- Tax & Law Department
HEC Paris
1 Rue de la Libération
78350 Jouy-en-Josas
France
- International Law, International Arbitration, Conflicts of Law, Philosophy Of Law, Criminology, Terrorism, and 30 moreInternational Terrorism, International Investment Arbitration, Italy, Multinational Enterprises, Insolvency Law, Bankruptcy, Bankruptcy Law, broken laws from PARMALAT, Comparative Law, Civil Procedure, Private International Law, International Business Law, Transnational litigation, International Finance, Family Law, Gay And Lesbian Studies, Asset and investment valuation, LGBT Issues, European Convention of Human Rights, Homosexuality, Italian Law, Diritto Privato, Conflict of Laws, Diritto Internazionale Privato E Pocessuale, Debate over Same-Sex Marriage, Human Rights, European Union Law, Lgbtq, LGBT Studies, and Criminal Lawedit
- I am an associate professor and CEMS academic director at HEC Paris, which I joined in 2014 after teaching at Bocconi... moreI am an associate professor and CEMS academic director at HEC Paris, which I joined in 2014 after teaching at Bocconi for 5 years. I hold a Ph.D. in International Law and Economics from Bocconi and a Master of Laws (LL.M.) from Yale Law School. I have been practising as a lawyer for over 13 years, working in civil and commercial matters, mainly with foreign clients, until I decided to switch to academia and move to Paris. My research interests span public and private international law with a focus on human rights, gender and race, and I am an advocate for the rights of LGBT+ (Lesbian, Gay, Bisexual, Trans* and other sexual minorities) people. At HEC I teach the courses relating to international business law and diversity & inclusiveness. I also co-chair the school's diversity committee.edit
This article examines the use of governing law clauses in the context of Special Purpose Acquisition Companies (SPACs), a type of complex business transaction that has recently been on the rise internationally. To fulfil the parties'... more
This article examines the use of governing law clauses in the context of Special Purpose Acquisition Companies (SPACs), a type of complex business transaction that has recently been on the rise internationally. To fulfil the parties' strategic goals and contingent needs, each SPAC demands the interaction of different laws and therefore requires that the same contract be « carved up » under multiple legal systems, a technique traditionally denominated « dépeçage ». This article offers a unique and original theoretical and empirical analysis of these clauses and of the spreading use of dépeçage for SPAC-related purposes.
Research Interests: International Business, Corporate Law, Securities Law, Contract Law, International Law, and 10 morePrivate International Law, International Business Law, International Business Management, Law of Contract, Securities Regulation, Choice of Law in International Contracts: Some Fundamental Conflict of Laws Issues, IPO Initial Public Offering, Private International Law (Conflict of Laws), Due Diligence, and Conflict of Laws (Private International Law)
This article aims to systematically deconstruct four distinct narratives derived from the case of Caster Semenya v. IAAF (Court of Arbitration for Sport).
Research Interests: Sports Medicine, Queer Studies, Human Rights Law, International Law, Human Rights, and 15 moreSports Law, Queer Theory, International Human Rights Law, Discrimination, Medical Ethics, Olympics and Olympism, European Convention of Human Rights, Athletics, Medical and Research ethics, Sports, Olympic Games, European Court of Human Rights, Medical Ethics & Law, Queer, and Sports Science
With 'queer' acting as an umbrella term for lesbian, gay, bisexual, trans, and intersex (LGBTI) people, this article argues that the Italian far right's attempt to remove same-sex parents from their children's birth certificates reflects... more
With 'queer' acting as an umbrella term for lesbian, gay, bisexual, trans, and intersex (LGBTI) people, this article argues that the Italian far right's attempt to remove same-sex parents from their children's birth certificates reflects an ideology under which queer individuals are excluded from the notion of 'family' and queerness is depicted as an abnormality in a child's upbringing. By deconstructing these narratives through a human rights lens, this article aims to help queer activists, lawyers, scholars, and parents raise solid arguments in court, to recover, on behalf of all queer children, the dignity that the government is trying to take from them.
Research Interests: Criminal Law, Queer Studies, Human Rights Law, International Law, Human Rights, and 14 moreNarrative, Queer Theory, Children and Families, Family Law, Children's and Young Adult Literature, International Human Rights Law, Queer Theory (Literature), Narrative Analysis, Narrative Theory, Italian Law, Italy, Teoría Queer, Children's human rights especially in Family Law and Child protection systems, and Omosessualità Transessualità Gay Lesbiche Queer Interesex
This article represents a unique attempt in academic literature to develop an all-comprehensive framework of severability in international contracts. After defining severability as a mechanism due to which a specific contract provision is... more
This article represents a unique attempt in academic literature to develop an all-comprehensive framework of severability in international contracts. After defining severability as a mechanism due to which a specific contract provision is insulated from the remainder of the contract, this article examines both the transactional and procedural variations of this notion. It prescribes a set of tools for maximizing the utility of transactional severability, on the one hand, and a set of rules for reinforcing the integrity of international adjudication through procedural severability, on the other. At the same time, this article critically analyses the downsides of these variations, proposing possible corrections to their application in international contracting.
Research Interests: Contract Law, Mergers & Acquisitions, International Law, Arbitration, International Negotiation, and 15 moreArbitration Law, International Commercial Arbitration, Negotiation, Mergers and acquisitionss (law), Mergers and Acquisitions, International trade law, World Trade Law, International Commercial Law - arbitration, Litigation, International Commercial Litigation, International Arbitration and Litigation, International Contracts, Contracting Strategy, Arbitration (International and Domestic), and Obligations and Contracts
This commentary examines the case McCourt v. Tennor decided in 2020-2021 by the Netherlands Commercial Court (NCC) concerning the enforcement of a letter of intent in the context of an international share purchase. This commentary finds... more
This commentary examines the case McCourt v. Tennor decided in 2020-2021 by the Netherlands Commercial Court (NCC) concerning the enforcement of a letter of intent in the context of an international share purchase. This commentary finds that the NCC’s conclusions regarding the jurisdictional grounds, the final transaction agreement's signature requirement and the impact of covid-19 sharply reflect a logical problem epitomized by Baron Munchausen, with the court’s reasoning apparently relying on intuitive statements, unsophisticated presumptions based on common knowledge and unproven assumptions about party consent.
