filippo fontanelli | University of Edinburgh (original) (raw)

Books by filippo fontanelli

Review: http://www.globallawbooks.org/reviews/detail.asp?id=657

Papers by filippo fontanelli

European Constitutional Law Review, Aug 23, 2013

In late February 2013, the ECJ handed down the Åkerberg Fransson preliminary ruling (Fransson), a... more In late February 2013, the ECJ handed down the Åkerberg Fransson preliminary ruling (Fransson), a ten-page decision which tackled the unresolved issue of the application of the EU Charter of Fundamental Rights (the Charter) to domestic measures. Notwithstanding the Advocate General's effort to investigate the theoretical foundations that legitimise this projection of the Charter upon state acts, the ECJ delivered a judgment which largely followed in the pattern of its own anodyne case-law on general principles. The judgment confirmed that the Swedish measures at stake – cumulating administrative and criminal penalties for tax evaders – ‘implemented’ EU law insofar as they contributed to the effective collection of VAT, one of the sources of the EU's budget. As a consequence, it is for the Swedish judge to check their compliance with the Charter's norm on ne bis in idem. This decision confirms that the Charter applies to national measures that do not transpose EU legislation and happen to fall within its scope only incidentally.Regardless of the relative conservativeness of this finding, its implications are fated to displease member states and the reasoning of the Court was not compelling enough to prevent distinguishing and criticism. The first attack was promptly brought by the German Constitutional Court, which in its anti-terror database decision made clear that it subscribes only to a restrictive reading of Fransson and does not accept that the Charter applies to domestic measures whose objectives are set domestically, even if their purposes are shared by EU legislation.

BRILL eBooks, Mar 16, 2018

…the Idols of the Market Place are the most troublesome of all-idols which have crept into the un... more …the Idols of the Market Place are the most troublesome of all-idols which have crept into the understanding through the alliances of words and names. For men believe that their reason governs words… 1 Expressions which bear multiple meanings often find themselves employed with promiscuous disregard to context and function. 2 26 Malicorp Limited v. The Arab Republic of Egypt, ICSID Case No. ARB/08/18, Award of 7 February 2011, para. 102. For a similar checklist based on the jurisdictional rationes, provided by the claimant, see Copper Mesa Mining Corporation v. Republic of Ecuador, PCA No. 2012-2, Award of 15 March 2016, para. 5.6. 27 See Waibel above (n 582). 28 This is a habitual argument made with respect to intra-EU BITs, which respondents characterise as automatically terminated upon the entry into force of the

Columbia Journal of European Law, 2014

Perspectives on Federalism, 2011

After the entry into force of the Lisbon Treaty, the European Union's Charter of Fundamental Righ... more After the entry into force of the Lisbon Treaty, the European Union's Charter of Fundamental Rights has found a place among the formal sources of EU law, and has become a standard of review for the validity of EU acts. This article aims to analyse whether this momentous change is reflected in the judgments of the Court of Justice, and more precisely how the Luxembourg judges are dealing with this source. From an analysis of the cases, it emerges that there still are some uncertain issues, such as the extent of the competences of the EU, the paradigmatic function of the case-law of the European Court of Human Rights, the possibility to bypass the limits of the European Convention's direct effect through the application of the Charter's equivalent rights.

European journal of risk regulation, Mar 1, 2016

Springer eBooks, 2021

Given the deadlock in the current negotiations between Germany and Italy and the unavailability o... more Given the deadlock in the current negotiations between Germany and Italy and the unavailability of judicial remedies for the victims, the two states could set up a reparation scheme. This chapter sketches some of the main features of such a hypothetical scheme, considering existing internal or international arrangements in the context of transitional justice (the Foundation 'Remembrance, Responsibility and Future' (Erinnerung, Verantwortung und Zukunft) scheme; the Australian DART scheme; the deal between Japan and South Korea on reparations to 'comfort women'; the US/French schemes for reparations and restitution to holocaust victims; the Eritrea/Ethiopia reparations scheme; and the Iraq/Kuwait scheme). In particular, the emphasis is on the system of identification of the eligible victims, the question of financing and the fate of pending and future judicial claims. Assuming the states' willingness to explore this project, the chapter outlines some of the ways the scheme could operate in practice, drawing from existing models. I am grateful to the PAX Peace Agreement Database staff who helped me to retrieve the text of several relevant agreements. I also thank the law schools of Universidad de la Sabana (Bogotá) and LUISS Guido Carli (Rome), where I resided at the time of writing.

