Roma Tre Law Review – 01/2021

Stare Indecisis. How Decisions Inconsistency Affects The Regulatory Function Of The Banking Ombudsmen

The spread of ADR systems based at the supervisory Authorities (Ombudsmen) is increasing especially in regulated markets (such as banking, financial and insurance market). These Ombudsmen are assigned double functions: immediate (at the micro level), since they aim to settle private disputes (as an instrument of contractual governance); and mediated(at the macro level), they accomplish market regulation. Given this legal context, the predictability of the decisions takes a very specific connotation, since, placed in the more complex framework of banking supervision, this represents the conjunction point between the decision-making and the market regulation carried out by these bodies.

DOI: 10.13134/2704-9043/1-2021/1

Pocket Parks: Legal Strategies And Citizen Engagement To Enhance Cities’ Sustainability

The article aims to identify the broad range of sustainable benefits provided to cities by the creation of pocket parks, including health-related, environmental, economic and social aspects. It examines several relevant legal aspects inherent to such parks, by describing the legal characteristics and frameworks of two jurisdictions where these parks thrive, the US and England, in a comparative light. It notes an EU project featuring urban parks, including pocket parks, to further compare similar features and the benefits deriving from them, and offers reflections on common goods. It then analyses pertinent aspects of the Italian legal system, seeking to identify viable means to strengthen the possibility of creating pocket parks there, placing the discussion within the broad context of civic engagement, subsidiarity, empowerment, law enforcement and the rule of law.

DOI: 10.13134/2704-9043/1-2021/2

Le Droit De Superficie Aujourd’hui: Entre Dissociation Juridique De L’immeuble Et Solidarisation Du Droit

This article concerns the right of superficies, with regard to three legal orders. This right is not explicitly regulated in France, while it is regulated in Italy by the Codice civile and in Belgium by a specific act. The differences concern not only the form, but also the content of the rules and their use in practice. The article analyses the historical and theoretical reasons of such differences, particularly in order to understand why the right of superficies has recently developed in France into a multitude of structures, each one answering a specific social need, far beyond the more sporadic uses of this legal instrument in the Italian legal order. Belgium can provide further elements of comparison, as a legal order close to the French one, having experienced important autonomous developments in the specific topic of the right of superficies.

DOI: 10.13134/2704-9043/1-2021/3

Covid-19 As A Supervening Event In Leases Of Non-Residential Property

The outbreak of the Covid-19 pandemic has brought about a systemic interference with contractual performance, offering a unique opportunity for an empirical observation of the dynamics of contractual relationships. The first data are emerging in the context of leases of non- residential property. Following the business interruptions imposed by the pandemic and by its containment measures, tenants all over the world have suspended payment of rents, raising the legal question whether rent is payable even for time periods when the tenant was unable to operate its business from the leased premises due to circumstances out of its control. The objective of the present article is to describe the answers that have emerged from the courts of various jurisdictions.

DOI: 10.13134/2704-9043/1-2021/4

Italian Prison System In The Time Of Covid-19

This essay aims to analyse the extraordinary measures adopted in the Italian prison system in order to reduce overcrowding and contain the spread of Covid-19 pandemic within inmates, to protect the health of prisoners and prison staff. These measures have not always proved adequate to reduce the pervasive problem of prison overcrowding and to keep the social distance within the penitentiary institutions. In an attempt, therefore, to fill the gaps of the legislator and ensure that the execution of the detention takes place in accordance with the constitutional principles of health protection and humanity of treatment, the Supervisory Penitentiary Magistrates have exercised and continue to exercise a role of substitute.

DOI: 10.13134/2704-9043/1-2021/5

The Italian Constitutional Court and the Surname of Children

The essay analyses Constitutional Court judgment No. 131 of 2022, which finally puts an end to discrimination between mother and father in the attribution of a child’s surname. Although the decision is to be welcomed, it raises problems concerning the relationship between the Constitutional Court and the legislative power. The essay examines these issues in connection with the child's personal identity and the limits of the Constitutional Court’s pronouncements.

DOI: 10.13134/2704-9043/2-2022/5

Cryptocurrencies And Legal Capital Contributions

The contribution of cryptocurrencies into the share capital of corporations represents an extremely contemporary topic that allows to understand how the traditional principles on which company law is based, such us the effectiveness of legal capital, deal with these radically new assets. In the article, it is considered whether the contribution of cryptocurrencies fulfils the legal requirements of stock contributions not only in the Italian system but also, through the comparative lens, in the major European legal systems. It should be preliminarily noted that the greatest difficulties in drawing a conclusion whether cryptocurrencies are eligible for the formation of legal capital are, on the one hand, the conversion of the value of cryptocurrencies into legal currency, also considering the volatility of the asset, and, on the other hand, the anonymity of blockchain technology that clashes with anti- money laundering laws.

DOI: 10.13134/2704-9043/1-2021/6

Investigaciones Criminales Intrusivas Y Búsqueda De Pruebas A Través De “Software Espías” En La Experiencia Procesal Italiana

Este artículo se ocupa de examinar el uso que la práctica italiana hace de los programas informáticos de espionaje como medio atípico de investigación criminal, al margen de un marco normativo de referencia. Con las evidentes consecuencias que se derivan para la protección equitativa de los derechos fundamentales afectados por la captura tecnológica.

DOI: 10.13134/2704-9043/1-2021/7

The Covid-19 Pandemic And The Freedom To Exercise Religion: The Decision Of The French Council Of State

With Decision no. 452144 of 6 May 2021, the Council of State rejected the preliminary application to suspend the curfew during the night between 7 and 8 May for the celebration of the “Night of the Destiny,” the most important Muslim occasion. The decision must balance the freedom to the exercise of religion with the fight against the COVID-19 pandemic.

DOI: 10.13134/2704-9043/1-2021/8

Italian Golden Powers And The Role Of Independent Authorities

With the judgment in question, the Regional Administrative Tribunal for Lazio, Section I, helped define the role of the independent authorities within the administrative procedure aimed at exercising the so-called special powers referred to in law-decree n. 21/2012. The judge sanctioned the principle that the opinions rendered by independent authorities during the investigation phase must necessarily be issued by competent bodies and the final provision cannot be limited to reproducing the content of those opinions in its entirety. The court also reported the possible infringement of the principle of legality deriving from a golden power decision that stealthy expands the definition of «strategic asset.» This definition, in fact, constitutes a prerequisite for the exercise of power that can only be identified by the law and by the implementing regulations.

DOI: 10.13134/2704-9043/1-2021/9

Webinar – “Regulating Digital Platforms: Where Do We Stand?”

DOI: 10.13134/2704-9043/1-2021/10

Closing Conference of the Stars Project (Skills Transfers In Academia: A Renewed Strategy)

DOI: 10.13134/2704-9043/1-2021/11

Report on the Conference “AI Regulation in the EU: what is the right mix?” (May 31, 2021)

DOI: 10.13134/2704-9043/1-2021/12

Webinar – “Shadow banking? Non-bank Subjects Managing Credit”

DOI: 10.13134/2704-9043/1-2021/13