Research Interests:
This article offers an original case study of the failed sale of Victoria's Secret's business to examine the deep consequences of the covid-19 pandemic in the context of M&A transactions. After presenting the case, it draws two lessons... more
This article offers an original case study of the failed sale of Victoria's Secret's business to examine the deep consequences of the covid-19 pandemic in the context of M&A transactions. After presenting the case, it draws two lessons from it by: (1) proposing a multi-layered analysis of the effects of covid-19 depending on the type of event considered and on the contract language, and (2) exploring the possible reshaping of the termination right in connection with the dramatic variations of the target's value during the interim period caused by covid-19.
Research Interests:
a pandémie a profondément perturbé les échanges internationaux, tant par ses aspects sanitaires que par les conséquences économiques qu’elle engendre et dont nous ne connaissons aujourd’hui que les prémisses. Marco Torsello et Matteo... more
a pandémie a profondément perturbé les échanges internationaux, tant par ses aspects sanitaires que par les conséquences économiques qu’elle engendre et dont nous ne connaissons aujourd’hui que les prémisses. Marco Torsello et Matteo Winkler délivrent ici une analyse juridique sur le sort qui pourraient être réservé aux contrats internationaux dans un contexte troublé.
Research Interests:
This article examines the effects on international business transactions of the pandemic-mitigation restrictions (PMRs) enacted in various countries in response to covid-19. Through nationwide lockdowns and trade limitations, PMRs impact... more
This article examines the effects on international business transactions of the pandemic-mitigation restrictions (PMRs) enacted in various countries in response to covid-19. Through nationwide lockdowns and trade limitations, PMRs impact international contracts significantly, causing many parties to fail to perform and claim force majeure. In a threefold analysis, this article offers an overview of force majeure clauses, an assessment of their role in relation to PMRs and an evaluation of the latter’s extraterritorial reach. Finally, it calls for the coordination of force majeure-related PMRs at the supranational level to prevent the excessive fragmentation of the legal regimes generated by the pandemic.
Research Interests:
Commento critico alla sentenza n. 12193 dell'8 maggio 2019 delle Sezioni unite della Corte di Cassazione sul riconoscimento degli atti di nascita di bambini nati da gestazione per altri all'estero.
Research Interests: Human Rights Law, Human Rights, Family Law, Private International Law, Gay And Lesbian Studies, and 7 moreInternational Human Rights Law, LGBT Issues, International law (public and private), LGBT Studies, Diritto Internazionale Privato E Pocessuale, Diritto Di Famiglia, and Conflict of Laws (Private International Law)
This article comments on the judgment no 12193 rendered by the Sezioni Unite of the Corte di Cassazione on 8 May 2019, where the recognition and registration, in Italy, of a foreign parental order inscribing the nonbiological parent as... more
This article comments on the judgment no 12193 rendered by the Sezioni Unite of the Corte di Cassazione on 8 May 2019, where the recognition and registration, in Italy, of a foreign parental order inscribing the nonbiological parent as the children’s legal father were denied on the ground that they violated the prohibition of surrogacy under Italian law, which was considered to be of public policy. It scrutinises this judgment in two steps. First, it criticises the court’s methodology in the construction of the notion of public policy both in general and with particular regard to the surrogacy ban. Second, it examines whether the best interests of the children involved were sufficiently taken account of, and it finds that they were not. It concludes that, contrary to what the law prescribes, this judgment failed to give voice to the children born via surrogacy abroad and living with parents of the same sex.
Research Interests:
An instant comment to the judgment of the Italian Supreme Court No. 12193 of 8 May 2019 concerning the recognition, in Italy, of a foreign parental order amending the birth certificate of two children born via surrogacy with the addition... more
An instant comment to the judgment of the Italian Supreme Court No. 12193 of 8 May 2019 concerning the recognition, in Italy, of a foreign parental order amending the birth certificate of two children born via surrogacy with the addition of the intentional father as the legal parent.
Research Interests:
A commentary to the U.S. Supreme Court ruling on Masterpiece Cakeshop v Colorado Human Rights Commission.
Research Interests:
In the last decade, the U.S. has dramatically increased the enforcement of its economic sanctions arsenal against foreign banks. While this arsenal continues to expand, legal scholarship tends to overlook one of its crucial consequences:... more
In the last decade, the U.S. has dramatically increased the enforcement of its economic sanctions arsenal against foreign banks. While this arsenal continues to expand, legal scholarship tends to overlook one of its crucial consequences: a radical change in the compliance functions of the targeted banks. In fact, after entering into specific agreements with the U.S. government, non-U.S. banks commit to reforming their compliance functions according to U.S. standards. The depth of the relationship between the extraterritoriality of U.S. laws and banks’ compliance functions demands further inquiry. This article fills that gap by expounding how economic sanctions legislation drives developments in substantial compliance efforts by foreign banks, discussing the current economic sanctions regime and analyzing important enforcement cases. This Article concludes that, as non-U.S. banks manage the heavy burden of U.S. sanctions more deftly than before, a process of Americanization of corporate compliance is underway in the banking industry and beyond.
