Senior Lecturer in International Economic Law
(Currently on Sabbatical 2017/2018)

LLM, PhD
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Biography

Dr Filippo Fontanelli read Law at the University of Pisa (Law Degree and Advanced Law Degree, in 2004 and 2006) and at the Sant'Anna School (Diploma di Licenza and PhD 2008 and 2012). He worked at Cleary, Gottlieb, Steen and Hamilton LLP (Rome office) from 2007 to 2009. He passed the bar exam in Italy (Rome). He holds an LLM degree from the New York University School of Law, where he served as Hauser Global LLM Fellow and was awarded the Jerome Lipper Prize. He worked as university trainee at the International Court of Justice (The Hague), assisting H.E. Judge Cançado Trindade and H.E. Keith (2010/2011).

Before joining the Law School of the University of Edinburgh, Dr Fontanelli lectured law at the School of Law of the University of Surrey (2012-2014), where he taught public international law, law of the World Trade Organization, EU law, international law of foreign investment protection and international law of human rights protection.

Dr Fontanelli is a fellow of the Higher Education Academy, a member of the Centre for Judicial Cooperation of the European University Institute of Fiesole (Italy) and a member of the International Law Association. He is member of the Faculty of the Master in International Law of the Universidad La Sabana (Bogota) and visiting lecturer at the Unviersity of Stockholm. Dr Fontanelli is co-rapporteur of the ILA Committee on the Procedure of International Courts and Tribunals.

Dr Fontanelli welcomes PhD proposals in the areas of international economic law and public international law.

 

Biography

Dr Filippo Fontanelli read Law at the University of Pisa (Law Degree and Advanced Law Degree, in 2004 and 2006) and at the Sant'Anna School (Diploma di Licenza and PhD 2008 and 2012). He worked at Cleary, Gottlieb, Steen and Hamilton LLP (Rome office) from 2007 to 2009. He passed the bar exam in Italy (Rome). He holds an LLM degree from the New York University School of Law, where he served as Hauser Global LLM Fellow and was awarded the Jerome Lipper Prize. He worked as university trainee at the International Court of Justice (The Hague), assisting H.E. Judge Cançado Trindade and H.E. Keith (2010/2011).

Before joining the Law School of the University of Edinburgh, Dr Fontanelli lectured law at the School of Law of the University of Surrey (2012-2014), where he taught public international law, law of the World Trade Organization, EU law, international law of foreign investment protection and international law of human rights protection.

Dr Fontanelli is a fellow of the Higher Education Academy, a member of the Centre for Judicial Cooperation of the European University Institute of Fiesole (Italy) and a member of the International Law Association. He is member of the Faculty of the Master in International Law of the Universidad La Sabana (Bogota) and visiting lecturer at the Unviersity of Stockholm. Dr Fontanelli is co-rapporteur of the ILA Committee on the Procedure of International Courts and Tribunals.

Dr Fontanelli welcomes PhD proposals in the areas of international economic law and public international law.

 

Courses Taught

EU Fundamental Rights Law (LLM)

International Law and Global Affairs (Honours)

WTO Law (Honours)

PhD Supervisees

Pascal Kurt Gotthardt  'Climate change and the World Trade Organization'

Yawen Zheng  'China's approaches to construct balanced investment treatment rules and responding strategies in investment arbitration'

Books and Reports

Filippo Fontanelli, Matej Avbelj, Giuseppe Martinico, Kadi on Trial: A Multifaceted Analysis of the Kadi Trial, (Routledge, 2014)
Abstract: The judgment of the European Court of Justice concerning the Kadi case has raised substantive and procedural issues that have caught the attention of scholars from many disciplines including EU law, constitutional law, international law and jurisprudence. This book offers a comprehensive view of the Kadi case, and explores specific issues that are anticipated to resonate beyond the immediate case from which they derive.The first part of the volume sets out an analysis of the new judgment of the Court, favouring a "contextual" reading of what is the latest link in a judicial chain. The following three parts offer interdisciplinary accounts of the decision of the European Court of Justice, including legal theory, constitutional law, and international law. The book closes with an epilogue by Ernst-Ulrich Petersmann, who studies the role of the Kadi case in the methodology of international law and its contribution to the concept of global justice.The book brings together legal scholars from a range of fields, and discusses pressing topics such as the European Union’s objective of ‘the strict observance and the development of international law’, the EU as a site of global governance, constitutional pluralism and the protections of fundamental rights.

