The third issue of 2024 of RDIPP (CEDAM, Wolter Kluwer) has been published and will be available soon, for its subscribers, at Edicola professionale (https://www.edicolaprofessionale.com/). It features one article, six debates, one comment, 14 judgments from Italian Courts, 14 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: contracts; companies; duties and taxes; European Union law; foreigner; intellectual property; international abduction of children; jurisdiction; nationality; recognition and enforcement of foreign judgments and administrative acts; public policy; 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. Cristina Campiglio (Full Professor, University of Pavia), Linguaggio e tecniche redazionali nel diritto internazionale privato italiano (Language and Drafting Techniques in Italian Private International Law) [in Italian].
Like other legal lexicons, the international-private lexicon is a specialized lexicon, which can be defined as sub-sectoral, specifically relating to private situations with transnational implications. However, it is much less technical than others, since the conflict rules do not aim at fully regulating the matter under consideration but limit themselves to directing towards the legal system from which the regulation of a specific category of legal situations can be deduced. This simplicity in form, however, hides complexity in practice: the very absence of a monoreferential technical vocabulary determines application difficulties. In the law 31 May 1995 No 218 (Reform of the Italian system of private international law) itself, semantic and expression ambiguities are found, as well as inconsistencies of various types: between the rubric and the provision of the law, and even between rules. This contribution, after reporting the semantic, syntactic and pragmatic aspects of these ambiguities/inconsistencies, focuses in the last part on the legislative technique of referral, which in law No 218 of 1995 is used to refer not to a different Italian regulatory text, but to sources of other systems: foreign rules (of private international law), international and European sources.
Debates: Teaching and Research in International Law Today: Challenges and Methods
Prof. Cristina Campiglio (Full Professor, University of Pavia), L’insegnamento del diritto internazionale privato (Teaching Private International Law) [in Italian].
In Italy, private international law is mostly subject of free-choice teaching. However, some degree courses offer a module dedicated to our subject within the teaching of international law. Depending on the degree course and the year of teaching, the teaching approach varies: the traditional, dogmatic one is now often accompanied by a purely practical approach, focused on the European discipline. As with other subjects, innovative teaching strategies are also being tested for private international law subjects, which involve the active participation of students. Finally, as regards the contents, we cannot ignore the challenges of globalization and the digitalisation of daily life and legal relationships: both in university courses (and manuals thereof) and in the courses held at the Hague Academy.
Prof. Giuseppe Nesi (Full Professor, University of Trento), Challenges and Methods in Teaching, Researching, and Practicing International Law: A Few Reflections [in English]
This paper provides personal insights into a career characterized by experiences as a researcher, a legal adviser and a teacher. It evidences how while these different functions can enter into conflict with each other, most often synergies prevail. This autobiographical report can be interpreted as an encouragement to teachers to gather practical experience beyond the “ivory tower”. The experience of working as a legal adviser is presented as a conduit to overcome cynicism, acquire greater credibility and better convey enthusiasm for international law to students. At the same time, practice can profit from academic experience by providing a greater depth of knowledge as well as all the structural thinking this activity demands.
Prof. Attila M. Tanzi (Full Professor, University of Bologna), Teaching and Learning International Law in Troublesome Times [in English]
The article addresses the changes occurred over the last fifty years in the research and teaching of international law, which have sensibly increased their complexity and difficulty. In particular, the following multiple changes are illustrated and emphasized: the increased number of bodies of material international law, parallelled by the multiplication of international jurisdictional fora; the accelerated evolution of the political configurations of the international society since the Cold War, up to the contemporary demise of multilateralism and the upsurge of nationalism; the quest for reform and change of the international regulatory setting, so as to meet new social, climatic and technological challenges; increased diversity of methodological approaches to international legal research, in terms which find no comparator in the differences between legal methodologies existing in the last quarter of the last century; and, finally, the ensuing cleavage between the international law scholarship and the international legal profession.
Prof. Giuditta Cordero-Moss (Full Professor, University of Oslo), The Private/Public International Law Divide: Is It Still Relevant? [in English]
The traditional divide between public and private international law is increasingly challenged. This article pleads for maintaining the division between the two disciplines, but in the awareness that the borders are relative, and that a mutual understanding is necessary.