Research Interests:
This article hinges on the preliminary ruling rendered by the Court of Justice of the EU (CJEU) (Grand Chamber) on 18 October 2016 and the related judgment of the German Federal Labour Court of 26 April 2017 in the Nikiforidis case to... more
This article hinges on the preliminary ruling rendered by the Court of Justice of the EU (CJEU) (Grand Chamber) on 18 October 2016 and the related judgment of the German Federal Labour Court of 26 April 2017 in the Nikiforidis case to investigate an area of private international law that is undergoing a substantial development: overriding mandatory provisions. In Nikiforidis, the CJEU excluded that two Greek laws cutting the salary of public employees may be enforced against a teacher working in Germany for the Greek Government under an employment contract governed by German law. The question addressed to the CJEU was whether the said laws were “overriding mandatory provisions” according to the Rome I Regulation. The Court denied it, and left to the referring court to determine whether they could nevertheless operate “as matter of fact” under the governing law. This article explains how the CJEU’s conclusion has broader implications by regulating third countries’ interference in international business transactions. Starting with an analysis of the case, the article examines the history and nature of overriding mandatory provisions under EU private international law and argues that the solution embraced by the CJEU leaves room for uncertainty and unpredictability in the operation of foreign mandatory provisions.
Research Interests:
This article examines the judgment of the Italian Supreme Court (Corte di Cassazione) no 11696 of 14 May 2018 concerning the legal status of mixed same-sex married couples under Italian law. It explores the problems relating to the... more
This article examines the judgment of the Italian Supreme Court (Corte di Cassazione) no 11696 of 14 May 2018 concerning the legal status of mixed same-sex married couples under Italian law. It explores the problems relating to the recognition and the civil status registration in Italy of couples of the same sex where one spouse is a foreigner and the other is Italian. Legge 20 May 2016 no 76 (registered partnerships law) and decreto legislativo 19 January 2017 no 7 established a regime under which Italian couples who married abroad are recognised and registered, hence downgraded, as civil partners, whereas foreign couples are recognised and registered as married. They say nothing, however, on mixed couples. During the parliamentary debate, however, the government affirmed that their main concern was to avoid Italians to circumvent the registered partnerships law by marrying abroad and then obtaining the recognition of their marriage in Italy. Based on this intent, the Supreme Court found that mixed couples are subject to the same anti-elusive logic – a construction that this article criticises under several viewpoints.
Research Interests:
This article addresses the recognition and protection of same-sex couples’ rights under Italian law. Italy is currently the only country that has not yet enacted any specific law on the subject, in sharp contrast with all her European... more
This article addresses the recognition and protection of same-sex couples’ rights under Italian law. Italy is currently the only country that has not yet enacted any specific law on the subject, in sharp contrast with all her European neighbors which, since 1989, have progressively passed appropriate laws either on same-sex marriage or on civil unions/partnerships. While a bill is currently being discussed in the Senate, the Italian anomaly in the comparative landscape remains striking even when looked outwards.
This article explains that, compared to the experience made by other countries presenting legal and cultural similarities with Italy, Italy’s reticence in the field of same-sex couples’ rights is due, among other factors, to a specific attitude of the Italian Constitutional Court whose clearest expression is reflected in the Bernaroli case. In Bernaroli, a couple whose husband had undergo a sex-reassignment (male-to-female) procedure litigated their right to remain married notwithstanding the marriage dissolution established by the law in the event of the sex reassignment of one of the spouses. Against this claim, the Constitutional Court enforced the “heteronormative paradigm” under the Italian Constitution and found that the couple cannot remain married. In a subsequent judgment, however, the Supreme Court contradicted this statement by refusing to interpret the Constitution as providing for a heteronormative paradigm. As a conclusion of the case, the petitioners can remain married until the legislature enacts a specific law on civil partnership. The existence of such a same-sex marriage in the Italian legal system, nevertheless, reflects a striking contradiction that marks the Italian anomaly in the European context: same-sex marriage is neither provided by the law nor prohibited, and nonetheless does exist as a legal reality.
The article is divided in two parts, preceded by an articulated introduction and followed by a brief conclusion. The first part analyzes in depth the Bernaroli case, while the second discusses it by focusing on the Constitutional Court’s enforcement of the heteronormative paradigm. This part develops a comparative analysis by showing how the Constitutional Court distanced itself from the realm of other national courts and even of supranational court like the European Court of Human Rights. The Italian isolationism, in fact, led Italy to be declared by the same European Court in breach of her international law obligations.
This article explains that, compared to the experience made by other countries presenting legal and cultural similarities with Italy, Italy’s reticence in the field of same-sex couples’ rights is due, among other factors, to a specific attitude of the Italian Constitutional Court whose clearest expression is reflected in the Bernaroli case. In Bernaroli, a couple whose husband had undergo a sex-reassignment (male-to-female) procedure litigated their right to remain married notwithstanding the marriage dissolution established by the law in the event of the sex reassignment of one of the spouses. Against this claim, the Constitutional Court enforced the “heteronormative paradigm” under the Italian Constitution and found that the couple cannot remain married. In a subsequent judgment, however, the Supreme Court contradicted this statement by refusing to interpret the Constitution as providing for a heteronormative paradigm. As a conclusion of the case, the petitioners can remain married until the legislature enacts a specific law on civil partnership. The existence of such a same-sex marriage in the Italian legal system, nevertheless, reflects a striking contradiction that marks the Italian anomaly in the European context: same-sex marriage is neither provided by the law nor prohibited, and nonetheless does exist as a legal reality.
The article is divided in two parts, preceded by an articulated introduction and followed by a brief conclusion. The first part analyzes in depth the Bernaroli case, while the second discusses it by focusing on the Constitutional Court’s enforcement of the heteronormative paradigm. This part develops a comparative analysis by showing how the Constitutional Court distanced itself from the realm of other national courts and even of supranational court like the European Court of Human Rights. The Italian isolationism, in fact, led Italy to be declared by the same European Court in breach of her international law obligations.
