Roma Tre Law Review – 01/2022

Jhering y su “espíritu del derecho romano”: lectura de un joven estudioso

This article aims to offer scholars and those interested in the History of Roman Law, as well as in the History of Law in general, an interpretation and a renewed reading of one of the most important ‘classic’ works on this subject, that is «The spirit of Roman Law at the various stages of its development» by Rudolf Von Jhering. This work – which is enormous because it consists of four volumes and almost two thousand pages – marks, without any doubt, an unprecedented turning point in the approach to Roman Law and in the elaboration of a new method of studying the history of legal phenomena. Indeed, through an immersion in all areas of the history of the Roman people, from the religious, to the economic, social, cultural, anthropological and philological, Jhering tried to discover the soul and the true essence of the origin of Roman Law and the development of one of the most successful legal systems in history.

DOI: 10.13134/2704-9043/1-2022/1

The Evolving (?) Notion of ‘Agreement’ in the Age of Algorithms. Interactions Between Antitrust and Contract Law

By affecting business strategies and consumers’ behavior, the wide-scale use of algorithms, prediction machines and blockchain technology is currently challenging the suitability of several legal rules and notions which have been designed to deal with human intervention. In the specific sector of antitrust law, the question is arising on the adequacy of the traditional doctrines sanctioning anticompetitive cartels to tackle coordinated practices which, in the absence of an explicit “meeting of the minds” of their participants, may be facilitated by algorithmic processes adopted, and eventually shared, by market actors. The main concern in these cases, discussed both at regulatory and academic level, derives from the general observation that while the traditional concept of collusive agreement requires some form of mutual understanding among parties, nowadays decision-making of firms is increasingly transferred to digitalized tools. Moving on from these premises, the paper investigates the impact that the rules applicable to the conclusion of (smart) contracts may have, from an antitrust law perspective, in the detection and regulation of anticompetitive practices.

DOI: 10.13134/2704-9043/1-2022/2

La participation du peuple à l’administration de la justice pénale en Italie: physionomie structurelle et fonctionnelle de la Corte d’assise

The paper provides a synthetic overview of the Corte d’Assise: a collegial judicial organ, formed by two professional judges (giudici togati) along with six lay judges (giudici popolari), implementing the constitutional principle set forth by the third paragraph of Article 102 of the Constitution, which expressly recognises the ‘direct participation of the people in the administration of justice’. After retracing the origins and historical evolution of the Corte d’Assise, this paper highlights strengths and weaknesses of the role played by the lay judge in the Italian criminal trial.

DOI: 10.13134/2704-9043/1-2022/3

The Role of Creditors in Corporate and Contract Governance

The essay deals with the impact on corporate and contract governance of creditor’s intervention in the management of the financed company. In fact, the conventional notion according to which the creditor was not endowed with sufficient incentives to manage the company has gradually been overcome since the development of new contractual types that grant the lender conformative rights in the debtor company. By contrast, the contribution from the creditor might enforce both the entity’s commercial operations and, in general, the market structures in which the debtor company participates.

DOI: 10.13134/2704-9043/1-2022/4

Reversal of Acquittal on Appeal: Fact Finding and the Right To Be Heard

The recent pronouncement of the European Court of Human Rights in the case Maestri v. Italy elevated the examination of the defendant on appeal to an indispensable step before overturning an acquittal into a conviction. It was ruled, in fact, that a mere chance to be heard is not enough, but a specific summons to appear before the Court of Appeal to make the examination is necessary; otherwise, the decision is unjust. One must ask oneself, then, what significance this rule assumes in the perspective of a legal conception of evidence of European matrix. If, that is, the defendant’s right to be heard takes on the value of a procedural defence guarantee as enshrined in Article 6 ECHR, or if, rather, it becomes something more: an epistemological rule addressed to the judge to ensure the reliability of the judgement. When reconstructed as an epistemological rule, the right of the accused to be heard by the appellate Court escapes the balancing game with the other guarantees, also established by the European Court in its holistic view of a fair criminal trial. However, due account must be taken of the risk that such a cognitive function of this right may lead to negative inferences being drawn from the silence of any defendant who does not wish to undergo the examination. This feeling of unease, which is confirmed by the jurisprudence of the European Court, should, however, be allayed by the recent directive on the presumption of innocence, which expressly prohibits drawing evidential indications from the silence of the defendant.

DOI: 10.13134/2704-9043/1-2022/5

Quelques remarques sur le droit au logement en tant qu’objet d’obligations faites aux Etats dans le système de la Charte sociale européenne

Some remarks on the right to housing as an object of State international obligations, under the legal system of the European Social Charter. At the European regional level, the right to housing, intended as a human right, is recognised and guaranteed by the Revised European Social Charter (RESC, 1996). Art. 31 of the RESC places a number of positive obligations on European States having accepted it, concerning the adoption of measures aimed at promoting access to housing of an adequate standard, preventing and reducing homelessness, and making the price of housing accessible to those without adequate resources. The present article draws the attention to the implementing practice of the RESC as an instrument for the protection and realization of the right to housing in Europe, particularly focusing on the case law of the European Committee of Social Rights (ECSR, the Charter supervisory body), as it emerges from the so-called collective complaints procedure, which enables social partners and nongovernmental organisations to apply to the ECSR directly for it to rule on possible violations of the Charter in the country concerned.

DOI: 10.13134/2704-9043/1-2022/6

A New Chapter in the Never-Ending Rule of Law Saga in the EU: the Judgment on the Annulment of the Conditionality Mechanism

The present contribution intends to provide a brief analysis of the recent judgments in the annulment proceedings brought before the European Court of Justice by Poland and Hungary concerning the alleged non-compliance with the Treaties of the conditionality mechanism (Regulation (EU) 2020/2092). The judgments may be deemed as a further step in defining the rule of law within the European Union legal order, as it sheds new light on this instrument, adopted in order to tackle violations of that Union’s fundamental value that bear negative consequences for the EU’s budget.

DOI: 10.13134/2704-9043/1-2022/7

Sanctioning Russia: Questions on the Legality and the Legitimacy of the Measures Imposed Against the Invasion of Ukraine

Since the invasion of Ukraine in February 2022, an unprecedented level of cooperation has been achieved among a group of like-minded States – encompassing G7 members as well as Australia, Switzerland, and South Korea – in imposing sanctions against the Russian Federation. In
particular, the European Union has taken various rounds of restrictive measures against Russia: a combination of targeted sanctions against government élites and a more comprehensive package of measures of commercial and financial character. A key issue is that of their legality under international law. In the view of the EU, its restrictive measures are fully compliant with international obligations. They are in any event justified as a response to the Russia’s aggression, one of the most serious breaches of the fundamental rules of the international community. But other States disagree: they claim that the only legitimate sanctions are those adopted by the UN Security Council and unilateral measures
are always an unlawful intervention in the internal affairs of the targeted State.

DOI: 10.13134/2704-9043/1-2022/8

European Sales Law in the 21st Century

DOI: 10.13134/2704-9043/1-2022/9

Adminstrative Law Seminars at Roma Tre Law School

DOI: 10.13134/2704-9043/1-2022/10

Blockchain Between Law and Regulation: Where Do We Stand?

DOI: 10.13134/2704-9043/1-2022/11