University of Bologna Law Review

Former British Colonies: The Constructive Role of African Courts in the Development of Private International Law

Pontian Okoli — 2022-11-22

Significant strides have been made in efforts to facilitate the resolution of international disputes in Africa. However, cross-border issues that concern private litigants have remained challenging. One major reason is the legal history of relevant countries which often makes it difficult to contextualize legal principles inherited before independence. It is sometimes unclear how African courts determine the current law and how their discretionary powers should be used. This challenge is complicated where scholars focus on what they consider that the law ought to be without first accepting what the law is. Any sustainable growth of private international law requires a systematic approach to legal developments. Using the main comparators of South Africa and Nigeria, this article examines the connections between legal traditions and the legal methods that are required to ensure that there is a sustainable development of private international law in Africa. The core enquiry is set on a tripartite structure. Law in context, fidelity to context and functionalist approaches are essential elements that should drive the resolution of disputes in private international law matters. A dominant theme is how the recognition and enforcement of foreign judgments should be examined through appropriate interpretational mechanisms.

Beyond “Equity”: The Continued Search for Guiding Principles of Transnational Anti‐Corruption Investigations

Matthew J. Feeley — 2022-12-13

The recent global proliferation of domestic anti-corruption laws intended to have extraterritorial application has led to circumstances where multiple states seek to enforce their anti-corruption laws against the same entities based on the same set of facts. This work examines the development of these transnational enforcement circumstances, as well as the attendant policy complications, and poses the following research question: when approaching multi-jurisdictional anti-corruption enforcement efforts, have enforcement agencies developed a set of principles beyond general “equity” to inform their decisions about when and how to cooperate in investigations and coordinate and structure appropriate transnational anti-corruption settlement penalties? To attempt to answer this question, this work evaluates the context of these enforcement developments, recent transnational anti-corruption resolutions and interviews with former and current anti-corruption prosecutors from various states. The work concludes that the following guiding principles are emerging: (1) enforcement agencies seek to coordinate and cooperate during the investigatory stage if the benefits of cooperation outweigh the costs; (2) enforcement agencies seek to coordinate resolutions with enforcement agencies from other appropriate states recognition of jurisdictional nexuses and development of global anti-corruption efforts; (3) enforcement agencies utilize crediting of penalties and profit disgorgements paid to other states to both maintain domestic statutory enforcement and consistency and to encourage anti-corruption capacity building and future voluntary self-reporting by offending entities; (4) enforcement agencies consider “side-stepping” to encourage anti-corruption capacity building and future voluntary self-reporting by offending entities; and (5) enforcement agencies consider deference to other states for monitoring purposes to encourage anti-corruption capacity building. The identification of these emerging principles may provide additional insight into the investigation and resolution process and may inform entities and corporate counsel as they navigate potential transnational anti-corruption exposure.

Cakes and Communication: A Trans‐Atlantic Conversation Between the U.S. and U.K. Supreme Courts on the Tension Between Anti‐Discrimination Law and the Freedoms of Religion and Speech

Carlo A. Pedrioli — 2023-03-06

In 2018, anti-discrimination law clashed with the freedoms of religion and speech at the tops of two major common law systems on both sides of the Atlantic Ocean. On June 4, the United States Supreme Court decided Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case that involved a Christian baker who refused to bake a cake for a same-sex wedding. Several months later, on October 10, the United Kingdom Supreme Court decided Lee v. Ashers Baking Company, Ltd., a case that involved a Christian family business that refused to bake a cake that promoted same-sex marriage. A key legal issue in both cases was whether the government, in the interest of furthering anti-discrimination law, may compel speech against one’s religious beliefs. Also, permeating the two cases were especially rich issues of human communication. Taking a comparative approach, and with an eye toward some of the communication-related matters involved in the cases, this paper examines Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Lee v. Ashers Baking Company, Ltd., ultimately proposing that court systems consider, at a minimum, several factors in cases in which anti-discrimination law clashes with the freedoms of religion and speech in the sale of baked goods like cakes. The paper urges courts to consider at least the following factors: (1) the specificity of the message, (2) the likelihood that the baker will be identified as the creator of the baked good and thus potentially as a sender of the message, and (3) whether the baker knows the situation in which the baked good will be used. The paper unfolds by providing background on the cases, reviewing the various legal opinions, and then offering analysis of key communication issues presented.