Research Interests:
[e-mail winkler@hec.fr for the full version of the paper] This article examines the concept of “significant imbalance” (SI) under French law and its impact on international business transactions. “Significant imbalance” is a legal... more
[e-mail winkler@hec.fr for the full version of the paper]
This article examines the concept of “significant imbalance” (SI) under French law and its impact on international business transactions. “Significant imbalance” is a legal standard meant to assess whether a contractual clause is unfair (abusive). Although initially restricted to consumer law, it has been extended to general contract law with the implementation of a reform entered into force on 1 October 2016. Previously, the Commercial Court of Paris in the ruling Ministry of Economy v Expedia, Inc (2015) had qualified SI as an “overriding mandatory provision” (loi de police) under Regulation 593/2008 on the applicable law to contractual obligations (Rome I). As a consequence, SI became operative in respect of international contracts despite an express choice of a foreign governing law made by the parties to the transaction. This article argues that, as a result of Expedia and the 2016 reform, French courts can interfere with international business transactions by striking down contractual terms that they deem unfair according to the SI standard. The analysis focuses on two key issues. On the one hand, notwithstanding recent judicial precedents, SI still fails to provide a reliable test for predicting which clauses or contracts are at risk of being deemed unfair. On the other hand, the legal arsenal supporting the French legislator’s disapproval of SI allocates great power to French courts and the French Government to pursue tort lawsuits against foreign companies allegedly oppressing their commercial partners with SI clauses. Empirical evidence shows that these actions are highly successful compared with those commenced by private actors. The article concludes that all these aspects, together with SI’s turbulent case law throughout the years, will give rise to uncertainty in international business transactions and may eventually disadvantage France in the global competition in such a field.
This article examines the concept of “significant imbalance” (SI) under French law and its impact on international business transactions. “Significant imbalance” is a legal standard meant to assess whether a contractual clause is unfair (abusive). Although initially restricted to consumer law, it has been extended to general contract law with the implementation of a reform entered into force on 1 October 2016. Previously, the Commercial Court of Paris in the ruling Ministry of Economy v Expedia, Inc (2015) had qualified SI as an “overriding mandatory provision” (loi de police) under Regulation 593/2008 on the applicable law to contractual obligations (Rome I). As a consequence, SI became operative in respect of international contracts despite an express choice of a foreign governing law made by the parties to the transaction. This article argues that, as a result of Expedia and the 2016 reform, French courts can interfere with international business transactions by striking down contractual terms that they deem unfair according to the SI standard. The analysis focuses on two key issues. On the one hand, notwithstanding recent judicial precedents, SI still fails to provide a reliable test for predicting which clauses or contracts are at risk of being deemed unfair. On the other hand, the legal arsenal supporting the French legislator’s disapproval of SI allocates great power to French courts and the French Government to pursue tort lawsuits against foreign companies allegedly oppressing their commercial partners with SI clauses. Empirical evidence shows that these actions are highly successful compared with those commenced by private actors. The article concludes that all these aspects, together with SI’s turbulent case law throughout the years, will give rise to uncertainty in international business transactions and may eventually disadvantage France in the global competition in such a field.
Research Interests:
Une analyse du droit international privé italien en matière de partenariats enregistrés après la loi no. 76 du 2016 et les décrets d'implementation du janvier 2017.
Research Interests:
Research Interests:
This article offers a critical analysis of the Odebrecht/Braskem case under the Foreign Corrupt Practices Act (FCPA). Two Brazilian companies, Odebrecht S.A. and its subsidiary Braskem S.A., have been caught in a massive bribery machine... more
This article offers a critical analysis of the Odebrecht/Braskem case under the Foreign Corrupt Practices Act (FCPA). Two Brazilian companies, Odebrecht S.A. and its subsidiary Braskem S.A., have been caught in a massive bribery machine that concerned Brazil as well as many other countries, including Switzerland and the United States. Not only did these companies create a true consortium through which they controlled Brazil’s public procurement system in a way to adjudicate and make profit out of multibillion projects in South America and abroad, but they also exploited the U.S. financial market to transfer money to corrupt public officers. The two companies cut a deal with the U.S. prosecutors under the FCPA, which the article comments in two parts. First, it recounts the case’s factual background, casting a light on the companies’ business models and corrupt conduct. The second part delineates the legal arsenal underlying the deal signed with the U.S. prosecutors, which reflects a consolidated practice of the U.S. government to prosecute non-American multinational enterprises pursuant to the FCPA. Such practice is based on the broad discretion enjoyed by U.S. federal prosecutors in exercising their prosecutorial power, which includes the possibility to halt or defer the prosecution upon the condition that the defendant pays a penalty and submits to certain compliance and self-reporting obligations. Through the FCPA, they can target foreign corporations whose bribery scheme involved, even indirectly, the U.S. financial market. Finally, the Odebrecht/Braskem case represents the first example of a deal that was indirectly participated by foreign governments, whose sanctions were considered part of the deal itself.
Research Interests: Criminal Law, International Relations, International Business, International Law, International Trade, and 10 moreInternational Criminal Law, Public International Law, Multinational Enterprises, Political Corruption, International trade law, International Business Law, Multinational Corporations, International Business Management, Corruption, and Foreign Corrupt Practices Act
This Article comments the genesis and the content of the Italian law on civil partnerships between people of the same sex, enacted in May, 2016, and eventually entered into operation, together with a bunch of administrative regulations,... more
This Article comments the genesis and the content of the Italian law on civil partnerships between people of the same sex, enacted in May, 2016, and eventually entered into operation, together with a bunch of administrative regulations, in early 2017. As the last country of Western Europe to adopt such a law, the Italian law recognises civil partnerships for same-sex couples but presents several flaws in terms of equality and nondiscrimination based on sexual orientation.
Research Interests:
This chapter addresses the problem of judicial dialogue in the field of recognition of human rights of gay and lesbian people in Europe. It finds that two kind of judicial dialogue exist: a horizontal dialogue among national legislators... more
This chapter addresses the problem of judicial dialogue in the field of recognition of human rights of gay and lesbian people in Europe. It finds that two kind of judicial dialogue exist: a horizontal dialogue among national legislators and national courts, and a vertical dialogue with supranational courts such as the CJEU and the ECHR. This model helps to explain how same-sex marriage and civil unions spread throughout the continent in the last three decades and why certain countries more than others were ready to recognise the rights of their gay and lesbian citizens.
