenges faced by a number of states regarding the implementation of the OECD Guidelines. Finally, a convincing argument can be made that these problems are all surmountable by strengthening the existing implementation system of the National Contact Points. This article lends its support to the growing trends movement arguing for more effective regulation of corporations relating to human rights at national and international levels.

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Corporate Responsibility for Human Rights: Analyzing the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy

Letnar Cernic, Jernej, Corporate Responsibility for Human Rights: Analyzing the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (2009). Miskolc Journal of International Law, Vol. 6, No. 1. pp. 24-34, 2009.
Jernej Letnar Černič

This article analyses the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy of the International Labour Organization. It argues that given the current lack of a legally binding international document on human rights obligations of corporations, the focus on work towards legally-enforceable, existing international standards must be sharpened and new standards should be drafted.

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Desirability of commodification of intangible cultural heritage: The unsatisfying role of intellectual property rights

Transnational Dispute Management, Special Issue, Volume 11, Issue 2, March 2014
Paolo Davide Farah
Riccardo Tremolada

The increasing sensibility regarding intangible cultural heritage provides momentum to better define a legal framework for the protection of these peculiar immaterial goods. This article questions whether the current intellectual property rights (IPRs) regime represents an adequate model of protection vis-à-vis intangible cultural heritage. A plethora of caveats must be taken into consideration, starting with the desirability of the commodification of intangible cultural heritage, i.e. its exploitation and commercialization through the IPRs regime, but also including the outlining of the legal instruments needed for guaranteeing adequate advantages for the countries and communities representing the sources of origin of the intangible goods. After framing the crucial issues detected in literature regarding intangible cultural heritage, the article investigates the ways in which the actual IPRs regime grants protection to intangible goods. Our evaluation supports the idea that, without a many-faceted remodeling, current intellectual property laws represent an unsatisfactory mechanism for protecting intangible cultural heritage. This inadequacy is rooted in the inefficacy of IPRs under the patent and copyright regimes in ensuring the protection of cultural heritage, while also falling short of fostering an appropriate comprehensive social policy.

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Digital markets and merger control: Balancing big data and privacy against competition law: a comment on the European Commission’s decision in the Microsoft/LinkedIn merger

Federico Marini-Balestra & Riccardo Tremolada, Digital markets and merger control: Balancing big data and privacy against competition law: a comment on the European Commission’s decision in the Microsoft/LinkedIn merger, European Competition Law Review , 2017.
Riccardo Tremolada
Federico Marini-Balestra

The European Commission’s decision to authorise Microsoft’s acquisition of LinkedIn raises a number of stimulating issues that are likely to be featured in future merger reviews involving digital markets. In examining the merger, the Commission considered big data and privacy-related concerns in professional social networks. In giving the merger the (conditional) green light, the Commission appears to have attained a balanced result. Its investigation of the potential anti-competitive effects of big data echoes the Commission’s previous decision-making practice as it reaffirms the "bundling" theory of harm. Its analysis also stresses the relevance of data privacy as a parameter of competition. The case is, therefore, an excellent opportunity to further develop the analytical framework for the competition law assessment of mergers in the information technology sector.

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Disobeying Courts’ Orders – A Comparative Analysis of the Civil Contempt of Court Doctrine and the Image of the Common Law Judge

10, Journal of Civil Law Studies (Louisiana State University), 2017, 35-61.
Carlo Vittorio Giabardo

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Dumping and Anti-Dumping (Preface)

Farah, Paolo Davide and Soprano, Roberto, Dumping and Anti-Dumping (Preface) (November 1, 2009). Paolo Farah and Roberto Soprano, DUMPING AND ANTI-DUMPING (Dumping e Anti-dumping), Il Sole 24 Ore, pp. XXIV-183, November 2009.
Paolo Davide Farah
Roberto Soprano

Dumping is the practice of a company exporting a product to another country at prices lower than the normal value of the product (the domestic prices of the product) on its own domestic market. In the European Union the adoption of antidumping measures (e.g. antidumping duties) is regulated by the EU Antidumping Regulation 384/96 which complies with WTO obligations. The purpose of the Handbook of Paolo Farah and Roberto Soprano is to foster a greater understanding of the EU Antidumping Regulation and assist entrepreneurs in lodging antidumping complaints.

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Editorial Note - Sustainable Energy Investments and National Security: Arbitration and Negotiation Issues

Sustainable Energy Investments and National Security: Arbitration and Negotiation Issues. Journal of World Energy Law and Business, Oxford University Press, Volume 8, Issue 6, December 2015.
Paolo Davide Farah

Energy-related investments have been on a track of constant development since the global expansion of energy utilization and the rapid increase of energy demand both regarding industrial use and consumer consumption. Fundamental trends in the European Union and the world at large provide an increasingly important policy agenda for financing sustainable energy in terms of energy efficiency, innovation in energy exploitation and development of renewable resources. Policies shaping this development are becoming more and more considerate of environmental aspects and maintaining sustainability. Furthermore, international organizations are fully aware of the necessity to keep broadening the scope of countries acquiring these new policy trends.

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Efectividad de la tutela jurisdiccional, medidas coercitivas y papel del juez en la comparación entre civil law y common law: la experiencia inglesa

in J. FERRER, C. VANQUEZ (eds.), Debatiendo con Taruffo, Marcial Pons, Madrid, 2016, 87 – 109 (ISBN 9788491230441).
Carlo Vittorio Giabardo

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Emerging Fair Trial Guarantees Before the Court of Arbitration for Sport

Letnar Cernic, Jernej, Emerging Fair Trial Guarantees Before the Court of Arbitration for Sport (September 4, 2014). EUROPEAN SOCIETY OF INTERNATIONAL LAW, 10th Anniversary Conference, Vienna, 4-6 September 2014, Conference Paper No. 9/2014.
Jernej Letnar Černič

The right to a fair trial is one of the backbones of the rule of law and a conditio sine qua non for the protection of human rights and fundamental freedoms. This article examines whether fair trial guarantees can also be exercised before the Court of Arbitration for Sport. Do fair trial guarantees apply and, if not, should they apply to the sports arbitration proceedings before the CAS? If so, is the nature and scope of such fair trial guarantees broader, narrower or the same as in regular judicial proceedings? What happens when the CAS violates one of the fundamental principles of a fair trial? What are the most appropriate ways to improve the guarantee of a fair trial before the CAS? Does the monitoring jurisdiction of the Swiss Federal Tribunal suffice to guarantee procedural public policy guarantees, including fair trial guarantees? This article therefore identifies whether the procedural rules and case law of the CAS should follow all four component parts of the right to a fair trial (the right to a fair hearing, the right to an independent and impartial tribunal established by law, the right to a public hearing and the public pronouncement of judgments, and the right to a fair trial within a reasonable time). The balance of this article explores the nature, value and status of this concept through its fundamental principles developed in the jurisprudence of the European Court of Human Rights (ECtHR).

