la necesidad de un proceso de homologacion para los acuerdos de refinanciación en la ley española

En esta tesis doctoral he encontrado un enorme problema en la regulación de los Acuerdos de Refinanciación en la Ley Concursal. Impide el derecho de defensa de los acreedores y de cualquier otro interesado. Por ello en aplicación de la Ley Concursal Italiana (modelo elegido por el legislador español) los problemas serían solucionados. La solución la encontramos mediante la inserción del proceso de homologación de los Acuerdos de Refinanciación en la Ley Concursal Española.

Linear and nonlinear thermal instability of Newtonian and non-Newtonian fluid saturated porous media

The present work aims to investigate the influence of different aspects, such as non-standard steady solutions, complex fluid rheologies and non-standard porous-channel geometries, on the stability of a Darcy-Bénard system. In order to do so, both linear and nonlinear stability theories are considered. A linear analysis focuses on studying the dynamics of the single disturbance wave present in the system, while its nonlinear counterpart takes into consideration the interactions among the single modes. The scope of the stability analysis is to obtain information regarding the transition from an equilibrium solution to another one, and also information regarding the transition nature and the emergent solution after the transition. The disturbance governing equations are solved analytically, whenever possible, and numerical by considering different approaches. Among other important results, it is found that a cylinder cross-section does not affect the thermal instability threshold, but just the linear pattern selection for dilatant and pseudoplastic fluid saturated porous media. A new rheological model is proposed as a solution for singular issues involving the power-law model. Also, a generalised class of one parameter basic solutions is proposed as an alternative description of the isoflux Darcy--Bénard problem. Its stability is investigated.

The abuse of intellectual property rights and regulations in China: a law and economic analysis

From the institutional point of view, the legal system of IPR (intellectual property right, hereafter, IPR) is one of incentive institutions of innovation and it plays very important role in the development of economy. According to the law, the owner of the IPR enjoy a kind of exclusive right to use his IP(intellectual property, hereafter, IP), in other words, he enjoys a kind of legal monopoly position in the market. How to well protect the IPR and at the same time to regulate the abuse of IPR is very interested topic in this knowledge-orientated market and it is the basic research question in this dissertation. In this paper, by way of comparing study and by way of law and economic analyses, and based on the Austrian Economics School’s theories, the writer claims that there is no any contradiction between the IPR and competition law. However, in this new economy (high-technology industries), there is really probability of the owner of IPR to abuse his dominant position. And with the characteristics of the new economy, such as, the high rates of innovation, “instant scalability”, network externality and lock-in effects, the IPR “will vest the dominant undertakings with the power not just to monopolize the market but to shift such power from one market to another, to create strong barriers to enter and, in so doing, granting the perpetuation of such dominance for quite a long time.”1 Therefore, in order to keep the order of market, to vitalize the competition and innovation, and to benefit the customer, in EU and US, it is common ways to apply the competition law to regulate the IPR abuse. In Austrian Economic School perspective, especially the Schumpeterian theories, the innovation/competition/monopoly and entrepreneurship are inter-correlated, therefore, we should apply the dynamic antitrust model based on the AES theories to analysis the relationship between the IPR and competition law. China is still a developing country with relative not so high ability of innovation. Therefore, at present, to protect the IPR and to make good use of the incentive mechanism of IPR legal system is the first important task for Chinese government to do. However, according to the investigation reports,2 based on their IPR advantage and capital advantage, some multinational companies really obtained the dominant or monopoly market position in some aspects of some industries, and there are some IPR abuses conducted by such multinational companies. And then, the Chinese government should be paying close attention to regulate any IPR abuse. However, how to effectively regulate the IPR abuse by way of competition law in Chinese situation, from the law and economic theories’ perspective, from the legislation perspective, and from the judicial practice perspective, there is a long way for China to go!