Research Interests:
Il presente articolo propone un’analisi della sentenza resa in data 21 luglio 2015 dalla Corte europea dei diritti umani nel caso Oliari c. Italia. Qui la Corte, dichiarando che l’assenza di una legge sulle unioni omosessuali viola l’art.... more
Il presente articolo propone un’analisi della sentenza resa in data 21 luglio 2015 dalla Corte europea dei diritti umani nel caso Oliari c. Italia. Qui la Corte, dichiarando che l’assenza di una legge sulle unioni omosessuali viola l’art. 8 della Convenzione europea dei diritti umani, ha di fatto accelerato il dibattito interno sulla legge sulle unioni civili promulgata, dieci mesi più tardi, il 20 maggio 2016. Nella prima parte, l’articolo esamina la sentenza Oliari, che rappresenta la conclusione di un percorso di formazione, attraverso il diritto sovranazionale, di uno statuto giuridico delle unioni omosessuali secondo il diritto italiano. La seconda parte, invece, esplorerà il “detto” e il “non detto” della sentenza Oliari, in particola- re nella sua dimensione comparata e egualitaria. In ne, la terza parte metterà a confronto le statuizioni della Corte di Strasburgo con le disposizioni della legge n. 76/2016 sulle unioni civili per veri care se e ettivamente il legislatore italiano abbia adempiuto ai propri obblighi internazionali.
This article offers an analysis of the judgment issued on 21 July 2015 by the European Court of Human Rights in the case Oliari v. Italy. Here the Court, declaring that the failure by the Italian legislator to produce a law on same-sex partnerships constituted a breach of Article 8 of the European Convention on Human Rights, accelerated the domestic debate regarding a law on civil unions, which was eventually enacted on 20 May 2016. In the first part, this article addresses the Oliari ruling, which represents the conclusion of a litigation establishing a charter for same-sex unions under Italian law. The second part will explore what the Court has said and what it hasn't regarding the ruling’s potential comparative and egalitarian dimensions. Finally, the third part compares the Court’s findings with the provisions of Law No. 76/2016 on civil unions in order to verify whether the Italian legislator has complied with its obligations under supranational law.
This article offers an analysis of the judgment issued on 21 July 2015 by the European Court of Human Rights in the case Oliari v. Italy. Here the Court, declaring that the failure by the Italian legislator to produce a law on same-sex partnerships constituted a breach of Article 8 of the European Convention on Human Rights, accelerated the domestic debate regarding a law on civil unions, which was eventually enacted on 20 May 2016. In the first part, this article addresses the Oliari ruling, which represents the conclusion of a litigation establishing a charter for same-sex unions under Italian law. The second part will explore what the Court has said and what it hasn't regarding the ruling’s potential comparative and egalitarian dimensions. Finally, the third part compares the Court’s findings with the provisions of Law No. 76/2016 on civil unions in order to verify whether the Italian legislator has complied with its obligations under supranational law.
Research Interests:
A commentary to the ruling rendered on Dec. 28, 2016 by the Court of Appeals of Milan, Italy, ordering the city authorities to register two birth certificates issued by the county of Ventura, California, regarding two 15-month twins and... more
A commentary to the ruling rendered on Dec. 28, 2016 by the Court of Appeals of Milan, Italy, ordering the city authorities to register two birth certificates issued by the county of Ventura, California, regarding two 15-month twins and indicating a couple of Italian men as their respective fathers. X (on behalf of A) & Y (on behalf of B) v. Comune di Milano [In Re California Surrogacy Twins] (No. 3990/2016, Milan App. Ct.).
Research Interests:
Non si è dovuto attendere molto perché la sentenza n. 19599 del 30 settembre 2016 della prima sezione della Suprema Corte di Cassazione iniziasse a illuminare il cammino della giurisprudenza in tema di trascrizione degli atti di nascita... more
Non si è dovuto attendere molto perché la sentenza n. 19599 del 30 settembre 2016 della prima sezione della Suprema Corte di Cassazione iniziasse a illuminare il cammino della giurisprudenza in tema di trascrizione degli atti di nascita dei bambini delle famiglie omogenitoriali, le c.d. «famiglie arcobaleno». Il caso in epigrafe (Corte d'Appello di Trento 23 febbraio 2017) rappresenta infatti una delle prime applicazioni della predetta sentenza, la quale ha sancito che non possono considerarsi contrari all'ordine pubblico internazionale i certificati di nascita resi all'estero in relazione a bambini nati mediante ricorso a tecniche di procreazione medicalmente assistita all'estero. Oggi questo principio viene esteso alla gestazione per altri o maternità surrogata, con una motivazione che ancora una volta dà conto dell'innegabile pluralismo familiare che ormai caratterizza anche il nostro Paese.
Research Interests:
Starting from the recent ruling of the U.S. Supreme Court in DirecTV v. Imburgia, this article highlights the differences between the American and the European approaches to mandatory consumer arbitration. While U.S. law now considers... more
Starting from the recent ruling of the U.S. Supreme Court in DirecTV v. Imburgia, this article highlights the differences between the American and the European approaches to mandatory consumer arbitration. While U.S. law now considers arbitration clauses valid and enforceable no matter whether they concretely allow consumers to access arbitration, EU law has decided since long time not to allow such arbitration. This differences, among others, has been pointed out in DirecTV's dissent, that makes of it an argument against the majority's stance.
Research Interests: Private International Law, Arbitration Law, Law and Economics, International Commercial Arbitration, Consumer Behavior, and 12 moreU.S. law and public policy; civil rights and civil liberties, Commercial Law, European Union Law, Private law, International trade law, Consumer Protection (Law), Consumer Law, European Union Law, Competition Law, International Trade Law, American Constitutional Law, Consumer, Company and Commercial Law, and Arbitration (International and Domestic)
This is a short commentary on the ruling of the Italian Supreme Court (No. 19599 of Sept. 30, 2016) concerning the recognition, in Italy, of a Spanish birth certificate reporting two women as the mothers of a child. This is a paramount... more
This is a short commentary on the ruling of the Italian Supreme Court (No. 19599 of Sept. 30, 2016) concerning the recognition, in Italy, of a Spanish birth certificate reporting two women as the mothers of a child. This is a paramount case in Italian private international law, as the Court presented an analysis of the concept of "public policy" (ordre public, ordine pubblico) in international family matters regarding same-sex couples, gay parenting, and medically assisted procreation techniques.
