Il contributo dell’Unione europea all’affermazione dello stato di diritto nella comunità internazionale

This thesis is aimed at analysing EU external relations from the perspective of the promotion of the rule of law in order to evaluate the effectiveness and consistency of its action within the international community. The research starts with an examination of the notion of the rule of law from a theoretical point of view. The first chapter initially describes the historical-political evolution of the establishment of the notion of the rule of law. Some of the most significant national experiences (France, the UK, Germany and Austria) are discussed. Then, the focus is put on the need to propose interpretations which explain the grounds of the rule of law, by highlighting the different formal and substantive interpretations. This philosophical-historical analysis is complemented by a reconstruction of how the notion of the rule of law was developed by the international community, with a view to searching a common notion at the international level by comparing theory and practice within the main international organisations such as the UN, OECD and the Council of Europe. Specific mention is made of the EU experience, whose configuration as a Community based on the rule of law is often debated, starting from the case law of the European Court of Justice. The second chapter deals with the conditionality policy and focuses on the development and scope of democratic conditionality according to the dominant approach of the doctrine. First, the birth of conditionality is analysed from an economic point of view, especially within international financial organisations and the different types of conditionality recreated in the scientific sector. Then an analysis is provided about the birth of democratic conditionality in the EC – in relation to its external relations – firstly as a mere political exercise to be then turned into a standardised system of clauses. Specific reference is made to the main scope of conditionality, that is to say enlargement policy and the development of the Copenhagen criteria. The third chapter provides further details about the legal questions connected to the use of democratic clauses: on the one hand, the power of the EC to include human rights clauses in international agreements, on the other, the variety and overlapping in the use of the legal basis. The chapter ends with an analysis of the measures of suspension of agreements with third countries in those rare but significant cases in which the suspension clause, included in the Lomè Convention first and in the Cotonou Agreement then, is applied. The last chapter is devoted to the analysis of democratic clauses in unilateral acts adopted by the European Union which affect third countries. The examination of this practice and the comparison with the approach analysed in the previous chapter entails a major theoretical question. It is the clear-cut distinction between conditionality and international sanction. This distinction is to be taken into account when considering the premises and consequences, in terms of legal relations, which are generated when democratic clauses are not complied with. The chapter ends with a brief analysis of what, according to the reconstruction suggested, can be rightly labelled as real democratic conditionality, that is to say the system of incentives, positive measures developed within the community GSP. The dissertation ends with a few general considerations about the difficulties experienced by the EU in promoting the rule of law. The contradictory aspects of the EU external actions are manifold, as well as its difficulties in choosing the most appropriate measures to be taken which, however, reflect all the repercussions and tension resulting from the balance of power within the international community. The thesis argues that it is difficult to grant full credibility to an entity like the EU which, although it proclaims itself as the guardian and promoter of the rule of law, in practice, is too often biased in managing its relations with third countries. However, she adds, we must acknowledge that the EU is committed and constantly strives towards identifying new spaces and strategies of action.

Meta-models, environment and layers: agent-oriented engineering of complex systems

