Volume 12, Issue 2

The article considers the decisions handed over by of the European Court of Human Rights in matters related to armed conflicts in the last 10 years. Called to deal with cases connected to the use of force by military and security agents during internal turmoil and civil wars, the Court treated them as episodes of terrorism and, consequently, as a matter of domestic law. Asked to decide issues related to international armed conflicts or international peace enforcement operations, the Court declined to discuss the merit, arresting its analysis to the question of jurisdiction. The recent case-law marks a significant change of perspective and seems to represent the final point of a profound re-thinking, the end of a path which steered the Court to amplify the reach of the Convention beyond its original legal space and to change the way it approaches the law of armed conflict.

In the European Union Regulation No. 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations (the so called Rome I regulation) governs which law to apply to contracts containing international elements. With the continuing internalization of business activities, such rules have elementary importance. However, beside the unified rules of the regulation, numerous EU rules exist, which also have relevance. This is because of a provision in Rome I, which states that the regulation shall not prejudice the application or adoption of rules of the institutions of the EU which lay down rules concerning particular areas of contractual law. As an effect, several rules exist which override the provisions of Rome I. Thus, the present system of rules is fragmented, which may cause serious malfunctions in the legal practice. Most of these provisions can be found in consumer law directives, but other fields like employment law may also be of relevance. The article tries to collect these „hidden” provisions and analyze their effect to the Hungarian legal regime.

One of the most controversial issue of contemporary contract law is the role to be recognized to courts in the construction of the contracts’ content. Several recent European soft law codes tend to deal with contracts’ construction by means of the English doctrine of implied terms, a doctrine which in fact seems to become more and more popular also in civil law systems. The article first of all focuses on what appears to be the real underlying issue of contracts’ construction: the overall impression is that it is not quite a question of mimicking the parties’ presumed intention, but rather to decide on a certain risk allocation. Attention is then drawn to the possible factual circumstances in which courts seem to be more likely to imply terms. It will be noted that on the one hand, courts frequently imply terms in case of significant bargain power disproportion; courts, on the other hand, seem not to limit their possible intervention to these cases. The article will then make reference to some developments of contracts’ construction doctrines within the Italian and the English jurisprudence. In this regard, it will focus on the tests that courts declare to apply when implying terms, with the purpose of verifying the correspondence between what it is stated at the theoretical level and what it is actually observed at the practical one.

Starting from the review of a recent book by E.F.M. Emanuele, this paper aims at opening a wider debate on the state of the Italian cultural heritage in the turmoil of the European financial crisis. The discourse starts with a few significant figures that show the state of abandonment of a large portion of Italian most valuable historic and architectural resources. It then continues analyzing the traditional flaws of the Italian cultural system (endemic lack of public incentives, inadequate fiscal regime, the misuse of public services as a means for only providing employment, lack of meritocracy..etc ) and it concludes suggesting a few innovative solutions, through the application of economic strategies to the managing of works of art.

Islamic law dealing with the issue of the scriptural treatment of a recalcitrant wife (nushuz) as detailed by both exegetes and classical jurists has emerged as one of the much debated topics in readings on Muslim women in our time. Some go the feminist way; others tend to be reformists while the vast majority remain traditionalists. Ironically, however, all these advocates, by and large, have one thing in common, namely they are locked in the traditional literal methodology of legal construction. This study, however, calls for taking the discourse beyond the confines of literalistic polemics to that of purposive methodology and analytical legislative constructs. It concludes that the three-stage procedures of disciplining a recalcitrant wife as legislated by the Qur`an, is intended to mitigate the harsh treatment of such wives in socio-cultural conditions in which wife-battering was normal. To literally adopt such a procedure for restoring the relationship of marriage at present time instead of repairing marital discord, will further ruptures it; thus it is against the end-goal of the law on nushuz.