Research Interests: European Law, International Law, Family Law, Private International Law, Gay And Lesbian Studies, and 13 moreInternational Human Rights Law, LGBT Issues, European and International Law, LGBT Literature, European Union Law, European Convention of Human Rights, Private law, EU Law, Italian Law, Child protection and family law, European Court of Human Rights, LGBT Studies, and Lgbtq
This is a first-reaction commentary (in Italian) to the judgment of the Italian Supreme Court of September 30, 2016 (No. 19599) regarding the recognition, in Italy, of a birth certificate issued in Spain reporting two women as the... more
This is a first-reaction commentary (in Italian) to the judgment of the Italian Supreme Court of September 30, 2016 (No. 19599) regarding the recognition, in Italy, of a birth certificate issued in Spain reporting two women as the mothers.
While Italian law does not expressly regulate gay parenting, Spain law does. The petitioners asked recognition of the birth certificate because they had separated in Spain and wanted separation regulations to be applicable to each of them, and not only to the one who gave birth to the child, the only that Italian law acknowledges. Also, lack of recognition denied the possibility for the child of acquire the Italian citizenship from his mother. For the first time, the Supreme Court established a doctrine of international public policy ("ordine pubblico internazionale") that limits the recourse to it to constitutionally protected individual rights and absence of legislative discretion.
Thanks to this theory, which has deep implication for Italian private international law, and family law the Court could recognize the birth certificate and order its inscription in the public registry of civil status in Italy.
While Italian law does not expressly regulate gay parenting, Spain law does. The petitioners asked recognition of the birth certificate because they had separated in Spain and wanted separation regulations to be applicable to each of them, and not only to the one who gave birth to the child, the only that Italian law acknowledges. Also, lack of recognition denied the possibility for the child of acquire the Italian citizenship from his mother. For the first time, the Supreme Court established a doctrine of international public policy ("ordine pubblico internazionale") that limits the recourse to it to constitutionally protected individual rights and absence of legislative discretion.
Thanks to this theory, which has deep implication for Italian private international law, and family law the Court could recognize the birth certificate and order its inscription in the public registry of civil status in Italy.
Research Interests: Comparative Law, European Law, Human Rights Law, International Law, Human Rights, and 11 moreFamily Law, Private International Law, International Human Rights Law, LGBT Issues, Comparative Constitutional Law, European Convention of Human Rights, Italian Law, Homosexuality, Italy, European Court of Human Rights, and LGBT Studies
This is an articulated commentary to the ruling of the Tribunal de Commerce of Paris of 7 May 2015, which affirmed that the rules on "déséquilibre significatif" enacted in the French Code of Tourism must be qualified as "overriding... more
This is an articulated commentary to the ruling of the Tribunal de Commerce of Paris of 7 May 2015, which affirmed that the rules on "déséquilibre significatif" enacted in the French Code of Tourism must be qualified as "overriding mandatory norms" under the EU Regulation "Rome I" and therefore applied to international business transactions performed by foreign companies such as Expedia no matter which is the law applicable to their contracts.
Research Interests:
A short commentary to the provisions and history of Italian Law No. 76 of 20 May 2016, which introduced the civil unions for same-sex couples in Italy.
Research Interests: Comparative Law, Human Rights Law, International Law, Human Rights, Gender and Sexuality, and 13 moreInternational Human Rights Law, Comparative Human Rights Law, LGBT Issues, Gender and Sexuality Studies, European Convention of Human Rights, Italian Law, Homosexuality, LGBT Studies, LGBT rights, European Convention on Human Rights, Gay Rights, Attitudes Towards Homosexuality, and Italian Civil Law
Breve nota di commento alla sentenza resa il 27 agosto 2015 dalla Corte europea dei diritti umani nel caso Parrillo c. Italia, relativo alla compatibilità del divieto di ricerca sugli embrioni ex art. 13 L. 19 febbraio 2004, n. 40 con... more
Breve nota di commento alla sentenza resa il 27 agosto 2015 dalla Corte europea dei diritti umani nel caso Parrillo c. Italia, relativo alla compatibilità del divieto di ricerca sugli embrioni ex art. 13 L. 19 febbraio 2004, n. 40 con l'art. 8 della Convenzione europea dei diritti umani in materia di rispetto della vita privata.
Research Interests:
A short commentary to a few recent rulings of Italian courts regarding the recognizion of stepchild adoption performed abroad.
Research Interests: Human Rights Law, Human Rights, Family Law, Private International Law, International Human Rights Law, and 17 moreFamily, LGBT Issues, Comparative Private Law, Debate over Same-Sex Marriage, Same Sex Parenting And Ece Inclusion, European Convention of Human Rights, Private law, International law (public and private), Italian Law, Comparative Legal Studies; Access to Justice; ADR; Comparative Family Law; Children's Rights; LGBTI rights, LGBTQ psychology, Homosexuality, Italy, European Court of Human Rights, LGBT Studies, Same Sex Marriage, and Same sex parenting
A commentary to the 2013 Anti-Homosexuality Bill enacted in Uganda [published 13 January 2014].
Research Interests:
A commentary to the Chiquita ruling by the 11th Circuit regarding the jurisdictional scope of the Alien Tort Statute in relation to a dispute concerning Chiquita's financial payments to terrorist groups operating in Colombia.
Research Interests:
This chapter examines the legal implications of reparative therapy litigation in the United States, which recognized the tight of gay and lesbian children to be spared reparative therapy, even when prescribed by their parents. It argues... more
This chapter examines the legal implications of reparative therapy litigation in the United States, which recognized the tight of gay and lesbian children to be spared reparative therapy, even when prescribed by their parents. It argues that, in acknowledging this right, federal courts ultimately defended the right of the children to be gay. Such a recognition has a wider positive e ect on American society in terms of acceptance of homosexuality and the homosexual population by signi cantly restricting the viability of gay conversion in all respects.