Traditional software engineering approaches and metaphors fall short when applied to areas of growing relevance such as electronic commerce, enterprise resource planning, and mobile computing: such areas, in fact, generally call for open architectures that may evolve dynamically over time so as to accommodate new components and meet new requirements. This is probably one of the main reasons that the agent metaphor and the agent-oriented paradigm are gaining momentum in these areas. This thesis deals with the engineering of complex software systems in terms of the agent paradigm. This paradigm is based on the notions of agent and systems of interacting agents as fundamental abstractions for designing, developing and managing at runtime typically distributed software systems. However, today the engineer often works with technologies that do not support the abstractions used in the design of the systems. For this reason the research on methodologies becomes the basic point in the scientific activity. Currently most agent-oriented methodologies are supported by small teams of academic researchers, and as a result, most of them are in an early stage and still in the first context of mostly \academic" approaches for agent-oriented systems development. Moreover, such methodologies are not well documented and very often defined and presented only by focusing on specific aspects of the methodology. The role played by meta- models becomes fundamental for comparing and evaluating the methodologies. In fact a meta-model specifies the concepts, rules and relationships used to define methodologies. Although it is possible to describe a methodology without an explicit meta-model, formalising the underpinning ideas of the methodology in question is valuable when checking its consistency or planning extensions or modifications. A good meta-model must address all the different aspects of a methodology, i.e. the process to be followed, the work products to be generated and those responsible for making all this happen. In turn, specifying the work products that must be developed implies dening the basic modelling building blocks from which they are built. As a building block, the agent abstraction alone is not enough to fully model all the aspects related to multi-agent systems in a natural way. In particular, different perspectives exist on the role that environment plays within agent systems: however, it is clear at least that all non-agent elements of a multi-agent system are typically considered to be part of the multi-agent system environment. The key role of environment as a first-class abstraction in the engineering of multi-agent system is today generally acknowledged in the multi-agent system community, so environment should be explicitly accounted for in the engineering of multi-agent system, working as a new design dimension for agent-oriented methodologies. At least two main ingredients shape the environment: environment abstractions - entities of the environment encapsulating some functions -, and topology abstractions - entities of environment that represent the (either logical or physical) spatial structure. In addition, the engineering of non-trivial multi-agent systems requires principles and mechanisms for supporting the management of the system representation complexity. These principles lead to the adoption of a multi-layered description, which could be used by designers to provide different levels of abstraction over multi-agent systems. The research in these fields has lead to the formulation of a new version of the SODA methodology where environment abstractions and layering principles are exploited for en- gineering multi-agent systems.

Il sindacato della Corte di cassazione sul travisamento della prova

Sect. 606, par. 1, e), as modified by Law 46, enacted on Februray 20th, 2006 introduced the chance to appeal to the Court of cassation in case of inconsistent reasoning and extended control on its existence and on other flaws and lack of obvious logic over the text of the contested decision, namely “to other acts the process specified in the grounds of burden”. The renewed provision seems to properly reappoint the “distortion of the evidence”, i.e. the omitted or distorted evidence that could be relevant and conclusive one, in the peculiar context of the grounds' vice. After a general review of the obligation to state reasons for judicial decisions, we analyze the innovative status of the vice of “distortion of evidence” and the conditions and the limits - defined by the law - within we can contest a resolution for illegitimacy. Then, we outline the systematic spin-off brought by the new form of sect. 606, par. 1, e) on some institutions in the code of criminal procedure. Finally, we make the role of the Court of cassation clear in the modern criminal trial, since the 2006 reform gave no definite answer on this fundamental aspect of the question.

Antecedents and consequences of individual flexibility in project-based organizations

In the last decades, the increasing significance of “projectivization” (Lundin & Steinthórsson, 2003) has stimulated considerable interest in project-based organizations as new economic actors able to introduce a new logic of organizing work and weakening boundaries in favour of networks of collaborations. In these contexts, work is often delegated to project teams. Deciding whom to put on a project team is one of the biggest challenges faced by a project manager; in particular which characteristics rely on to compose and match effective teams. We address this issue, focusing on the individual flexibility (Raudsepp, 1990), as team composition variable that affects project team performance. Thus, the research question investigated is: Is it better to compose project teams with flexible team members or not flexible project team members to achieve higher levels of project performance? The temporary nature of PBOs involves that after achieving the purpose for which team members are enrolled, they are disbanded but their relationships remain, allowing them to be involved in future projects (Starkey, Barnatt & Tempest, 2000). Pre-existing relationships together with the current relationships create a network of relationships that yields some implications for project teams as well as for team members. We address this issue, exploring the following research question: To what extent is the individual flexibility influenced by the network structure? The conceptual framework is used to articulate the research questions investigated with respect to the Television drama serials production. Their project-team organizing combined with their capacity to dissolve and recreate over time make it an interesting field to develop. We contribute to the organizational literature, providing a clear operationalization of individual flexibility construct and its role on affecting project performance. Second, we contribute to the organizational network literature addressing the effects yielded by the network structure-structural holes and network closure- on the individual flexibility.

