The second issue of 2023 of RDIPP (CEDAM, Wolters Kluwer) has just been published and is now available, for its subscribers, at https://www.edicolaprofessionale.com/. The issue features one article, two comments, one obituary, 13 judgments from Italian Courts, 11 annotated summary of EU judgments, several documents and news, as well as one book review.
The Cases in Italian Courts section features judgments on the following topics: companies; duties and taxes; European Union law; foreign law; international abduction of children; jurisdiction; non-contractual obligations; personality rights; power of attorney; public policy; recognition and enforcement of foreign judgments and administrative acts; relations between parents and children; 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 judgments 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.
Article’s summary:
Prof. Yuriko Haga (Professor, Seikei University – Japan), Avatars, Personalities in the Metaverse: Introductory Analysis on Conflict-of-Laws [in English].
When people perform various activities in the metaverse, another world on the Internet, they make avatars as their “proxy”, representing their personality. However, the connection between an avatar and its user is often unclear. In fact, avatars do not necessarily resemble to their user’s figure or face because people can decide its appearance at their disposal. The first question thus arises as to whether the attack on an avatar can be assimilated to an attack on the personality of a user, a person in real world. An avatar should be deemed part of the online personality of its user, and, considering the existing theory of personality rights, it is not completely separate from the person in the real world. Therefore, an attack brought against an avatar can deemed more or less an infringement against the user’s personality. The second question is then how to select the applicable law to such cases. An infringement of personality rights in the metaverse is by nature “international” because users can connect to that virtual “world” from all corners of the world. This leads to a difficulty in determining the place that the connecting factor designates. This paper examines the applicability of actual Japanese conflict-of-laws rule to issues occurring in the metaverse to show its boundary. The traditional theory posits to apply national laws to resolve legal issues, but the world of metaverse is often governed by rules of its own. It follows that the conflict-of-laws theory should now consider the applicability of the rules of other communities, such as the metaverse.
Comments’ summary:
Prof. Pietro Franzina (Full Professor, Catholic University of the Sacred Heart, Milan), La Cassazione muta indirizzo su Incoterms e luogo della consegna dei beni (The Court of Cassation Changes Approach on Incoterms and the Place of Delivery of the Goods) [in Italian].
The ruling by the Joint Chambers of the Italian Court of Cassation examined in this paper (Order No 11346 of 2 May 2023) innovates the Court’s case law regarding the relevance of Incoterms to the determination of the place of delivery of goods for the purposes of the rule of special jurisdiction in Art 7 No 1 of Regulation EU No 1215/2012 (Brussels I-bis). The Court of Cassation has eventually aligned its views on this issue to the interpretation provided by the Court of Justice in Electrosteel, for it acknowledged that the place of delivery must be determined, as a rule, in accordance with the agreement of the parties, whereas, on previous occasions, the Court of Cassation had rather expressed the opinion that the place of delivery normally coincides with the place of the final destination of the goods, and that only by way of exception (and subject to strict standards) the parties should be permitted to agree on a different place of delivery. The Joint Chambers of the Court of Cassation have also asserted, again realigning their approach to that of the Court of Justice, that the Incoterm «EXW» is not merely concerned with the allocation between the parties of the costs and risks of the transaction, but also entails an agreement as to the place of delivery. The ruling, the paper contends, must be welcomed, since it corrects a questionable approach that the Court of Cassation has followed for a long time. Nevertheless, the decision is not entirely convincing. One reason for criticism regards the fact that, like previous rulings of the Court of Cassation, the decision fails to properly distinguish between agreements on the place of performance and choice-of-court agreements. As observed by the Court of Justice in Zelger, only the latter are submitted to special conditions of form, imposed by the Regulation. For their part, agreements on the place of performance need to be concluded in writing only if the law applicable to the contract so provides, which is relatively uncommon. The Court of Cassation, it is suggested, should reassess the formalistic approach it has followed regarding Incoterms, if it is to fully comply with the indications of the Court of Justice.
Federica Sartori (Ph.D. Candidate, University of Pavia), Sull’ammissibilità di un’eterointegrazione tra legge straniera e lex fori in materia di risarcimento del danno non patrimoniale (On the Admissibility of Hetero-Integration between Foreign Law and Lex Fori in Matters of Compensation for Non-Pecuniary Damage) [in Italian].
This article focuses on an order issued by the Italian Supreme Court over the interpretative question about the possible integration of the foreign applicable law with the lex fori for the compensation of non-pecuniary damage. Through the analysis of opposing legal reasonings, this article examines the legal and jurisprudential bases of each thesis, leaning towards a negative solution in the present case according to the principle of the global application of foreign law, while awaiting for the Court to give its final decision in a public hearing on this relevant issue.
Moreover, it features an obituary by Prof. Luigi Fumagalli (Full Professor, University of Milan) of Prof. Riccardo Luzzatto (1935-2022), Professor Emeritus of International law at the University of Milan and Director of the Rivista.
Finally, this issue features the following book review by Prof. Francesca C. Villata (Full professor, University of Milan): P. Beaumont, J. Holliday (eds.), A Guide to Global Private International Law, Hart Publishing, Oxford, 2022, pp. XVI-655.
The Index, both in Italian and in English, is available here.