Abstract: This article has two main purposes. The first is to provide an introduction to Santi Ro... more Abstract: This article has two main purposes. The first is to provide an introduction to Santi Romano's seminal work L'ordinamento giuridico, first published in 1917, in which the author develops the main tenets of his thought, namely institutionalism and pluralism. The first part of this essay accordingly provides an outline of Romano's theories; this account is intended to be sufficiently robust to benefit an English-speaking readership for which there is still no translated version of L'ordinamento giuridico available. Embedded within the overview of ...

American Journal of International Law, Jul 1, 2013

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact

The law and practice of international courts and tribunals, Jun 21, 2017

The jurisdiction of international courts and tribunals and the admissibility of interstate claims... more The jurisdiction of international courts and tribunals and the admissibility of interstate claims under international law are central to international adjudication, operating as gateway to the litigation on the merits-the end goal of the proceedings. Still, these concepts remain inherently under-defined, and can be shaped in multiple ways to formulate preliminary objections in international litigation in general. International investor-State arbitration adds specific aspects and complexities to the issue. This introductory contribution accounts for the theoretical deficiencies underpinning the notions of jurisdiction and admissibility with a special focus of on international investment arbitration, and introduces the selected case-studies which form the subject of this Special Issue's articles. The recent Urbaser award is also used as an example of the unexplored potential of novel-and critical-legal argumentation relating to the jurisdiction of investment tribunals.

The Reach of Free Movement, 2017

This chapter discusses two underrated and connected aspects that determine the applicability of t... more This chapter discusses two underrated and connected aspects that determine the applicability of the Charter in the area of the market freedoms. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and non-application of EU law is overlooked in the case law and in the scholarship. Second, because the applications of EU law and the Charter are aligned, the latter suffers from the uncertainties of the former. This chapter concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms.

International Law Association, May 1, 2020

This short presentation distils the conclusions of the panel regarding the international law angl... more This short presentation distils the conclusions of the panel regarding the international law angle of the post-Sentenza scenario. They reflect some degree of consensus which was reached on certain crucial points, including the steps ahead. Keep calm… The applicable rules of international law are clear. A State's immunity in the civil courts of another State is granted also in the case of serious human rights violations, and irrespective of whether the victims could bring their cases to other courts or resort to an alternative remedy. This is what the law is. What the law should be is another story, one that is worth telling; if the law alone cannot occasion certain objectives, it still would be appropriate to pursue them if they are desirable. Because an alternative remedy is not a necessary condition for the granting of immunities, it is not crucial to check whether the Italian victims had been afforded one-a point of controversy if one reads the Constitutional Court's decision next to the German government's statements. In principle, the concept of an effective remedy would not amount to a right to win in court, but more likely to a right to have a case heard by an impartial judge that is empowered to afford an actual remedy to a winning claimant. Again, the issue is essentially moot, because the availability of remedies is not indispensable for the granting of State immunity and because the European Court of Human Rights considered that the suits brought by Italian claimants were conducted by German courts in a way that did not violate the Convention's norms on a fair trial.

General Principles of Law and International Investment Arbitration, 2018

The national treatment obligation is generally enshrined in contemporary international investment... more The national treatment obligation is generally enshrined in contemporary international investment agreements, but its arbitral application does not unveil a coherent interpretative framework. As will be demonstrated by the analysis of the relevant case-law, every arbitral tribunal gives his personal reading of any single requirement of the clause (such as the " likeness " , for instance). Moreover, contrary to other standards, such as fair and equitable treatment and full protection and security, claims made under national treatment obligation are often dismissed by arbitrators. Notwithstanding these aspects, the present contribution is aimed at investigating the reasons behind the prudent approach of the arbitral tribunals toward national treatment, and even through a comparison with the similar provisions couched in GATT and GATS.

This chapter compares the most recent judgment with the three previous "Kadi" decisions... more This chapter compares the most recent judgment with the three previous "Kadi" decisions. It contextualizes the 2013 pronouncement of the Court of Justice of the EU accounting for the incremental developments traceable in the various decisions and opinions of the Advocates General. More specifically, the analysis suggests a mapping of the different standards of judicial review which were discussed in the proceedings and the scholarship, showing how the different decisions and commentaries speak to different standards that can be arranged on a spectrum that goes from absolute deference to de novo review.

