Roma Tre Law Review – 02/2024

Certain Reforms of China’s Arbitration Law and the Impact on Foreign Parties

This article examines the limitations of China's Arbitration Law of 1994 and the proposed reforms to the system set out in the Exposure Draft, which aim to modernize the system, particularly for foreign parties. The article addresses the absence of the term ‘place of arbitration’ and the non-recognition of ad hoc arbitration in China’s Arbitration Law, which contrasts with global norms such as the New York Convention and UNCITRAL Model Law. The Exposure Draft introduces pivotal changes, including the specification of the place of arbitration and the formal recognition of ad hoc arbitration. Furthermore, the draft enhances the role of interim measures, extending beyond the preservation of property and evidence to encompass the preservation of conduct. It also permits the implementation of pre- and post-arbitration measures by both courts and arbitral tribunals. In conclusion, the revisions proposed in the Exposure Draft represent a substantial step towards the internationalization of China's arbitration system. They hold the potential to facilitate a more efficient, cost-effective and confidential process for foreign parties. The amendments are designed to enhance the attractiveness of China as a venue for cross-border dispute resolution, while also providing a robust, flexible, and equitable legal mechanism that reflects China's commitment to align with international arbitration practices.

DOI: 10.13134/2704-9043/2-2024/1

Constitutional Court and “Tutela” Legal Action in Colombia

The historical background of the control of constitutionality in Colombia, the 1991 Political Constitution and the proximity of individuals and judges through the tutela action, gave life to a well-defined constitutional jurisdiction, with virtues and defects, which endanger the stability of decisions and the security of res judicata. This panorama, whose protagonist is the Constitutional Court, with its tutela rulings on the fundamental right[1] to due process, together with the effects of its decisions, constitute the real key to deciphering the real autonomy and independence of the other High Courts, or, in other words, their practical subordination to the constitutional court, with a full nomophilactic duty. [1] Translator’s note. Modern theory, mainly of German origin, has opted for the term ‘fundamental rights’ when it comes to codify human rights, i.e., enshrined as positive law by the Constitution. In Colombia, a “fundamental right” may then be considered something alike a right stemming from the United States “Bill of Rights”, for there is, explicitly, a Chapter labelled “On Fundamental Rights” in the Constitution and is commonly referred to as the “catalogue of fundamental rights”.

DOI: 10.13134/2704-9043/2-2024/2

Symbolism in Judicial Architecture

The symbols that surround us from many sides play an important role in our perception of reality. Experiencing the world through different senses allows us to use a variety of means to manifest specific values or principles. Symbolism understood in this way also finds its place in legal sciences. Its most visible and substantial form is the symbolism hidden in judicial architecture. This paper is an analysis of the changing symbolism in judicial architecture over the centuries, taking into account current trends and indications in the design of court houses. Through a historical view of the evolution of symbolism, contemporary symbols and their relevance to the administration of justice have been interpreted, making it possible to identify specific symbols present in judicial architecture.

DOI: 10.13134/2704-9043/2-2024/3

The Personal Is Not Yet Political nor Juridical for Women Seeking Asylum in the European Union. Critical Issues Arising from the CJEU Judgment of 16 January 2024, C-621/21

This note critically examines a recent judgment by the European Court of Justice regarding the recognition of gender-based violence as a ground for asylum for women. The analysis begins with a discussion on the neglect of international legal feminism in refugee law and highlights the importance of considering the binding provisions of the CEDAW and the Istanbul Convention. The judgment acknowledges women facing gender-based violence as members of a particular social group eligible for refugee status, but it falls short in recognizing the political dimension of their persecution. Additionally, it addresses the issue of non-state actors as perpetrators of persecution and emphasizes the need for detailed assessments considering various factors.

DOI: 10.13134/2704-9043/2-2024/4

Abuse of Functions: A Necessary Crime?

Abuse of office remains a topic of ongoing debate even after its abolition. The Constitutional Court was promptly called upon to decide on the legitimacy of the reform. The primary objection raised by the referring judges is that the repeal of Article 323 of the Criminal Code conflicts with specific prohibitions established under supranational law. The author thus aims to examine whether there exist binding obligations to criminalize such conduct, and to what extent the Constitutional Court can intervene to ensure compliance by Parliament. In this context, the supranational norms invoked as the foundation for the constitutional issues are analyzed, and the solutions adopted in several European legal systems are briefly surveyed. The author concludes that while the decriminalization of abuse of office is not inherently objectionable, such a significant intervention should be part of a broader, comprehensive reform of the penal framework addressing offenses committed by disloyal public officials.

DOI: 10.13134/2704-9043/2-2024/5

Failure to validate detentions in Albania: towards a clarification by the CJEU

The article examines the Italy-Albania Protocol in light of the concept of a “safe third country” and the legal issues arising in its implementation. It traces an analysis of Regulation 2024/1348 and the recent case law of the Court of Justice of the European Union (CJEU), highlighting the tensions between Italian and European law. The contribution delves into the practical impact of the designation of safe third countries on the Italian system, dwelling, too, on the newly enacted Decree-Law 158/2024 (and its subsequent updates) and the regulatory developments that will culminate in the New Pact on Migration and Asylum. Finally, the limits and opportunities of the disapplication of administrative acts conflicting with European criteria are discussed, along with the role of the CJEU in resolving regulatory conflicts. 

DOI: 10.13134/2704-9043/2-2024/6

Intellectual Property in the Digital Age (Islambek Rustambekov, Said Gulyamov, Anna Ubaydullaeva, Roma Tre Press, 2024)

DOI: 10.13134/2704-9043/2-2024/7

The Future of Pharmaceuticals: Antitrust, Ip and Regulatory Challenges (Roma Tre University, Department of Law, 21st November 2024)

DOI: 10.13134/2704-9043/2-2024/8