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Energy Investments and Environmental Concerns in Southeast Asia

ENERGY: POLICY, LEGAL AND SOCIAL-ECONOMIC ISSUES UNDER THE DIMENSIONS OF SUSTAINABILITY AND SECURITY, World Scientific Reference on Globalisation in Eurasia and the Pacific Rim, Imperial College Press (London, UK) & World Scientific Publishing, Nov. 2015.
Paolo Davide Farah

South-East Asia encompasses a number of countries that have experienced rapid economic growth in the last twenty years. The region as a whole is wealthy in fossil energy sources. Energy demand in South-East Asia is expected to increase dramatically in the coming years, creating problems in terms of relations among countries in the region and environmental degradation. The fossil energy sources are not evenly distributed across the region, and consequently some countries are abundant in resources while others are poor in resources. This state of affairs means that some national conceptions about competition among countries in the region need to be overcome, and appropriate transnational infrastructure for oil and gas transportation needs to be developed. Moreover, intriguing opportunities may derive from the development of renewable energy for about six hundred million people, 8.7 per cent of the entire world population. The analysis will focus on the following countries: Brunei Darussalam, Cambodia, Timor-Leste, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Vietnam.

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Energy Security, Water Resources and Economic Development in Central Asia

World Scientific Reference on Globalisation in Eurasia and the Pacific Rim, Imperial College Press (United Kingdom) & World Scientific Publishing, 2015
Paolo Davide Farah

Central Asia is one of the world’s most prominent regions for hydrocarbon resources. There are large territories still to be explored with high potential, though oil and gas have already been extracted for a hundred years. The region is open to foreign investments, but several issues arise from the past. The breakup of the Soviet Union has not automatically overcome infrastructural dependence. The Russian monopoly on pipelines is in opposition to the interests and the prospective investments of multinational energy companies. The programme for alternative pipelines is, therefore, a technological as well as a geopolitical matter, where international actors and local actors are involved. Central Asia is of strategic importance in terms of international security because of its history, coming from the influence of Russian power, and its geography, with borders with Afghanistan, Iran, China and the Russian Federation. Central Asia, with its large energy resources, seems to be an opportunity also for large energy consumers as evinced by the strong competition between the EU and China to secure supplies from the region. Moreover, the trade in energy commodities and technologies is crucial for the economy of Central Asia and its adapation to climate change. Economic development and environmental protection are often disjoined in the policies of the region. One reason flows from the pressure on the Central Asian economies to maximize their economic advantages as energy exporters, if any societal progress is to be made. The Central Asian Regional Economic Cooperation (CAREC) Programme, which is a partnership of nine countries, places its priorities on trade policy and energy. The final goal is to achieve poverty reduction through accelerated economic growth. Another factor is represented by the interests of global players in securing supplies against environmental considerations. Several regional organizations which have no significant focus on climate change are operating in the region, some strongly influenced by Russia, such as the Eurasian Economic Community (EurAsEC) and the Eurasian Economic Union, and some by China, such as the Shanghai Cooperation Organisation (SCO). It is largely left to the Regional Environmental Centre for Central Asia to play a regional role in supporting environmental protection. The analysis will focus on Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan, Armenia, Azerbaijan, Georgia.

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Energy Trade and the WTO: Implications for Renewable Energy and the OPEC Cartel

Energy Trade and the WTO: Implications for Renewable Energy and the OPEC Cartel. Journal of International Economic Law (JIEL), Georgetown University Law Center, Oxford University Press, Volume 16 (3), September 2013, ISSN 1369-3034, pp. 707-740.
Paolo Davide Farah
Elena Cima

Energy has become increasingly important in international trade relations. However, the World Trade Organization (WTO) does not deal specifically with this sector, and this creates several problems when it comes to regulating trade in energy goods and services. The situation is further complicated, on the one hand, by the need to foster the diffusion of renewable energy to address the current environmental concerns and, on the other, by the total and overwhelming control exercised by the Organization of Petroleum Exporting Countries (OPEC) over the oil market. It is true that, recently, the WTO has shown an increasingly open approach towards environmental issues. However, free trade is still the backbone of the Organization and trade liberalization its main goal. This explains why the WTO Panel and Appellate Body are still reluctant to justify measures adopted to support the renewable energy sector that may conflict with international trade law. Different might be the case with fossil fuels, the main competitor of renewable energy. OPEC exploits several strategies to control oil prices, which, at least in theory, clash with international trade rules. However, whatever the reason, such practices have never been challenged in front of the WTO. The way WTO provisions are interpreted and applied by the Panel and the Appellate Body when environmental concerns are involved can be used as a starting point to forecast a hypothetical judgment in case OPEC's practices were eventually challenged.

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Energy: Policy, Legal and Social-Economic Issues Under the Dimensions of Sustainability and Security

World Scientific Reference on Globalisation in Eurasia and the Pacific Rim, Imperial College Press (United Kingdom) & World Scientific Publishing, 2015
Paolo Davide Farah
Piercarlo Rossi

Energy is a crucial issue for mankind. Especially in modern times, energy has been a factor of economic development and wealth. Today energy is strictly related with the notion of empowerment since energy allows any kind of contemporary life for humans: entertainment, work and protection. Consequently energy security is a top priority for national policies all over the world. Problems arising from climate change and depletion of natural resources are increasing the competition and collaboration among States around the energy production and supply. Sustainability of energy systems is then intertwined with the theme of security. Designed for scholar of different disciplines, the book encompasses several point of view about the different (although partially converging) approach to energy in European Union and Asian countries, considering the ever closer social and economic relations between Europe and Asia. The work also incorporates the state of affair at the transnational stage that originates from the international legal framework, mainly trade law, environmental law and investment law. Even through rapid changes about the political choices in the turmoil of the international arena, we believe that relations between Europe and Asia and the long term strategy on energy can be understood through the lens of three themes: the global demand and the policy questions; the level of trade under the international regulation of environment; and the role of innovation for the sustainability of energy systems. These three themes are developed in the three corresponding parts of the work.

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Enforcement of Online Copyright in Italy: The New Regulation Adopted by the Italian Communications Authority

Marini Balestra, Federico and Tremolada, Riccardo, Enforcement of Online Copyright in Italy: The New Regulation Adopted by the Italian Communications Authority (March 1, 2014). Federico Marini-Balestra & Riccardo Tremolada, Enforcement of Online Copyright in Italy: The New Regulation Adopted by the Italian Communications Authority, 2 INTELLECTUAL PROPERTY QUARTERLY 2014, 143-158.. Available at SSRN: https://ssrn.com/abstract=2994747
Riccardo Tremolada
Federico Marini-Balestra

This article will examine some issues raised by the Italian Communications Authority’s December 2013 regulation on online copyright, and will carry out a review of the current development of copyright protection in Italy. It will examine the implications of the new regulation, including the potential normative shortcomings that according to some scholarly literature may hinder the legitimacy and effective enforcement of its provisions. In that perspective, this article will argue that the current regulation on online copyright constitutes a valuable initiative.

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Ethics and Consumerism: Legal Promotion of Ethical Consumption?

