21 resultados para Procedural Safeguards in International Arbitration

em AMS Tesi di Dottorato - Alm@DL - Università di Bologna


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This work presents first a study of the national and international laws in the fields of safety, security and safeguards. The international treaties and the recommendations issued by the IAEA as well as the national regulations in force in France, the United States and Italy are analyzed. As a result of this, a comparison among them is presented. Given the interest of the Japan Atomic Energy Agency for the aspects of criminal penalties and monetary, also the Japanese case is analyzed. The main part of this work was held at the JAEA in the field of proliferation resistance (PR) and physical protection (PP) of a GEN IV sodium fast reactor. For this purpose the design of the system is completed and the PR & PP methodology is applied to obtain data usable by designers for the improvement of the system itself. Due to the presence of sensitive data, not all the details can be disclosed. The reactor site of a hypothetical and commercial sodium-cooled fast neutron nuclear reactor system (SFR) is used as the target NES for the application of the methodology. The methodology is applied to all the PR and PP scenarios: diversion, misuse and breakout; theft and sabotage. The methodology is applied to the SFR to check if this system meets the target of PR and PP as described in the GIF goal; secondly, a comparison between the SFR and a LWR is performed to evaluate if and how it would be possible to improve the PR&PP of the SFR. The comparison is implemented according to the example development target: achieving PR&PP similar or superior to domestic and international ALWR. Three main actions were performed: implement the evaluation methodology; characterize the PR&PP for the nuclear energy system; identify recommendations for system designers through the comparison.

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This research seeks to provide an explanation for variations of “politics” of preference formation in international trade negotiations. Building on the ‘policy determines politics’ argument, I hypothesize the existence of a causal relationship between issue-characteristics and their variations with politics dynamics and their variations. More specifically, this study seeks to integrate into a single analytical framework two dimensions along which variations in the “politics of preference formation” can be organized: configurations of power relationships among the relevant actors in the structures within which they interact as well as the logic and the motivations of the actors involved in the policy making process. To do so, I first construct a four-cell typology of ‘politics of preference formation’ and, then, I proceed by specifying that the type of state-society configurations as well as the type of actors’ motivations in the “politics of preference formation” depend, respectively, on the degree to which a policy issue is perceived as politically salient and on the extent to which the distributional implications of such an issue can be calculated by the relevant stakeholders in the policy making process. The empirical yardstick against which the validity of the theoretical argument proposed is tested is drawn from evidence concerning the European Union’s negotiating strategy in four negotiating areas in the context of the so-called WTO’s Doha Development Round of multilateral trade negotiations: agriculture, competition, environment and technical assistance and capacity building.

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The times following international or civil conflicts but also violent revolutions often come with unequal share of the peace dividend for men and women. Delusions for women who gained freedom of movement and of roles during conflict but had to step back during reconstruction and peace have been recorded in all regions of the world. The emergence of peacebuilding as a modality for the international community to ensure peace and security has slowly incorporated gender sensitivity at the level of legal and policy instruments. Focusing on Rwanda, a country that has obtained significant gender advancement in the years after the genocide while also obtaining to not relapse into conflict, this research explores to what extent the international community has contributed to this transformation. From a review of evaluations, findings are that many of the interventions did not purse gender equality, and overall the majority understood gender and designed actions is a quite superficial way which would hardly account for the significative advancement in combating gender discrimination that the Government, for its inner political will, is conducting. Then, after a critique from a feminist standpoint to the concept of human security, departing from the assumption (sustained by the Governemnt of Rwanda as well) that domestic violence is a variable influencing level of security relevant at the national level, a review of available secondary data on GBV is conducted an trends over the years analysed. The emerging trends signal a steep increase in prevalence of GBV and in domestic violence in particular. Although no conclusive interpretation can be formulated on these data, there are elements suggesting the increase might be due to augmented reporting. The research concludes outlining possible further research pathways to better understand the link in Rwanda between the changing gender norms and the GBV.