Fighting corruption with pyramids: A Law and Economics approach to combating corruption in post-socialist countries

Corruption is, in the last two decades, considered as one of the biggest problems within the international community, which harms not only a particular state or society but the whole world. The discussion on corruption in law and economics approach is mainly run under the veil of Public choice theory and principal-agent model. Based on this approach the strong international initiatives taken by the UN, the OECD and the Council of Europe, provided various measures and tools in order to support and guide countries in their combat against corruption. These anti-corruption policies created a repression -prevention-transparency model for corruption combat. Applying this model, countries around the world adopted anti-corruption strategies as part of their legal rules. Nevertheless, the recent researches on the effects of this move show non impressive results. Critics argue that “one size does not fit all” because the institutional setting of countries around the world varies. Among the countries which experience problems of corruption, even though they follow the dominant anti-corruption trends, are transitional, post-socialist countries. To this group belong the countries which are emerging from centrally planned to an open market economy. The socialist past left traces on institutional setting, mentality of the individuals and their interrelation, particularly in the domain of public administration. If the idiosyncrasy of these countries is taken into account the suggestion in this thesis is that in public administration in post-socialist countries, instead of dominant anti-corruption scheme repression-prevention-transparency, corruption combat should be improved through the implementation of a new one, structure-conduct-performance. The implementation of this model is based on three regulatory pyramids: anti-corruption, disciplinary anti-corruption and criminal anti-corruption pyramid. This approach asks public administration itself to engage in corruption combat, leaving criminal justice system as the ultimate weapon, used only for the very harmful misdeeds.

Essays on the Economic Analysis of Tort Law

The analysis of tort law is one of the most influential and extensively developed applications of the economic approach in the study of law. Notwithstanding the exhaustive number of contributions on tort law and economics, several open questions remain that warrant further investigation. The general aim of this research project is to refine the traditional model of tort law in order to make it more realistic, updated with the recent technological progress and in line with the experimental results concerning prosocial behavior. This book is divided into six chapters: Chapters 1 and 6 provide an introduction and conclusions, respectively, while the remaining chapters are written in the form of separate yet related articles.

A conceptualisation of a governance model for biobanks in the digital society

Biobanks are key infrastructures in data-driven biomedical research. The counterpoint of this optimistic vision is the reality of biobank governance, which must address various ethical, legal and social issues, especially in terms of open consent, privacy and secondary uses which, if not sufficiently resolved, may undermine participants’ and society’s trust in biobanking. The effect of the digital paradigm on biomedical research has only accentuated these issues by adding new pressure for the data protection of biobank participants against the risks of covert discrimination, abuse of power against individuals and groups, and critical commercial uses. Moreover, the traditional research-ethics framework has been unable to keep pace with the transformative developments of the digital era, and has proven inadequate in protecting biobank participants and providing guidance for ethical practices. To this must be added the challenge of an increased tendency towards exploitation and the commercialisation of personal data in the field of biomedical research, which may undermine the altruistic and solidaristic values associated with biobank participation and risk losing alignment with societal interests in biobanking. My research critically analyses, from a bioethical perspective, the challenges and the goals of biobank governance in data-driven biomedical research in order to understand the conditions for the implementation of a governance model that can foster biomedical research and innovation, while ensuring adequate protection for biobank participants and an alignment of biobank procedures and policies with society’s interests and expectations. The main outcome is a conceptualisation of a socially-oriented and participatory model of biobanks by proposing a new ethical framework that relies on the principles of transparency, data protection and participation to tackle the key challenges of biobanks in the digital age and that is well-suited to foster these goals.

Access to climate justice: the main procedural hurdles, and possible solutions, within the italian legal framework and the IBA Model Statute

The thesis deals with standing and justiciability in climate litigation against governments and the private sector. The first part addresses the impacts of climate change on human rights, the major developments in international climate law, and the historical reasons for climate litigation. The second part analyses several cases, divided into categories. It then draws to a comparative conclusion with regard to each category. The third part deals with the Italian legal tradition on standing and justiciability – starting from the historical roots of such rules. The fourth part introduces the ‘Model Statute’ drafted by the International Bar Association, arguing that the 'ratio legis' of this proposal could be implemented in Italy or the EU. The thesis develops arguments, based on the existing legal framework, to help plaintiffs establish standing and justiciability in proceedings pending before Italian courts. It further proposes the idea that 'citizen suits' are consistent with the Italian and EU legal tradition and that the EU could rely on citizen suits to privately enforce its climate law and policies under the ‘European Green Deal.’