Dias Simões, Fernando, Ethics and Consumerism: Legal Promotion of Ethical Consumption? (September 2013). in The ethics of consumption – the citizen, the market and the law, Helena Röcklinsberg and Per Sandin (Eds), Wageningen Academic Publishers, 2013, pp. 141-146.
Fernando Dias Simões

Consumption patterns influence our quality of life in deep ways, having a substantial effect on both the individual and the society as a whole. Most consumption decisions we make on a daily basis may have an ethical content. Normally our ethical concerns result from personal beliefs and societal influences, not from the Law. The question then becomes whether public entities have legitimacy to impose certain dimensions of ethical behaviour and whether Consumer Law is the appropriate mechanism to achieve such purposes. Government’s role in moulding our consumption habits is doubtful as there is no consensus about the role that Law should play in the promotion of ethical conducts. Traditionally Consumer Law was aimed at protecting the consumer himself. Should legal intervention be expanded to guide consumer behaviour even when the protection of consumers as such is not the goal? In some cases public intervention may be justified with the impact of individual decisions on the community as a whole. In fact, the State is interested in controlling the social costs of individuals’ behaviours that are borne by society at large. However, going beyond the frontier of public interest may be troublesome. This new field of regulatory intervention touches upon some of the values that define us as a society: personal freedom, choice and liberty. Any intervention in this regard should consider the balance between individual freedom and public interest. Citizens should not be treated as creatures deprived of any moral or ethical character.

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Facebook v. Business Competence S.r.l.

Marco D’Ostuni & Riccardo Tremolada, Facebook v. Business Competence S.r.l., 17(2) Leading Internet Case Law, 2017.
Riccardo Tremolada
Marco D’Ostuni

The Court held that Facebook was liable for acts of unfair competition and copyright infringement against Business Competence S.r.l, a client company. The Court found that Facebook had copied the plaintif's location-sharing app Faround when creating its own app of a similar nature.

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Five Years of China WTO Membership: EU and US Perspectives About China's Compliance With Transparency Commitments and the Transitional Review Mechanism

Five Years of China WTO Membership: EU and US Perspectives about China's compliance with Transparency Commitments and the Transitional Review Mechanism. Legal Issues of Economic Integration, Kluwer Law International, Vol. 33, No. 3, August 2006, pp. 263-304.
Paolo Davide Farah

China's accession to the WTO represents a goal achieved after nearly fifteen years of exhausting negotiations. However, many legal, political and social problems have not yet been tackled in terms of achieving real implementation of WTO provisions throughout the territory of the People's Republic of China. The Protocol requires a general and deep application of transparency, which will radically influence and change the Chinese legal system. There are a wide range of transparency related problems such as the formal publication of laws and regulations, procedural fairness in decision-making, the judicial review and the non-discrimination principle. The special precautionary instrument, the Transitional Review Mechanism (TRM), was included in the Protocol of China's Accession to the WTO, as requested by the US and supported by the EU. The TRM has the objective of monitoring and enforcement of implementation of WTO commitments, promoting transparency and the exchange of information in trade relations with China. Bilateral engagements and multilateral forums are both essential to bring China into full compliance with its WTO commitments.

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Foreword to Margeret Stout & Jeannine M. Love, A Radically Democratic Response to Global Governance. Dystopian Utopias

Farah, Paolo Davide, Foreword to Margeret Stout & Jeannine M. Love, A Radically Democratic Response to Global Governance. Dystopian Utopias (July 04, 2016). Transnational Law and Governance, gLAWcal Book Series, Routledge Publishing (New-York/London) ISBN 978-1-1386-5405-1, December 2016, pp. XIII-XV.. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3003155
Paolo Davide Farah

Nowadays, it is impossible to ignore the voices blaming the existing systems of governance within the borderless globalization system for being incapable of adequately responding to the problems and needs of the current age. The rage and discontent of a growing portion of the population who feel they have been left aside or who feel more insecure within prosperous Western societies, is demonstrated in the growing support of anti-system parties and candidates. Most recently – last but not least – the majority vote for “Brexit” in the referendum in the United Kingdom to leave the European Union, leaves us confronted with a burning question: What went wrong? The necessity of finding an answer to this question has never been greater than today. The growing concerns regarding progressive climate change, rapid technological development, wars and conflicts affecting different parts of the world, terrorism, migration crisis, unstable and weak job market and the general insecurity of the populous cannot simply be criticized as collective paranoia against globalization. The rising inequality or insecurity even of the middle-class related therewith puts pressure on the existing social order and elites who often fail to keep a pace with these latest developments or to adequately respond to them in a time of crisis.

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Foreword to Pasi Heikkurinen (edited), Sustainability and Peaceful Coexistence for the Anthropocene

Farah, Paolo Davide, Foreword to Pasi Heikkurinen (edited), Sustainability and Peaceful Coexistence for the Anthropocene (November 12, 2016). Transnational Law and Governance, gLAWcal Book Series, Routledge Publishing (New-York/London), ISBN 978-1-1386-3427-5, May 2017, pp. XIII-XVII.. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3003114
Paolo Davide Farah

The topic of ‘Anthopocene’ is part of a larger narrative, which is shedding light on the underpinnings of the problem: human beings and their value systems. The concept of ‘narrative’ is crucial in this regard. Narratives convey certain values, translate complex rational or irrational theories and policies into comprehensible forms, and contribute to their acceptance by public at large. The narrative of constant growth, never-ending economic and technological progress, and dominance of humans over nature is slowly confronted with its limitations. According to Vaclav Havel, it is a paradox: humans in the age of science and technology believe they are improving their lives by mastering the laws of nature and exploiting nature. However, it is the contrary: it is these natural laws that prevail over humans and will penalize them for wrongdoing. Humans wanted to conquer nature, and as a result they destroyed it. A change of the narrative is inevitably needed: Civilization needs to be based on a revived and recreated responsibility of the humankind, respecting the boundaries of the natural world. The narratives of science need to serve this cause as well, otherwise, even the bold visions of Elon Musk and other visionaries of colonizing Mars would only be escapes from the primary task of humans, which is taking over the responsibility for our lives and lives of future generations on the planet. The Intergovernmental Panel on Climate Change (IPCC) has referred to climate change as ‘a change in the state of the climate that can be identified by changes in the mean and/or variability of its properties, and that persists for an extended period, typically decades or longer. It refers to any change in climate over time, whether due to natural variability or as a result of human activity.’ The wording is slightly different from the one used by the United Nations Framework Convention on Climate Change (UNFCCC), which refers to climate change as ‘a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and that is in addition to natural climate variability observed over comparable time periods.’ What is important to note here is that IPCC is more cautious than UNFCCC in terms of blaming humans for climate change. This chapter briefly examines these theoretical aspects and its impact in the international negotiations.

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Freedom of Press in the European Context: Klein v. Slovakia

Letnar Cernic, Jernej, Freedom of Press in the European Context: Klein v. Slovakia. Edinburgh Law Review, Vol. 11, pp. 444-446, 2007.
Jernej Letnar Černič

Even though freedom of the press is not absolute and must be balanced with other interests, it is often accorded decisive weight over other rights. Deriving from freedom of expression, freedom of the press belongs to a genus of "heavyweight" rights beneficial to society as a whole. The status of the right in a democratic society was considered in Klein v. Slovakia, a recent decision of the European Court of Human Rights. This case concerned alleged Slovakian interference with freedom of expression under article 10 of European Convention on Human Rights.