Filippo Fontanelli, Giuseppe Martinico, The ECJ Under Siege: New Constitutional Challenges, (Icfai University Press, 2009)
Abstract: This book focuses on four challenges faced by the European Court of Justice: the Reform Treaty, the enlargement, the relationship with other courts and the recent threat to security represented by the rise of the international criminal network.The Reform Treaty’s scope and purpose are much more limited than the Constitutional Treaty’s ones, however, it still intends to bring certain significant changes in the life of the Union. Many essays and some commentaries already exist on this Treaty (although the Reform Treaty has not yet come into force), but they tend to limit the new Treaty’s provisions in a descriptive fashion, whilst the aim of this work is to study the impact of the Reform Treaty on the ECJ’s activity. The enlargement had a double immediate impact on the ECJ: it caused the increase of the judges’ number and the introduction of new legal cultural elements that could result in affecting the legal reasoning and the argumentative techniques used by the European judges. Another delicate aspect is the status of the network of the European and non-European courts: judicial interactions between the ECJ and the other judicial actors are becoming more and more important in light of the progressive transformation of the EU. On the one hand, in fact, the “humanization” of EC Law (i.e. the increasing relevance of the human rights discourse in the EC activity) triggered the necessity to deal with the issue of the consistency between EC law and ECHR. On the other hand, the discipline of the WTO requires the consistency between the action of WTO bodies and the ECJ, and a new set of criteria to harmonize the reciprocal influence of their respective legal orders. Finally, the concern for security spread after the rise of international terrorism, along with the birth of a European criminal law make it necessary to analyze the potential conflict between rights and security and the de-pillarization process, two factors that invest the ECJ with a fundamental role in these sensitive matters.

Filippo Fontanelli, Giuseppe Martinico, Paolo Carrozza, Shaping Rule of Law Through Dialogue: International and Supranational Experiences, (Europa Law Publishing, 2009)
Abstract: The process of fragmentation of the international legal order and the absence of constitutional devices governing the connections between the various legal regimes can be reduced to a rational picture only through the activity of the judges. Against this background, the judges play a crucial role in creating connections between legal regimes and proceedings. The metaphor of dialogue has been vastly used by the literature and this concept was variously understood in different meanings: vehicle for transplants, informal way of communication between judicial and political bodies, new paradigm of judicial relations between actors not belonging to the same legal order. Starting from this assumption we attempted to put together scholars belonging to different fields of research (Constitutional Law, EU Law, WTO Law, Public International Law, Jurisprudence) in order to carry out a comprehensive appraisal of this phenomenon, and to provide a wide picture of the latest development of the role of the judges in the international legal order.

Articles

Filippo Fontanelli, Attila Tanzi, 'Jurisdiction and admissibility in investment arbitration: A view from the bridge at the practice', (2017), The Law and Practice of International Courts and Tribunals, Vol 16, pp 3-20
Abstract: The jurisdiction of international courts and tribunals and the admissibility of inter-State claims under international law are central to international adjudication, operating as a gateway to the litigation on the merits – the end goal of the proceedings. Still, these concepts remain inherently under-defined, and can be shaped in multiple ways to formulate preliminary objections in international litigation in general. International investor-State arbitration adds specific aspects and complexities to the issue. This introductory contribution accounts for the theoretical deficiencies underpinning the notions of jurisdiction and admissibility with a special focus on international investment arbitration, and introduces the selected case-studies which form the subject of this Special Issue’s articles. The recent Urbaser award is also used as an example of theunexplored potential of novel – and critical – legal argumentation relating to the jurisdiction of investment tribunals.

