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The paper examines gaps and potential amendments of art 2:102 of the Principles of European Tort Law (PETL) on the scope of protected interests in tort law, also in light of Prof Bénédict Winiger’s teachings on the history of tort law. To this end, the paper starts by highlighting the many strengths of art 2:102 PETL, focusing in particular on its ability to capture continental European identity and its inherent flexibility, making it resistant to time and compatible with multiple interpretations. It then delves into what may be undertaken to further strengthen art 2:102 PETL. Rather than modifying the provision, the paper suggests that what is most needed is further empirical research about the real world of European tort laws and a more transparent discussion about the functions that tort laws do, and could, perform.

The article investigates, from the European perspective, to what extent the enhanced availability of granular data to insurance companies and the growing sophistication of insurers’ processing capabilities through big data analytics (BDA) are fostering the increasing personalization of insurance products and services for consumers. To this purpose, the article first explores the very notion of ‘automated personalization’ in insurance, and then delves into the institutional, epistemic, economic and legal factors that, in Europe, work as a constraint, at least in the short-term, to paradigmatic shifts in insurance consumers contracts. The analysis will hopefully demonstrate that automated personalization in consumer insurance contracts, in Europe, is for the time being more a myth than a reality. What does exist, by contrast, is a no less problematic trend towards mass customization and robotization of consumer insurance contracts, which fully deserves lawyers’ attention.

This chapter focuses on pure economic loss, that is, loss without accompanying harm to a plaintiff’s person or property. Pure economic loss is one of the most discussed topics of tort law scholarship, even though a number of legal systems (France, Italy) do not recognize the legal category and in others (German, England, the United States) it is often associated with a rule of no liability. The comparative analysis carried on in this chapter makes clear how the results generated by the courts show a discontinuity with the overarching tort theories and rationales generally adopted in the legal systems under review. After outlining the notion of “pure economic loss” and the factual situations where this loss is likely to occur, the chapter looks through comparative lenses at the spectrum of national approaches to this kind of damage, offering a focused analysis on the discrete ways of dealing with the issue. The final part of the chapter sets the outcomes of the comparative survey against the basic arguments for and against an exclusionary rule.

This chapter focuses on medical malpractice as one of the paradigm examples of liability for personal injury. In this field, all the systems studied in the book provide a roughly identical answer to the question of when and to whom the obligation is owed in the context of medical malpractice. But, as this chapter illustrates, beneath relatively similar outcomes lay deep theoretical disagreements about the foundation of liability as well as pragmatic adjustments in the rules of causation and the burden of proof. In this light, the chapter analyzes, in each jurisdiction, the role played by the state in providing medical services as well as compensation for medical injuries, whether medical liability is framed in contract or tort, and the rules governing how legal persons in the medical sector can be held vicariously liable for the injuries brought about by their employees or agents. The chapter further delves into the solutions provided to specific problems of malpractice in treatment and informed consent, analyzing to whom medical providers can be liable (with special regard to wrongful birth and wrongful life cases) and the standard of care required to fulfill their obligations.

This chapter focuses on recovery for economic and non-economic damages by secondary victims, that is, by plaintiffs who claim compensation for the indirect economic and non-economic harm they suffered as the indirect result of a physical injury to somebody else’s person or property. It analyzes in particular two of the most typical illustrations in which the problem of secondary victims’ harm arises: that of family members pursuing recovery for the indirect pecuniary and emotional harm caused by the death of their loved ones, and that of the nervous shock suffered by bystanders who witness an accident. As the chapter shows, in the latter, there is a significant divergence between the tort law systems studied in the book.

This chapter focuses on negligence and its relationship with no-fault liability regimes. In particular, the chapter explores three issues that deserve the spotlight in the comparative law perspective, insofar as they highlight a common trend dictated by the similarities of cultural approaches, in spite of technical differences. First, the chapter addresses and criticizes the traditional and still widespread understanding of the elements of the tort cause of action as separate and independent variables with a distinctive role of their own—what is herein called the “modular” approach. Secondly, the chapter explores and challenges the normative view according to which, under a rule of fault liability, a person’s behavior should conform to the standard of care expected of the so-called reasonable person, a fictitious individual traditionally endowed with conventional knowledge, average musculature, normal reactions, commonplace skills, and ordinary intelligence and memory. Thirdly, the chapter describes and unveils the many techniques through which the boundary between fault and strict liability are shaped by courts, and analyses the techniques courts use to incorporate negligence into strict liability and vice versa.

