Francesca Caroccia (L'Aquila): „The Use of General Clauses in the Age of Globalization: The role of judges and political choices“

Abstract

The process of globalization has been ongoing for a long time and brings about important consequences at a juridical level. Among these, there is a necessity to rethink the relationship between law, the power of a judge and private autonomy. In this perspective, the aim of my research is to study the relationship between globalization of law and general clauses, i.e. the role of general clauses in the legal systems – both national and international – in a globalized context. In every legal system, general clauses allow the interpreter to carry out a creative function. General clauses also comply with the need of justice by including ethical or moral issues in private bargains; furthermore, they allow legal systems to maintain a good level of flexibility. However, to avoid any risk of arbitrariness, this creative function should be limited through the use of standards of evaluation which characterize the context of reference. These standards of evaluation could be juridical or non-juridical (e.g.: social) parameters, but in any case they reflect the historical and the social context in which the judge works. At a national level, a judge’s discretion can be limited through the use of the typical values of the legal system concerned (often identified with constitutionally recognized principles and values). In the age of globalization, however, the problem is to determine new standards of evaluation. In absence of a particular system of values, the meaning of norms and general clauses only resides in the discretion of the judge. In this perspective, the risk is that the judge gives political answers or that market logic imposes its rules without any possible control. The principal aim of this research is to analyze how general clauses act in a globalized context, and to verify how judges use the discretional power that general clauses grant them, in order to find solutions capable of reducing the judge’s discretion and of limiting the interference of market logic.

Adj. Prof. Dr. Francesca Caroccia

Curriculum Vitae

Francesca Caroccia studied law at the University of La Sapienza in Rome and obtained her doctoral degree in 2004 with a dissertation entitled “L’interpretazione del contratto nei Principi UNIDROIT dei contratti commerciali internationali. Regole emeneutiche tra autonomia ed eterointegrazione” at the faculty of law of the University of Molise. Since 2008, Francesca Caroccia is adjunct professor for private law at the University L’Aquila. Further, she has been practicing law since 2005, acting, inter alia, as legal advisor to the Italian minister of the interior from 2006 to 2008. In 2009, Francesca Caroccia was guest professor for international law and competition law at the University of Toulouse. Moreover, she is a member of the editorial board of “Droit & Société”. Since July 2013, she is a fellow at the Käte Hamburger Center for Advanced Study in the Humanities “Law as Culture”.

Selected Publications

• Contratto d’opera intellettuale, in: F. Marinelli, F. Caroccia (Eds.): Il lavoro autonomo. Contratto d’opera e contratto d’opera intellettuale, in Trattato del Consiglio nazionale del notariato diretto da P. Perlingieri, Naples: ESI (forthcoming).
• Translation of the volume by T. Kirat: Quale diritto per l’economia? (original title: Economie du droit, with an introduction by G. Alpa, Paris: La Découverte 1999), Milano: EGEA 2013.
• Ricerche in tema di elementi accidentali, L’Aquila: TEXTUS 2012.
• Translation of the work by A.-J. Arnaud: Governanti senza frontiere. Tra mondializzazione e post-mondializzazione (original title: Critique de la raison juridique 2: Gouvernants sans frontières. Entre mondialisation et post-mondialisation, Paris: LGDJ 2003), Naples: ESI 2011.
• L’interpretazione del contratto, Naples: ESI 2006.