The first issue of 2024 of RDIPP (CEDAM, Wolter Kluwer) has been published and is available, for its subscribers, at Edicola professionale (https://www.edicolaprofessionale.com/). It features four articles, one review, one comment, 12 judgments from Italian Courts, 16 annotated summary of EU judgments, several documents and news and one book review.
The Cases in Italian Courts section features judgments on the following topics: European Union law; insolvency; intellectual property; jurisdiction; overriding mandatory provisions; non-contractual obligations; personality rights; public policy; recognition and enforcement of foreign judgments and administrative acts; succession and 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.
Articles’ summary:
Prof. Francesco Salerno (Full Professor, University of Ferrara), Il contributo degli studiosi italiani ai corsi de l’Aja di diritto internazionale privato (1923-1972) (The Contribution of Italian Scholars to The Hague Academy Courses on Private International Law (1923-1972)) [in Italian].
Even though authoritative absences may be identified, significant portions of the Italian School of Private international law were represented by Italian courses on this subject published from 1922 to 1972 in the Academy of International Law’s Recueil. However, these Italian courses predominantly focused on questions of applicable law, dedicating limited attention to topics of international civil procedure, despite the abundance and importance of Italian studies on the subject. The main purpose of these courses was to disseminate the experience of the Italian legal model in Private international law, using it as a parameter for comparing both other national models and international uniform rules. This further supported the Italian teachings’ trend towards a systemic approach, which was not always dogmatic in nature; instead, this method characterized Ago’s lecture, the most recognized Italian course abroad. The systemic approach of the Italian school of Private international law strongly endorsed the “maieutic” scientific attitude of its authors concerning numerous essential and general national rules. Consequently, Italian scholarship provided a broad and autonomous framework for different authors, offering various interpretative and systemic solutions, even though their unitary intent was that to ensure legal predictability. Despite this, Italian courses held little relevance in The Hague forum, as main attention was reserved to the Italian dogmatic approach, thus undermining dialogue with foreign authors.
Prof. Alberto Malatesta (Full Professor, LIUC – Cattaneo University, Castellanza), Arbitrato e regolamento Bruxelles I-bis: una riforma necessaria (Arbitration and the Brussels Ia Regulation: A Reform Is Needed) [in Italian].
After reviewing the existing main conflicts between State and arbitral jurisdictions, with special reference to the conflicts between judgments and awards, this essay explains the 2022 CJEU judgment in London Steam-Ship and highlights its impact on the scope of the so-called arbitration exclusion within the EU Brussels I-a Regulation. Given the possible rising of further interferences upon the arbitral regime, with a view to the next imminent recast the Author proposes to include the exequatur judgments of awards within the scope of the Regulation.
Prof. Chiara E. Tuo (Full Professor, University of Genoa), Decisioni arbitrali e giudizi interni (Arbitral Awards and National Judicial Proceedings) [in Italian].
It has recently been written that the role of national courts in the context of the conduct of arbitration is «both supporting and supervising on the one hand and reviewing on the other». Therefore, it is incorrect, and certainly does not reflect the reality of the facts, to argue that, as a result of the arbitration option, the parties intended to exclude any and all use of national courts justice. The purpose of this paper is therefore to ascertain the attitudes, in practice, of the relationships between arbitral decisions and domestic judgments, and whether these relationships can indeed be traced back to the two, aforementioned, essential roles/models of support and supervision, on the one hand, and control, on the other, of domestic courts with respect to arbitration, or whether practice brings out additional ones. Therefore, on the basis of the legal context in the field of arbitration and with respect to the possible occasions of relationship or contact between arbitral decisions and domestic judgments, it has been chosen (a) to consider (some of) the possible interactions likely to occur in the three different stages of the arbitration proceedings, and thus (i) in the first, when it is a question of ascertaining the competence of the arbitrators, (ii) in the course of the proceedings themselves, when recourse to provisional or interim measures is necessary, and, finally, (iii) after the award has been issued, when a question arises as to its validity or enforceability from the specific point of view of its compatibility with rules of a mandatory nature, and (b) to highlight, for each of these situations, the contents, boundaries and effects of the relevant arbitral decisions in domestic judicial proceedings, and thus before the national courts to whose consideration such decisions are to be referred.
