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In: Diritto privato dei paesi comunitari
In: Approfondimenti
In: Studies in employment and social policy 19
In: Collana del Dipartimento di giurisprudenza, Università degli studi di Brescia
In: I quaderni Prima serie, 4
In: Collana dell'Associazione di studi penalistici e criminologici Silvia Sandano 4
In: Studia politica: Romanian political science review ; revista română de ştiinţă politică, Band 10, Heft 4, S. 709-787
The paper takes into account a feature of Hans Kelsen's juridical thinking that has been so far rather underestimated: the weight of normativism on his theory of private law. The author closely connects Kelsen's critical approach to the notion of subjective right and further relates the legal norms to the institutions of the market economy. The interepretative assumptions of Kelsen are constantly confronted with the theoretical background that propelled the development of the modern constitutional state based on the rule of law.
In: UAE symposium
In: Collection Union des avocats européens
Il saggio concerne il ruolo che la responsabilità da prodotto difettoso è suscettibile di svolgere nel governo dei nuovi rischi insiti nello sviluppo delle tecnologie digitali, tenuto conto di alcuni profili problematici, tra cui il concetto di prodotto (e di produttore), nonché quello di difetto (con le connesse questioni relative all'accertamento dello stesso). L'analisi dei suddetti profili viene svolta, oltre che sulla base della interpretazione della pertinente disciplina, anche alla luce di alcuni recenti esperimenti di soft law. The essay deals with the role that liability for defective product is likely to play in the governance of new risks inherent in the development of digital technologies, taking into account some debated aspects, including the concept of product (and producer), as well as the concept of defect (and its assessment). The analysis of these issues is carried out not only on the basis of the interpretation of the relevant legislation, but also in the light of recent forms of soft law regulations.
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The ultimate goal of game theory is to provide a theoretical model for strategic situations' analysis, i.e. for situations where one actor's choice depends on the behavior of other players in the game. As a concept, game theory is also applicable to the legal context. Legal dialectics and processes are often conducted in some form of strategic interactions. Game theory is a way to see how legal rules affect particular actors' behavior. International Economic Law has its own dynamics which makes the process similar to the analysis through the game theoretical tools. Therefore, the rules of international law are considered as the rules of the game that are taking place among different actors. Game theoretical considerations clarify the substance of the interaction and cooperation of players involved (states, international organizations and other actors). Game theory provides a basis for normative analysis of the issue of implementation of the rules of international law and improves understanding of those rules. The topic of the paper is the application of the game theory in the context of the legal framework established by the World Trade Organization. The member states' dilemma between using the advantages and liberalization options provided by the WTO on the one hand, and joining the regional trade agreements, on the other one, is strategic by nature. Therefore, game theory can contribute to understanding and resolving, using the game of 'prisoner's dilemma' as a model. It is the game which clearly shows that a group of rational egoists can end up worse than a group of actors that acts prima facie contrary to their own interests. 'Prisoner's dilemma' demonstrates why society and law has the need for coordination as well as mechanisms for co-operation. WTO member states put emphasis on the process of liberalization conducted in the framework of regional trade agreements (RTAs); at the same time, their participation in WTO negotiations is not effective and efficient enough to make a breakthrough in the multilateral framework. A solution of the game for Member States is not to cooperate: i. e, liberalization is primarily achieved through regional agreements rather than within the WTO. The rational decision of the Member States (opting for a regional approach) has resulted in a suboptimal result, which is a basic characteristic of the game model based on a prisoner's dilemma: in this case, the optimal solution would be cooperation through a multilateral framework (World Trade Organization).
BASE
Soft law, as law not legally binding in the traditional sense, can be approached in a systematic perspective. Particularly, soft law raises two central issues: the mechanisms of compliance to soft law and its relationship with the law, or, better, with hard law, that is law legally binding. In European Union order the systematic perspective emerges with greater clarity: European soft law regulates relations between the European institutions; it is halfway between the sources of law and institutional gover nance. In the European dimension, soft law is a particular tool that removes an original "vice of competence" of the Union. In this way soft law recalls the implied powers of the European institutions, as it erodes in the same way the spheres of competence of the Member States. But even at national level, the lack of binding force in the traditional sense hides the political force of soft law: soft law represents a typical source for legal order which asks for instruments other than the formal procedures of constitutional institutions.
BASE