Filippo Fontanelli, 'Reflections on the indispensable party principle in the wake of the judgment on preliminary objections in the Norstar case ', (2017), Rivista di Diritto Internazionale, Vol 100, pp 112-132
Abstract: In the Norstar case, ITLOS dismissed Italy’s attempt to invoke the indispensable party objection at the jurisdictional stage. The Tribunal’s finding that Spain (which did not partake in the proceedings) merely aided or assisted Italy in the execution of the acts under review largely prejudged this conclusion. The Tribunal’s statement that the responsibility of Spain did not have to be assessed in order to determine Italy’s position is consonant with the established treatment of this objection in the case law of the ICJ, since the Monetary Gold case. An analysis of the judicial tests and heuristics used to apply this objection reveals two aspects about its nature and function. First, the objection could equally go to the jurisdiction of a tribunal or to the admissibility of the claim. Hence, it is not surprising that parties and judges use both characterisations interchangeably. Second, and in spite of the Court’s own proclamations, the principle is used to preserve the legitimacy of the Court’s consensual jurisdiction, rather than the legal position of third parties. The latter undoubtedly benefit from the principle’s sparse application, but cannot count on it to safeguard their interests from judicial interference in all instances.

Filippo Fontanelli, Koorosh Ameli, Ilias Bantekas, Horia Ciurtin, Nikolaos Lavranos, 'Lights and shadows of the WTO-inspired International Court System of Investor-State Dispute Settlement ', (2016), European Investment Law and Arbitration Review, Vol 1, pp 189-262

Filippo Fontanelli, Paolo Busco, 'The Function of Procedural Justice in International Adjudication ', (2016), The Law and Practice of International Courts and Tribunals, Vol 15, pp 1-23
Abstract: This article surveys the notion of procedural justice in international adjudication. The literature mainly focuses on the domestic intimations of procedural justice. Our primary concern is to retrace its essence and reposition the concept in the international legal order, stripped of the idiosyncrasies deriving from the contingencies of domestic adjudication. The article first frames the basic notion and function of procedural justice, drawing from legal theory and legal-psychological studies. It shall be explained how procedural principles – separately and in addition to fair substantive norms – are essential to preserve the justice of the legal system. Also, we describe the specific role that procedural fairness has in increasing the perceived legitimacy of the adjudication process and, in turn, the legal order and public authorities at large. The explanation follows that of the intrinsic relativity of procedural principles, due to the contingent nature of justice in any given time and society. The two-way feedback between community values and prevailing procedural norms is described, in order to introduce the discussion of procedure in a specific community: the international legal order.Examining the function of procedural justice in the international system of adjudication requires distinguishing it from that in domestic systems in at least four aspects: the theory of sources; the function of procedural justice in a system of decentralised authority; the dual role of States as parties and rule-makers; and the variation of procedural norms across international legal sub-regimes. These aspects are briefly explored to provide the basic coordinates of the study and to lay the foundation for further research.

Filippo Fontanelli, 'The Mythology of Proportionality in Judgments of the Court of Justice of the European Union on Internet and Fundamental Rights ', (2016), Oxford Journal of Legal Studies, Vol 36, pp 330-360
Abstract: Proportionality is the tool of choice for the EU Court of Justice’s review of measures affecting the enjoyment of fundamental rights. The use of proportionality is normally beneficial, as it ensures that public authorities pursue public policies without any avoidable waste of fundamental rights protection. In the field of internet-based activities, however, certain recurrent elements make proportionality unfit for the purpose. This article argues against the systematic recourse to the mythology of proportionality in the judgments of the Court of Justice of the EU.Most instances of putative proportionality assessment are in fact window-dressing for pragmatic or policy-based arguments. The claim relies on a critical reading of the recent case law of the Court in internet-related disputes. Accordingly, it is preferable to abandon the proportionality test when certain factual conditions—which are commonplace in the digital milieu—prevail.

Filippo Fontanelli, Kanstantin Dzehtsiarou, 'The Regime of Long-Term Family Visits for Prisoners Serving Life Sentence: Vinter is Coming (Back)', (2015), European Human Rights Law Review, pp 163-173
Abstract: With Vinter v United Kingdom the Grand Chamber of the European Court of Human Rights recently re-defined the standard governing whole-life imprisonment in the Member States of the Council of Europe. The obligation found in Vinter to review life sentences, even those without parole, points to a gradual shift from retribution to rehabilitation, which must affect other aspects of the life of individuals serving whole-life tariffs. We argue that the principle irradiating from Vinter should reach even further and redefine prisoners' rights under art.8. Our modest claim is that the notion of the right to hope implies all prisoners' right to benefit from rehabilitation programmes, and in particular to enjoy long-term family visits, including unsupervised visits by family members of the inmate and conjugal visits.