Prof. Antonio Leandro (Full Professor, University of Bari), State Immunity from Execution of International Arbitral Awards: Consent to Arbitration vs Consent to Execution Along the Double-Step Enforcement [in English].
If a State consents to international commercial or investment arbitration, then it accepts the arbitration-supportive role of domestic courts. This role differs depending on the rules governing the arbitration. Irrespective of the arbitration regime, consent to arbitration does not per se extend to the execution of awards performed through judicial measures of constraint against the debtor State’s assets. After clarifying why consent to arbitration is so limited and what the “enforcement” of an international award consists of, the paper critically explores the ways to infer consent to execution beyond mere statements or declarations by the debtor State.
Review’s summary:
Elena Terrizzi (JD, Luiss Guido Carli University – Rome), Diritto internazionale privato e protezione dei minori: riflessioni a margine della riforma della volontaria giurisdizione (Private International Law and Child Protection: Reflections on the Italian Reform of Voluntary Jurisdiction) [in Italian]:
Child protection provisions generally involve a series of measures directed at granting the person or the property of children. Starting from the analysis of the current legal framework in this field, the following article especially focuses on the existing provisions of international private law, which are mainly aimed at identifying the competent authority and the law applicable to such measures of protection, whenever “international features” may arise. In this context, a prominent role as a connecting factor is recognized towards the criterion of “habitual residence”, while the authorities’ decisions shall always be inspired by the “best interests” of the child, in every case in which the latter is involved. However, absent any specific definitions of such concepts of “habitual residence” and “best interests”, the analysis of national and international case-law becomes relevant for the assessment of their practical content and application. In light of the above, the recent Italian reform on non-contentious jurisdiction – introduced by legislative decree No 149/2022 – also assumes a significant importance, as it appoints a “concurrent” competence to the notary public in issuing measures of child’s property protection – without prejudice to the ordinary competence of the Italian judicial authority. Therefore, the above-mentioned extension of competence, introduced by the recent Italian reform, makes it necessary to consider if and how the principles generally provided at the international level shall also apply towards the new role exercised by the notary public in the field of child protection.
Comment’s summary:
Dr. Pietro Villaschi (Postdoctoral Fellow, University of Milan), The Regulation of Political Targeting in the Italian and European Union Legal Framework [in English]:
This article deals with the regulation of political targeting in the Italian and European Union legal framework. After providing an overview of relevant constitutional principles, with reference to freedom of information and the right to be informed, the first part of the study focuses on the characteristics of political targeting and on its consequences for the rights of users-citizens-voters, the role played by Internet platforms and the democratic system. After a long time in which the framework was characterized by a selfregulatory approach, mitigated only by co-regulatory initiatives, in 2022 the European Union approved the Digital Services Act (DSA), establishing a new set of rules, which extend to online intermediary services and aim to ensure a safe, predictable and trusted digital environment as well as to improve the functioning of the internal market. The purpose of the second part of the analysis is therefore to assess the risks and opportunities of these new rules, also reflecting on the proposal for a regulation on transparency and targeting of political advertising (RPA). In particular, the aim is to verify whether these rules could be a response to political targeting, curbing the power of the new gatekeepers of cyberspace and guaranteeing the rights of users.
Finally, this issue features the following book review by Prof. Lidia Sandrini (Full Professor, University of Milan):
T. Lutzi, E. Piovesani, D. Zgrabljić Rotar (eds.), Jurisdiction Over Non-EU Defendants: Should the Brussels Ia Regulation be Extended?, Oxford, Hart Publishing, 2023, p. xx-355.
The issue’s Index, both in Italian and in English, is available here.