Research Interests: Constitutional Law, Human Rights, Child and adolescent mental health, LGBT Issues (Education), Family Law, and 17 moreChild Development, LGBT Issues, Freedom of Religion, Comparative Constitutional Law, Civil Rights, Sexual Orientation & the Law, LGBT Youth, Freedom Of Expression, Sexual Orientation, Comparative Legal Studies; Access to Justice; ADR; Comparative Family Law; Children's Rights; LGBTI rights, LGBTQ psychology, Child protection and family law, American Constitutional Law, United States, LGBT rights, American Law, and LGBTQ youth
A short commentary to the judgment of the Council of State (Italy) of October 26, 2015, Ministero dell'Interno v. Sindaco di Roma et al. (No. 4545/2015), concerning the validity of the Minister's order cancelling the registration, in the... more
A short commentary to the judgment of the Council of State (Italy) of October 26, 2015, Ministero dell'Interno v. Sindaco di Roma et al. (No. 4545/2015), concerning the validity of the Minister's order cancelling the registration, in the municipals records of civil status, of the same-sex marriages entered into abroad by Italian citizens.
Research Interests: Human Rights Law, International Law, Human Rights, International Human Rights Law, LGBT Issues, and 4 moreItalian Law, Comparative Legal Studies; Access to Justice; ADR; Comparative Family Law; Children's Rights; LGBTI rights, LGBT Studies, and EU Law (EU legal order: EU legal sources, institutions, remedies, relations with national laws); General Principles of EU Law; EU Migration and Asylum Law, EU Antidiscrimination Law, EU Fundamental Rights and links with the ECHR
A short note on the ruling of the Italian Supreme Court of July 20, 2015 (No. 15138/15) regarding the possibility of being granted legal gender reassignment without necessarily undergoing sex reassignment surgery.
Research Interests:
This is a short commentary to the ruling of the Tribunal of Foggia, a city in Puglia, in Southern Italy, where the judge excluded that the wife's homosexuality and sentimental relationship with a woman could serve as a ground for the... more
This is a short commentary to the ruling of the Tribunal of Foggia, a city in Puglia, in Southern Italy, where the judge excluded that the wife's homosexuality and sentimental relationship with a woman could serve as a ground for the annulment of the marriage, as claimed by the husband. The Tribunal reasoned that homosexuality is neither an aspect of individual identity (in the sense of a basis for annulment under Article 122 of the Italian Civil Code) nor a personal "quality", rather standing as religious or political beliefs.
Research Interests:
A commentary to the ruling of the Tribunal of Genova regarding the requirement for a trassexual person to undergo sex reassignment surgery to obtain the modification of the birth certificate.
Research Interests:
A commentary to the ruling rendered on 27 January 2015 by the European Court on Human Rights in Paradiso and Campanelli v. Italy, a case concerning a surrogate motherhood performed in Russia by two Italians who claimed to be the child's... more
A commentary to the ruling rendered on 27 January 2015 by the European Court on Human Rights in Paradiso and Campanelli v. Italy, a case concerning a surrogate motherhood performed in Russia by two Italians who claimed to be the child's parents. The Court stated that Italy violated the interest of the child to have his identity, including citizenship and parenthood, protected since his very first moment of life.
Research Interests:
This chapter describes the legal implications of cloud computing. After defining and describing it, it determines the law applicable to it and the problem of protection of personal data in a typically transnational environment such as... more
This chapter describes the legal implications of cloud computing. After defining and describing it, it determines the law applicable to it and the problem of protection of personal data in a typically transnational environment such as that of cloud computing.
Research Interests:
Note sous App. Paris, 25 février 2015.
Research Interests: International Relations, Private International Law, Public International Law, International economic law, Conflict of Laws, and 5 moreInternational Sanctions, Droit International Prive, Arbitrage Commercial International, Droit Du Commerce Internationale, International Banking, and Sanctions In International Law
The Ukrainian crisis elicited strong reactions from the US and the EU. By claiming the violation of several international law obligations and, notably the violation of Ukraine territorial integrity, they reacted to Russian intervention by... more
The Ukrainian crisis elicited strong reactions from the US and the EU. By claiming the violation of several international law obligations and, notably the violation of Ukraine territorial integrity, they reacted to Russian intervention by adopting two sanction programs. Given the unfeasibility of general economic sanctions, their programs are chiefly based on “targeted” sanctions, namely economic sanctions on individuals or entities.
Although “targeted” sanctions have over time become a frequently adopted foreign policy tool, they still encounter a great deal of criticisms for two reasons. Not only can they potentially be at odds with a number of human rights international treaties, they can also prove to be ineffective. This last concern is exacerbated when, as in the case of the Ukraine-related sanction programs, there is a fundamental lack of coordination between the programs enacted by the Western powers.
This paper describes these two sanction programs and assesses their effectiveness as well as their compatibility with the relevant human rights treaties.
Although “targeted” sanctions have over time become a frequently adopted foreign policy tool, they still encounter a great deal of criticisms for two reasons. Not only can they potentially be at odds with a number of human rights international treaties, they can also prove to be ineffective. This last concern is exacerbated when, as in the case of the Ukraine-related sanction programs, there is a fundamental lack of coordination between the programs enacted by the Western powers.
This paper describes these two sanction programs and assesses their effectiveness as well as their compatibility with the relevant human rights treaties.
Research Interests:
This is a comment to the ruling of the Tribunal of Messina (Italy), which allowed a Male-2-Female transsexual person to amend its civil status registration without imposing the sex reassignment surgery.
Research Interests:
A commentary to the ruling of the Italian Supreme Court No. 2400 of 9 February 2015 concerning the constitutional status of same-sex couples under Italian law.
