Luigi Russi

Abstract: Pending negotiations for a contract, one party may begin to incur expenses in fulfilment of the proposed economic operation in anticipation of the finalisation of a formal contract, which is a common practice in many settings, from building and lease contracts to contracts for services in general. This book, therefore, focuses on controversies that may arise when an expected contract collapses after one party withdraws from negotiations, with an ensuing attempt to determine what liability, if any, the withdrawing party should face regarding expenses incurred by the other. The laws of England and Italy, along with several non-legislative codifications � including the 2009 edition of the Draft Common Frame of Reference � provide the starting point for a methodologically innovative comparative analysis that does not stop at a mere compilation of similarities and differences; it also attempts to unearth the underlying policy motives, in order to provide a deeper understanding of what �cooperation before contract� really means across the two legal systems and the non-legislative codifications that will be examined here. Such an understanding is all the more important for the purpose of engaging, with a critical and informed attitude, in the ongoing debate regarding the possible adoption of a European instrument designed to introduce common contract rules.

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Abstract: This paper attempts to offer a concise discussion of good faith performance and other functionally equivalent doctrines in the laws of England, Germany and France. The study�s goal is that of appraising the consistency of existing differences. More specifically, of whether they relate merely to technique - not being paralleled by diverging final outcomes - or whether the rift is deeper and goes to the very substance of the approach to the solution of similar practical problems. For this purpose, the work first shows the close connection between good faith performance (of contractual obligations) and good faith enforcement (of contractual rights), which � it is contended � are simply different perspectives to bear on substantially identical legal questions. The work then proceeds to examine instances in which either of these perspectives is used to solve disputes, and offers an overview of the most frequent approaches, doctrines and provisions used under the three chosen national laws. At the end of the legal analysis, it is concluded that all three systems recognise similar instances as deserving some degree of legal intervention, performed either under the aegis of good faith or through other legal constructs. It is, however, precisely the difference in the nature and breadth of the legal constructs used across jurisdictions that ends up casting uncertainties as to the precise level of agreement of the three systems: differences in technique may indeed translate in divergent substantial outcomes, albeit only in limited cases.

Abstract: This paper has a twofold aim: to analyze the possible opportunities disclosed by the observed growth of student- dited law reviews in Europe and to propose an innovative model of student participation to legal publication. The first part explores the phenomenon of student-edited law reviews in the U.S., focusing on its recognized educational benefits. Among others, it is observed that participation in student-edited law reviews might promote greater scholarly maturity among J.D. students, who might in turn be better equipped for a career in the academia after finishing law school, in comparison to their same-age European peers. Hence, there follows an examination of the possible beneficial repercussions that the establishment of student-edited law reviews may yield on the process of faculty education in (continental) Europe, in light of the general practice therein endorsed of academic �apprenticeship� under a mentor. Such benefits may consist, among others, in the enticement of larger numbers of potential academicians and in their possible greater intellectual maturity, providing new meaning to the aforementioned time-honored European practice. The second part of the paper focuses, instead, on the drawbacks brought about by excessive proliferation of student-edited law reviews in the U.S., such as alleged decrease in the quality of published scholarship as a consequence of the superficial quality control that student editors sometimes perform. In view of the foregoing, an innovative model of student publication is proposed, in order to prevent the onset of such drawbacks in Europe, while retaining the above-outlined benefits of early student involvement in academic discourse. It is suggested to complement few, authoritative sources of published scholarship in the form of peer-reviewed journals with student-edited working paper series which, if based on the guideline to provide substantial constructive feedback to authors, could ultimately help foster a quality improvement of published scholarship.

Abstract: The present paper recounts the various steps which parties to a transnational contract containing a renegotiation clause may need to go through, should the circumstances accounted for in the renegotiation clause come to existence. To this end, the article sets off from an outline of the most relevant structural features and functions of renegotiation clauses, and of the typical obligations which may derive therefrom. Secondly, the paper�s focus narrows down to the � by no means infrequent � case of failure to renegotiate in presence of an arbitration clause governing the parties� agreement. In the latter case, in particular, several possible solutions facing the arbitral tribunal are explored, even by making parallel reference to the powers of national judges in similar cases. Such discussion also tackles the problem of the possible recognition of an award containing an adaptation of the contract by the arbitral tribunal, pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Finally, possible criteria which the arbitral tribunal may resort to in the latter case are also explored. We conclude that it is not possible to give a clear-cut answer to the question of whether, given the insertion of a renegotiation clause in a long-term transnational contract, arbitration may then successfully make up for the parties� lack of agreement. To this end, it is in fact required that the parties� will, the applicable procedural law and the applicable substantive law all converge on enabling contract adaptation by arbitrators.

Abstract: The paper deals with the duty of good faith in contract performance, as set out in the U.C.C. In particular, it focuses on the different theories as to its practical meaning, by distinguishing between two types of standards: behavioral and economic ones. The latter are further framed after the Learned Hand formula of negligence, as adapted to contractual relationships by relevant literature. By analyzing the functioning of economic standards in presence of transaction costs, it is then concluded that economic standards are only weakly preferable to behavioral ones which, under certain conditions, may prove as useful in providing a practical meaning to the good faith performance obligation.