To deal with issues of factual/natural causation and of legal/proximate causation, every system has drawn up a large number of formulas and notions aiming to help courts determine whether the defendant caused the plaintiff’s loss, and to what extent she should be liable for them. Rather than looking at the myriad of causal problems that might arise in tort law cases, this chapter focuses on certain fundamental features of every tort system’s concept of causation. It makes clear that, while all the jurisdictions under review face similar challenges and deal with them through roughly similar devices, they differ not only in the formulas and notions they rely upon, but also in the role assigned to causation vis-à-vis other elements of the cause of action, and in the openness with which policy factors are taken into account when assessing causation in tort law.

This chapter focuses on recovery for non-economic damages (i.e., losses that have no easily calculable market value) claimed by primary victims. After clarifying how the divide between primary and secondary victims is to be traced in the five jurisdictions surveyed in the book, the chapter explores the approaches and rules adopted in these jurisdictions to claims brought by persons who have suffered non-economic damage after being directly injured, either physically or personally. The chapter not only investigates the rationales and techniques through which the legal systems under review restrict recovery for such claims, but also sheds light on the interplay between contractual and tort liability when non-economic damages are at stake, on the special rules applying to comatose and exceptionally fragile victims, and on the different methodologies adopted by courts to determine the size of awards for such losses.

This chapter describes the main features of tort law in the common law and civil law systems surveyed in the book—namely, England, the United States, France, Germany, and Italy. On the assumption that changes in civil litigation, as well as social, economic, and cultural developments are key to grasp the commonalities and differences in the ideas and architectures that underpin civil liability, the chapter delves into these jurisdictions’ social history and legal culture. The chapter also provides a concise overview of each legal system’s general tort law architecture, approach to civil liability (especially vis-à-vis contractual remedies), tort law theories and doctrines, style of reasoning, and litigation rates.

L'article, une fois éclaircie la notion d’acte de terrorisme en droit italien, présente les formes de réparation qui sont accessibles aux victimes, parmi lesquelles se distingue le fonds d’indemnisation pour les victimes du terrorisme créé en 1980 réformé à plusieurs occasions. Par la suite, l'article explore les dommages réparables sous le régime du fonds d’indemnisation et souligne les spécificités notables qui caractérisent le système de réparation dans son ensemble par rapport au droit commun de la responsabilité civile.

Questo libro che nasce dall’idea di avvicinare ad alcune questioni fondamentali della responsabilità civile lettori che quelle questioni non hanno avuto la possibilità di esaminare analiticamente. L’obiettivo è di fornire chiavi di lettura utili a comprendere un settore al centro di riflessioni infinite da parte di antropologi, sociologi, economisti, di operatori delle assicurazioni, private e pubbliche, e ovviamente di giuristi, teorici e pratici. Un diritto, quello della responsabilità civile, che, da noi come altrove, è motore di trasmissione di ingenti trasferimenti di ricchezza. Un diritto, quello della responsabilità civile, che è sempre più spesso chiamato ad amministrare porzioni complesse di realtà.

La fragilità del diritto nei circuiti di produzione delle idee è paradossale. Nessuno dubita che i sistemi giuridici stiano in corrispondenza biunivoca con le culture e le civiltà di cui sono frutto e seme. Tuttavia, nei nostri circoli intellettuali, mediatici e politici, il diritto è sovente trattato quale fonte di «codicilli», «cavilli», oppure come esercizio letterario, al massimo appendice di qualche corrente filosofica. Non stupisce perciò che quegli stessi circuiti riservino attenzioni maggiori ad altri saperi, spesso a loro volta ignari di come il diritto abbia sempre orientato, e sempre orienti, gli orizzonti su cui si esercitano le loro scienze, e tutti noi pratichiamo le nostre scelte. Ecco perché questo libro si presenta come un breviario, possibile punto di partenza per un'analisi - necessariamente comparata - del ruolo che il diritto svolge, a livello locale come nella sfera globale, nel farsi dei fenomeni economico-sociali.

The chapter analyses the role that insurance companies and public schemes play, in Italy under current rules and practices, for the compensation of injuries caused by artificial intelligence.

This chapter presents the findings of a comparative analysis of arbitration laws in fourteen countries. The analysis focuses on scope and interpretation of arbitration clauses, anti-arbitration laws and policies, arbitrator bias and misconduct, the public policy exception, and other limits on arbitrability. The chapter determines areas of commonality and divergences across national laws relating to judicial intervention into the arbitration process, and provides an assessment of possible trends in international commercial arbitration.