European Constitutional Law Review, Aug 23, 2013

In late February 2013, the ECJ handed down the Åkerberg Fransson preliminary ruling (Fransson), a... more In late February 2013, the ECJ handed down the Åkerberg Fransson preliminary ruling (Fransson), a ten-page decision which tackled the unresolved issue of the application of the EU Charter of Fundamental Rights (the Charter) to domestic measures. Notwithstanding the Advocate General's effort to investigate the theoretical foundations that legitimise this projection of the Charter upon state acts, the ECJ delivered a judgment which largely followed in the pattern of its own anodyne case-law on general principles. The judgment confirmed that the Swedish measures at stake – cumulating administrative and criminal penalties for tax evaders – ‘implemented’ EU law insofar as they contributed to the effective collection of VAT, one of the sources of the EU's budget. As a consequence, it is for the Swedish judge to check their compliance with the Charter's norm on ne bis in idem. This decision confirms that the Charter applies to national measures that do not transpose EU legislation and happen to fall within its scope only incidentally.Regardless of the relative conservativeness of this finding, its implications are fated to displease member states and the reasoning of the Court was not compelling enough to prevent distinguishing and criticism. The first attack was promptly brought by the German Constitutional Court, which in its anti-terror database decision made clear that it subscribes only to a restrictive reading of Fransson and does not accept that the Charter applies to domestic measures whose objectives are set domestically, even if their purposes are shared by EU legislation.

BRILL eBooks, Mar 16, 2018

…the Idols of the Market Place are the most troublesome of all-idols which have crept into the un... more …the Idols of the Market Place are the most troublesome of all-idols which have crept into the understanding through the alliances of words and names. For men believe that their reason governs words… 1 Expressions which bear multiple meanings often find themselves employed with promiscuous disregard to context and function. 2 26 Malicorp Limited v. The Arab Republic of Egypt, ICSID Case No. ARB/08/18, Award of 7 February 2011, para. 102. For a similar checklist based on the jurisdictional rationes, provided by the claimant, see Copper Mesa Mining Corporation v. Republic of Ecuador, PCA No. 2012-2, Award of 15 March 2016, para. 5.6. 27 See Waibel above (n 582). 28 This is a habitual argument made with respect to intra-EU BITs, which respondents characterise as automatically terminated upon the entry into force of the

Columbia Journal of European Law, 2014

Perspectives on Federalism, 2011

After the entry into force of the Lisbon Treaty, the European Union's Charter of Fundamental Righ... more After the entry into force of the Lisbon Treaty, the European Union's Charter of Fundamental Rights has found a place among the formal sources of EU law, and has become a standard of review for the validity of EU acts. This article aims to analyse whether this momentous change is reflected in the judgments of the Court of Justice, and more precisely how the Luxembourg judges are dealing with this source. From an analysis of the cases, it emerges that there still are some uncertain issues, such as the extent of the competences of the EU, the paradigmatic function of the case-law of the European Court of Human Rights, the possibility to bypass the limits of the European Convention's direct effect through the application of the Charter's equivalent rights.

European journal of risk regulation, Mar 1, 2016

Springer eBooks, 2021

Given the deadlock in the current negotiations between Germany and Italy and the unavailability o... more Given the deadlock in the current negotiations between Germany and Italy and the unavailability of judicial remedies for the victims, the two states could set up a reparation scheme. This chapter sketches some of the main features of such a hypothetical scheme, considering existing internal or international arrangements in the context of transitional justice (the Foundation 'Remembrance, Responsibility and Future' (Erinnerung, Verantwortung und Zukunft) scheme; the Australian DART scheme; the deal between Japan and South Korea on reparations to 'comfort women'; the US/French schemes for reparations and restitution to holocaust victims; the Eritrea/Ethiopia reparations scheme; and the Iraq/Kuwait scheme). In particular, the emphasis is on the system of identification of the eligible victims, the question of financing and the fate of pending and future judicial claims. Assuming the states' willingness to explore this project, the chapter outlines some of the ways the scheme could operate in practice, drawing from existing models. I am grateful to the PAX Peace Agreement Database staff who helped me to retrieve the text of several relevant agreements. I also thank the law schools of Universidad de la Sabana (Bogotá) and LUISS Guido Carli (Rome), where I resided at the time of writing.

Abstract: This article has two main purposes. The first is to provide an introduction to Santi Ro... more Abstract: This article has two main purposes. The first is to provide an introduction to Santi Romano's seminal work L'ordinamento giuridico, first published in 1917, in which the author develops the main tenets of his thought, namely institutionalism and pluralism. The first part of this essay accordingly provides an outline of Romano's theories; this account is intended to be sufficiently robust to benefit an English-speaking readership for which there is still no translated version of L'ordinamento giuridico available. Embedded within the overview of ...