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In this research project, I have integrated two research streams on international strategic decisions making in international firms: upper echelons or top management teams (TMT) internationalization research and international strategic decision making process research. Both research streams in international business literature have evolved independently, but there is a potential in combining these two streams of research. The first empirical paper “TMT internationalization and international strategic decision making process: a decision level analysis of rationality, speed, and performance” explores the influence of TMT internationalization on strategic decision rationality and speed and, subsequently, their effect on international strategic decision effectiveness (performance). The results show that the internationalization of TMT is positively related to decision effectiveness and this relationship is mediated by decision rationality while the hypotheses regarding the association between TMT internationalization and decision speed, and the mediating effect of speed were not supported. The second paper “TMT internationalization and international strategic decision rationality: the mediating role of international information” of my thesis is a simple but logical extension of first paper. The first paper showed that TMT Internationalization has a significant positive effect on international strategic decision rationality. The second paper explicitly showed that TMT internationalization affect on international strategic decision rationality comes from two sources: international experience (personal international knowledge and information) and international information collected from managerial international contacts. For this research project, I have collected data from international software firms in Pakistan. My research contributes to the literature on upper echelons theory and strategic decision making in context of international business and international firms by explicitly examining the link between TMT internationalization and characteristics of strategic decisions making process (i.e. rationality and speed) in international firms and their possible mediating effect on performance.

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The first chapter provides the first evidence on the gross capital flows reactions to the financial sector reform. I establish four new stylized facts. First, the reform is associated with an average increase of 0.03pp in both gross capital flows. Second, immediately after the reform both flows decrease, in the long term they stabilize at a higher than the pre-liberalization levels. Third, the short term dynamics is governed by debt flows, while the long term dynamics are driven by all of the components. Finally, only a complex reform leads to a positive effect. The results are robust to a wide range of robustness checks. In the second chapter we develop a novel theory to explain the recent phenomenon of reshoring, i.e. firms moving back their previously offshored business activities. We firstly provide the evidence for the importance of the quality behind the reshoring decision and then, building on Antoniades (2015) we develop a dynamic heterogeneous firms model with quality choice and offshoring. In the dynamic setting the location decision entails a tradeoff between payroll and quality-related costs. In equilibrium reshoring arises as some firms initially offshore, exploit the increase in profits due to lower wages and finally return to the domestic country in order to further increase the quality. The third chapter provides the new evidence suggesting that selling through global production networks might lead to export upgrade. I relate the sector-level GVCs participation indicators derived from the international Input-Output Tables to the data on the unit values of exports at the product-exporter level. We find a strong association between the export prices and forward participation, in particular for the developing countries. We document also a less robust negative relationship between the GVCs backward participation and unit values of exports.

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The PhD thesis analyses the financial services regime in international economic law from the perspective of the difficult relationship between trade liberalisation and prudential measures. Financial stability plays a fundamental role for the well-being and well-functioning of the global economy, but, it is at the same time a complex sector to regulate and supervise and, especially after the 2007-08 economic crisis, States have tightened up their regulation of financial services, introducing more severe and protectionist prudential measures. However, in an increasingly interconnected global economy, the harmonization of prudential regulation at the international level is an essential step to guarantee integrity, fairness and stability of financial markets and trade. The research analyses the tools at disposition to achieve this aim, the related problematic issues and the perspectives and possible solutions for the future, starting from the World Trade Organization (WTO) legal framework and its General Agreement on Trade in Services (GATS), devoted to discipline trade in services among the WTO Members. Then, the research moves to a second legal instrument, the Free Trade Agreements (FTAs), which has witnessed a remarkable spread in the last decades. Finally, the research addresses the international standards, developed by supranational entities and implemented by an increasing number of States, as they offer rules and guidelines adequate to update the international financial scenario. Nevertheless, the international standards alone cannot be the solution because, first, they are not mandatory, as governments decide voluntarily to apply them and, second, their decision-making process do not respect the requirements of transparency and representative membership. In light of this analysis, the thesis aims at providing an answer to its research question: how to give more certainty to States and economic operators in the planning of the domestic disciplines and business activities in order to provide a sound and stable international financial system.