The Questionable Polish-German Pandemic Mutual Agreement

Błażej Kuźniacki — 2023-03-06

The outbreak of the coronavirus (COVID-19) pandemic in 2020 prompted countries around the world to take countermeasures. One was to restrict the movement of citizens between countries for employment purposes amongst others. As a result, some employees were forced to continue working remotely in their resident states for employers in other states. In this paper, the authors focus on international tax issues related to the situation of cross-border Polish employees working for German employers. They critically analyse the Polish-German Pandemic Mutual Agreement, adopted on 27 November 2020 by the competent authorities of Poland and Germany, which introduced a legal fiction of performing work in the previous country of employment to maintain the taxation rules in force before the outbreak of the COVID-19 pandemic. The authors argue, mainly from the perspective of the Polish legal system, that the legal basis for the Polish-German Mutual Agreement, its content, and its legal effects are questionable. In addition to that entered into by the Polish competent authority, nearly identical mutual agreements were successfully initiated and concluded by the German authorities and those in Austria, Belgium, France, Luxembourg, the Netherlands, and Switzerland. Thus, although this note focuses on the Polish-German Mutual Agreement, the ramifications and impact are, by analogy and mutatis mutandis, much broader.

Revision of the Energy Taxation Directive: A Brief Overview of Key Novelties

Merve Ergün — 2023-03-10

Tax law has always been an important tool to promote existing energy policies and investments, and it is understood that new E.U. rules on energy taxation have the potential to accelerate the energy transition process. Both the European Green Deal and Fit for 55 Package have pointed to the revision of the Energy Taxation Directive (E.T.D.) regulating the taxation of energy products and electricity. Besides, the idea of revising the legislation related to energy taxation has been emphasised in the European Climate Law which is binding in its entirety in all E.U. countries. The E.T.D. is an important instrument that has been in force since 2003. However, it is widely accepted that this instrument must be updated in light of the E.U. ’s Climate Change Policy and Sustainable Development Goals (S.D.G.s). Hence, on 13 April 2011, the E.U. Commission published a proposal for a Council Directive amending Directive 2003/96/EC. Should all procedural requirements be met, the revised E.T.D. is expected to enter into force next year; therefore, it is essential to evaluate the key novelties brought by the Revision of the Energy Taxation Directive. This paper aims to provide an analysis of the E.U.’s existing energy taxation policy and recent developments related to the revision of the E.T.D.. To do this: firstly, energy transition, taxation and the link between them will be outlined. Secondly, the European environmental tax policy system and the E.U. general legal framework on energy taxation will be explained by considering the novelties introduced by the E.U.’s Fit for 55 Package and the European Green Deal. Lastly, the E.T.D. and the revised E.T.D. will be comparatively evaluated together with the questions regarding business taxation.

When the Court Buildings Close: The Use of Technologies During COVID‐19 in Portugal

Paula Casaleiro — 2023-03-10

The coronavirus outbreak showed the critical importance and usefulness of a robust technical infrastructure and end-to-end digital processes in the judicial system. Although some application difficulties and limitations were observed during this crisis, the modernization of the Portuguese judicial system was a key element to safeguard the continuity of the functioning of courts. This short article aims to analyse the implementation and use of technologies in the Portuguese courts, as an alternative mode of delivering and maintaining court service within the context of the COVID-19 crisis. For this purpose, several steps are made, namely the characterization of the modernization level of the Portuguese judicial system and the collection and critical analysis of the legal framework, concerning the response to the COVID-19 pandemic by the judicial bodies of governance. Additionally, the analysis relies on the results of a questionnaire and interviews applied to the judicial professions and on official statistical information regarding the functioning of Portuguese courts during the periods of confinement. Final remarks will preview different paths for the future needs of courts in terms of upgrading the use of technologies to contribute to a better, swift, fair, and trustworthy justice.