American Journal of International Law, Jul 1, 2013

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, a... more JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact

The law and practice of international courts and tribunals, Jun 21, 2017

The jurisdiction of international courts and tribunals and the admissibility of interstate claims... more The jurisdiction of international courts and tribunals and the admissibility of interstate claims under international law are central to international adjudication, operating as gateway to the litigation on the merits-the end goal of the proceedings. Still, these concepts remain inherently under-defined, and can be shaped in multiple ways to formulate preliminary objections in international litigation in general. International investor-State arbitration adds specific aspects and complexities to the issue. This introductory contribution accounts for the theoretical deficiencies underpinning the notions of jurisdiction and admissibility with a special focus of on international investment arbitration, and introduces the selected case-studies which form the subject of this Special Issue's articles. The recent Urbaser award is also used as an example of the unexplored potential of novel-and critical-legal argumentation relating to the jurisdiction of investment tribunals.

The Reach of Free Movement, 2017

This chapter discusses two underrated and connected aspects that determine the applicability of t... more This chapter discusses two underrated and connected aspects that determine the applicability of the Charter in the area of the market freedoms. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and non-application of EU law is overlooked in the case law and in the scholarship. Second, because the applications of EU law and the Charter are aligned, the latter suffers from the uncertainties of the former. This chapter concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms.

International Law Association, May 1, 2020

This short presentation distils the conclusions of the panel regarding the international law angl... more This short presentation distils the conclusions of the panel regarding the international law angle of the post-Sentenza scenario. They reflect some degree of consensus which was reached on certain crucial points, including the steps ahead. Keep calm… The applicable rules of international law are clear. A State's immunity in the civil courts of another State is granted also in the case of serious human rights violations, and irrespective of whether the victims could bring their cases to other courts or resort to an alternative remedy. This is what the law is. What the law should be is another story, one that is worth telling; if the law alone cannot occasion certain objectives, it still would be appropriate to pursue them if they are desirable. Because an alternative remedy is not a necessary condition for the granting of immunities, it is not crucial to check whether the Italian victims had been afforded one-a point of controversy if one reads the Constitutional Court's decision next to the German government's statements. In principle, the concept of an effective remedy would not amount to a right to win in court, but more likely to a right to have a case heard by an impartial judge that is empowered to afford an actual remedy to a winning claimant. Again, the issue is essentially moot, because the availability of remedies is not indispensable for the granting of State immunity and because the European Court of Human Rights considered that the suits brought by Italian claimants were conducted by German courts in a way that did not violate the Convention's norms on a fair trial.

General Principles of Law and International Investment Arbitration, 2018

The national treatment obligation is generally enshrined in contemporary international investment... more The national treatment obligation is generally enshrined in contemporary international investment agreements, but its arbitral application does not unveil a coherent interpretative framework. As will be demonstrated by the analysis of the relevant case-law, every arbitral tribunal gives his personal reading of any single requirement of the clause (such as the " likeness " , for instance). Moreover, contrary to other standards, such as fair and equitable treatment and full protection and security, claims made under national treatment obligation are often dismissed by arbitrators. Notwithstanding these aspects, the present contribution is aimed at investigating the reasons behind the prudent approach of the arbitral tribunals toward national treatment, and even through a comparison with the similar provisions couched in GATT and GATS.

This chapter compares the most recent judgment with the three previous "Kadi" decisions... more This chapter compares the most recent judgment with the three previous "Kadi" decisions. It contextualizes the 2013 pronouncement of the Court of Justice of the EU accounting for the incremental developments traceable in the various decisions and opinions of the Advocates General. More specifically, the analysis suggests a mapping of the different standards of judicial review which were discussed in the proceedings and the scholarship, showing how the different decisions and commentaries speak to different standards that can be arranged on a spectrum that goes from absolute deference to de novo review.

International Legal Materials, 2017

Nordic Journal of International Law, 2012

The book collects the proceedings of an international conference at the Scuola Superiore Sant’Ann... more The book collects the proceedings of an international conference at the Scuola Superiore Sant’Anna of Pisa (16-17 January 2010). Do national judges start treating the provisions of the European Convention on Human Rights the same way they treat the EC law’s norms? In order to answer this question the editors (Giuseppe Martinico and Oreste Pollicino) involved scholars from the countries that are members both of the EU and the Council of Europe