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Friends with Benefits? Amicus Curiae in the TPP Investor-State Dispute Settlement Mechanism

Dias Simões, Fernando, Friends with Benefits? Amicus Curiae in the TPP Investor-State Dispute Settlement Mechanism (June 2017). in Julien Chaisse, Henry Gao, and Chang-fa Lo (eds.), Paradigm Shift in the Rule Making of International Economic Law (Springer, 2017 Forthcoming).
Fernando Dias Simões

Amici curiae are individuals or organisations who do not have the right to participate in the dispute as parties but want to intervene because the outcome of the proceedings may affect their interests. The participation of amici in investor-state arbitration has been justified as a useful tool to pursue different interests, inter alia, the promotion of greater transparency, accountability, and openness of this dispute settlement mechanism. However, opening up investment arbitration to the participation of non-disputing parties may raise several concerns, namely as regards the identity and interests pursued by the so-called ‘friends of the tribunal’. This chapter analyses the provisions of TPP’s Chapter 9 on amicus curiae intervention and discusses to what extent they balance the perceived benefits and potential drawbacks of this mechanism of public participation in investor-state arbitral proceedings. The social acceptance of the TPP will depend, to a large extent, on whether it offers solutions that effectively tackle the criticisms that have been thrown at investor-state arbitration, especially those that relate to a perceived lack of transparency and public participation. However, this goal can only be truly achieved if amicus curiae participation creates added value and does not undermine the purpose of peaceful and orderly settlement of investment disputes.

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From Consumer Law to Consumer Ethics

Dias Simões, Fernando, From Consumer Law to Consumer Ethics (Do Direito Do Consumidor À Ética De Consumo) (2014). Boletim da Faculdade de Direito da Universidade de Macau, Ano XVIII, No. 35, pp. 193-199, 2014.
Fernando Dias Simões

This article discusses the interplay between consumer ethics and consumer law.

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Fundamental Guarantees in the Armed Conflict in the Slovenian Context: Lessons Learnt?

Letnar Cernic, Jernej, Fundamental Guarantees in the Armed Conflict in the Slovenian Context: Lessons Learnt? (February 16, 2010). Slovenian Law Review, Vol. 6, pp. 203-222, 2009.
Jernej Letnar Černič

This article explores the treatment of detainees in treaty and customary international humanitarian law. Detainees are persons who do not or have ceased to take a direct part in hostilities or are hors de combat. It contextualizes the discussion on the treatment of detainees by illustrating an example from contemporary Slovenian history relating to the barbaric treatment of detainees on the Slovenian territory after Second World War, where more than one hundred thousand persons were executed. This article argues that fundamental human rights apply in all situations and that the fundamental guarantees apply during and after the hostilities to all categories of detainees. In this way, it further explores fundamental guarantees, a meeting point between international human rights law and humanitarian law. Based on these findings this article argues that there are strong legal and moral grounds to address crimes against humanity committed in Slovenia against detainees after the Second World War.

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Global Energy Governance, International Environmental Law and Regional Dimension

ENERGY: POLICY, LEGAL AND SOCIAL-ECONOMIC ISSUES UNDER THE DIMENSIONS OF SUSTAINABILITY AND SECURITY, World Scientific Reference on Globalisation in Eurasia and the Pacific Rim, Imperial College Press (London, UK) & World Scientific Publishing, Nov. 2015.
Paolo Davide Farah

With the growing importance given to the climate change debate, energy has slowly come to attract the complete attention of the whole world. As a matter of fact, the main strategies identified by international bodies and institutions aimed at addressing the climatic issues faced by our planet always involve energy: in terms both of reducing the use of energy sources that increase emissions, and of using them more efficiently. The energy sector can be roughly divided into renewable energy, on the one hand, and fossil fuels, on the other. The former category is at the core of all the main international agreements regarding climate change and current environmental concerns: increasing the exploitation of renewable energy sources has become an urgent matter and a possible route to reach this goal is to facilitate trade and exchange in renewable energy goods, services, and technologies, through trade liberalization. Another possible route to achieve the global goal of reducing CO2 emissions and protect the environment requires reducing the use of fossil fuels, such as coal and oil. Global energy governance does, indeed, appear to be split into several initiatives, comprising a wide range of energy-related issues, such as trade and climate change, which are not coordinated with each other.

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Global Witness V. Afrimex LTD.: Decision Applying OECD Guidelines on Corporate Responsibility for Human Rights

Letnar Cernic, Jernej, Global Witness V. Afrimex LTD.: Decision Applying OECD Guidelines on Corporate Responsibility for Human Rights (January 29, 2009). ASIL Insight, Vol. 13, No. 1, January 2009.
Jernej Letnar Černič

On August 28, 2008, the United Kingdom's National Contact Point (UK-NCP) issued its decision in Global Witness v. Afrimex Ltd. In this case, Global Witness, a non-governmental organization, alleged that Afrimex Ltd. (Afrimex), a British corporation, violated the Guidelines for Multinational Enterprises of the Organization for Economic Development and Cooperation (OECD Guidelines) by paying bribes to a rebel group in the Democratic Republic of the Congo (DRC) and purchasing minerals from mines in the DRC that employ child and forced labor. This Insight analyzes this case and its importance for efforts to heighten corporate responsibility for the protection of human rights.

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Good Morals in the Legal Culture of Central Europe

Míľniky práva v stredoeurópskom priestore 2011: zborník z medzinárodnej konferencie: 31. marec - 2. apríl 2011, Častá-Papiernička, Bratislava: UK, 2011, ISBN 9788071603184, p. 144-149.
Tivadar Ötvös

The author of the article concentrated on the definition of the concept of good morals in law, which is considered to be very vague. He examined it from a philosophical point of view and tried to find its place in the system of rules, which regulate social life. As the object of interest the author chose several legal systems from continental law, in which he analysed the position of good morals. In the last part the article contains generalizations, conclusions and also suggests his own general legal definition of the term.

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Harmonisation of Arbitration Laws in the Asia-Pacific: Trendy or Necessary?

Dias Simões, Fernando, Harmonisation of Arbitration Laws in the Asia-Pacific: Trendy or Necessary? (2015). Chapter 11 in: Muruga Perumal Ramaswamy and João Ribeiro (eds.), Trade Development through Harmonization of Commercial Law, UNCITRAL Regional Centre for Asia and the Pacific, New Zealand Association for Comparative Law, pp. 217-231, 2015.

This article discusses the importance of harmonisation of arbitration laws with a particular focus on the Asia-Pacific region.

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Il minore e il suo diritto a essere ascoltato nel processo civile

in A. RONCO (eds.), Aspetti processuali del diritto di famiglia, Giurisprudenza Italiana, 2014, 2357 – 2363 (ISSN: 1125-3029).
Carlo Vittorio Giabardo

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Il minore e il suo diritto a essere ascoltato nel processo ex art. 250, comma 4, c.c., comment on Cassazione 21 November 2014, n. 24863

Giurisprudenza Italiana, 2015, 1865 ff.
Carlo Vittorio Giabardo

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Il rapporto tra private e public enforcement del diritto antitrust nella giurisprudenza amministrativa

Il rapporto tra private e public enforcement del diritto antitrust nella giurisprudenza amministrativa (Nota alla sentenza del Consiglio di Stato n. 4773/2014), Rivista Il Foro Amministrativo/Consiglio di Stato, Giuffré, Vol. II(3), 781-796.
Riccardo Tremolada
Federico Marini Balestra

This is a comment on the decision of the Consiglio di Stato of 22 September 2014, no. 4773, which addressed a range of unsettled issues related to antitrust commitments. This comment investigates the relationship between public and private antitrust enforcement, highlighting their different roles. Il also reframes the boundaries of the scope of judicial review on decisions to accept antitrust commitments. The comment, which agrees with the decision of the Consiglio di Stato, examines the evolution of these fundamental concepts related to protection of competition before administrative tribunals