In July 2007, an American journalist for the Financial Times wrote an article stating, in no uncertain terms, his astonishment at the inappropriate use of women in advertising and on television in Italy. He criticized and joked that the Italian advertising system uses and abuses women’s bodies with the total indifference of the Italian people. However, there has been a strong movement towards defending women’s dignity and against the disparaging treatment of the female body in commercial communication in particular over the past few years in Italian society. In order to make an impact, these feelings need to be addressed in the legal process, they need to find an appropriate institutional player; player which has finally been found in the Jury of the “Istituto dell’Autodisciplina Pubblicitaria” (IAP). The Jury, in applying the Code of Marketing Communication, has given a concrete meaning to the general and abstract clause that is included in Article 10 C.A., stating that marketing communication should respect human dignity. Dignity is an elusive concept that offers judges great power and that can be interpreted in many different ways. The German Benetton Advertising Cases show dealing with values can be very troublesome. There is always the risk of “censorious attitudes”. Returning to Italy, although the Jury of the IAP takes the values which inspire its decisions from the legal and social community, the risk of “idiosyncratic attitudes” cannot be completely avoided. In this respect, it is better that those who are obliged to respect rules and decisions are bound by their own contractual consent (consent that could, in the case, be revoked). The struggle against the commodification of women's bodies in advertising has yet to be won, but since the publication of the article in the Financial Times, much has already been accomplished.

El artículo analiza la doctrina crítica a la Constitución chilena de 1980 planteando que las objeciones a la carta han corrido por tres ejes fundamentales: origen autoritario e ilegítimo, consagración de un régimen poco democrático, y establecimiento de un sistema neoliberal con déficit de derechos económicos y sociales. Estas críticas han subsistido en el tiempo, no obstante las numerosas reformas. Desde su dictación a la fecha, el texto no logra conformar al constitucionalismo chileno, subsistiendo en nuestra experiencia constitucional una “incomodidad constitucional” de la que no logramos desembarazarnos. A través de los tres ejes señalados, se hace un estudio de la doctrina que, posterior a la reforma constitucional de 2005, sostiene la necesidad de un cambio constitucional, con el objeto de analizar qué concepto de concepto de constitución subyace a la discusión académica sobre la necesidad de una nueva carta fundamental, utilizando como elementos de análisis el concepto de constitución de Carl Schmitt y el concepto de constitución de Gustavo Zagrebelsky. La propuesta es que, en la medida en que se pueda saber qué le piden a la constitución sus críticos, se podrá entender qué se necesita para superar la incomodidad constitucional y si es siquiera posible dentro del contexto de la Constitución de 1980.

In this paper, the authors argue that the long drawn armed conflict between the Maoists and the Indian State has acquired the status of a non-international armed conflict due to the organized nature of the Maoists and the scale of violence arising out of the conflict. The systematic human rights abuses by both parties and forceful displacement of civilians is a tangible threat to international peace and security in the region. In light of the deadlock between the parties, the authors make a case for United Nations’ intervention in mediating an end to the conflict and restoring peace and security in the region. Drawing inspiration from the role played by the UN in ending civil wars across the globe, this paper argues for a similar intervention in the non-international armed conflict in India. The authors argue that the UN should venture to exert pressure on the State to eliminate any further abuses of human rights, and remove the impasse between both the parties to facilitate a constructive dialogue.

International trade and the role of lawyers in international transactions have increased dramatically in the last few decades, and projections indicate even greater growth. To comply with their ethical and legal duties of competency in international transactions, lawyers must have a certain level of direct knowledge; lawyers do not comply with their duty of competency by hiring and blindly relying upon foreign counsel. There are too many cultural, linguistic, and legal differences between countries to justify a lawyer in relying exclusively on the knowledge of foreign lawyers (what we would call “indirect knowledge”).This article focuses on a frequently misunderstood area in which an international lawyer should have direct knowledge -- the authentication of documents by notaries either overseas when the document is to be used in the US (“inbound”) or in the US when the document will be sent overseas (“outbound”).The concept of a notary in civil law countries is quite different from that in the common law system. In civil law countries notaries are public officials, like US notaries, but their role as public officials is wider than US notaries because of their ability to draft public instruments (also called “authentic instruments”). Civil law notaries are also legal professionals who do not simply authenticate signatures on private instruments, they give impartial advice. Finally, the number of civil law notaries is radically smaller than the number in the US – for example, 8000 in Germany.Because of these differences, problems with regard to notarization can arise in either (i) “inbound” transactions, i.e. when a party is required to supply a document from a civil law country to be used in a US transaction (for example, a power of attorney from a resident in a civil law country) or (ii) in “outbound” transactions, i.e. when a party must supply a document from the US to be used in a civil law transaction (for example a document certifying that a US resident has been bequeathed real estate located in a civil law country).With regard to “notarization of documents,” the duty of competency in our view requires lawyers to know the important differences between civil law and common law notaries; the fact that notarization by a civil law notary may be time consuming, expensive, and even unnecessary for many US transactions; and practical ways to deal with notarization problems in inbound and outbound transactions.