Multidisciplinary and multilingual law journal, published on a six-monthly basis in open access mode.
Franchising in Algeria, Financial Issues
A key factor in franchising relating to franchisors is the possibility to cash in and repatriate fees and royalties (financial issues). What are the main legal issues relating to financial aspects in Algeria and what is the current practice of the stakeholders in the aspects of financial under the franchise business in Algeria. The main objectives are to examine the legal framework issues relating to financial and to analyse the current practice of the stakeholders in the aspects of financial under the franchise business in Algeria. The doctrinal legal method complemented with qualitative interview was used. The armchair library approach was employed to collect data. The findings show that: the current banking system and legislations relating to the payment of royalties and fees discourage the development of the franchising sector in Algeria. Current franchising practices focus on the financial aspects (payment of royalties and fees) by franchisee who manage the royalty and fees payments by circumventing the law. Franchisee pay royalties without declaring them in Algeria or including them in the sale price of goods imported into Algeria. The results also show that: there is a need to establish a specific law to regulate franchising businesses in Algeria.
Copyright (c) 2025 Milan Law Review https://creativecommons.org/licenses/by-nc-nd/4.0
Reforming the Provision of Language Services During Civil Proceedings In Ethiopia: Lessons from Comparative Experiences
This study assesses the experiences of offering language services and accommodating language diversity during civil proceedings in the United States, India, and South Africa as a lesson for Ethiopia. To explore the experiences of the United States, India, and South Africa, the author used a comparative socio-legal research approach that includes extensive document reviews as well as legal and case analyses. In the case of Ethiopia, the study additionally undertakes semi-structured interviews with court staff and litigants of the selected Federal Courts, Oromia Regional State Courts, and Central Ethiopia Regional State Courts. The author also conducted civil proceeding court observations to enrich the study. The article concludes that Ethiopia’s civil justice system should learn from comparative experiences in terms of developing comprehensive legal and normative frameworks that govern the provision of quality court interpretation, court file translations, and sign language interpreters. Effective communication and defending of one’s own case in court is an essential element for accessing justice. The state is responsible for regulating and providing appropriate facilities or mechanisms to address the language barriers encountered by court litigants.
Partial Invalidity of the Patrimonial Fund and Patrimonial Destination in the Prism of the Protective Function of the “Family Needs”
Judgment 27792/2024 of the Italian Supreme Court of Cassation declared the partial invalidity of a patrimonial fund. Although not particularly innovative, the Court's decision deals with two otherwise distant issues: the function of the patrimonial fund and partial invalidity. The decision follows numerous precedents in which the function of the patrimonial fund, the concept of family, the essentiality of the invalid clause and ex officio detection of the same are defined. Therefore, the union of these issues makes fertile ground for discussing more broadly about a series of theoretical and practical questions regarding the hypothesis of invalid patrimonial fund, the applicability of partial invalidity and conversion to destination constraint. The purpose of this study is to state that the protective function of the needs of the family could, in the writer's opinion, be ensured by article 167 of the Italian Civil Code – by means of a systematic, constitutionally oriented, functional and non-formalistic reading – not only limited to the nuclear family but also extended, in view of the same protective ratio, to the parental family without necessarily having to resort to the more flexible instrument of the destination constraint pursuant to article 2645-ter of the Italian Civil Code.
Collusion and Inequitable Prices in the EU Mandatory Bid Regime
This article examines the phenomenon of collusion in corporate acquisition transactions under the framework of the EU mandatory bid rule, focusing on avoidance practices that undermine the application of the highest price paid rule. Through a comparative analysis of landmark cases in France, Italy, and Germany, this study shows how collusive arrangements—often involving side contracts — enable acquirers to offer lower prices to minority shareholders, thereby undermining shareholder protection and distorting the efficiency of the market for corporate control. This article also assesses the adequacy of legal responses at both the EU and national levels in addressing these distortions, arguing that, to effectively restore an “equitable” price, supervisory authorities should take into account any additional benefits granted to the seller of the controlling stake. Compared to valuation methods based on allegedly “objective” criteria, this approach more effectively neutralizes the distorting effects of collusion and strengthens the deterrent function of the mandatory bid rule against inefficient acquisitions.