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Illicit Nuclear Trafficking: States, Non-State Actors and the Quest for Criminalization in International Law

Tremolada, Riccardo, Illicit Nuclear Trafficking: States, Non-State Actors and the Quest for Criminalization in International Law (March 1, 2013). OGEL Journal (Oil, Gas & Energy Law Intelligence) Nuclear Law and Policy OGEL 1 (2013). Available at SSRN: https://ssrn.com/abstract=2306472 or http://dx.doi.org/10.2139/ssrn.2306472
Riccardo Tremolada

Nuclear and other radioactive materials are being trafficked outside the realm of legality. These materials are likely to be used in terrorist attacks that could inflict, given the extremely perilous nature of such substances, an enormous amount of casualties and many unforeseen consequences. This fact raises crucial issues that require a precise examination of the wide variety of international legal instruments that could potentially be invoked to curb this threat. Given the shift from traditional nuclear energy markets towards new frontiers, it is indeed crucial to better investigate this phenomenon and the role that can be played by international law in the fight against illicit trafficking in nuclear materials, examining how the law views the different actors of the nuclear black market, in particular non-State actors, and which mechanisms have been set up so far in order to prevent and tackle this menace.

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Inclusion of Standard Clauses in Adhesion Contracts: A Luso-Chinese Comparison

Dias Simões, Fernando, Inclusão de Cláusulas em Contratos de Adesão: Uma Comparação Luso-Chinesa (Inclusion of Standard Clauses in Adhesion Contracts: A Luso-Chinese Comparison) (2013). Boletim da Faculdade de Direito da Universidade de Macau, No. 32, pp. 47-72, 2013.

This article compares the inclusion of standard clauses in adhesion contracts under the Portuguese and Chinese laws.

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Institutional Culture in International Arbitration

Dias Simões, Fernando, Institutional Culture in International Arbitration (2016). Australasian Dispute Resolution Journal, 27(3), 2016, pp. 188-197.
Fernando Dias Simões

Arbitral institutions play a major role in the continuous growth and success of international arbitration. Every arbitral institution has its own culture – a particular way of doing things that distinguishes it from others. This article discusses the concept of “institutional culture” and examines three different elements that contribute decisively to the culture of arbitral institutions: location and legal culture, background of arbitrators, and the language of arbitration. In order to succeed in the highly competitive market of international arbitration, arbitral institutions need to be transparent and flexible so as to accommodate a diversity of cultural and legal backgrounds and expectations.

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Internationalization of the Market, Dumping and State Aids: The EU Position and the Trade Defense Measures for the Enterprises

Internazionalizzazione del mercato, dumping e aiuti di Stato: la posizione dell’UE e le misure di difesa commerciale per le imprese (Internationalization of the Market, Dumping and State Aids: The EU Position and the Trade Defense Measures for the Enterprises). Rapporto Veneto Internazionale, Centri Studi e Ricerche Economiche e Sociali, Vianello Libri, Venezia, 2012, pp. 205-220.
Paolo Davide Farah

In the international arena of the global market, the entrepreneurs and the companies of the European Union are called to face the unfair competition of some Third countries operators. The constant and growing internationalization of the market obliges the European companies to act promptly and efficiently against those challenges through the EU trade defense measure instruments.

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Introduction and Overview

China’s Influence on Non-Trade Concerns in International Economic Law, Global Law and Sustainable Development Book Series, Routledge Publishing (New-York/London), ISBN 978-1-4094-4848-8, September 2016, pp.1-9
Paolo Davide Farah

The motivating idea for this project is to explore the range of Non-Trade Concerns (NTCs) that may conflict with international economic rules with a specific focus on how China can play a decisive role in these matters. If, on the one hand, this volume looks at the tensions between trade and non-trade values through the Chinese experience, on the other, it contextualizes this analysis within the broader framework of public international law. Public international law appears highly fragmented, as different treaties and rules, which often express different values, increasingly overlap. Although the goal of multilateral trade agreements and that of the treaties and institutions promoting different values do not inherently conflict, the norms adopted to achieve them might come into conflict, and, in practice, tensions do exist. In particular, norms with distinct objectives – such as sustainable development, environmental protection, public health, product safety, food security, consumer protection, the right to food, and the right to water – might affect trade patterns, or, conversely, changes in trade flows influence and possibly jeopardize the realization of such norms. Tensions do exist not only between each state’s conflicting obligations, but among states as well, since their priorities differ considerably. With regard to NTCs, developing countries do not have the same approach as developed ones. Public opinion and policy-makers in industrialized nations fear that a further liberalization of international trade may undermine or jeopardize policies and measures protecting a variety of non-trade values and react by increasingly resorting to trade restrictions. On the other hand, developing countries and, even more so, the least-developed ones have more pressing concerns to address, and tend to look at many of the trade measures introduced by developed countries to address NTCs with distrust if not with resistance or dissent, because they suspect such measures often hide protectionist goals. Moreover, developing countries see these measures as an attempt by developed countries to impose their social, ethical, or cultural values and preferences. The key challenge is finding ways to satisfy the right of developed nations to grant social values the degree of protection they consider appropriate, while minimizing the negative effects in terms of market distortion for their trading partners. Prior to China’s accession to the World Trade Organization (WTO), many cautioned that its integration would not only be long and difficult, but possibly damaging to the Organization itself as well as its Members. In view of preventing this outcome, some experts decided to tackle the challenge of integrating China in the world trading system by focusing on the country’s market access concessions, tariff reductions, and liberalization requirements. A second group of scholars placed more emphasis on transparency issues instead, such as legal and administrative policies that China should adopt to ensure equitable and efficient resolution of trade disputes. Per contra, the issue of the potential influence of China’s WTO accession on NTCs has rarely been addressed in a comprehensive manner. Interestingly, though, the country’s influence in this area is now becoming more and more evident in the geopolitical context, considering the impact that China has had not only at the WTO but in other international fora as well, often in combination with the BRICS countries (Brazil, Russia, India, China and South Africa) and other developing countries.

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La "negoziazione assistita" e gli "accordi" coniugali nella gestione della crisi della famiglia (artt. 6 e 12 della L. 162/2014)

in C. BESSO, G. FRUS, G. RAMPAZZI, A. RONCO (eds.), Trasformazioni e riforme del processo civile, Zanichelli, Bologna 2015, 113 - 135 (ISBN: 9788808221094).
Carlo Vittorio Giabardo

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La privatizzazione della giustizia civile e il “processo evanescente”. Note (comparate) sull’emergere di un nuovo paradigma nella giustizia di famiglia in Italia

in ‘Legal Imagination(s) – Visioni del Giuridico’, Aracne publisher (Rome), 2017, Vol. II. (ISBN: 9788854890145).
Carlo Vittorio Giabardo

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Law and Language in Timor-Leste: Bridging the Divide

Dias Simões, Fernando, Law and Language in Timor-Leste: Bridging the Divide (2015). Contemporary Southeast Asia, 37 (3), 2015, pp. 381-405.
Fernando Dias Simões

As in other post-conflict states, the international community has been actively promoting the implementation of the rule of law in Timor-Leste. The justice system remains the weakest branch of Timor-Leste’s governance architecture. The effectiveness of the justice system is hampered by the fact that laws and proceedings are not always translated into languages understood by all court actors. Timor-Leste has a long history of multilingualism, with at least sixteen language varieties being spoken in the country. Both Tetum and Portuguese are official languages, with Portuguese being predominantly used in the courts, even though less than 10 per cent of the population is fluent in the idiom. The post-colonial legacy was one of two separate legal systems — the formal legal system and the traditional system — operating in parallel. More than a decade after independence, the former continues to have only a peripheral presence in the lives of most East Timorese. This gap between the language of the people and the language of the courts heightens the challenges to nation- and state-building in Timor-Leste. The purpose of this article is to examine the current language policy in Timor-Leste and discuss possible avenues for strengthening the formal justice system in a multilingual environment.