Filippo Fontanelli, Giuseppe Bianco, 'Converging Towards NAFTA: An Analysis of FTA Investment Chapters in the European Union and the United States', (2014), Stanford Journal of International Law, Vol 50, pp 211-245
Abstract: The present study is concerned with the evolution of investment chapters of Free Trade Agreements (FTAs). Our purpose is to observe the structure and recurrent patterns of the normative content of these chapters in order to ascertain and analyse certain trends. The sample of agreements reviewed is limited to the investment agreements concluded (or about to be concluded, when there is sufficient information) by the two major importers and exporters of Foreign Direct Investment (FDI)-the United States and the European Union. After an overview illustrating the history and layout of the EU and U.S. systems of investment protection (Part I), we provide a breakdown of the provisions that create a gulf between the two models (Part II). In Part III, we describe and analyse the current impasse in the European Union's newly centralised management of investment policies. Our central claim is then illustrated in Part IV, where we argue that the U.S. (NAFTA-like) template is likely to prevail over the European one, in the long run, because it fills the gaps in incomplete treaty regimes like those recurrent in European Bilateral Investment Treaties (BITs). The Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union seems to confirm this trend. In light of these remarks, we conclude that, in the future, pluri- and multilateral negotiations will increasingly lean towards the NAFTA model and gradually distance themselves from the European BIT standard.

Filippo Fontanelli, 'National Measures and the Application of the EU Charter of Fundamental Rights – Does curia.eu Know iura.eu? ', (2014), Human Rights Law Review, Vol 14, pp 231-265
Abstract: Even after the entry into force of the European Union Charter of Fundamental Rights (‘the Charter’), some doubts regarding its legal effects are still looming large. Among them is whether, and to what extent, the Charter applies to national measures that are connected to European Union (EU) law but are not intended to implement it directly. This legal uncertainty affects the position of individuals seeking to assert their fundamental rights before a national judge. In particular, whereas the application of the Charter warrants disapplication of the conflicting national measures, the same remedy is often not available when plaintiffs rely only on other fundamental rights instruments (like the European Convention on Human Rights or national constitutions). This article offers a bottom-up account of how this hermeneutic cul de sac, often discussed at the theoretical level, influences adjudication in ordinary courts. It also appraises the outcome of two recent disputes that hinged precisely upon the application of the Charter and its relationship with other fundamental rights instruments (Kamberaj, Fransson). The aim is to ascertain whether national judges can derive some interpretive guidance from these precedents. It is submitted that the Kamberaj judgment fails to provide guidance on Article 51(1) of the Charter, and that the Advocate General’s laudable attempt at conceptualisation in Fransson is ultimately impracticable, at least in the short term. The decision in Fransson is maybe showing some goodwill on the part of the Court of Justice of the European Union (CJEU), but is insufficient. In the absence of a reliable test, it is argued that the CJEU should be pressed to clarify the scope of application of the Charter on a case-by-case basis through its preliminary reference jurisdiction. The recent case-law suggests instead that the CJEU prefers to maintain a hands-off approach. This is undermining the advent of the Charter as a discrete legal instrument (as opposed to an interpretative supplement) and is contrary to the CJEU’s mandate to help national judges in the interpretation of EU law. Besides, the Bundesverfassungsgericht’s reaction to Fransson shows that the lack of a clear test can encourage member states to attempt a counter-colonisation of areas falling within the scope of EU law, as far as human rights protection is concerned.