1963-1968. Dall'avvento dell'amministrazione di Lyndon B. Johnson al Trattato di Non-Proliferazione. gli Stati Uniti, la Francia, la NATO e l'Europa agli esordi della distensione. Storia di una "non-crisi" transatlantica e della riorganizzazione dell'Alleanza.

The aim of this proposal is to explain the paradigm of the American foreign policy during the Johnson Administration, especially toward Europe, within the NATO framework, and toward URSS, in the context of the détente, just emerged during the decade of the sixties. During that period, after the passing of the J. F. Kennedy, President L. B. Johnson inherited a complex and very high-powered world politics, which wanted to get a new phase off the ground in the transatlantic relations and share the burden of the Cold war with a refractory Europe. Known as the grand design, it was a policy that needed the support of the allies and a clear purpose which appealed to the Europeans. At first, President Johnson detected in the problem of the nuclear sharing the good deal to make with the NATO allies. At the same time, he understood that the United States needed to reassert their leadeship within the new stage of relations with the Soviet Union. Soon, the “transatlantic bargain” became something not so easy to dealt with. The Federal Germany wanted to say a word in the nuclear affairs and, why not, put the finger on the trigger of the atlantic nuclear weapons. URSS, on the other hand, wanted to keep Germany down. The other allies did not want to share the onus of the defense of Europe, at most the responsability for the use of the weapons and, at least, to participate in the decision-making process. France, which wanted to detach herself from the policy of the United States and regained a world role, added difficulties to the manage of this course of action. Through the years of the Johnson’s office, the divergences of the policies placed by his advisers to gain the goal put the American foreign policy in deep water. The withdrawal of France from the organization but not from the Alliance, give Washington a chance to carry out his goal. The development of a clear-cut disarm policy leaded the Johnson’s administration to the core of the matter. The Non-proliferation Treaty signed in 1968, solved in a business-like fashion the problem with the allies. The question of nuclear sharing faded away with the acceptance of more deep consultative role in the nuclear affairs by the allies, the burden for the defense of Europe became more bearable through the offset agreement with the FRG and a new doctrine, the flexible response, put an end, at least formally, to the taboo of the nuclear age. The Johnson’s grand design proved to be different from the Kennedy’s one, but all things considered, it was more workable. The unpredictable result was a real détente with the Soviet Union, which, we can say, was a merit of President Johnson.

Quantifying the Economics of Medical Malpractice - A View from a Civil Law Perspective