Normative Gaps, Defeasibility and Judicial Creation: An Analysis of the Surrogate Pregnancy Case in Argentina
This study analyzes the case "S., I. N." (2024) decided by the Supreme Court of Argentina, focusing on the axiological gaps generated by the application of Article 562 of the Argentine Civil and Commercial Code to surrogate pregnancy cases, and how judicial decisions resolve these tensions through normative defeasibility. Drawing upon Alchourrón's concepts of defeasibility and Bulygin's analysis of judicial creation, complemented by Rodríguez's developments on normative relevance, the paper examines how defeasibility techniques reveal preexisting axiological tensions through restrictive interpretation, identifying specific normative gaps that require subsequent judicial construction. The analysis demonstrates that, when confronted with axiological tensions unresolved by the legislature, judges can and must construct legal solutions coherent with the constitutional system, transcending the traditional dichotomy between creation and application of law.
La renuncia a la resolución por incumplimiento y la práctica de los contratos internacionales
The essay assesses the validity and enforceability of a clause which precludes the remedy of termination by breach of the contract, allowing the parties only either to enforce the contract or to seek damages. The clause is widely adopted in several contractual transactions, such as SPA (Sale and Purchase agreement) contract in Mergers and Acquisitions (M&A) business, as it shaped as the so called “sole remedy” clause, allowing in case of breach of the Representations and Warranties (R&W) only to seek the indemnity provide by the contract. The Author concludes for the validity of the clause under Italian Law, under the limit set forth by Sect. 1229 Italian Civil Code and providing it safeguards the alternative remedies of specific performance and damages, set forth by Sect. 1453 ICC.
Brief Remarks on the Current Health Status of our Constitutionalism
The paper argues that, in the framework of our constitutionalism, certain forms of prevalence of the authority over of freedoms, as well as of the State over the person, are still dominant. The author demonstrates the assumption by developing the discussion through three thematic areas (legal goods and criminalisation; limits to freedoms; incrimination and self-determination), each examined from the threefold perspective of the fascist order, the constitutional turn, and contemporary constitutionalism. The conclusions propose, as an antidote, a path aimed at the valorisation of the person in his or her concreteness and more generally of the interests at stake from the perspective of the protection of concrete persons.
Copyright (c) 2024 Milan Law Review https://creativecommons.org/licenses/by-nc-nd/4.0
Corporate Oversight in the Sustainability Era
Unlike previous harmonization efforts, which were primarily aimed at promoting transparency regarding their ESG commitments, the CSDDD Directive requires large enterprises to directly identify, map, and prevent adverse impacts on the environment and human rights. This regulatory shift raises significant questions from a corporate law perspective, particularly regarding its implications for the oversight duties and liabilities of corporate directors. This analysis first aims to demonstrate that the codification of ESG monitoring duties under the Directive does not necessarily imply a substantial expansion of the scope of directors' existing oversight duties. Adverse impacts that directors are now required to consider, thus ensuring compliance with the CSDDD, often entail legal and/or financial risks for the company itself—risks that directors are already obliged to map, identify, and manage, under general corporate law. Nonetheless, this work contends that the Directive’s most significant effects may lie in reshaping the criteria for assessing directors’ oversight decisions, particularly those concerning internal controls. Specifically, while oversight duties were previously justified solely by shareholder interests and evaluated through the lens of the BJR, the Directive reorients these duties towards external interests. This paradigm shift could significantly alter the traditional boundaries of judicial review over directors’ oversight and organizational decisions, as the BJR appears inapplicable to duties—however broadly defined—that are specifically intended to protect interests external to the company.
Implications and rationale for trust in relational contracts
There are contracts that rely on trust between the parties for their success. Such contracts are relational contracts, which are characterized by the requirement of an intense degree of cooperation between the parties. The purpose of this paper is to show that the vulnerability and dependence implied in the trust required in a relational contract justifies its requiring duties of conduct oriented towards the protection or promotion of the interests of others (duties of loyalty), as well as to justify that the trust required for the success of the relational contract is not necessarily initial, but is generated by the continuous and systematic fulfillment of duties of conduct, especially when these are oriented towards the protection or promotion of the interests of others in a special way.
