The course is designed to acquaint students with a comprehensive view of principles, rules and praxis, which govern foreign direct investment and their relationship with the international legal framework on sustainable development, in particular in the energy sector. States developed a series of treaties (especially FTAs, free trade agreements, and BITs, Bilateral investment treaties) aiming at regulating and protecting transnational investments. The body of law arisen out of this massive treaty making represents one of the most relevant legal and economic phenomena of the last decades at the international level. International investment law is a key element in this rapidly evolving international economic integration.
The increased flow of FDI worldwide and the complex need to strike a balance between investors' rights and host States' public essential interests have prompted international organizations and the private sector to adopt substantive legal rules and to establish international or regional bodies and procedures for the peaceful settlement of disputes between investors and States.
Expected learning outcomes
· Knowledge and understanding: students shall know the main legal issues concerning international investment law; · Applying knowledge and understanding: students shall be able to employ notions acquired during the class to a specific legal dispute; · Making judgements: students shall be able to make accurate judgments on conflicts of norms, especially between the rights of investors and other norms protecting common concerns; · Communication: students shall be able to understand issues of international investment law, using the appropriate terminology; · Lifelong learning skills: students shall acquire advance legal skills, public speaking, and how to deal with conflicts of norms.
SYLLABUS DIRITTO INTERNAZIONALE PROF. NERINA BOSCHIERO A.A. 2019/20
The course is structured in two Parts (Public International Law; International Private and Procedural Law) and it deals with the following topics:
Part I - Public International Law
1. Origins and evolution of international law 2. Subjects of international law. The notion of State and its requirements 2.1 effectiveness and independency. The failed States 2.2 the status of insurgent groups and the principle of self-determination 2.3 the recognition of States 3. Privileges and immunities of State. The Germany vs. Italy case 3.1 immunities accrued to State organs. The question of international crimes committed by State organs 4. International Organizations: notion and status. The United Nations (UN) 5. Individual under international law: human rights law and international criminal law International peace and security: the UN and the maintenance of peace and security. UN Charter provisions 6. Use of force in the UN system: peacekeeping operations; the fight against terrorism and the smart sanctions. 6.1 Unilateral use of force. The notion and conditions of self-defense. Collective self-defense and the problem of preventive and pre-emptive self-defense. 6.2 Self-defense against non-state actors. The issue of armed humanitarian intervention and the responsibility to protect. 7. Sources of international law: the role of general international law 7.1 Customary law: elements, recognition and codification 7.2 Treaties: formation and capacity 7.3 Treaty interpretation and the reservations 7.4 Hierarchy of sources of international law: the jus cogens 8. Breach of international law and its consequences. Elements of wrongful acts 8.1 Consequences of wrongful acts 8.2 Countermeasures and their limits 8.3 The breach of collective interests: the aggravated responsibility 9. The implementation of customary and conventional international law into domestic law 9.1 The application of the European Union law
Part II - International Private and Procedural Law
1. Function, main features, and sources of International Private and Procedural Law 2. Structure of conflict of laws on jurisdiction 3. Jurisdiction under Bruxelles I and the Italian law 218/95 4. Conflict of laws and methods to regulate transnational issues 5. General questions: characterization and referral 6. Knowledge and interpretation of foreign norms. Limits to its application 7. Recognition and enforcement of foreign decisions
Prerequisites for admission
Private Law and Constitutional law are "propedeutici" to the International law exams
the teaching methodology combined a plurality of methods: frontal lessons, socratic method, practical exercises on the most recent and relevant judgments delivered by the international courts.
bibliography: Public international law: the students may choice between the two following manuals:
1) V. CANNIZZARO, Diritto internazionale, 4ª ed., Torino, Giappichelli, 2016; 2) A. TANZI, Introduzione del diritto internazionale contemporaneo, 5a ed., 2016, Wolters Kluver, Cedam (without Part I and the last chapter of Part V, whose reading is nevertheless suggested)
Private International law: GABRIELLA CARELLA, Fondamenti di diritto internazionale privato. Tra sovranità, cooperazione e diritti umani, Giappichelli 2018.
Assessment methods and Criteria
the final exam will be held orally; the aims is to test their comprehension of the main subjects and concepts explained during the course. attending students who will succesfully take part of the discussions and and the main practical exercises will be exempted from the corresponding parts of the exam
- The international community and its law. The specificity of international law. The notion of international legal life. - The subjects of international law. The State, international organizations and others. The peculiar condition of individuals in international law. - International custom. The codification of customary law. - The general principles of international law and the general principles of law recognized by civilized nations. - The international treaty law. The stipulation. The interpretation. The reserves. Causes of nullity and extinction. - The adaptation of the internal order to international law. The peculiarities of the Italian system. - Immunity. - International responsibility and the reparation. - The United Nations system. - The resolution of international disputes. - The international protection of human rights. - International criminal courts. - Private international law: the Italian system, supranational sources. - Italian rules of private international law and applicable law: general issues. - The jurisdiction in civil and commercial matters: the European system and Italian law. - The international circulation of judgments: the effectiveness in Italy of foreign judgments.