Research Interests:
This is a commentary, published in "Quotidiano Giuridico Pluris" of 14 January 2015, to the ruling of the Court of Appeals of Turin regarding a case of gay parenting, actually the first with this object in Italy. Through an articulate... more
This is a commentary, published in "Quotidiano Giuridico Pluris" of 14 January 2015, to the ruling of the Court of Appeals of Turin regarding a case of gay parenting, actually the first with this object in Italy. Through an articulate reasoning, the Court eventually ordered the registration of the plaintiffs as the two mothers in the civil status office of the Municipality of Turin, and conferred the Italian nationality to their baby. The mothers, respectively Italian and Spanish, had resorted to artificial insemination in Spain and had given birth to their son there. While the family was recognized in Spain, the Tribunal of Turin had argued that the second mother had no legal standing according to Italian law and that the child could not obtain the Italian citizenship accordingly. The Court of Appeals vacated the first instance ruling and made concrete justice of the case.
Research Interests:
This paper critically comments a ruling issued by the Tribunal of Vercelli, Italy, on 12 Dec. 2014, that rejected a request made by a male-to-female transsexual to obtain the modification of her birth certificate without sex reassignment... more
This paper critically comments a ruling issued by the Tribunal of Vercelli, Italy, on 12 Dec. 2014, that rejected a request made by a male-to-female transsexual to obtain the modification of her birth certificate without sex reassignment surgery. She argued that the surgery was unnecessary, given her current healthy conditions, and that to require it would amount to a violation of her physical and psychical integrity. The Tribunal disagreed, claiming that the law is clear on the surgery requirement and that to reason otherwise would force the current law.
Research Interests:
This is a comment to a recent ruling of the Juvenile Court of Rome, Italy, which granted the petition, by a same-sex partner in a lesbian couple, to adopt the partner's daughter. The couple, married in Spain but living in Italy where... more
This is a comment to a recent ruling of the Juvenile Court of Rome, Italy, which granted the petition, by a same-sex partner in a lesbian couple, to adopt the partner's daughter. The couple, married in Spain but living in Italy where same-sex partnerships are not recognised at all, resorted to the Court in order to consolidate the relationship with the daughter. This is the first decision of an Italian court on the issue, recognising that denying the second-parent adoption to a same-sex partner would not only amount to a discrimination based on sexual orientation, but is also contrary to the interests of the daughter herself, who deserves to live with the parents who are fostering her and took part in the procreative project together.
Research Interests:
A critical analysis of the ruling of the Tribunal of Pesaro, annulling the transcription, in the public registry of Fano, of a same-sex marriage contracted abroad by Italian citizens. The comment also deals with the legal issues arisen... more
A critical analysis of the ruling of the Tribunal of Pesaro, annulling the transcription, in the public registry of Fano, of a same-sex marriage contracted abroad by Italian citizens. The comment also deals with the legal issues arisen out of the Prefects' annulment power vis-à-vis the initiatives of certain mayors which proceeded with marriage registrations.
Research Interests:
A critical analysis of two rulings of the Tribunal of Milan, rejecting the request for transcription in the public registry of a same-sex marriage contracted abroad by Italian citizens.
Research Interests:
This article examines the judgment of the Italian Supreme Court (Corte di Cassazione) no 11696 of 14 May 2018 concerning the legal status of mixed same-sex married couples under Italian law. It explores the problems relating to the... more
This article examines the judgment of the Italian Supreme Court (Corte di Cassazione) no 11696 of 14 May 2018 concerning the legal status of mixed same-sex married couples under Italian law. It explores the problems relating to the recognition and the civil status registration in Italy of couples of the same sex where one spouse is a foreigner and the other is Italian. Legge 20 May 2016 no 76 (registered partnerships law) and decreto legislativo 19 January 2017 no 7 established a regime under which Italian couples who married abroad are recognised and registered, hence downgraded, as civil partners, whereas foreign couples are recognised and registered as married. They say nothing, however, on mixed couples. During the parliamentary debate, however, the government affirmed that their main concern was to avoid Italians to circumvent the registered partnerships law by marrying abroad and then obtaining the recognition of their marriage in Italy. Based on this intent, the Supreme Court found that mixed couples are subject to the same anti-elusive logic – a construction that this article criticises under several viewpoints. 'Justice is a game of chance, never to be taken seriously'. Piero Calamandrei
Although international arbitration has become the preferred method for resolving business disputes across multiple jurisdictions and is used in virtually all parts of the world in a wide range of economic, social, and cultural... more
Although international arbitration has become the preferred method for resolving business disputes across multiple jurisdictions and is used in virtually all parts of the world in a wide range of economic, social, and cultural environments, the arbitration community itself has long suffered from a lack of diversity amongst its members. The typical arbitrator has been described as “pale, male, and stale,” meaning a white man of a certain age. As one commentator has written, “more women and more people of color are active and in leadership positions than ever before [b]ut the alternative dispute resolution profession seems immune to these changes”.
This Chapter represents a humble attempt to build a framework for understanding diversity and inclusiveness in the field of international arbitration. Although during the past two decades the subject has given rise to scores of articles in specialized publications and countless conferences, training programs, and workshops, we feel that academic literature still lacks a holistic approach to understanding the multiplicity of issues and objectives inherent in this topic. Such an approach should address four key questions: (i) What are the main aspects of diversity in international arbitration? (ii) When did this become an important topic in the literature? (iii) Why should we engage in a serious conversation about diversity and inclusiveness in international arbitration? (iv) How can we make the international arbitration community more diverse and inclusive?
This Chapter represents a humble attempt to build a framework for understanding diversity and inclusiveness in the field of international arbitration. Although during the past two decades the subject has given rise to scores of articles in specialized publications and countless conferences, training programs, and workshops, we feel that academic literature still lacks a holistic approach to understanding the multiplicity of issues and objectives inherent in this topic. Such an approach should address four key questions: (i) What are the main aspects of diversity in international arbitration? (ii) When did this become an important topic in the literature? (iii) Why should we engage in a serious conversation about diversity and inclusiveness in international arbitration? (iv) How can we make the international arbitration community more diverse and inclusive?