This chapter broadly reviews the relationship between the arbitration and judicial systems as well as substantive national laws that restrict the use of the arbitration process.The relationship is inherently in tension because two core principles are in conflict: independence of commercial arbitration and judicial intervention to ensure the fairness of the arbitration process. This chapter reviews and suggests how best to balance these two competing interests, including an analysis of the principle of separability (contract arbitration clauses are independent of the contract) and kompetenz–kompetenz (whether the arbitration panel or the courts are empowered to determine the jurisdiction of the arbitration panel and the scope of the arbitration clause).

The chapter delves into the historical and current general features of Italian arbitration law and investigates the approach of Italian judges toward arbitral proceedings and awards. It focuses first on the way in which arbitration agreements are construed by Italian courts and then moves to courts’ approaches to parties’ requests for vacating Italian arbitral awards and for recognizing/enforcing foreign arbitral awards. As the chapter makes clear, Italy’s bad reputation in the field of commercial arbitration is largely a remnant of the most recent past and is nowadays largely undeserved.

This chapter introduces what the book is about (and what it is not about) and provides some contextual information about the cultural, institutional, and scientific framework from which the person celebrated in the book and its contributors stem from.

The chapter delves upon some recurring themes underlying Bussani’s scholarship—from his pluralistic view of legal sources, to his emphasis on people’s identity and affiliations as determinants of legal and disputing behavior—as far as the law of obligations in the West is concerned. In this light, the chapter scrutinizes the many ways in which people’s affiliations shape the legal contexts in which they live in, including the legal layers governing their obligations and the life cycle of their contractual and tortious claims. The aim is to provide a glimpse of the many paths of understanding that Bussani’s teachings open up for the study of Western contract and tort law.

The contribution summarizes the findings of each chapter collected in the book and contextualizes the results of the book against the ongoing debates about the sources of (global) law and its dynamics, on the one hand, and the views on comparative law in general and on Bussani's scholarship in particular, on the other hand.

The paper reviews one of the latest entries in the ever-growing catalogue of English language casebooks and manuals on comparative tort law, that is, Thomas Kadner Graziano's Comparative Tort Law. In order to do so, the paper first summarizes the developments in academic production in English on comparative tort law in the last twenty-five years. It then examines against such context the book under review, analyzing its structure, contents and features and showing that Kadner Graziano has been able to build on previous research and to combine different approaches to create his own, original and much needed way of dealing with tort law comparatively.

The paper delves into the actual state and contents of the Projet de réforme de la responsabilité civile released in March 2017 by the French Ministry of Justice, highlighting the main historical, linguistic and cultural traits of tort law in France.

In 2014 the Chinese State Council announced the establishment of a nationwide comprehensive social credit system. Western narratives often describe the initiative as a technologically enhanced tool of autocratic control for scoring people. Yet, as the paper aims to show, similar accounts are tainted by several misunderstandings which perpetuate Western orientalist postures towards Chinese law. For the purpose of comparatively assessing the Chinese social credit system, the paper analyses the pilot programs set up to monitor people and enterprises’ behaviour by twenty-eight Chinese cities. The analysis will demonstrate that these pilot programs rely on low-tech methodologies, have limited strings attached, and are based on a relatively transparent legal framework. From a comparative perspective, our findings suggest that Chinese cities’ experiments raise problems that are similar to those posed by measurement practices widely employed in the West.

The Chapter proposes a parallel between criticism about the constitutional invisibility of Indigenous Peoples in Latin America and the struggles of comparative law as a legal discipline.

Since the outbreak of the COVID-19 pandemic, efforts to quantitatively measure the global health situation and/or governments’ reaction vis-à-vis the pandemic have flourished. In spite of the significance of data in the fight against the pandemic, however, such global knowledge is largely questionable, insofar as it exposes itself to the many hazards and fallacies associated with global attempts to frame the social world in numbers. This is why the paper attempts to identify the hazards and fallacies most commonly associated with global measurements of social phenomena and to verify whether and to what extent these hazards and fallacies affect numerical representations of the pandemic and its effects. To this end, the paper analyses ten English-language global numerical initiatives that were launched between January and May 2020, and reviews them in light of existing critical literature on global numbers. The aim is to provide a deeper understanding of global measurements of health and related law-and-policy measures, and to suggest caution about their use as a basis for knowledge and action in the context of the pandemic.