INFORMATION FOR STUDENTS TRANSFERRED FROM THE COURSE OF "SCIENZE DEI SERVIZI GIURIDICI" (SCIENCE OF LEGAL SERVICES): Istituzioni di diritto internazionale e istituzioni di diritto dell'Unione europea: 12 CFU. To obtain the recognition as International Law (complusory examination in the Law School), the student shall have to study and undergo an assesment concerning the portion of the syllabus relating to private international law matters. Diritto internazionale dei contratti e dell'impresa (6 CFU) + Istituzioni di diritto internazionale e istituzioni di diritto dell'Unione europea (12 crediti): 18 CFU in total. Automatic recognition as International Law without any additional assesment.
Prerequisites for admission
Constitutional law, Institutions of private law
In addition to the ordinary lectures, in depth seminars will be held on specific topics, through the examination of judgments of the International Court of Justice. Seminar guidance is given to class.
With regard to public international law: Carbone, Luzzatto, Santa Maria (eds.), Istituzioni di diritto internazionale, 5th ed., Torino, Giappichelli, 2016, pp. 1-431. With regard to private international law: Carella, Fondamenti di diritto internazionale privato. Torino, Giappichelli. With regard to the relevant legal instruments the following publications collecrting them are recommended: Luzzatto, Pocar (eds.), Codice di diritto internazionale pubblico, Torino, Giappichelli, last edition; and Clerici, Mosconi and Pocar (eds.), Legge di riforma del diritto internazionale privato e testi collegati, Milano, Giuffrè, last edition.
Assessment methods and Criteria
The examination takes place in an oral form and focuses, with equal importance, both on the part of the course dedicated to the issues of public international law and the one concerning the notions of private international law. For the students attending, subject to the additional indications given to the class and a check of the knowledge of the basics of the subject, the examination mainly concerns the seminars in which the student participated.
The following topics will be specifically addressed during the course: For the Public International Law part: (a) Subjects and actors of the international community: 1. The structure of the international community; 2. The legal personality of States; 3. The legal personality of entities other than States; 4. International intergovernmental organisations; 5. The legal personality of individuals.
(b) Sources of International Law: 1. Distinction between general/particular international law; 2. Customary Law; 3. General principles of law; 4. Ius cogens; 5. The law of treaties (especially the Vienna Convention on the Law of Treaties).
(c) The adaptation of domestic law to international law: 1. Monism and dualism in the theory of International Law; 2. The adaptation of customary law; 3. The adaptation of the law of treaties;
(d) Territorial sovereignty and Immunity: 1. The exclusivity of the power of the government of the State; 2. Immunities.
(e) Peaceful settlement and prevention of international disputes: 1. The notion of "international dispute"; 2. Diplomatic means of dispute resolution; 3. Arbitration; 4. The International Court of Justice; 5. Specialized international courts.
(f) State responsibility for internationally wrongful acts: 1. The regulation of State responsibility; 2. The constituent elements of internationally wrongful acts; 3. Damages; 4. Circumstances precluding wrongfulness; 5. Legal consequences of an internationally wrongful act.
(g) The Use of Force: 1. Distinction between ius ad bellum and ius in bello; 2. The prohibition of the use of force; 3. Exceptions to the prohibition of the use of force; 4. The UN collective security system; 5. Chapter VII of the UN Charter; 6. Peace-keeping measures.
(h) The individual and the international protection of human rights: 1. The distinction between "human rights" and "humanitarian law"; 2. The Universal Declaration of Human Rights and regional conventions; 3. International Criminal Courts.
For the part of Private International Law: (a) Fundamental notions of Private International Law: 1. Sources of Private International Law; 2. Terminology; 3. Development of Private International Law.
(b) The rules of Private International Law: 1. The conflict-of-law rules; 2. The connecting factors; 3. Characterization; 4. Dépeçage.
(c) International jurisdiction: 1. The problem of jurisdiction; 2. The Brussels I-recast Regulation (specifically: scope of application; general forum; special fora; weaker party protection fora; exclusive fora; lis pendens; related actions; protective measures); 3. Italian law.
(d) The applicable law: 1. The renvoi; 2. Knowledge of foreign law; 3. Public policy; 4. Overriding mandatory rules.
(e) Recognition and enforcement of foreign decisions: 1. The Brussels I-recast Regulation; 2. Italian law.
Prerequisites for admission
Constitutional Law and Private Law
60 hours of lectures
Public International Law: CARBONE - LUZZATTO - SANTA MARIA (eds), Istituzioni di diritto internazionale, 5a ed., Torino, Giappichelli, 2016 Only pages 1-431 (Chapters I-IX).
Private International Law: MOSCONI - CAMPIGLIO, Diritto internazionale privato e processuale. Vol. I. Parte generale e obbligazioni, 8a ed., Torino, Utet, 2017 Only: Chapter I, paras. 1-11; Chapter II, paras. 1-21 and 25-30; Chapter III; Chapter IV; Chapter V, paras. 1-14 and 17-23.
Suggested readings for the conventions and statutes: - LUZZATTO - POCAR (eds.), Codice di diritto internazionale pubblico, Torino, Giappichelli; - CLERICI - MOSCONI - POCAR (eds.), Legge di riforma del diritto internazionale privato e testi collegati, Milano, Giuffrè.
Assessment methods and Criteria
Oral test. The oral test is an interview aimed at ascertaining the students' knowledge of the subjects of the course, their understanding, the acquisition of an appropriate language and their ability to synthesize concepts. Attending students only (at least 80% of attendance) can choose between a single oral test or two different tests: one for Public International Law and one for Private International Law.