Proprietary fragmentation and public-private management of UNESCO sites owned by the Italian state

This article is intended to develop the topic of the relationship between UNESCO sites owned by the Italian state and the profiles of their profitability and sustainability. If it is true that a common characteristic of Italian (and not only) UNESCO sites is the heterogeneity of the legal titles of ownership of such objects, then at the same time, for UNESCO sites belonging to the Italian state (25 out of 55: 45,55 %), the heterogeneity of management models is added to the multiplicity of legal regimes. In this case, the plurality of these properties affects both the valorization of the object and the quality of its management. The negative consequences of the fragmentation of the management of a UNESCO state site can be grouped as follows: 1) differences in recruitment approaches; 2) differences in management models; 3) qualitative differences in work experience; 4) differences in economic profitability; 5) differences in the accounting system. If such diversity is hardly understandable even when objects belong to different institutions, it is even less understandable when they belong to the state. The consequence of the absolute heterogeneity of the legal and organizational framework is the heterogeneity of economic results. The gap is huge and unacceptable: The Etruscan tombs of Tarquinia and Cerveteri bring in the following revenue: € 38 964,84 (2018) and € 57 127,00 (2019). At the same time, the income of the Archaeological Park Colosseum is: € 46 347 249,57 (2018) and € 48 465 096,71 (2019). If it is true that the award of UNESCO site status to a cultural monument is independent, as it should be, of its economic capabilities, then it is also true that increasing its economic profitability contributes to the achievement of the objectives of the UNESCO Convention: the protection and valorization of the cultural heritage object. Hence it is necessary to conduct autonomous financial reporting of UNESCO sites, which is currently absent in many state-owned UNESCO sites or they do not have their own accounting and financial autonomy. In conclusion, the topic of the fragmentation of ownership of the 55 Italian UNESCO sites and its impact on governance and financial returns allows us to explore the actual attention that the national legal system actually attaches to UNESCO sites, that is, the importance that, in addition to official declarations, UNESCO sites have in the domestic legal system.

The civil law form of musharakah as an instrument for direct participation of the Islamic bank in capital: A retrospective analysis and modernity

Conventional banks, which operate under the conditions of interest capitalism, no longer dominate the financial sector. In the 21st century, Islamic banks, which provide services on an interest-free basis, have become their main competitors. In recent years, Islamic banking has grown rapidly even though 30–40 years ago it was only a regional phenomenon that could be found in countries with a predominantly Muslim population. The dispersal of capital by scaling a separate interest-free banking segment is now on the agenda of the Islamic world. It is stimulating the growing social demand for a fair distribution of resources within the community, as well as sustaining, at the same time, resilient economic development. However, the activity of Islamic banks remains a poorly studied and understood phenomenon within the circles of Russian legal science. In this article, the authors reveal the legal nature of the participation transaction involving shirkat al’-inan, while attempting to clarify the notion of using musharakah as a form of civil law, derived from shirkat al’-inan, within the Islamic banking system.

The principle of good faith and fair dealing in English contract law

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.

Community participation in Intangible Cultural Heritage safeguarding

According to the Convention for the Safeguarding of Intangible Cultural Heritage (ICH), social actors are at the core of the ICH. Article 2 proposes a subjective, creative and dynamic definition of heritage based on community, groups and individuals (CGIs), highlighting a spiritual connection: ICH safeguarding must respect the “sense of identity and continuity” of CGIs — the main actors in the process of heritage transmission. This community-based vision of heritage is developed in the text of the Convention, the Operational Directives, and reinforced since 2016 by the Twelve Ethical principles introduced in the Basic Texts. A Convention is much more than a text: it determines political, social and cultural contexts, as well as processes of change. A normative tool conceived as guidelines for governments, permeates social life, becoming a framework for the actions and evolution of civil society. This article reflects on the following case study: the “Tocatì Programme for the Safeguarding of Traditional Games and Sports” (TGS). The programme started in Verona, Italy in 2003, connecting a network of communities and building relationships through the organization of an international event: The “Tocatì Festival of Games in the Streets”. From the beginning, this social movement has strengthened the support of institutions at different levels, connecting people, communities and living traditions with representatives of institutions, researchers, artists and policymakers. The cultural association coordinating Tocatì, Associazione Giochi Antichi (AGA) met the UNESCO ICH Convention in 2007. The author examines what has changed in the framework of the Convention in regard to the history of a community-based process and how the Tocatì experience contributes to the effective implementation of the Convention today. An attempt is made to identify the key factors, actors and steps of the Tocatì cultural, social and political process. This is a story that improves our understanding of the role of civil society in the complex, often conflictual and powerful dynamic of heritage-making.

UNESCO, Intangible Cultural Heritage and the market: Controversies and stumbling blocks

This article considers the relationship between Intangible Cultural Heritage (ICH) and the market in the backdrop of the reorientation of UNESCO’s priorities regarding sustainable development. Based on ethnographic observations of the meetings of the governing bodies of the Convention for the safeguarding of intangible cultural heritage, this work analyses the controversies generated by “risks of over-commercialization” of ICH among actors with normative agency for designing “good” heritage governance. While the need to reconcile market and heritage is officially acknowledged, the inclusion of a particular commercial practice on the UNESCO ICH lists is qualified by many actors as “traumatic”. The debate spurred within the governing bodies of the Convention by the drafting of these documents sheds light on the controversial perception of the relationship between the market and ICH. In considering the idea of “commercialization without over-commercialization” suggested by actors to resolve the tension between heritage and market, this work highlights a constitutive ambiguity of the Convention. Based on the ideas of “misappropriation” and “decontextualization”, this concept is part of the logic of intellectual property. The Convention, however, was explicitly designed within an alternative paradigm emphasizing cultural dynamisms and shared belonging. While heritage entrepreneurs on the ground shift from one regime to the other making a pragmatic and strategic use of legal frameworks based on fundamentally different logics, this inconsistency generates normative conundrums among the actors involved with the official bodies of the Convention, torn between a proprietary and a heritage regime and their different moral economies. In the framework of the Convention, the principle of “commercialization without over-commercialization” embodies therefore a fragile compromise reflecting the tension between different regimes regulating traditional culture.

Dogmatic and political-legal justification of real obligations

The development of Russian civil law allows us to conclude that such an institution of the general theory of civil law as real obligations (obligatio propter rem) is no stranger to domestic law. At the same time, the existence of some relevant legal rules in federal laws and the recent jurisprudence of the Supreme Court of the Russian Federation allows us to confirm the conclusion. It demonstrates that there are more and more examples of real obligations in Russian law. Meanwhile, the possibility of the very existence of real obligations in Russian law remains a controversial issue in the Russian civil law doctrine. In the article, the author, raising the question of the permissibility of the existence of real obligations, systematically analyzes possible dogmatic and political-legal arguments, the answers to which make it possible to find the place of real obligations in the system of Russian civil law. At the beginning of the work, the author turns to the dogmatic grounds for substantiating real obligations. Thus, the author reveals the importance of the structure of the system of property law, the principles of numerus clausus and numerus apertus, the properties of following the law, and of the principle of privity of contract for the existence of the real obligations in the given legal order. In the second part of the article, the author tries to provide a political-legal justification for real obligations. The author compares the legal possibilities that are provided, on the one hand, by the use of real obligations in civil law transactions, and, on the other hand, by the use of limited real rights (for example, servitudes), legal restrictions on property rights and social norms (neighborly norms). In the final part of the article, the author summarizes the conclusions made in the article, coming mainly to the general conclusion that Russian private law does not contain serious dogmatic and political-legal preclusions to the existence of real obligations in the domestic legal order.