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This paper advocates the immediate beginning of a genuine, pluralistic political process leading to a binding codification of European Private Law. It is a critique of what I characterize as the post-modernist "soft" discourse of current European private law. This soft ideology stays behind proposals of "restatement" of European law; notions of "model" European codes; assertions of the sufficiency of European legal science as an alternative to codification; theories of competition between national legal systems as an efficient pattern of private law integration; notions of facilitating, optional "default law" as an efficient alternative to mandatory binding legal rules. My claim is that such soft rhetoric is yet another pattern of reception of American legal categories, poorly fitting the present fabric of the European legal scenario, and yielding to a variety of political consequences that should be spelled out rather than kept tacit.The new European Code should be hard, minimal, not limited to contracts, and process-oriented. It should aim to reflect the social fabric of European capitalism. The European codification process should look beyond the frontiers of fortress Europe and locate itself in the global dynamic of lawmaking.

This article is a revised version of remarks presented at the closing session of the 7th Annual Meeting of the European Common Core Project in Trento, Italy, on July 14, 2001 and it appears on Global Jurist by kind permission of the editors of the European Review of Private Law.

Paper presented at the conference ‘Communication from the Commission on European Contract Law’ organised by the Society of European Contract Law on November 30th and December 1st, 2001 in Leuven, Belgium.

Research on European legal integration has focused on the impact of the process of integration on national courts and the impact of courts on the same process. Both lines of research, however, have positive theories of the functioning of judicial cooperation in the EC judicial system, which often times remain underspecified. The models used to account for it make different assumptions as regards the preferences of judges, the structure of adjudication and render different explanations of the practices of referral and precedent among courts. My aim here is to first elaborate on three such models –the legal model, the bureaucratic mode and the team model- and then proceed to some empirical tests. I concentrate on the effects of hierarchy on judicial cooperation. After reviewing the evidence put forward by previous studies of legal integration and offering some new evidence, I conclude that the practices of judicial cooperation seem to be explained by the predictions of the team model. National courts take their role as “primary community courts” and use the ECJ as a guidepost to resolve complicated EC law issues. Moreover, higher courts in member states do not seem to be more reluctant to cooperate with the ECJ than lower courts in the application of EC law. The results shed some light on some proposals to reform the EC judicial system.

Paper delivered at the Seventh Annual Meeting of the Common Core of European Private Law Project - Trento, Italy, July 12-14, 2001. A version of this paper will soon be published in: M. Bussani, U. Mattei (eds.), Making European Law. Essays on the Common Core Project, 2nd edition, forthcoming, Trento, 2002.

From labour abuses to mass dislocation of peoples, infrastructure projects in developing countries raise a number of human rights problems. This paper develops a concept of 'human rights risk' to understand how project planners approach infrastructure projects in diverse subject areas and in different locations. A number of ways of managing human rights risks are discussed including litigation, anti-corruption legislation and market-based codes for transnational corporations. Then, the handling of human rights problems within the context of three infrastructure projects is examined.

The article shows how judicial review has expanded around the globe from the United States, Western Europe, and Japan to become a regular feature of constitutional design in Africa and Asia. Although the formal power to exercise judicial review is now nearly universal in democratic states, courts have varied in the extent to which they are willing to exercise this power in practice. After decades of authoritarian rule, East Asia has experienced a wave of democratization since the mid-1980s. Transitions toward more open political structures have been effectuated in Korea, Taiwan, Thailand, Mongolia and Indonesia, and even the Leninist states of China and Vietnam have experienced tentative moves toward more participatory politics. These political transitions have been accompanied by an important but understudied phenomenon: the emergence of powerful constitutional courts in the region. Constitutional courts have exercised review to challenge political authorities when conflicts arise among government institutions or governments impinge on individual rights.

Paper presented at the United Nations Conference "Rebuilding Legality. The Case of Somalia" held in Rome December 11-13, 2001.

English trust law is increasingly emulating contract. The relationship of trustee to beneficiaries is now modelled as a consensual relationship created by agreement rather than custody; and governed by standards and duties of care with tort-like features as opposed to traditional fiduciary controls. This movement, which has considerable support in the appellate judiciary, is accelerated by the recasting of trustee powers and duties in the Trustee Act 2000. Further contractualization might provoke a shift into third-party-beneficiary contract and agency models, a process that may be helped by the Contracts (Rights of Third Parties) Act 1999. The shift to contract-tort models may have gone too far in empowering trustees at the expense of entrustors, and on a broader level, in deregulating capital investment markets.

Since 1930, when the code of criminal law presently in force was enacted, Italian sentencing system has been profoundly affected by many reforms. As a result, the whole system came under attack as being ineffective, uncertain, often having a merely symbolic function. The paper focuses on the reasons for the deception with the Italian criminal sanctioning system and on the solutions proposed to restore its credibility. One lesson that can be learned observing the Italian system in action is that any theoretical project, concerning sentencing and sentence execution, has always to take into serious consideration the political and economic commitment that a system is ready to offer in order to implement it.

Paper presented at the Conference "EC LAW OF MARKETING CONTRACTS AND FAIR DEALING" organised by the Society of European Contract Law (SECOLA) in London, on May 16-17, 2002