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The goal of this thesis has been to find out whether ISDS and international investment law exert a chilling effect on more stringent environmental standards at the domestic level. Due to the lack of consistent empirical and statistical evidence uncovered during the analysis, this thesis largely dismisses the regulatory chill hypothesis. However, two exceptions are identified: first, there is evidence of the efforts made by domestic industrial groups and trade unions to prevent the implementation of stricter environmental standards; second, it has become apparent that unfounded beliefs, e.g. about ISDS, held by lawmakers and regulators can play an important role in chilling stricter environmental standards. For these reasons, a new and narrower definition of the regulatory chill phenomenon has been proposed, one that only encompasses those instances in which lawmakers, governments and government agencies refrain from adopting the laws and regulations that they deem the most appropriate because they believe that doing so would lead to adverse consequences at the international trade and investment level, despite a lack of consistent and robust evidence supporting their concerns. The second part of this thesis focusses on what could be done in international economic law to promote environmentally friendly FDI, while preventing the few instances in which regulatory chill may take place due to ill-founded beliefs held by lawmakers and regulators. Following an analysis that highlights the paramount role played by public participation and responsive institutions to achieve an appropriate level of environmental protection, this study ends with a proposal that recommends the adoption of a clause within IIAs that makes pre-investment environmental screening mandatory and free from ISDS oversight.

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This work aims to provide a theoretical examination of three recently created bodies of the United Nations mandated to investigate the alleged international crimes committed in Syria (IIIM), Iraq (UNITAD) and Myanmar (IIMM). Established as a compromise solution in the paralysis of international criminal jurisdictions, these essentially overlapping entities have been depicted as a ‘new generation’ of UN investigative mechanisms. While non-judicial in nature, they depart indeed from traditional commissions of inquiry in several respects due to their increased criminal or ‘quasi-prosecutorial’ character. After clarifying their legal basis and different mandating authorities, a comparative institutional analysis is thus carried out in order to ascertain whether these ‘mechanisms’ can be said to effectively represent a new institutional model. Through an in-depth assessment of their mandates, the thesis is also intended to outline both the strengths and the criticalities of these organs. Given their aim to facilitate criminal proceedings by sharing information and case files, it is suggested that more attention shall be paid to the position of the person under investigation. To this end, some proposals are made in order to enhance the mechanisms’ frameworks, especially from the angle of procedural safeguards. As a third aspect, the cooperation with judicial authorities is explored, in order to shed light on the actors involved, the relevant legal instruments and the possible obstacles, in particular from a human rights perspective. Ultimately, drawing from the detected issues, the thesis seeks to identify some lessons learned which could be taken into account in case of creation of new ad hoc investigative mechanisms or of a permanent institution of this kind.

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This work provides several policy proposals capable to strengthen the private enforcement of EU competition law in arbitration. It focuses on the procedural law aspects that are permeated by legal uncertainty and that have not yet fallen under the scrutiny of the law and economics debate. The policy proposals described herein are based on the functional approach to law and economics and aim to promote a more qualified decision making process by: adjudicators, private parties and lawmakers. The resulting framework of procedural rules would be a cost-effective policy tool that could sustain the European Commission’s effort to guarantee a workable level of competition in the EU internal market. This project aims to answer the following broad research question: which procedural rules can improve the efficiency of antitrust arbitration by decreasing litigation costs for private parties on the one hand, and by increasing private parties’ compliance with competition law on the other hand?Throughout this research project, such broad question has been developed into research sub-questions revolving around several key legal issues. The chosen sub-research questions result from a vacuum in the European enforcement system that leaves several key legal issues in antitrust arbitration unresolved. The legal framework proposed in this research project could prevent such a blurry scenario from impairing the EU private enforcement of competition law in arbitration. Therefore, our attention was triggered by those legal issues whose proposed solutions lead to relevant uncertainties and that are most suitable for a law and economics analysis.

