Indice e Abstract Fascicolo 1/2022

Indice

Indice e Abstract Fascicolo 1/2022

Dibattiti

Marisaria Maugeri, Mercato finanziario, cripto-attività, proposta di regolamento Mica (Markets in Crypto-Assets) e tutela del consumatore

Abstract. Consumers are increasingly using digital financial services and trading crypto assets. The contribution asks whether these receive protection in that market context. The author believes that there are already law aimed at protecting the consumer in the financial market (that makes use of new technologies). This protection could also be supplemented by that provided for in the Proposed MICA regulation. The text also questions whether and how the Proposed MICAR regulation can be coordinated with the other consumer law rights.

 

Saggi

Nadia Zorzi Galgano, La prima norma prevista dal legislatore emergenziale sulla rinegoziazione dei contratti per eccessiva onerosità

Abstract. Covid-19 and contract: the first rule provided by the emergency legislator on the renegotiation of contracts due to excessive onerousness of performance from SARS-CoV-2, in the light of the Italian Civil Code’s system and in comparison with the rules of the Unidroit Principle; more specifically the first rule on the renegotiation of the content of contracts due to excessive onerousness. Subjective and objective scope of application as special constitutive elements that do not allow for repercussions on the system on the civil code system. Conclusions: is the lack of impact on the system really that total?

Stefan Grundmann, Teoria pluralistica del diritto privato. Un pluralismo di scienze sociali fondato su valori costituzionali (“Pluralismo normativo”)

Abstract. Pluralist legal theory is about how to integrate knowledge from the whole of society. This is not just another plea for more interdisciplinary input into law production and adjudication.  Rather, different modes of integration of interdisciplinary insight are contrasted with each other and a clear preference is expressed. The paper distinguishes monist approaches to interdisciplinary legal theory (referring to one neighbouring discipline like in law and economics) from broadly pluralist approaches (drawing on all relevant disciplines in principle). It argues that monist approaches do not do justice to the basic value structure enshrined in constitutions – as the ultimate benchmark accepted in democratic societies under the rule of law. Indeed nowadays, all these constitutions are rather unanimously seen as opting for a broadly pluralist view of society (see Article 2 TEU). Therefore, monist interdisciplinary approaches certainly bring important new knowledge, but typically do not suffice and exhaust the question of adequate value judgment. Thus, pluralist interdisciplinary legal theory not only is richer in heuristic sources – drawing on a whole array of disciplines –, it is also the only approach in line with the constitutional architecture. Moreover, such an approach brings back legal scholarship and adjudication to the role it had for centuries when it still was the sole science about (order in) society. Legal scholarship and adjudication would again have the role of having the overall say on weighing the different interests and perspectives in society and create a just balance. The main problem of this approach – constitutionally mandated, richer in knowledge and more appropriate for the proprium of legal scholarship – is this. It is difficult to find order in such an ‘ocean’ of theories stemming from different disciplines. They need not only to be ‘translated’ into legal concepts, but as well been put in order. The paper exposes several answers that can already be found in literature on this issue (including hierarchies or balancing). The paper proposes that a so-called value tracking method might be most appropriate. This method would consist in searching in the constitutions themselves or the democratically decided upon value systems also the weight that can be given to values that the respective theories propose to develop in particular depth. Thus constitutions would serve as an overarching value system not only for all law – also private law, as we have learned over a few decades –, but also for a pluralist legal methodology.

Niccolò Abriani, L’impatto dell’intelligenza artificiale sulla governance societaria: sostenibilità e creazione di valore nel lungo termine

Abstract. The study examines the main effects of digitalisation on company law, focusing on the impact that the growing use of new artificial intelligence technologies has on corporate governance. In this perspective, the interaction plans between company law and artificial intelligence tools are explored, outlining the essential features of the “governance of artificial intelligence” and of the new “corporate cybernetics”. Through an interdisciplinary examination of the European Union sources – from the discipline on personal data to that prefigured by the proposed regulation on artificial intelligence, up to the most recent proposal for a directive on corporate sustainability due diligence – the contribution highlights the opportunities, but at the same time the limits and risks of the consolidation of computerized processes in relation to the pursuit of the corporate interest and the objectives of sustainability and corporate social responsibility.

Sara Scola, Digital Services Act: occasioni mancate e prospettive future nella recente proposta di regolamento europeo per il mercato unico dei servizi digitali

Abstract. The paper aims to illustrate the Proposal for a Regulation known as Digital Services Act, highlighting its key features but also its critical points. In particular, the liability regime of the internet service provider as outlined in the proposal – besides mainly based on current regulations – does not seem to have removed the many pitfalls of the current legislation. In addition, the scope and application of the due diligence obligations introduced by the Digital Services Act are far from clear.

Francesca Mollo, La responsabilità del provider alla luce del Digital Service Act

Abstract. The article analyzes the responsibility of the provider in the context of the digital single market and in the light of the characteristics of the information society. Starting from the analysis of the categories contained in Directive 2000/31/EC, it compares with the regulations contained in the Digital Service Act (2020). The analysis of the European and national jurisprudence is aimed at answering the question whether the choices made by the proposed regulation are intended to accountability and empowering the provider, comparing the purposes considered by the European legislator in Directive 2000/31/ EC and those of Digital Sevice Act.

Stefano Gatti, Dall’art. 62 d.l. n. 1/2012 all’attuazione della direttiva 2019/633/UE sulle pratiche commerciali sleali nella filiera agricola e alimentare: ambito di applicazione e rimedi civilistici

Abstract.The essay explores the development of the legal protection against unfair trading practices in B2B relationships in the agricultural and food supply chain, as a result of the implementation of Directive (EU) 2019/633 through Legislative Decree no. 198/2021. After comparing the scope of application of the new set of rules with the previous regime laid down in repealed Art. 62 of Law Decree no. 1/2012, it analyzes the civil law consequences of the breach of the prohibition of unfair trading practices, highlighting the innovative perspective adopted by the Italian implementation law, which significantly redefines the delicate balance between the remedies at hand. More particularly, abandoning the previous approach primarily focused on compensation for damages in synergy with a potential ‘virtual voidness’ (nullità virtuale) of the contractual clause envisaging an unfair practice, the new rules now introduce an express ground for voidness of such clauses, which comes in addition to the right to compensation for any damage occurred.