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Legittimazione passiva nell’azione per la costituzione di servitù di passaggio e pluralità di fondi intercludenti: l’ultimo approdo delle Sezioni Unite, comment on Cassazione 22 April 2012, n. 9685

Rivista di Diritto Processuale, 2014, 1281 ff.
Carlo Vittorio Giabardo

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L’obbligo dell’ascolto del minore infrasedicenne nel procedimento di opposizione al secondo riconoscimento: la Cassazione muta le ragioni del suo orientamento, comment on Cassazione 13 May 2012

La Nuova Giurisprudenza Civile Commentata, 2012, 804 ff.
Carlo Vittorio Giabardo

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Myopic Amici? The Participation of Non-Disputing Parties in ICSID Arbitration

Dias Simões, Fernando, Myopic Amici? The Participation of Non-Disputing Parties in ICSID Arbitration (June 2017). North Carolina Journal of International Law (Forthcoming).
Fernando Dias Simões

The involvement of amici curiae in investment arbitration is becoming increasingly common in disputes that raise public policy considerations. Amicus curiae is a useful tool to promote the transparency, accountability, and openness of the arbitration system, but also to help tribunals in rendering better awards. The 2006 amendments to the ICSID rules facilitated the participation of civil society in the proceedings but did not go far enough in ensuring a full application of the public participation principle. A review of the ICSID jurisprudence shows that the extension of participatory rights of amici curiae beyond the presentation of written submissions has been timid. The efficiency of amicus participation without access to arbitral documents and hearings is doubtful. The ICSID Arbitration Rules should be reformed in line with recent developments so as to endow non-disputing parties with the necessary tools to perform their function properly.

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National Energy Policies and Energy Security in the Context of Climate Change and Global Environmental Risks: A Theoretical Framework for Reconciling Domestic and International Law through a Multiscalar and Multilevel Approach

European Energy and Environmental Law Review (EEELR), Kluwer Law International, Vol. 20, No. 6, pp. 232-244, 2011
Paolo Davide Farah
Piercarlo Rossi

Energy consumption and energy demand are predicted to grow steadily over the next few decades. The international community confronts two great challenges at once: providing secure and cheap energy supplies to meet ever-expanding needs and responding to climate change. There are a variety of national strategies to answer these needs. The impacts of the diverse national strategies on the greenhouse effect are multilevel; they range from the most state-centred to large-scale ones. The nature of the dual problems provides the basis for a review of the diverse approaches based on hierarchies of principles that entail diagonal regulatory strategies on climate change and energy security. These principles should mark the policy priorities to be followed and make it possible to more effectively integrate public laws with differing objectives, such as economic development and the environment. The globalization discourse has fragmented the traditional framework in which the policy-making role of the nation-state is inserted into the international legal system. The coexistence of national, regional and international decision-making levels can be seen to lead to sets of policies which fail to maintain internal consistency. Accordingly, studies on energy issues and studies on environmental risks need to be held together by means of a methodological integration that is able to encompass the multiscalar effect.

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National Security and Expulsion to a Risk of Torture

Letnar Cernic, Jernej, National Security and Expulsion to a Risk of Torture (December 9, 2008). Edinburgh Law Review, Vol. 12, No. 3, pp. 486-490, September 2008.
Jernej Letnar Černič

In Saadi v Italy, the European Court of Human Rights held that article 3 of the European Convention on Human Rights prohibits expulsion of individuals to states where they would face a "real risk" of torture, inhuman or degrading treatment. This article analyses the ECHR's reasoning.

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National Security – A Trump Card? Combating Terrorism while Protecting Freedom of Association

Letnar Cernic, Jernej, National Security – A Trump Card? Combating Terrorism while Protecting Freedom of Association (March 6, 2010). Dignitas - Slovene Journal of Human Rights, pp 244-282; No. 51-52, Vol. 2011.
Jernej Letnar Černič

On 30 June 2009, the European Court of Human Rights delivered three decisions deriving from the situation in the Basque country, Herri Batasuna and Batasuna v. Spain, Etxeberría and Others v. Spain and Herritarren Zerrenda v. Spain. In Herri Batasuna and Batasuna v. Spain, the European Court of Human Rights upheld the dissolution of the political parties Herri Batasuna and Batasuna, whereas it held in Etxeberría and Others v. Spain and Herritarren Zerrenda v. Spain that the political groups, which wished to continue the activities of the illegal political parties, are also prohibited from presenting candidates in municipal, regional and autonomous community elections. This article will briefly explore some of the basic legal questions arising from the above decisions. It attempts to demonstrate that the Court's analysis is entirely at odds with the functioning of a democratic society, and it argues that the extreme measure of dissolution of Herri Batasuna and Batasuna, Etxeberría and Herritarren Zerrenda may have been avoided by employing less drastic and individualized measures. Despite the Court holding that the dissolution of the political parties and groups was necessary and proportionate, it may have failed to establish the factual basis and therefore also its conclusions are subjected to criticism.

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Non reclamabilità dei provvedimenti del giudice istruttore ex art. 709 comma 4, c.p.c., comment on Cassazione 4 July 2014, n. 15417

Giurisprudenza Italiana, 2014, 2725 ff.

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Offshore natural gas resources in the eastern Mediterranean in relation to the European Union: a legal perspective through the lenses of MedReg

Journal of World Energy Law and Business, Oxford University Press, Volume 8, Issue 6, December 2015
Paolo Davide Farah
Riccardo Tremolada

The Leviathan natural gas field has become a significant energy source for surrounding states in the eastern Mediterranean such as Lebanon, Cyprus, Syria, Israel, Jordan and Turkey. Tensions in the particular area cause this resource to be exploited on a low efficiency level both when it comes to utilization and organized cooperation between states helping their economies to benefit from the trade in this natural resource. This article analyses the current tendencies towards the expansion of the regulatory frameworks already functional in Mediterranean states west of the Levantine basin and simultaneously aims to give an assessment of these efforts. The main goal is to thoroughly evaluate the appropriateness of the existing cooperative methods and legal solutions regarding energy trade on an open market between developed states for countries with different political interests in a highly unstable area of constant sociological and political turbulence. Overcoming these challenges through legal, economic and political measures is key to the success of the eastern Mediterranean countries’ energy future, also in light of their relationship with and within the European Union (EU). It is also essential that the EU obtains increasing influence in its role in the region, in particular, that EU Member States really start acting as a whole in their external relations in general and in the energy field.

