University of Bologna Law Review 2021-12-24T11:09:05+01:00 Editorial Office Open Journal Systems <p>The <strong>University of Bologna Law Review – ISSN 2531-6133 (Online)</strong> is a gold open access and double blind peer-review legal journal run by University of Bologna School of Law students, and published by the Department of Legal Studies of the AMS University of Bologna (Italy). </p> Law in a Time of Corona: Global Pandemic, Supply Chain Disruption and Portents for “Operationally‐Linked (but) Legally Separate” Contracts 2021-12-17T09:47:45+01:00 Deji Olatoye <p>The novel coronavirus (Covid-19) pandemic has resulted in the disruption of activities in major centres of global production, with adverse portents for contractual obligations across global supply chains. The global pervasiveness and dynamic propagation of the risks arising from contractual failures provides an opportunity to reconsider the nature and impact of mechanisms for excusing failure to perform contractual obligations under adverse circumstances (Excuse).<br />Such mechanisms include those found in the general law (for example, frustration in common law and analogous doctrines in civil law traditions) and contractual clauses (for example, Force Majeure and hardship clauses). Establishing extant rights and obligations under current contracts may provide only limited illumination on how parties will address these failures. Principles in economics of contract (e.g. incomplete contract and transaction cost theories) and the commercial reality of global supply chains both suggest that parties tend to lean towards contract- and relationship-saving adjustments, rather than strict enforcement of rights. Therefore, this article analyses the doctrinal and contractual regimes of Excuse with a view to assessing their respective scopes for transaction and relationship saving. It also highlights the peculiar nature of supply chain relationships wherein exchange partners enter into a sequence of dyadic relationships aimed at delivering a good or service to the end user. The tension between that operational logic and the legal principle of privity of contract makes these relationships – undergirded as they are by what we call “operationally-linked (but) legally separate” (O.L.L.S.) contracts – peculiarly vulnerable to mismatches in their Excuse regimes. Mismatches occur where failure to perform a determinant contract is more easily or much earlier excusable than in a dependent contract within the same chain operation. This may, in turn, exacerbate risks of supply chain disruptions in a pandemic scenario. The article designs a framework by which the doctrine-contract complex in the regimes may be used to test the dynamic scenarios of a global pandemic for the purpose of scanning for such mismatches. This framework will be useful in both post-event circumstances, as parties embark on relationship-saving negotiations, and in designing ex ante risk management measures. Through the understanding of the peculiarity of supply chain relationships and the O.L.L.S. contracts, this article also proposes to open up new directions in which the insights therefrom might be useful. An example suggested and prefatorily explored in this article is in the “governance beyond privity” conundrum in the context of supply chain disruption. Another is its potential contribution to the emerging multifactorial approach to determining frustration of contract in some common law courts.</p> 2021-12-20T00:00:00+01:00 Copyright (c) 2021 Deji Olatoye The Conflict of International Agreements in Air Law: A Reasonable Plea for Conventional Uniform Rules 2021-12-24T11:09:05+01:00 Mohammed El Hadi El Maknouzi Iyad Mohammad Jadalhaq <p>This note surveys the roots of a phenomenon called “conflict of international agreements”, which forms a distinctive source of legal uncertainty in trans-border disputes, with a particularly high incidence in the field of air law. The authors suggest that the conflict of international agreements should be understood as an added layer of legal complexity in trans-border air law disputes, beyond the customary questions around applicable law and jurisdictional competence that are commonplace in private international law. The first part of this study maps the main factors that have led to the emergence of this peculiar conflict in the domain of air law. Among them are the following: the fact that national air law legislations have typically been developed by catching up with prior international regulatory initiatives (to the point of inserting, in national provisions, named references to specific treaties); the development of international air law through different generations of treaties with non-overlapping memberships; the possibility for different degrees of membership within the same treaty, and the succession of states. All these factors contribute to the possibility that a judge, tasked with a trans-border air law dispute, might first need to determine the international agreement under which the dispute falls, to settle preliminary questions of applicable law or jurisdiction. Or that he or she might end up—after following the trail of foreign legislation when settling a conflict of laws—having to apply treaties that might not be compatible with the international obligations of his or her jurisdiction of belonging. The second part of this study then looks at a sample of existing strategies for resolving such uncertainty, by looking at the Vienna Convention on the Law of Treaties, the jurisprudence of the French Conseil d’État, and doctrinal commentary. As a result, the study finds that the horizontality of international law and the difficulty posed by non-overlapping treaty memberships (so that different rules apply to different sets of states) is, at present, insurmountable. This leaves the possibility open, for instance, that a competent court might have to choose between (i) deferring to private international law norms that might lead to the application of incompatible treaties binding in a foreign legal system, and (ii) applying the different treaties ratified by the state of the competent court. This is what case-by-case decision-making at the point of adjudication might entail, in the absence of a renewed impetus for harmonisation. It is on this basis that the authors conclude with a reasoned plea for new initiatives aiming at greater uniformity in international air law.</p> 2021-12-27T00:00:00+01:00 Copyright (c) 2021 Mohammed El Hadi El Maknouzi, Iyad Mohammad Jadalhaq Securitizing Notes of Small Businesses and Needy Workers 2021-11-08T19:17:26+01:00 Tamar Frankel 2021-11-10T00:00:00+01:00 Copyright (c) 2021 Tamar Frankel A New International Crime of Ecocide? 2021-11-30T15:24:08+01:00 Valeria Luz Puleo 2021-12-01T00:00:00+01:00 Copyright (c) 2021 Valeria Luz Puleo