I caratteri della giuridicità nell'era della globalizzazione

The essay examines the new characteristics of civil law in the age of globalisation, in particular three aspects. The first of these is the crisis in the principle of state-centred law as opposed to the growing rise of the new lex mercatoria as the transnational law of of the business community, based on convention and destined to provide uniform regulation of international trading relations, oblivious of national boundaries, and to settle resulting conflicts in front of international courts of arbitration. The second is the crisis of the principle of the nationality of law: the Rome Convention of 1980 makes allowance for law shopping and the citizens of a state may adopt the law of a third state under the terms of a contract, the only exceptions being those imposed by imperative domestic norms. But this limit can be also overcome in cases permitted by special international conventions, as in the case of the Hague Convention of 1985, which enables citizens of Civil Law countries to benefit from Anglo-American trusts. The third is the crisis of the law itself as a source of legality, as contracts between private individuals tend to take their place in many fields of social life, going as far as protecting the general interests shared by the community as a whole; recently, contracts between private individuals have also taken tha place of the state as the source of discipline in the stock exchange, which is now governed by a membership contract drawn up by the private stock exchange management companies and accepted by operators when they join for the purpose of entering negotiations.