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The present work tries to display a comprehensive and comparative study of the different legal and regulatory problems involved in international securitization transactions. First, an introduction to securitization is provided, with the basic elements of the transaction, followed by the different varieties of it, including dynamic securitization and synthetic securitization structures. Together with this introduction to the intricacies of the structure, a insight into the influence of securitization in the financial and economic crisis of 2007-2009 is provided too; as well as an overview of the process of regulatory competition and cooperation that constitutes the framework for the international aspects of securitization. The next Chapter focuses on the aspects that constitute the foundations of structured finance: the inception of the vehicle, and the transfer of risks associated to the securitized assets, with particular emphasis on the validity of those elements, and how a securitization transaction could be threatened at its root. In this sense, special importance is given to the validity of the trust as an instrument of finance, to the assignment of future receivables or receivables in block, and to the importance of formalities for the validity of corporations, trusts, assignments, etc., and the interaction of such formalities contained in general corporate, trust and assignment law with those contemplated under specific securitization regulations. Then, the next Chapter (III) focuses on creditor protection aspects. As such, we provide some insights on the debate on the capital structure of the firm, and its inadequacy to assess the financial soundness problems inherent to securitization. Then, we proceed to analyze the importance of rules on creditor protection in the context of securitization. The corollary is in the rules in case of insolvency. In this sense, we divide the cases where a party involved in the transaction goes bankrupt, from those where the transaction itself collapses. Finally, we focus on the scenario where a substance over form analysis may compromise some of the elements of the structure (notably the limited liability of the sponsor, and/or the transfer of assets) by means of veil piercing, substantive consolidation, or recharacterization theories. Once these elements have been covered, the next Chapters focus on the regulatory aspects involved in the transaction. Chapter IV is more referred to “market” regulations, i.e. those concerned with information disclosure and other rules (appointment of the indenture trustee, and elaboration of a rating by a rating agency) concerning the offering of asset-backed securities to the public. Chapter V, on the other hand, focuses on “prudential” regulation of the entity entrusted with securitizing assets (the so-called Special Purpose vehicle), and other entities involved in the process. Regarding the SPV, a reference is made to licensing requirements, restriction of activities and governance structures to prevent abuses. Regarding the sponsor of the transaction, a focus is made on provisions on sound originating practices, and the servicing function. Finally, we study accounting and banking regulations, including the Basel I and Basel II Frameworks, which determine the consolidation of the SPV, and the de-recognition of the securitized asset from the originating company’s balance-sheet, as well as the posterior treatment of those assets, in particular by banks. Chapters VI-IX are concerned with liability matters. Chapter VI is an introduction to the different sources of liability. Chapter VII focuses on the liability by the SPV and its management for the information supplied to investors, the management of the asset pool, and the breach of loyalty (or fiduciary) duties. Chapter VIII rather refers to the liability of the originator as a result of such information and statements, but also as a result of inadequate and reckless originating or servicing practices. Chapter IX finally focuses on third parties entrusted with the soundness of the transaction towards the market, the so-called gatekeepers. In this respect, we make special emphasis on the liability of indenture trustees, underwriters and rating agencies. Chapters X and XI focus on the international aspects of securitization. Chapter X contains a conflicts of laws analysis of the different aspects of structured finance. In this respect, a study is made of the laws applicable to the vehicle, to the transfer of risks (either by assignment or by means of derivatives contracts), to liability issues; and a study is also made of the competent jurisdiction (and applicable law) in bankruptcy cases; as well as in cases where a substance-over-form is performed. Then, special attention is also devoted to the role of financial and securities regulations; as well as to their territorial limits, and extraterritoriality problems involved. Chapter XI supplements the prior Chapter, for it analyzes the limits to the States’ exercise of regulatory power by the personal and “market” freedoms included in the US Constitution or the EU Treaties. A reference is also made to the (still insufficient) rules from the WTO Framework, and their significance to the States’ recognition and regulation of securitization transactions.