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Paternalism and Health Law: Legal Promotion of a Healthy Lifestyle

Dias Simões, Fernando, Paternalism and Health Law: Legal Promotion of a Healthy Lifestyle (September 1, 2013). European Journal of Risk Regulation, issue 3, 2013, pp. 347-363.
Fernando Dias Simões

Research in lifestyle risks is becoming more and more important, particularly with reference to what is generally known as “unhealthy diets”. The Law is now firmly established as a prominent instrument of Public Health. There are several distinctive methods of legal intervention targeted at counteracting overweight and promoting healthier lifestyles. In this paper we examine several measures that have been adopted and discuss whether Law should foster healthy diets. Our purpose is to examine the threats of falling into a paternalistic attitude when devising any regulatory intervention aimed at promoting a healthier lifestyle.

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Portuguese-Speaking Africa and the Lusophone Legal System: All in the Family?

Dias Simões, Fernando, Portuguese-Speaking Africa and the Lusophone Legal System: All in the Family? (February 20, 2017). African Studies, available online 20 February 2017.
Fernando Dias Simões

The direct link between economic activity and commercial law is irrefutable. Countries that want to promote economic growth strive to modernise their legal systems. This article discusses the main driving forces for legal reform in Portuguese-speaking African countries. It is argued that Portuguese language and legal culture will continue to be a relevant source of influence. However, foreign investment will also play a decisive role. Legal globalisation will probably be more important than familiarity and regional integration. The most important ‘legal family’ is now international trade law: all developing countries desire to be members of this ‘family’ as they struggle to join the world economy.

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Powered by Expertise: Selecting Arbitrators in Energy Disputes

Dias Simões, Fernando, Powered by Expertise: Selecting Arbitrators in Energy Disputes (October 19, 2015). Journal of World Energy Law & Business, 8(6), 2015, pp. 501-520.
Fernando Dias Simões

Arbitration is the most widely used dispute resolution method in the energy sector. A major advantage of arbitration is that it allows parties to select the persons who will settle the dispute — the arbitrators. However, finding meaningful information on the level of expertise of potential arbitrators is not easy. There are serious information asymmetries that prevent the market for arbitrator services from being fully competitive and impair parties’ ability to make wholly informed decisions. Because most parties and their counsels are not familiar with the market for arbitrators, they tend to rely on personal enquiries and generic or specific directories of arbitrators. The choice of a suitable arbitrator is critical, not merely from the parties’ point of view but also to ensure the efficiency and legitimacy of the overall system of dispute resolution. Arbitrators should be able to balance a variety of diverse interests that frequently go beyond the strict concerns of the disputing parties. This article argues that lists of energy arbitrators should be improved so as to allow interested parties to consult prior awards rendered by potential arbitrators and the feedback provided by previous users of their services. This would allow parties to conduct a more efficient screening of potential candidates, hopefully contributing to make the process of identification of expert energy arbitrators easier and cheaper.

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Private Labels and Products Liability: Hypermarkets as Apparent Producers

Dias Simões, Fernando, Private Labels and Products Liability: Hypermarkets as Apparent Producers (2013). Juridical Review, part 3, 2013, pp. 469-481.
Fernando Dias Simões

Modern-day supermarkets and hypermarkets have been introducing new market strategies that aim to simplify the traditional production and distribution system. Among these novelties is the surprising conversion of retailers into producers through the use of their own brands (‘private labels’). The retailer assumes full control over the production and distribution of private label products. He is responsible for the product’s quality and conformity, a role that was traditionally reserved to producers. Council Directive 85/374/EEC, of 25 July 1985 adopted an economic concept of ‘producer’ that includes ‘any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer’ (the so-called ‘apparent producer’). On this day and age, the brand is a channel of information between supply and demand, exercising a communicative function that can be viewed as a position of liability that its holder assumes for products that he puts into circulation. By labeling products with his own brand, the retailer assumes the same risk as real producers. The trade mark holder shall be liable for the damage caused by defective products jointly and severally with the product’s real manufacturer. The inclusion of the trademark owner in the concept of producer is closely linked to consumers’ expectations. Consumers see the trade mark on the product and are reasonably confident that the holder of such mark had some control over the production and will, accordingly, be liable for any damage caused by the product. In this article we analyse the connection between product liability and consumer expectations, determining whether the consumer may directly sue the hypermarket if the product is defective and causes damages.

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Private Law in the Age of the Vanishing Trial

in K. BARKER, K. FAIRWEATHER, R. GRANTHAM (eds.), Private Law in the 21st Century, Hart Publishing, Oxford, 2017, ch. 26, 547 – 560 (ISBN: 9781509908585).i
Carlo Vittorio Giabardo

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Product Safety in the Framework of the WTO Agreement on Technical Barriers to Trade

China’s Influence on Non-Trade Concerns in International Economic Law, Global Law and Sustainable Development Book Series, Routledge Publishing (New-York/London), ISBN 978-1-4094-4848-8, September 2016, pp. 436-448
Tivadar Ötvös
Paolo Davide Farah
Lukasz Gruszczynski

This chapter discusses the basic obligations for national product safety regulations imposed by the TBT Agreement, and gives a general picture of the rules on technical standards that are applicable in the relations between China and its trading partners. The first section defines the scope of the agreement, while the second analyzes its specific requirements relevant to domestic product safety regulations. The last section concludes with some general observations on the functioning of the agreement. Due to the space limitations, this chapter should be regarded more as an introduction than a comprehensive analysis of existing legal obligations. From the previous reasoning, it is evident that this chapter defines product safety rules quite broadly. They include provisions that aim at eliminating particular health risks – for example, by prohibiting particular chemical substances in some or all products – as well as provisions aimed at limiting their extent – for example, by setting specific thresholds for nicotine in cigarettes or by requiring certain safety devices in cars. In the second instance, a regulator may accept, for other reasons, a certain level of risk connected with the use of a product. Product safety rules also include informational requirements imposed on sellers or producers, such as various labeling obligations requiring them to disclose the composition of a product, provide instructions on its safe use, or indicate specific risks related to such use.

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Promoting Renewables through Free Trade Agreements? An Assessment of the Relevant Provisions

C-EENRG Working Papers, 2016-7. pp.1-49. Cambridge Centre for Environment, Energy and Natural Resource Governance, University of Cambridge.
Elena Cima

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Protection of Personal Data vs. Marketing Communication

Právní Rozpravy 2012: mezinárodní konference oblasti práva a právních věd: recenzovaný sborník příspěvků z mezinárodní vědecké konference: 6. - 10. február 2012, Hradec Králové: MAGNANIMITAS, 2012, ISBN 9788090487789, p. 170-179.
Tivadar Ötvös

The article deals with the different legal institutes of data protection, and their possible violations during the communication processes with the customer in the field of Marketing.

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Recognition and Enforcement of Foreign Arbitral Awards in Macau

Dias Simões, Fernando, Recognition and Enforcement of Foreign Arbitral Awards in Macau (June 2014). Hong Kong Law Journal, vol. 44, part 2, 2014, pp. 563-587.
Fernando Dias Simões

The recognition and enforcement of foreign arbitral awards in the Macau Special Administrative Region of the People’s Republic of China is not always subject to the same legal rules. Foreign arbitral awards may be divided, according to their origin, into four different groups: awards made in a New York Convention country, other than China; awards made in mainland China; awards made in Hong Kong and awards made in a non-New York Convention country. This article analyses the sets of rules applicable to the different types of foreign arbitral awards. Macanese courts have limited experience in this regard. In order to change this, it is necessary to raise the awareness among judges about the specificities of international commercial arbitration by promoting an “arbitration culture”.

