Trento Student Law Review

A Comparative Study of the Legal Evolution and Cognate Offenses of “Picking Quarrels and Provoking Trouble”

Setsen Kiyoutes — 2024-05-28

In recent years, the discussion on “picking quarrels and provoking trouble” has become increasingly close in Chinese society and attracted the attention of legal scholars as well as deputies to the National People's Congress (NPC). Indeed, since 1997, when this offense was first criminalized in mainland China, it has been regulated and refined by the Amendment (VIII) to the Criminal Law of the People's Republic of China and also by several related judicial interpretations. However, its regulation is still ambiguous and open-ended, with its boundaries easily blurring with other crimes and leading the academia and social communities to believe that it has evolved into a new "pocket crime", frequently employed by a judiciary that lacks oversight, suppresses dissent and restricts freedom of expression. Therefore, it is crucial to study, from both legal and historical perspectives, analogous social control laws existing in mainland China across different periods and legal frameworks in order to reveal their social impact and pave the way for the establishment of the rule of law. In this direction, this paper adopts an empirical and comparative approach to the analysis of the legal evolution of “picking quarrels and provoking trouble”, starting from its legislative origins and background, while, on the other hand, focusing on the most controversial issues concerning this crime and the discussion on its survival or abolition.

Impunity for Sale: Are Deferred Prosecution Agreements a Way for Companies to Evade Liability?

Mauro Fragale — 2024-05-28

Deferred Prosecution Agreements (DPAs) have emerged as a contentious legal instrument, as they allow corporations to negotiate their way out of criminal liability without facing the full weight of a trial. This paper aims to explore the inherent benefits of DPAs – such as the potential for corporate reform, cooperation with law enforcement, preservation of jobs, and economic stability – while highlighting the criticisms, including concerns about accountability, transparency, and the perception of impunity. This article argues that, when appropriately structured and administered, DPAs provide benefits that significantly outweigh their drawbacks, as they offer a practical and flexible solution for addressing corporate wrongdoing where traditional criminal prosecution may be impossible or excessively burdensome. Nevertheless, their current limitations call for legislative amendments aiming at achieving a fairer and more comprehensive legal framework. These changes should address issues such as ensuring transparency in DPA negotiations, establishing clear criteria for DPA eligibility, and enhancing judicial oversight.

Rivoluzione Silenziosa: le Mafie nell’Epoca High-Tech

Beatrice Pattaro — 2024-05-28

Normally, mafia-style organized crime assumes, in our minds, a well-defined image given by the traditional representations that are still shown to us in films today. But is this still the case today? It is clear that things are changing, that it is increasingly difficult to see those classic forms of organized crime in a world so different from that of 40 years ago. This is because the mafias are differentiating, they are taking on different forms, they are increasingly transparent from a double point of view: it is difficult to trace their movements in the commission of those crimes that are part of a single criminal design, just as it is difficult to trace those classic forms of intimidation because the communications between members of the association, but also with outsiders, they are different. This transparency can only be explained in one way: technology, new forms of communication, have pushed this change to the point of leading the mafias to conform to our behavior. What makes criminal activity go unnoticed are the increasing difficulties in differentiating the behaviors that are now considered habitual and those that, on the other hand, are typical behaviors of mafia associations. It is now clear that a change, a turning point, a moment of reflection is absolutely necessary to be able to look beyond what we are used to doing.

The EU’s CSDDD: Lawful Extraterritoriality or Jurisdictional Overreach?