Plain Language and the Alert on Misuses of Speech in Legal Practice
This paper argues that there is a problem with the concept of plain language since it is not really language and there is only a pretension of at clarity. It is explained that, although the movement puts the receiver at the centre of the scene, this does not usually materialize in practice. Finally, it is pointed out why these drafting keys apply to both technical and natural language and it is argued that errors of communication should not be legitimized by claiming that they are specific to the legal field and that they can be translated more clearly to another new text. Thus, plain language should be reserved specifically for adapting a message to a particular audience, not for accepting misuse of language under the pretext that it is a professional form of drafting.
Jacopo Gelli’s Codice Cavalleresco Italiano A ‘Vindicatory’ Interpretation
This article examines the Codice cavalleresco italiano (Italian Chivalric Code) by Jacopo Gelli (1892), which organizes the practice of dueling into a legal framework aimed at resolving conflicts among gentlemen. The content of Gelli’s work is analyzed through the lens of the anthropological-legal theory of vindicatory justice. This article’s goal is to highlight aspects of ‘regulated’ dueling that have traditionally been overshadowed by its seemingly violent nature: in particular, the primary and most important purpose that Gelli attributes to his Code, namely, the reconciliation of conflicting parties. The first part of the article explores three key characteristics essential for understanding Gelli’s Code: the concept of “chivalric custom”, the identity of the “gentlemen”, and the relationship between the Code and the duel. The second part of the article describes the structure and functioning of chivalric disputes, interpreted as a vindicatory process. It begins by introducing the notions of “offense,” “honor,” “satisfaction,” and “restoration of honor,” and then outlines the different phases of this process. Finally, the article offers some reflections on the relationship between Gelli’s code and state law, proposing a conceptualization of chivalric disputes as a “vindicatory cryptotype” in early 20th-century Italy.
Economic control authorities: a reading of Algerian law
The emergence of independent administrative authorities and their granting of repressive powers in matters of economic control are the result of the economic transformations that Algeria has experienced since the adoption of the free economic approach. Given the adoption of this approach, the judiciary was not prepared to examine the conflicts arising from this development, but remained unable to keep up with the pace and techniques. These new economic areas have led the legislator to grant repressive powers to independent supervisory authorities in most economic sectors. The repressive powers of independent police authorities result from the phenomenon of decriminalization, which involves the removal of the repressive power of the criminal judge in favor of other bodies and the replacement of criminal sanctions by administrative sanctions.
“En Teoría Hay Mujeres (En Teoría)”, second part, with Homage to Bruno Celano
This presentation introduces the second part of the essays reworked from the lectures presented at the 3rd International Conference EN TEORÍA HAY MUJERES (EN TEORÍA), held on July 7 and 8, 2023 at the University of Milan. After recalling the aims of the initiative, born in 2018, the paper briefly summarizes the essays here published, focusing in particular on the forum dedicated to Bruno Celano.
Structural barriers in accessing justice for victims of gender-based violence
Reflections on structural causes of discrimination - such as, for example, those on epistemic injustice and stereotyping – are increasingly underlying the need for structured institutional intervention to address this problem. On this paper, the aim is to highlight the presence of different types of barriers that women encounter in accessing justice that lead to unequal treatment. To this end, the concept of "subordiscrimination" will be addressed, as it is related to the framework proposed by "anti-subordiscriminatory" law, which aims to eradicate those cultural and legal factors that are part of a system of asymmetrical power relations. Secondly, the concept of access to justice will be clarified, with an emphasis on equality from the perspective offered by the CEDAW. Finally, the paper will focus on the barriers that victims of gender-based violence face in accessing justice both at the socio-economic and cultural level as well as at the institutional level.
