The second issue of 2022 of RDIPP (CEDAM, Wolter Kluwer) is now available. It features two articles, one comment, 16 judgements from Italian Courts, 9 annotated summary of EU judgements, several documents and news, as well as one book review.
The Cases in Italian Courts section features judgements on the following topics: adoption; contracts, divorce and legal separation; jurisdiction; maintenance obligations; nationality; protection of minors; public policy, recognition and enforcement of foreign judgments and administrative acts; international treaties and general international rules. Please note that the English Index contains the annotated summary of each published decision.
Similarly, EU case law features annotated summary of judgements addressing both private international and procedural matters, as well as judgments on other topics, in which, nevertheless, the Court’s reasoning has an impact of those matters, including all the paragraphs that may be relevant in that respect.
Articles’ summary:
Prof. Costanza Honorati (Full professor, University of Milan-Bicocca) and Giovanna Ricciardi (Ph.D. Candidate, University of Milan-Bicocca), Violenza domestica e protezione cross-border (Domestic Violence and Cross-Border Protection) [in Italian].
Domestic violence has drawn increasing attention both from the law maker and legal scholars. Legal means to prevent domestic violence and protect women have been promoted and implemented at national and supranational level. This article concentrates on seeking and enforcing civil protection measures in cross-border family conflicts. Protective measures are often sought and taken in the State where the prospective victim (and often also the tortfeasor) is habitually resident. PIL issues are however rarely addressed. Regulation (EU) No 606/2013 on mutual recognition of protection measures in civil matters provides for a useful instrument when the need for recognition and enforcement in a different Member State arises at a later stage. Less dealt with is the issue of selecting an appropriate ground for jurisdiction, which is not governed by the mentioned Regulation. The latter issue becomes especially relevant in the very peculiar case of protection measures to be issued in the so-called State of refuge, when a mother challenges a situation of domestic violence as a ground for leaving the State of a child’s habitual residence and searches protection elsewhere. The interplay between domestic violence and abduction cases, a situation quite frequent in practice but rarely addressed in legal literature, is further explored and dealt with.
Prof. Ilaria Viarengo (Full professor, University of Milan), The Coordination of Jurisdiction and Applicable Law in Proceedings Related to Economic Aspects of Family Law [in English].
The article addresses the complex features and problems arising from the combined application of all European and international instruments dealing with divorce and economic aspects of family law. The need to avoid litigation proceedings in different jurisdictions, entailing the duplication of proceedings and costs and the need to have divorce and all the financial aspects governed by the same law are of central importance from a practical point of view. This article provides an analysis of whether and to what extent these two needs can be satisfied with the combined application of the EU family law regulations at issue. Firstly, it deals with some general issues, whose solution could have an impact on the coordination among all these instruments. Consequently, it examines the interplay among rules on jurisdiction and on applicable law, included the role of party autonomy in pursuing coordination.
Comment’s summary:
Curzio Fossati (Ph.D. Candidate, University of Insubria), La residenza abituale nei regolamenti europei di diritto internazionale privato della famiglia alla luce della giurisprudenza della Corte di giustizia (Habitual Residence in EU Private International Law Regulations in Family Matters in View of the Case-Law of the Court of Justice) [in Italian]:
This article deals with the concept of habitual residence, which is in widespread use in the EU Regulations in the field of family law. Firstly, the article gives an overview of these Regulations, and then it analyses the case-law of the CJEU on the criterion of habitual residence referred to children, deceased persons, and spouses. The contribution examines two fundamental elements of the concept of habitual residence identified both by CJEU and scholars: the objective element, i.e. a sufficiently stable presence of a person in a Member State, and the subjective element, i.e. the intention of the person concerned to establish the permanent or habitual center of his or her interests in that place. The article also tries to identify the most suitable method of interpretation of the concept of habitual residence and, in particular, it investigates which approach is more desirable between a uniform approach (which fosters a uniform definition of habitual residence in EU law) and a functional one (which implies an interpretation that takes into account the aim of the disposition in which the concept is used). Ultimately, the Author endorses the solution adopted by the CJEU in the IB case, which combines the aforementioned approaches.
Finally, this issue features the following book review by Dr. Cristina M. Mariottini (Senior Research Fellow, Max Planck Institute Luxembourg for Procedural Law): Henry Deeb Gabriel, Contracts for the Sale of Goods – A Comparison of U.S. and International Law, 3rd ed., Oxford University Press, Oxford, 2022, pp. v-401.
The Index, both in Italian and in English, is available here.