Life is full of uncertainties. Legal rules should have a clear intention, motivation and purpose in order to diminish daily uncertainties. However, practice shows that their consequences are complex and hard to predict. For instance, tort law has the general objectives of deterring future negligent behavior and compensating the victims of someone else's negligence. Achieving these goals are particularly difficult in medical malpractice cases. To start with, when patients search for medical care they are typically sick in the first place. In case harm materializes during the treatment, it might be very hard to assess if it was due to substandard medical care or to the patient's poor health conditions. Moreover, the practice of medicine has a positive externality on the society, meaning that the design of legal rules is crucial: for instance, it should not result in physicians avoiding practicing their activity just because they are afraid of being sued even when they acted according to the standard level of care. The empirical literature on medical malpractice has been developing substantially in the past two decades, with the American case being the most studied one. Evidence from civil law tradition countries is more difficult to find. The aim of this thesis is to contribute to the empirical literature on medical malpractice, using two civil law countries as a case-study: Spain and Italy. The goal of this thesis is to investigate, in the first place, some of the consequences of having two separate sub-systems (administrative and civil) coexisting within the same legal system, which is common in civil law tradition countries with a public national health system (such as Spain, France and Portugal). When this holds, different procedures might apply depending on the type of hospital where the injury took place (essentially whether it is a public hospital or a private hospital). Therefore, a patient injured in a public hospital should file a claim in administrative courts while a patient suffering an identical medical accident should file a claim in civil courts. A natural question that the reader might pose is why should both administrative and civil courts decide medical malpractice cases? Moreover, can this specialization of courts influence how judges decide medical malpractice cases? In the past few years, there was a general concern with patient safety, which is currently on the agenda of several national governments. Some initiatives have been taken at the international level, with the aim of preventing harm to patients during treatment and care. A negligently injured patient might present a claim against the health care provider with the aim of being compensated for the economic loss and for pain and suffering. In several European countries, health care is mainly provided by a public national health system, which means that if a patient harmed in a public hospital succeeds in a claim against the hospital, public expenditures increase because the State takes part in the litigation process. This poses a problem in a context of increasing national health expenditures and public debt. In Italy, with the aim of increasing patient safety, some regions implemented a monitoring system on medical malpractice claims. However, if properly implemented, this reform shall also allow for a reduction in medical malpractice insurance costs. This thesis is organized as follows. Chapter 1 provides a review of the empirical literature on medical malpractice, where studies on outcomes and merit of claims, costs and defensive medicine are presented. Chapter 2 presents an empirical analysis of medical malpractice claims arriving to the Spanish Supreme Court. The focus is on reversal rates for civil and administrative decisions. Administrative decisions appealed by the plaintiff have the highest reversal rates. The results show a bias in lower administrative courts, which tend to focus on the State side. We provide a detailed explanation for these results, which can rely on the organization of administrative judges career. Chapter 3 assesses predictors of compensation in medical malpractice cases appealed to the Spanish Supreme Court and investigates the amount of damages attributed to patients. The results show horizontal equity between administrative and civil decisions (controlling for observable case characteristics) and vertical inequity (patients suffering more severe injuries tend to receive higher payouts). In order to execute these analyses, a database of medical malpractice decisions appealed to the Administrative and Civil Chambers of the Spanish Supreme Court from 2006 until 2009 (designated by the Spanish Supreme Court Medical Malpractice Dataset (SSCMMD)) has been created. A description of how the SSCMMD was built and of the Spanish legal system is presented as well. Chapter 4 includes an empirical investigation of the effect of a monitoring system for medical malpractice claims on insurance premiums. In Italy, some regions adopted this policy in different years, while others did not. The study uses data on insurance premiums from Italian public hospitals for the years 2001-2008. This is a significant difference as most of the studies use the insurance company as unit of analysis. Although insurance premiums have risen from 2001 to 2008, the increase was lower for regions adopting a monitoring system for medical claims. Possible implications of this system are also provided. Finally, Chapter 5 discusses the main findings, describes possible future research and concludes.

La fusión transfronteriza de sociedades en el derecho europeo.

La libertad de establecimiento y la movilidad de las empresas juegan un papel fundamental en el proceso comunitario de integración. Las empresas buscan nuevas formas de cooperación e integración que les permitan ocupar cuotas de mercado cada vez más importantes. De entre las modalidades de integración y cooperación que tienen a su disposición, la fusión transfronteriza de sociedades es, sin duda, una de las más relevantes. Es evidente que las fusiones de sociedades pertenecientes a Estados miembros distintos podrían tener una enorme importancia en el proceso de integración del mercado único. Sin embargo, la posibilidad de llevar a cabo con éxito una fusión transfronteriza en el ámbito comunitario era improbable hasta época reciente. Dos tipos de impedimentos la dificultaban: por una parte, obstáculos a la libertad de establecimiento por parte de los ordenamientos jurídicos de los Estados miembros; por otro, obstáculos de Derecho internacional privado. En cambio, hoy la mayor parte de estos impedimentos han sido superados gracias, en primer lugar, al progresivo reconocimiento del derecho de establecimiento de las sociedades por el Tribunal de Justicia, y en segundo, a la importante Directiva 2005/56/CE relativa a las fusiones transfronterizas de sociedades de capital. Esta Directiva impone a los Estados miembros una serie de normas de mínimos de derecho material a fin de armonizar la tutela de los intereses de los sujetos implicados más débiles (sobre todo, los trabajadores y los socios). De igual manera, establece una serie de normas de conflicto para resolver la cuestión de la ley aplicable a las fusiones transfronterizas. Este trabajo tiene como objetivo principal valorar la relevancia de los pronunciamientos del Tribunal de Justicia y de las actuaciones del legislador europeo orientados a impedir las restricciones a las fusiones transfronterizas de sociedades en el territorio comunitario.