Rule of law, rule of men, and rule of women. Reforming power and decision-making processes
The necessity to provide new guidance to States parties on ensuring equal and inclusive representation of women in decision-making systems according to Articles 7 and 8 of the CEDAW Convention presupposes a renewed vision of global and local governance that in my opinion passes through the reconsideration of the principle of the rule of law and its ability to avoid arbitrary power. On the one hand, a women-friendly rule of law should emphasize the demands of participation in deliberation and consultation in decision-making processes, both in formal and in informal settings. On the other hand, a women-friendly rule of law gets along with a horizontal reading of the rule of law able to detect violations in inequalities and discriminations often conveyed by bias and stereotypes. Among the requirements of the rule of law, explainability and accessibility to justice, but also to those essential goods – including access to technologies – necessary for an equal inclusion, could make the difference.
The ‘‘coercion without coercion’’ of good reasons: the heart of restorative justice?
There are several controversial aspects of Restorative Justice. Among them, the definitional issue is a preliminary aspect. The Purist Model and the Maximalist Model are the focal points of the international debate on the definitional issue. Through the examination of these models, it is possible to identify two relevant and recurring topics in Restorative literature: the topic concerning the role of reparation and the one concerning the role of coercion within Restorative Justice and, particularly, within each of the mentioned models. As this regard, the intention is to illustrate, firstly, that reparation constitutes an essential element of Restorative Justice, both for the purist approach and the maximalist approach, and secondly, that coercion is excluded from the purist model's scope. Bruno Celano's analysis on "the Strenght of the Better Argument’’ has been pivotal in achieving the second objective in this context.
In a dusty square of an ancient neighborhood of Palermo, there is a miserable second-hand market called mercato dell’Albergheria. Merchandise sold is mainly stuff collected from garbage. Those who sell and buy are some of the poorest and most marginalized among the urban population, so none of the sellers has a license or pays any tax. Nevertheless, Albergheria market had existed undisturbed for about twenty years. It, therefore, seems to be an actualization of the free market ideal. The State is not there: neither to give nor to require. In the main square, where the market is, an odd coincidence occurs: one of the buildings, an ex-cinema, is now a lecture hall of the Law Department of the University of Palermo. So, where everything is illegal, youth is trained in the legal professions. This paradoxical circumstance was the occasion of a legal education experiment and action research, configurable in terms of “street law upside-down”.
Analytical Philosophies of ‘Custom’: Georg Henrik von Wright and Bruno Celano
In the tradition of analytical philosophy of norms, the subject of custom has received limited attention. This paper seeks to address whether the term ‘custom’ denotes a univocal phenomenon or encompasses various normative phenomena due to its polysemy. To this end, this paper examines the prospectives offered by the Finnish philosopher Georg Henrik von Wright and the Italian philosopher of law Bruno Celano. These two analyses offer distinct responses to the question: What do we refer to when we say, ‘custom’? Overall, this paper contends that a redefinition of the nature of customs could not be separated from a preliminary analysis of the uses and the meaning of the term ‘custom’, representing a methodological rephrasing of the research at hand.
Normativity Naturalized? Some Thoughts on Bruno Celanos Pre-Conventions
Bruno Celanos thought-provoking 2016 paper on Pre Conventions, A fragment of the Background prompted intense discussion. Unsurprisingly so given the perplexity as to the existence of entities which dwell both in the normative and the factual realms. Ever since Hume and Moore we have grown zealous about this divide. My aim here, however, is neither an in-debt discussion of Humes Law nor a detailed critical analysis of Celanos Pre Conventions. Rather, I want to point out that the underlaying structure of Celanos Pre Conventions closely resembles theoretical constructs offered by linguistic philosophers (and interestingly so, of the externalist branch) in their meaning formation explanations. I am thinking in particular of Millikans construct of natural conventions, reproduction and precedent. Following this thread, the question of the normativity of Celanos embodied facts seems to mirror the disjunction problem in informational theories of meaning (Fodor) and the general question of normativity of meaning (correctness conditions of terms implying meaning normativity). What I have in mind here is, then, to assess the validity and reach of Celanos claim not about the existence of entities of this type, but about their inherent normative nature.