Filippo Fontanelli, 'The Implementation of European Law by Member States under Article 51(1) of the Charter of Fundamental Rights ', (2014), Columbia Journal of European Law, Vol 20, pp 193-247
Abstract: The precise scope of application of the Charter of Fundamental Rights of the European Union is, in many respects, still uncharted. In particular, it remains largely unclear to which national measures the Charter applies. The relevant instruction contained in art. 51(1), referring to the elusive concept of the "implementation of EU law," has so far resisted all hermeneutic efforts. As a result, it is difficult to predict whether or not a domestic measure that has legal effects touching upon the sphere of matters regulated by EU law, but that was not adopted to implement EU law directly, will be bound by the Charter. This article traces this state of legal uncertainty to the ambiguous case law of the Court of Justice, which has hesitantly confirmed case law on the application of fundamental rights to national measures as general principles of EU law, and, lately, has sought refuge in the equivalence between the application of the Charter and the application of EU law at large (Fransson, Texdata). It is argued that this minimalist approach simply begs the question of whether or not EU law applies in any specific case, a gateway question that the Court of Justice has been historically ill-equipped to answer. This congenital difficulty has carried over in the interpretation of art. 51(1) of the Charter, and has, so far, left national judges without guidance, an undesirable result for the consistent application of fundamental rights across the Union and its Member States. The analysis is updated as of the Siragusa order of March 2014, which seems to call into question the Fransson precedent, and proposes a new composite test, inspired by several cases of the 1990s.

Filippo Fontanelli, 'Implementation of EU Law through Domestic Measures after Fransson: The Court of Justice Buys Time and 'Non-Preclusion' Troubles Loom Large', (2014), European Law Review, Vol 39, pp 782-800
Abstract: In 2014, the Court came to terms with the application of the Charter of Fundamental Rights to domestic measures in the wake of Fransson. The five cases discussed here provide an overview of the Court's subsequent interpretation of the "implementation" link between EU law and national measures, required for the Charter to apply. Arguably, the Court is playing by ear and eludes the real legal riddle: how to determine with certainty the application of EU law at large in a specific case. Because the application of the Charter depends on the application of EU law, this issue deserves more attention. In particular, the precise notion of the application of EU law could help to identify non-preclusion cases, i.e. those in which EU law applies to, but does not prohibit, domestic measures. Only in these cases does the Charter have added value as an autonomous standard of review.

Filippo Fontanelli, 'Criminal Proceedings Against Albers ', (2013), American Journal of International Law, Vol 107, pp 632-638

Filippo Fontanelli, 'Hic Sunt Nationes: The Elusive Limits of the EU Charter and the German Constitutional Watchdog', (2013), European Constitutional Law Review, Vol 9, pp 315-334
Abstract: The Fransson decision confirms that the Charter applies to national measures that do not transpose EU legislation and happen to fall within its scope only incidentally. Regardless of the relative conservativeness of this finding, its implications are fated to displease member states and the reasoning of the Court was not compelling enough to prevent distinguishing and criticism. The first attack was promptly brought by the German Constitutional Court, which in its anti-terror database decision made clear that it subscribes only to a restrictive reading of Fransson and does not accept that the Charter applies to domestic measures whose objectives are set domestically, even if their purposes are shared by EU legislation.

Filippo Fontanelli, 'The Invocation of the Exception of Non-Performance, A Case-Study on the Role and Application of General Principles of International Law of Contractual Origin ', (2012), Cambridge Journal of International and Comparative Law, Vol 1, pp 119-136
Abstract: This article focuses exclusively on the exceptio defense and uses it as a pretext to observe the process of identification, interpretation and application of general principles of international law drawn from domestic civil law doctrines. It argues that, in the FYROM v Greece case, it is argued that this step-by-step analysis, if performed by the Court, would have not changed the outcome of the case, a different approach by the ICJ could have helped to further elucidate the role of general principles in international law.