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Regulating Corporations Under International Law: From Human Rights to International Criminal Law and Back Again

van den Herik, Larissa and Letnar Cernic, Jernej, Regulating Corporations Under International Law: From Human Rights to International Criminal Law and Back Again (August 27, 2010). Journal of International Criminal Justice, Vol. 8, pp. 725-743, 2010.
Jernej Letnar Černič

The discussion on corporate human rights obligations has been ongoing for some time. More recently, the potential for corporate accountability under a new domain of international law, namely international criminal law, is being explored. This raises questions as to the interrelationship between and the intersection of the two fields of international law. This article argues that the intricacies of accepting corporations as duty-bearers of human rights obligations are of a quite distinct nature than those permeating the international criminal law debate. Moreover, the corporate violations at stake are to a very large extent of a different nature. It is thus argued that the discussions on corporate liability in the two fields of international law run parallel rather than directly intersecting. The debate on corporate human rights obligations may well be informed by potential future developments within international criminal law, but international criminal law is not the panacea that solves all theoretical and practical obstacles surrounding the debate on corporate human rights obligations.

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Regulation and Prospects of the Shale Gas Market in China in Light of International Trade, Energy Law, Production-Sharing Agreements, Environmental Protection and Sustainable Development: A Comparison with the US Experience

Regolazione e prospettive del mercato dello shale gas in Cina: tra diritto del commercio internazionale, diritto dell'energia, accordi di produzione, protezione ambientale e sviluppo sostenibile: un confronto con l’esperienza statunitense (Regulation and Prospects of the Shale Gas Market in China in Light of International Trade, Energy Law, Production-Sharing Agreements, Environmental Protection and Sustainable Development: A Comparison with the US Experience). Diritto Comunitario e degli Scambi Internazionali, 1-2/2015, pp. 29-83.
Paolo Davide Farah
Riccardo Tremolada

Shale gas has been defined as a revolution in the global energy landscape. This is even more true in China, whose large shale gas reserves are likely to have a crucial effect on the regional gas market and on China’s energy mix. The country is endeavoring to minimize reliance on imported fossil fuels, while it strives to address mounting energy demand and gain greater negotiating power on determining gas prices. Nonetheless, this advance does not come without risks, as shale gas exploitation poses a number of legal, regulatory and environmental challenges, which could negatively impact on future exploitation and commercialization, not only in China. This study carries out an in-depth analysis of the current shale gas regulatory framework, moving from previous experiences of unconventional gas exploitation in the United States to evaluating their possible application to China, where regulatory and enforcement hurdles are exacerbated by an energy sector characterized by technological deficiencies, barriers to market access hindering access to resource extraction for private investors, and a limited liberalization of gas prices. These questions are analyzed in light of problems related to water pollution originating from mismanaged drilling and fracturing, and the absence of adequate regulatory measures and industry standards regarding predictive evaluation. The paper goes on to explore the institutional situation of fragmentation, and clashes and overlapping of competences, emphasizing how these processes impact on outcomes. The study concludes by proposing possible ways forward, involving cooperation and regulatory reforms.

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SMEs in the Common European Sales Law

Dias Simões, Fernando, SMEs in the Common European Sales Law (March 1, 2014). in Ilse Samoy & Marco B.M. Loos (eds.), The position of Small and Medium sized Enterprises in European Contract Law, Intersentia, 2014, pp. 9-26.

This article analyzes the regulation of Small and Medium sized enterprises (SMEs) in the Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law - SEC(2011) 1166 final, of 11 October 2011. The Proposal covers not only contracts between professionals and consumers but also between two professionals when at least one of them is an SME. One of the most important aspects of this proposal is the regulation of standard contracts, which create special risks for the weaker party to the contract. However, as the application of the Common European Sales law is voluntary, stronger companies will probably not opt in, continuing to choose the legal regime which they are most familiar with and that offers them greater certainty, instead of choosing a set of rules that essentially seeks to protect the weaker party (the SME).

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Some Comments on Contractual Freedom in Labour Law

Zamestnanec a právne aspekty jeho postavenia: zborník vedeckých prác doktorandov: 27. február 2012, Košice, Univerzita Pavla Jozefa Šafárika v Košiciach, 2012, ISBN 9788070979495, p. 75-84.
Tivadar Ötvös

Labour law is connected to private law principles despite of it’s hybrid characteristics. The contractual freedom is applied in this legal sector in a modified way compared to the classic parts of private law (e.g. civil law). This article deals with the provisions which limit this freedom of contracts in order to fulfill the protective feature of labour law. The center of our consideration was the question: is in the time of globalisation correct still to talk about contractual freedom in labour law or should this principle be replaced/filled up with a wider one, which would include also the feature of employer protection and contractual fairness?

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Standard Contracts in the Trade between China and Mozambique

Dias Simões, Fernando, Standard Contracts in the Trade between China and Mozambique (Os Contratos De Adesão Nas Relações Comerciais Entre a China E Moçambique) (June 2014). in Wei Dan, Orquídea Massarongo Jona (eds.), Questões Jurídicas Contemporâneas relativas ao Comércio e Investimento China-África, Almedina, 2014, pp. 41-63.
Fernando Dias Simões

The trade between China and Africa has been growing tremendously in the last years. Mozambique has been emerging as an important market for China, interested in acquiring natural resources and selling products to the developing Mozambiquean market. The use of standard contracts plays an important role in international trade. This article compares the regulation of standard contract terms in the legal systems of China and Mozambique.

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Supply Contracts in the Supermarket Industry

Dias Simões, Fernando, O Contrato De Fornecimento Na Grande Distribuição Retalhista (Supply Contracts in the Supermarket Industry) (2016). in António Pinto Monteiro (ed.), Temas de Direito dos Contratos, vol. II, Rei dos Livros, 2016, pp. 38-62.
Fernando Dias Simões

This article analyses the use of supply contracts in the supermarket industry.

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Tempo e diritto: alcune considerazioni a proposito della tutela civile dei diritti all’epoca della globalizzazione

Rivista Critica di Diritto Privato, 2014, 219 – 237 (ISSN: 1123-1025).
Carlo Vittorio Giabardo

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The 2011 Update of the OECD Guidelines for Multinational Enterprises

Letnar Cernic, Jernej, The 2011 Update of the OECD Guidelines for Multinational Enterprises (March 3, 2012). American Society of International Law Insights, Vol. 16, No. 4, 2012.
Jernej Letnar Černič

This Insight describes and analyzes the 2011 Update of the OECD Guidelines for Multinational Enterprises.

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The Antidumping Measures of the European Union in the Light of the EU Regulation 182/2011

Le Misure Antidumping Dell’Unione Europea Alla Luce Del Regolamento N. 182/2011 (The Antidumping Measures of the European Union in the Light of the EU Regulation 182/2011) . Journal of International Trade Law (Rivista di Diritto del Commercio Internazionale) 3/2013, ISSN: 1593-2605, Giuffre, pp. 865.
Paolo Davide Farah

The Trade Defense Measures in the European Union and the Recent Normative Developments - II. The Anti-dumping Measures and the Related Procedure - III. The New Legal Issues Introduced by Paragraph 5 of Article 5 of Regulation 182/2011: the Comitology and the Specific Mechanism for the Adoption of the related Acts and Permanent Anti-dumping or Compensatory Measures.

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