Abstract: The paper - written in Italian - presents an overview of the main features of the decree issued in November 2007 by the Italian Government in order to implement EC Directive 2004/25 on takeover bids. The paper deals with the following: sphere of application of the provisions enacted by the Directive, bid price, passivity and breakthrough rules, sell-out and squeeze-out rights.

Abstract: The article focuses on the analysis of Industrial Design Law in the People's Republic of China, in light of the facts of a recent litigation episode regarding General Motors and local automaker Chery. It provides a comprehensive overview of the relevant legal framework and also draws on statistical information regarding actual enforcement of IP law in China, which may help one understand the real weight of recent legal improvements in the P.R.C.

Abstract: This article is the account of research undertaken in 2005 on the "antagonist" view of contract. Readers please be advised that the published version received sharp criticism by an anonymous referee; yet, I was not able to revise the work before its Internet publication. At any rate, the paper does retain - as it is - some significance with respect to the topic it addresses.

Abstract: The paper engages with the interpretation of the provision prohibiting the enactment of measures equivalent to quantitative trade restrictions, contained in Article 28 EC. In particular, it provides an overview of the different ways in which the European Court of Justice has construed that provision, focusing on the shift from the obstacle-based approach adopted in the Dassonville and Cassis de Dijon judgments to the discrimination-based approach emerging in Keck. Microeconomic tools have also been resorted to, in order to clarify the economic rationale underlying this shift. Finally, cases C-441/04, C-405/98 and C-366/04 have been analyzed, which apply the Keck parameter consistently with the economic theoretical basis outlined in the paper. Note: This is a description of the article and not the actual abstract.

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Abstract: This is a derivative version of 'Can Good Faith Performance Be Unfair? An Economic Framework for Understanding the Problem', which appeared in the Whittier Law Review, vol. 29, 2008. In comparison to the version therein published, I have eliminated the mathematical appendix, and attempted to outline my reasoning exclusively in words, for it to be accessible to a wider readership.

Abstract: This paper has two authors, two titles and is written in the form of a dialogue, rather than conveying a unitary voice, as one would instead expect of a coauthored paper. The reason for this is that the articulation of the authors' disagreement, despite the identification of each of them with �the left�, is precisely the object of inquiry. After briefly introducing the problem on which the authors� discussion takes place, namely regime collisions, and the clash of approaches that are available to (decide whether to) deal with them, a dialogue follows, in which the authors� voices are clearly separated as they discuss the specific issue of the measurement of quality as a (managerialist) proposal to �solve� regime collisions, and contrast that to more openly politicised views of approaching regime collisions. In the end, the main features of such discussion are examined in such a way as to bring forth the peculiar self-consciousness that pluralist spaces give rise to, weakening and downsizing every point of view that appoints itself as the �higher� vantage point from which to describe the world and enumerate problems, and stimulating a constant oscillation between perspectives. This commitment to a pluralistic confrontation and the ensuing hybridization of perspectives is, we argue, at the heart of the idea of �the left� which we both identify with.

Abstract: This paper addresses the increasing importance of the �consumer society� paradigm in the shaping of economic policy and legislation, explores its foundational ideas and disputes, and introduces seven critiques that have surfaced with new currency among scholars and civil society in the wake of the ongoing financial crisis. The developments and critiques surrounding the consumer-based model of governance intimate a much broader story of shifting economic thought and socio-political contestation around the globe. This paper seeks both to capture the larger story and harness its complexity to a specific set of dynamics by using the European Union as a case in point. In the face of a growing feeling of impending crisis within domestic and international governance, the question confronted in this paper is three-fold. First, what are the salient ideas and disputes developed within the consumer model and how have these traits shaped the contemporary economic landscape? Second, beyond any �empirical� circumstances, what are the specific intellectual and ethical challenges to the consumer model today? And third, through this study of developments and challenges to the consumer model, what sort of new approaches and understandings might be formulated to address the increasing distress within the economy and civil society of Western Europe and the United States, if not more broadly, global populations?

Abstract: The paper � a revision of ILSU Working Paper No. 2008-01/IT - aims to schematically illustrate and clarify the logical categories according to which it is hypothesized that the extralegal formant � law practitioners - of a specific civil law jurisdiction � Italy - logically understand the unity and functioning of their legal system. According to the working hypothesis, the logical categories described in the paper should provide an illustration of the formal framework of reference which Italian jurists resort to, for the purpose of justifying their arguments about the law. Hence, the analysis carried out in the paper should help understand the "working rules" followed by law practitioners when working with the law. A practical application is further offered, in reference to the debate relating to the possibility of a finalistic definition of jurisdictional function. In this last respect, the present version of the paper contains a more detailed discussion of the different possible meanings of the term �function�.