Filippo Fontanelli, Eirik Bjorge, 'International Court of Justice, Application of the Interim Accord of 13 September 1995 (the Former Yugoslav Republic of Macedonia v Greece) judgment of 5 December 2011 ', (2012), International and Comparative Law Quarterly, Vol 61, pp 775-784

Filippo Fontanelli, 'Santi Romano and L'ordinamento giuridico: The Relevance of a Forgotten Masterpiece for Contemporary International, Transnational and Global Legal Relations', (2011), Transnational Legal Theory, Vol 2, pp 67-117
Abstract: This article has two main purposes. The first is to provide an introduction to Santi Romano's seminal work L'ordinamento giuridico, first published in 1917, in which the author develops the main tenets of his thought, namely institutionalism and pluralism. The first part of this essay accordingly provides an outline of Romano's theories; this account is intended to be sufficiently robust to benefit an English-speaking readership for which there is still no translated version of L'ordinamento giuridico available. Embedded within the overview of Romano's theories is a discussion of the criticism they have attracted and the influence they had on Romano's contemporaries, and to that extent this first part constitutes a contribution to the history of ideas. The second purpose is to assess the relevance of Romano's theories for the current study of international, transnational and global law. It is argued that Romano's particular conception of law as an institution can be helpful in the current debate on the unity and systematisation of international law, whereas his reflections on the plurality of legal orders contained early kernels of insight for present-day research on the fragmentation of international law and the rise of atypical global governance regimes.

Filippo Fontanelli, 'Between Blasphemy and Judicial Activism: Jesus and the Mosaic Law', (2011), International Journal of Private Law, Vol 4, pp 469-487
Abstract: It has been authoritatively demonstrated that Jesus was charged with blasphemy by the Sanhedrin based on the assumption that he was teaching his followers to disregard the Law. In their defence of Jesus' role as a teacher of the Law, St. Augustine and St. Thomas strived to reject this reading, resorting to the distinction between law-making and interpretation of the law. This approach is a common place of modern legal studies, and through an assessment of the current debate on judicial activism in certain areas of international law, it is possible – in retrospect – to reframe and appreciate Augustine and Thomas' effort, as well as to fully understand the historical and legal profile of Jesus' indictment.

Filippo Fontanelli, 'The European Union's Charter of Fundamental Rights Two Years Later ', (2011), Perspectives on Federalism, Vol 3, pp 22-47
Abstract: After the entry into force of the Lisbon Treaty, the European Union’s Charter ofFundamental Rights has found a place among the formal sources of EU law, and has become a standard of review for the validity of EU acts. This article aims to analyse whether this momentous change is reflected in the judgments of the Court of Justice, and more precisely how the Luxembourg judges are dealing with this source. From an analysis of the cases, it emerges that there still are some uncertain issues, such as the extent of the competences of the EU, the paradigmatic function of the case-law of the European Court of Human Rights, the possibility to bypass the limits of the European Convention’s directeffect through the application of the Charter’s equivalent rights.

Filippo Fontanelli, 'ISO and Codex Standards and International Trade Law: What Gets Said is Not What's Heard', (2011), International and Comparative Law Quarterly, Vol 60, pp 895-932
Abstract: This article challenges the rhetoric of hardening, according to which international standards become binding through WTO endorsement. The analysis of the system of presumptions set up in the Technical Barriers to Trade Agreement and Sanitary and Phyto-Sanitary Agreement reveals that international standards are actually used as a ‘ceiling’ rather than a ‘floor’ benchmark of protection, contrary to their original spirit. They represent a codified and agreed yardstick for least trade-restrictive measures, a minimum compromise between the regulatory regime and the trade litigation machinery. It follows that their nature—at least within the WTO system—is irreversibly distorted; they are treated as facts rather than as safety or quality devices.

Filippo Fontanelli, Giuseppe Martinico, 'Between Procedural Impermeability and Constitutional Openness: The Italian Constitutional Court and Preliminary References to the European Court of Justice', (2010), European Law Journal, Vol 16, pp 345-364
Abstract: On 15 April 2008, the Italian Constitutional Court (ICC) raised for the first time a preliminary question to the European Court of Justice (ECJ). This decision (see judgment No 102/2008 and order No 103/2008) represented a turning point in the ICC's case-law, and calls for a careful assessment of the motives backing such revirement as well as of the legal reasoning that the Italian judges used to wrap it up without repudiating their previous case-law. In addition to this preliminary analysis, the aim of this essay is to explore two themes: i) the developments of the ICC's case-law as regards the role of Community Law and the ECJ, and ii) the appraisal of the interplay between the ICC and the ECJ in the light of the notion of 'interpretive competition'.