A unique collaboration between academic scholars, legal practitioners, and arbitrators, this handbook focuses on the intersection of arbitration - as an alternative to litigation - and the court systems to which arbitration is ultimately beholden. The first three parts analyze issues relating to the interpretation of the scope of arbitration agreements, arbitrator bias and conflicts of interest, arbitrator misconduct during the proceedings, enforceability of arbitral awards, and the grounds for vacating awards. The next section features fifteen country-specific reviews, which demonstrate that, despite the commonality of principles at the international level, there is a significant amount of differences in the application of those principles at the national level. This work should be read by anyone interested in the general rules and principles of the enforceability of foreign arbitral awards and the grounds for courts to vacate or annul such awards.

The chapter provides an empirical assessment of the position of the Italian constitutional court in the European multi-level and multi-dimensional constitutional space. Taking the year 2016 as a case study, the chapter offers a critical review of all the decisions published that year by the Italian Constitutional Court on issues related to European Union (EU) law and to the European Convention of Human Rights (ECHR), in order to test ‘in action’ how the Italian Constitutional Court deploys its ‘relational’ style of adjudication when confronted with European law. To this purpose, the chapter starts with a brief recap of the Court’s current positions on EU and ECHR law. After some caveats about the methodology adopted, numbers and figures of the EU- and ECHR-related case law of the Italian Constitutional Court in 2016 will be analysed. A survey of some of the Court’s specific postures will follow, preceding the concluding remarks.

Il capitolo analizza alcune delle principali iniziative globali costituite a seguito della pandemia da COVID-19 e volte a fornire relazioni, indicatori e classifiche sui numeri della crisi sanitaria e sulle reazioni di ciascun paese, investigandone contenuti, metodi e limiti. A tal fine, il contributo presenta anzitutto la panoplia di strumenti globali di misurazione della pandemia oggi disponibili, per poi soffermarsi sui loro caratteri principali ed esaminare come alcuni fra essi rappresentino tentativi di comparazione giuridica quantitativa della gestione della crisi. Il paragrafo conclusivo tira le fila circa i difetti e pericoli intrinseci a simili esperimenti.

Gli indicatori giuridici globali sono intraprese dedicate a comparare, in forma quantitativa, la natura e l’efficacia delle architetture giuridiche statali, tipicamente esitando in una classifica che distingue i paesi ‘buoni’ da quelli ‘cattivi’. Al loro studio si dedica il presente volume, riservando speciale attenzione a sei indicatori, selezionati per la loro rappresentatività e rilevanza: i ‘Freedom in the World Reports’ di Freedom House e i ‘Worldwide Governance Indicators’ della Banca Mondiale, entrambi sulla rule of law; il ‘Corruption Perceptions Index’ della ONG tedesca Transparency International e i ‘Trafficking in Persons Reports’ del Dipartimento di Stato americano, che misurano l’efficacia della lotta al corruzione e al traffico di esseri umani rispettivamente; i ‘Doing Business Reports’, sempre della Banca Mondiale, centrati sul diritto degli investimenti; infine, il ‘Global Rights Index’ della International Trade Union Confederation sulla tutela dei diritti sindacali del lavoratori. Di questi indicatori, il libro esamina metodologie, contenuti e obiettivi, nonché i modi vari attraverso i quali essi incidono, come veri e propri formanti, sulle realtà giuridiche valutate, e al di là di queste. Scopo della ricerca è comprendere non solo come tali indicatori operano, ma pure che tipo di soluzioni giuridiche promuovono e, soprattutto, quali lezioni può da loro trarre – e a loro impartire – il giurista in generale e il giuscomparatista in particolare.

L’articolo si propone di indagare lo spettro di possibili incidenti associati all’uso di algoritmi e le sfide che essi pongono al diritto della responsabilità civile europeo continentale. L’analisi permetterà di mettere in luce come il quadro giuridico sul continente appaia nel complesso sufficientemente equipaggiato per rispondere a molti dei problemi sollevati dai danni algoritmici.

The aim of this article is to explore Cappelletti’s most enduring teachings relevant to those who promote global or regional integration of private laws. The article will review Cappelletti’s insights into the dynamic history of law, the need to respect diversity and take into account society’s imbalances, and the duty of comparative lawyers to engage in “applied” interdisciplinary legal research.