The ideal of Rule of law to which the law can rationally aspire. A reflection based on Bruno Celano’s approach
I am interested in exploring what Celano considers to be the best way of understanding practical reasoning, and legal reasoning in particular, if we take the Rule of Law as a regulatory ideal. To do so, I will outline in a very schematic way the main theses ascribed to the universalist and particularist conceptions of practical reasoning and the objection formulated by Redondo to the particularist way of understanding legal reasoning that aspires to realise the ideal of the Rule of Law, in formalist terms. I will then articulate Celano's response to this objection. Finally, I will suggest that Celano's particularist understanding of practical and legal reasoning may be compatible with the ideal of the Rule of Law, only by setting aside its formalist version. This change of approach, in turn, would allow to sketch lines of response to the author's own perplexities.
Celano and the Rule of Law: A Matter of Graduality
This paper analyzes the contribution of Bruno Celano to the reflection on the rule of law, highlighting his Enlightenment interpretation and the emphasis the author places on a model of rules aimed at limiting the arbitrariness of power. Starting from Celano's analysis, this study addresses the issue of violations of the rule of law, differentiating between violations of the moral ideal and legal norms, and between simple and complex violations. Through an investigation into the graduality and complexity that characterize the rule of law, a category of violations will be developed that reflects the organic nature of the rule of law and the interconnection between its individual components. The work concludes with an examination of the implications of these violations, both in terms of immediate impact and systemic effects, emphasizing the importance of a deep understanding of the rule of law to address challenges to its integrity.
The hasty edge of a reductivist blade. Notes in honour of Bruno Celano
The objective of this work is to critically analyze the thesis defended by Bruno Celano according to which the institutional vocabulary, that is, the use of institutional terms and, therefore, the discourse of the so-called 'constitutive rules' is reducible to the basic deontic vocabulary because institutional facts are ontologically reducible to the collective acceptance of sets of prescriptive norms. The work focuses on Celano's arguments that are supported or intended to be supported by the work of Alf Ross, firstly, on the thesis according to which the entities supposedly denoted by legal expressions such as right, duty, property or marriage are ontologically reducible to legal norms; secondly, on the thesis according to which legal norms of competence (and their respective modalities) are logically reducible to legal norms of conduct (and their respective modalities).
“In ossequio a una norma il cui senso ci sfugge”. Writing with Bruno Celano
The title of this article is the incipit of a formula used by Bruno Celano, to be placed in the first note of the two-handed essays. In its complete version it is as follows: «In complying with an Italian rule, whose point we do not fully understand, we declare that sections X and Y are by Bruno Celano and sections W and Z are by N». Given the highly dialogic process of writing that took place with Celano, we can easily understand why he, with gentle irreverence, obeyed by disagreeing to attribute ownership of each section to each author. In his vast production, publications with another author are few and recent. However, recounting the creative practice of joint writing allows us to show a distinctive feature of Bruno Celano's entire oeuvre, which was thinking and researching in dialogue. In the current paper, Clelia Bartoli, Marco Brigaglia, and Giuseppe Rocché trace some aspects of the backstage of Celano's work, especially in the utmost years marked by illness.
Human rights in politics: observations on minimalism, conflict and deliberation
With the essay "Human Rights: Ethics, Rhetoric, and Politics", Lilian Bermejo-Luque explores the controversial aspects of the human rights debate, proposing some conditions through which they could represent a positive element of political life. In particular, Bermejo-Luque proposes the thesis of political minimalism, associated, on the one hand, with the idea that the essence of politics does not reside in conflict, and on the other hand, with a conception of political deliberation based on empirical considerations connected to what communities consider of particular importance. This paper intends to offer some food for thought along the line of reasoning proposed by Bermejo-Luque: firstly by presenting some observations on political minimalism, related to the weight of representation in politics and the complexity of certain political phenomena; this is followed by a reflection on conflict and the importance of justifying political choices to citizens, for which it seems difficult to establish boundaries on what is purely concrete and practical and what instead involves ethical considerations.
