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2011
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EUI PhD theses
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View Abstract
The task of this thesis is to provide a conceptual analysis of the phenomenon of competition law. It argues that the competitive process represents a distinctive feature of liberal democracy. The suggested constitutional recognition of competition implies that its legal status can be reduced neither to the cost-benefit calculus nor consumer welfare benchmark. This research proceeds as follows. The introductory chapter offers an overview of the main topics. The next chapter looks at the historical evolution of the concept of competition and explores the phenomenon of competition from the perspective of economic theory. The third chapter analyses the conceptual foundations the US and EU competition laws. The fourth chapter addresses the main theoretical background of the competitive process, comparing the role of competition in political, cultural and economic systems, developing the normative premises of the research. The fifth chapter concentrates on mechanics of balancing, which reflects the main methodological aspects of coexistence of competition with other economic and social values. In the sixth chapter the phenomenon of competition is explored from the broader legal theoretical perspective, contextualising the competitive process with the main theoretical problems of jurisprudence. It concentrates upon the jurisprudential aspects of the problem of balancing, trying to apply the techniques, developed in the previous chapter to the legal discourse with the purpose to demonstrate the significance of the competitive process not only in economic, political and cultural aspects, but also for the law itself. The final chapter explains the normative proposal, which this analysis puts forward, explores its practical implications and summarises the main finding of the overall research.
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2011
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This thesis presents a study of the epistemological and cognitive assumptions which currently underlie knowledge acquisition for legal ontology engineering. The hypothesis is that such assumptions might have a qualitative effect on the final ontologicalterminological resources and therefore on the performance of the systems which use them.The first part of the thesis presents the state of the art in legal ontology engineering (the computational concept of ontology, a review of available legal ontologies and modelling methodologies). The second part of the thesis shows that currently knowledge acquisition in legal ontology learning is limited to very concrete legal genres, namely, legislation, case law and legal doctrine. The third part presents a case study in which two different legal genres are used for building a consumer law ontology: a traditional legal genre, Italian consumer regulation, and a Web 2.0 genre, namely an online corpus of citizens’ queries regarding consumer justice. Results proof the impact of legal genre variation on the construction of the domain ontology. Thus main findings suggest that Web 2.0 corpora are a rich source for the construction of ontological resources, and at the same time these new types of ontological resources might be useful in e-government applications aimed at increasing online communication with citizens. The framework in which the study is conducted is the convergence between Web 3.0 and Web 2.0. This convergence implies the addition of one level of complexity to the main goal of the Semantic Web (or Web 3.0). Indeed, whereas Web 3.0 applied to the legal domain implies the automatic semantic interpretation of traditional legal sources (i.e. laws, judgements, administrative decisions), and Web 2.0 implies distributed models of production of knowledge by unknown users (i.e. blogs, blawgs, forums, social networks), the convergence of both implies the semantic processing of textual input produced by laymen in a distributed way. From the point of view of governance models this technical endeavour has a direct impact on the design of new e-government platforms for public service provision and citizen participation. The study has thus a twofold relevance: technical, as far as legal knowledge acquisition methodologies and legal ontology modelling are concerned; and socio-institutional, given the importance of semantic processing of laymen input for the design of new relational patterns between citizens and institutions.
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2011
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The pan-European licensing of digital music for the non-commercial consumer is a highly topical issue in copyright law at the present time. Whereas the EU continues to strive for the further harmonisation of the internal market, markets for digital services remain an exception, where barriers are artificially raised, rather than brought down. Yet why is harmonisation in this area so difficult to achieve? This thesis seeks to explain the reasons why creating a harmonised market for digital services is difficult to achieve by approaching the question in a multi-disciplinary way. It focuses not only on how the harmonisation of other aspects of copyright law have led to the development of laws which actually hinder the development of online services, but also on why copyright law has developed in such a restrictive manner, by focusing on the role of industry lobbyists and policy makers in the development of contemporary ‘digital’ copyright law. These findings are considered in light of economic analysis of the copyright system, in order to demonstrate why the continued increases in levels of protection and terms of duration of copyright are not only unsupported by economic evidence, but actually appear to hinder the development of new technologies and systems of distribution, making it increasingly difficult to create a single market for digital media distribution. Finally, this thesis will consider the role of collecting societies both online and offline, and how these institutions lead to a further fragmentation of a single market for digital media. While their existence in the physical monitoring of performances may be considered as a ‘necessary evil’, their existence in online distribution markets do not appear to be supported by either law or economic evidence. The thesis will therefore conclude by considering whether further changes to copyright law should be reconsidered in light of the negative impact that they may have on not only consumers, but creative artists themselves.
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2011
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EUI PhD theses
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This thesis aims at the resolution of a dilemma which has been bothering international lawyers for at least two decades, namely whether armed intervention as a response to gross and massive human rights violations is ever legally justified without the authorization by the Security Council pursuant to Chapter VII of the United Nations Charter. Thus far, international lawyers may be said to have been caught between giving a negative answer on the basis of the rules in the Charter, and a ‘turn to ethics’, i.e. declaring humanitarian intervention legitimate on moral grounds, while leaving questions of legality to the side. These two camps may be termed ‘positivists’ and ‘moralists’ respectively. In this thesis, a third solution to this dilemma is proposed. The idea is presented that many equitable principles may qualify as ‘general principles of law recognised by civilised nations’ – the third principal source of international law, a conclusion based upon detailed research of both national legal systems and the international legal system itself. These principles, having normative force in international law, are then used to craft an equitable framework for humanitarian intervention. It is argued that the dynamics of their operation allow them to interact with the UN Charter regime and customary international law in order to fill gaps in the existing legal structure and soften the rigours of strict law in extreme circumstances. It is asserted that many of the arguments of the moralists are justified, albeit based upon firm legal principles rather than ethical and philosophical theory. The equitable framework proffered in the final chapter is designed to provide an answer to the question of how the concept of humanitarian intervention may be integrated into the realm of law. Certainly, this will not mean an end to controversies regarding concrete cases of humanitarian intervention. However, it will enable the framing of such controversies in legal terms, rather than as a choice between the law and morality.
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2011
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EUI PhD theses
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Disputes over the restitution and return of cultural materials have steadily increased in recent years. While several restitution claims pertaining to Nazi-confiscated art have been resolved, other cases relating to the appropriation of cultural materials during war, foreign or colonial occupation, theft, or as a consequence of illicit trafficking have proliferated. Despite these challenges and recent developments in international law, international treaty law and current State practice in resolving restitution disputes primarily focus on arguments associated with State interests and property rights, and thus do little to accommodate the interests of the various stakeholders involved in restitution disputes. Moreover, because of major legal obstacles claimants face in restitution cases (namely the non-retroactivity of international treaty law, the protection of the bona fide purchaser and provisions on the lapse of time), a purely legal approach is not a viable option in many restitution disputes. Therefore, this dissertation introduces an approach that aims at taking into account the interests of the various stakeholders in the resolution of these disputes. In a second step, complementary and alternative mechanisms in the resolution of restitution disputes are examined in order to accommodate these different interests. The utilization of this interest-oriented approach will allow restitution disputes to be resolved in a more sustainable and cooperative manner; moreover, ethical and historical considerations can also be more adequately addressed than in a purely legal approach. It will be demonstrated that within the scope of the ‘common interest’ in the protection of cultural heritage, other issues can be identified as being of common concern, including: physical and cultural preservation, access, integrity, and cooperation. Since these aspects form part of the ‘common interest’, they are valid not only for the protection of cultural heritage in war and peace, but must also be taken into account in the resolution of restitution disputes. Consequently, these common interests form new general principles in international cultural heritage law.
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