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La detenzione amministrativa degli stranieri, pur condividendo il carattere tipicamente afflittivo e stigmatizzante delle pene, non si fonda sulla commissione di un reato e non gode delle medesime garanzie previste dal sistema della giustizia penale. Nel nostro ordinamento l’inadeguatezza della legislazione, l’ampio margine di discrezionalità rimesso all’autorità di pubblica sicurezza, nonché il debole potere di sindacato giurisdizionale rimesso all’autorità giudiziaria, raggiungono il loro apice problematico nell’ambito delle pratiche di privazione della libertà personale che hanno per destinatari gli stranieri maggiormente vulnerabili, ossia quelli appena giunti sul territorio e il cui status giuridico non è ancora stato accertato (c.d. situazione di pre-admittance). E’ proprio sulla loro condizione che il presente lavoro si focalizza maggiormente. Le detenzioni de facto degli stranieri in condizione di pre-admittance sono analizzate, nel primo capitolo, a partire dal “caso Lampedusa”, descritto alla luce dell’indagine sul campo condotta dall’Autrice. Nel secondo capitolo viene ricostruito lo statuto della libertà personale dello straniero sulla base dei principi costituzionali e, nel terzo capitolo, sono analizzati i principi che informano il diritto alla libertà personale nell’ambito delle fonti sovranazionali, con particolare riferimento al diritto dell’Unione Europea e al sistema della Convenzione Europea dei Diritti dell’Uomo. Sulla scorta dei principi indagati, nel quarto capitolo è tracciata l’evoluzione legislativa in materia di detenzione amministrativa dello straniero in Italia e, nel quinto capitolo, è approfondito il tema dei Centri dell’immigrazione e delle regole che li disciplinano. Nelle conclusioni, infine, sono tirate le fila del percorso tracciato, attraverso la valutazione degli strumenti di tutela in grado di prevenire le pratiche di privazione della libertà informali e di garantire uno standard minimo nella tutela della libertà individuale, anche nelle zone di frontiera del nostro ordinamento.

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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.’

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This research addresses the use of ex ante contracts to arbitrate tort claims in domestic settings using law and economics research methodologies. Potential economic benefits from using arbitration, particularly between informed and knowledgeable parties and in international business transactions, are not guaranteed in domestic disputes. Arbitration can potentially be used to manipulate the adjudication process. This research has several findings. There is a lack of information available concerning the use of arbitration to adjudicate tort claims. Proxy measurements concerning the demand for third party adjudication and other legal indicators are a poor substitute for the information hidden behind the veil of arbitration. There is the potential for the strategic use of ex ante contracts to arbitrate tort claims by repeat player tortfeasors to domestic tort claims, both individually and in concert with other repeat player firms. These strategic efforts aim to: manipulate enforcement errors for tort claims, avoid procedural rules which have the effect of lowering enforcement errors, enable a unique type of domestic forum arbitrage, shirk from taking due care, capture the economic benefit of using arbitration, manipulate the stock of precedents and production of public goods from courts, collude in these underlying efforts, restrain competition, indirectly fix prices, and other aims which increase the repeat player tortfeasor’s or their industries economic gains related to their underlying contracts and tort disputes. This research also demonstrates how this subject is appropriate for further academic research and why states should be cautious of giving carte blanche to arbitrate all domestic tort claims.