Copyright (c) 2023 Milan Law Review https://creativecommons.org/licenses/by-nc-nd/4.0
Human Rights: Ethics, Rhetoric and Politics
The aim of this paper is twofold. First, it seeks to explain why discourse on Human Rights allows for certain insidious political strategies, which have been recently criticized by authors skeptical of the notion of human rights. Secondly, it aims to justify a more positive appreciation of its political function. The main thesis argues that discourse on Human Rights can play a fundamental role in politics as long as we do not assume that Human Rights exhaust the realm of political justification. The framework for defending this thesis is based on a conception of Human Rights as a particular kind of ethical demands, an understanding of the rhetorical dimension of communication in terms of its ability to generate beliefs and various other forms of attitudes, and a conception of political normativity, i.e., political minimalism, which asserts that politics is an exercise in prudential rationality, involving a political community. Within this framework, Human Rights serve a primary political function by reducing occasions for incommensurability in political deliberation and impasses in decision-making.
Discussing epistemic injustice: expertise at trial and feminist science
The paper discusses the notion of epistemic injustice, with specific reference to gender injustice, which arose within the studies of social epistemology, testing its potential applications in the judicial field. In particular, scientific evidence could, if used by the judge with a deferential attitude, generate hypotheses of epistemic injustice, both at the stage of the formation of scientific knowledge mobilized in court and in its use.
Epistemic Injustice in Criminal Procedure
There is a growing awareness that there are many subtle forms of exclusion and partiality that affect the correct workings of a judicial system. The concept of epistemic injustice, introduced by the philosopher Miranda Fricker, is a useful conceptual tool to understand forms of judicial partiality that often go undetected. In this paper, we present Fricker’s original theory and some of the applications of the concept of epistemic injustice in legal processes. In particular, we want to show that the seed planted by Fricker has flourished into a rich field of study in which the concept is used to analyze many different phenomena in law, not always following the original characterization provided by her. This has led to a distinction between what we will call the narrow version of the concept, which is closer to Fricker’s original account, and the wider version of epistemic injustice, which is a more controversial notion because it is always on the verge of morphing into other well-known concepts like sexism, racial discrimination, oppression, silencing, and gaslighting. We will show that the value of the narrow version is mostly theoretical, and that in order to use the concept of epistemic injustice one must adopt a more liberal understanding of it.
Epistemic injustice, judiciary reasoning and stereotypes: from narrow, to broad, to broader
This essay deals with the role of epistemic injustice in pointing out stereotypes in legal reasoning. The Author discusses the proposal of Janaina Matida and Alessia Farano to expand the concept of witness injustice and concludes with a proposal for an even broader version of the concept.
Freedom and responsibility “lost in translation” for women’s bodies. Some notes to Giolo’s feminist approach
The feminist perspective makes visible the resistance that bioethics and biopolitics face today due to neo-liberal reductionisms and distortions directed at women's bodies. In this work, a commentary of Giolo’s paper, I propose a critical analysis of the abstract declensions and ambivalent translations of free choice or autonomy from feminism critique, as well as a reflexion on the gender stereotypes projected by the neo-patriarchy in the shaping of feminine freedom and responsibility. To this end, I try to review the heterogeneity of contemporary mechanisms of power and oppression, the evolution of female subjectivities in feminist critique, and finally, the "new or old" specific forms of female responsibilisation.
Bioethics or biopolitics? Freedom and responsibility in a gender perspective (or a feminist perspective)
Feminist bioethical reflection is notoriously rich and participatory. This essay does not propose a reconnaissance survey of the different positions that can be recognized and distinguished in it, but investigates, from the perspective of legal feminism, two pivotal principles that invest any discussion in the bioethical sphere: freedom and responsibility. The intention is to understand the currently existing relationship that currently exists between the genderized conceptions of these two principles, their neoliberal interpretations, and the instrumental use of women's bodies, which continues to be understood -expressed even legitimately, on a legal level- as a means of satisfying the needs of others and of governing populations. Bioethics and biopolitics, in this perspective, end up blurring and merging in the question of today's (neoliberal) articulations and transformations of power.