Enrico Zonta — 2024-05-28

The European Union (EU), in the continuous effort to assert itself as a global regulatory power, is attempting to regulate Corporate Sustainability Due Diligence through a Directive proposed by the European Commission in February 2022 (CSDDD), and currently under consideration by the co-legislators. Such Proposal envisages obligations for both EU and non-EU companies falling under its personal scope to identify, mitigate, and bring to an end all adverse effects to human rights and sustainability arising out of the company’s own operations, its subsidiaries, and value chain regardless of the location, pending sanctions and civil liability in the EU. Given the far-reaching obligations regulating conduct abroad, it is essential to ascertain whether the EU is engaging in a lawful exertion of extraterritorial jurisdiction, or if the CSDDD Proposal would be too far of a jurisdictional encroachment into other States’ sovereignty. After reviewing the relevant triggers of application of the Directive both under international and EU law, it is submitted that the Proposed Directive does not appear to be manifestly violating international law, without prejudice to discussions on the current amendments in the course of the ordinary legislative process.

The Most-Favored-Nation Treatment Standard

Camilla Mantese — 2024-05-28

In this article, we will analyze the importance of the Most Favored Nation (MFN) treatment standard in the context of international investment law as an instrument to create equal competition between foreign investors. We will investigate the history of this standard, and the changes it underwent during different moments of history. Our aim, through this article, is to understand how this standard has supported the liberalization of world trade. In furtherance of the aim, we will analyze the connection between the two relative standards, the National Treatment Standard and the Most- Favored-Nation Treatment Standard, as they are both used to create an equal playing field among foreign investors, and between foreign and national investors. We will examine the most important MFN clauses in different investment law agreements and analyze their main components and differences, together with the exceptions and limits of some MFN clauses. We will then focus on some of the most important decisions regarding the possibility of extending a Tribunal’s jurisdiction through an MFN clause and shortening the waiting periods. Our aim through this article is to understand how this standard has supported the liberalization of world trade.

Preface to Volume 6, Issue 1

Rossella Borella — 2024-05-28

Dear Readers,

I am pleased to present to you Volume 6, Issue 1 of the Trento Student Law Review. This issue marks the beginning of the work of a new generation of editors, who, with great enthusiasm and following in the footsteps of their predecessors, are committed to continuing this ambitious project. I wish to express my gratitude to the previous generation of aspiring jurists for the passion and teachings they have imparted. Their commitment and dedication continue to be a source of inspiration and guidance for the future of the TSLR. The generational shift demonstrates the value and necessity of a legal journal like this, capable of addressing the most current and challenging issues of our time.

The articles presented in this issue offer an in-depth view of critical topics, treated with academic rigor and innovative perspectives. The authors contribute with analyses aimed at stimulating debate and promoting a greater understanding of contemporary legal challenges.

In particular, in the first essay, Setsen Kiyoutes explores the evolution and ambiguities of the crime of "Picking Quarrels and Provoking Trouble" in China, used to suppress dissent and limit freedom of expression.

The second article analyzes Deferred Prosecution Agreements as legal instruments for companies to avoid full criminal liability. With a careful analysis, Mauro fragale and Valentina Grilli highlight the advantages and criticism of such agreements and propose legislative changes to improve their transparency and application.

Subsequently, Beatrice Pattaro examines the transformation of mafia organizations in the technological era, focusing on how technology and new forms of communication make it more difficult to identify mafia activities.

In the fourth essay, Enrico Zonta evaluates the Eu Directive proposal on Corporate Sustainable Due Diligence and its extraterritorial legal implications, questioning whether it represents a legitimate exercise of extraterritorial jurisdiction or an excessive intrusion into the sovereignty of other States.

Finally, Camilla Mantese delves into the standard of Most- Favored-Nation Treatment in international investment law, analyzing its history, evolution, and role in promoting equal treatment between foreign and national investors.

The Trento Student Law Review wishes to express its most sincere gratitude to the authors for their valuable contributions and for entrusting our editorial board, and to the University of Trento and our Faculty of Law for their continued support.

To conclude, I extend my heartfelt thanks to the new board, all the editors and collaborators for their tireless work and dedication in making this publication possible.

The collective commitment ensures that our journal continues to be a valuable source of legal knowledge and debate.

I wish you a stimulating and fruitful reading experience.

Sincerly,

Rossella Borella

Editor-in-Chief