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Background: It is well known, since the pioneristic observation by Jenkins and Dallenbach (Am J Psychol 1924;35:605-12), that a period of sleep provides a specific advantage for the consolidation of newly acquired informations. Recent research about the possible enhancing effect of sleep on memory consolidation has focused on procedural memory (part of non-declarative memory system, according to Squire’s taxonomy), as it appears the memory sub-system for which the available data are more consistent. The acquisition of a procedural skill follows a typical time course, consisting in a substantial practice-dependent learning followed by a slow, off-line improvement. Sleep seems to play a critical role in promoting the process of slow learning, by consolidating memory traces and making them more stable and resistant to interferences. If sleep is critical for the consolidation of a procedural skill, then an alteration of the organization of sleep should result in a less effective consolidation, and therefore in a reduced memory performance. Such alteration can be experimentally induced, as in a deprivation protocol, or it can be naturally observed in some sleep disorders as, for example, in narcolepsy. In this research, a group of narcoleptic patients, and a group of matched healthy controls, were tested in two different procedural abilities, in order to better define the size and time course of sleep contribution to memory consolidation. Experimental Procedure: A Texture Discrimination Task (Karni & Sagi, Nature 1993;365:250-2) and a Finger Tapping Task (Walker et al., Neuron 2002;35:205-11) were administered to two indipendent samples of drug-naive patients with first-diagnosed narcolepsy with cataplexy (International Classification of Sleep Disorder 2nd ed., 2005), and two samples of matched healthy controls. In the Texture Discrimination task, subjects (n=22) had to learn to recognize a complex visual array on the screen of a personal computer, while in the Finger Tapping task (n=14) they had to press a numeric sequence on a standard keyboard, as quickly and accurately as possible. Three subsequent experimental sessions were scheduled for each partecipant, namely a training session, a first retrieval session the next day, and a second retrieval session one week later. To test for possible circadian effects on learning, half of the subjects performed the training session at 11 a.m. and half at 17 p.m. Performance at training session was taken as a measure of the practice-dependent learning, while performance of subsequent sessions were taken as a measure of the consolidation level achieved respectively after one and seven nights of sleep. Between training and first retrieval session, all participants spent a night in a sleep laboratory and underwent a polygraphic recording. Results and Discussion: In both experimental tasks, while healthy controls improved their performance after one night of undisturbed sleep, narcoleptic patients showed a non statistically significant learning. Despite this, at the second retrieval session either healthy controls and narcoleptics improved their skills. Narcoleptics improved relatively more than controls between first and second retrieval session in the texture discrimination ability, while their performance remained largely lower in the motor (FTT) ability. Sleep parameters showed a grater fragmentation in the sleep of the pathological group, and a different distribution of Stage 1 and 2 NREM sleep in the two groups, being thus consistent with the hypothesis of a lower consolidation power of sleep in narcoleptic patients. Moreover, REM density of the first part of the night of healthy subjects showed a significant correlation with the amount of improvement achieved at the first retrieval session in TDT task, supporting the hypothesis that REM sleep plays an important role in the consolidation of visuo-perceptual skills. Taken together, these results speak in favor of a slower, rather than lower consolidation of procedural skills in narcoleptic patients. Finally, an explanation of the results, based on the possible role of sleep in contrasting the interference provided by task repetition is proposed.

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The aim of this proposal is to offer an alternative perspective on the study of Cold War, since insufficient attention is usually paid to those organizations that mobilized against the development and proliferation of nuclear weapons. The antinuclear movement began to mobilize between the 1950s and the 1960s, when it finally gained the attention of public opinion, and helped to build a sort of global conscience about nuclear bombs. This was due to the activism of a significant part of the international scientific community, which offered powerful intellectual and political legitimization to the struggle, and to the combined actions of the scientific and organized protests. This antinuclear conscience is something we usually tend to consider as a fait accompli in contemporary world, but the question is to show its roots, and the way it influenced statesmen and political choices during the period of nuclear confrontation of the early Cold War. To understand what this conscience could be and how it should be defined, we have to look at the very meaning of the nuclear weapons that has deeply modified the sense of war. Nuclear weapons seemed to be able to destroy human beings everywhere with no realistic forms of control of the damages they could set off, and they represented the last resource in the wide range of means of mass destruction. Even if we tend to consider this idea fully rational and incontrovertible, it was not immediately born with the birth of nuclear weapons themselves. Or, better, not everyone in the world did immediately share it. Due to the particular climate of Cold War confrontation, deeply influenced by the persistence of realistic paradigms in international relations, British and U.S. governments looked at nuclear weapons simply as «a bullet». From the Trinity Test to the signature of the Limited Test Ban Treaty in 1963, many things happened that helped to shift this view upon nuclear weapons. First of all, more than ten years of scientific protests provided a more concerned knowledge about consequences of nuclear tests and about the use of nuclear weapons. Many scientists devoted their social activities to inform public opinion and policy-makers about the real significance of the power of the atom and the related danger for human beings. Secondly, some public figures, as physicists, philosophers, biologists, chemists, and so on, appealed directly to the human community to «leave the folly and face reality», publicly sponsoring the antinuclear conscience. Then, several organizations leaded by political, religious or radical individuals gave to this protests a formal structure. The Campaign for Nuclear Disarmament in Great Britain, as well as the National Committee for a Sane Nuclear Policy in the U.S., represented the voice of the masses against the attempts of governments to present nuclear arsenals as a fundamental part of the international equilibrium. Therefore, the antinuclear conscience could be defined as an opposite feeling to the development and the use of nuclear weapons, able to create a political issue oriented to the influence of military and foreign policies. Only taking into consideration the strength of this pressure, it seems possible to understand not only the beginning of nuclear negotiations, but also the reasons that permitted Cold War to remain cold.