Prof. Massimo V. Benedettelli (Full Professor, University of Bari), Teaching ‘‘International Law’’ to ‘‘International Lawyers’’: The Epistemological Challenge in the Era of Global Law and Legal Pluralism [in English]
At the dawn of the III Millennium, the areas regulated by international law have expanded as globalisation has expanded the interconnections among nations, with the consequence that international law is being used by an ever-wider community of legal practitioners. “International lawyers”, however, sometimes blur international law stricto sensu (i.e., public international law as the legal system of the international community) with other sources which may also be relevant for the regulation of crossborder matters (private international law, “a-national” or “transnational” laws, whether or not expression of private customs or non-State autonomous legal systems), with the consequence of being unable to establish correct relations between such different dimensions of normativity. This happens at times when the authority and effectiveness of international law is challenged both politically, by the opposite but converging narratives of “antiglobalisation” and “sovereigntism”/populism, and theoretically, by “global law without a State” doctrines, according to which a plurality of self-standing and possibly colliding regimes exists in a “post-Westphalian” international community, where international law has become more and more “fragmented” and States are less and less powerful in exercising their regulatory function. Against this backdrop, the importance of international law must be reasserted. If it is a fact that legal pluralism is a feature of our world, lawmaking is not an exclusive prerogative of States, and the concurrence and possible conflict of sources may pose problems of coordination among overlapping regimes jeopardising the effectiveness of their regulations, it is also a fact that the world remains divided into distinct national communities over which State exercise regulatory powers, keeping the monopoly in the use of coercion when needed to enforce the relevant regimes, as it is a fact that the worldwide recognition of party autonomy is accompanied by different limits and conditions that sovereign States may fix in the pursuit of different policies for the well-being of their nations. Thus, the “scientific revolution” somewhat implied in the “global law” construct does not seem justified. Legal pluralism certainly causes problems, but such problems can be managed through traditional instruments, under the condition that the syntax and grammar of international law (and private international law) are not subverted. Indeed, “international lawyers” should be well versed in both disciplines, and their education should be oriented by four basic considerations. First, in the contemporary world, overlapping regimes may result from the interplay between different legal systems, and legal systems may contain different rules regarding their mutual coordination, which may give rise to contradictory regulations as well as forum/law shopping opportunities. Second, the framework within which such interplay takes place is ultimately governed by international law to the extent that international law protects State sovereignty, limits its exercise, offers States tools by which they can cooperate in the implementation of their laws and may react to forms of private ordering inconsistent with their policies. Third, private international law may be used beyond its original remit as a reservoir for sophisticated techniques, through which issues of coordination among legal systems can be addressed also in the regulation of matters other than private cross-border relationships. Fourth, the emergence of a “cosmopolitan” uniform law elaborated by private actors and displacing State and international law altogether is a chimera since, on the one hand, harmonisation is limited or non-existent in important areas of legal practice (a gap which cannot be filled by lawmaking activities of entities lacking legitimacy, particularly when third party or public interests are at stake), on the other hand, private actors still rely on State laws and institutions to enforce their deals, leading to “jurisdictional touchdowns” in the context of which States have are able to enforce their mandatory laws and react to opportunistic normative arbitrages.
Prof. Verónica Ruiz Abou-Nigm (Full Professor, University of Edinburgh), Private International Law’s Inter-Systemic Thinking in Global Legal Education [in English]
Private international law is key to cultivate legal professionals equipped for global legal practice. The field is a platform for honing advanced technical and critical legal skills. It requires inter-systemic thinking, pluralist approaches, and intercultural dialogues. The Hague Academy has nurtured these capabilities, fostering the development of the discipline globally for the last century.
Comment’s summary:
Dr. Anna Facchinetti (Researcher, University of Pavia), Immunità dalle misure di esecuzione, Fondo di ristoro per le vittime del Terzo Reich e diritto di accesso alla giustizia davanti alla Corte Costituzionale (Immunity from Enforcement Measures, Compensation Fund for Victims of the Third Reich, and Right of Access to Justice before the Italian Constitutional Court) [in Italian]:
The article comments on Judgment No. 159/2023 of the Italian Constitutional Court from three points of view. First, it considers the Constitutional Court’s distinction between immunity from jurisdiction and immunity from enforcement measures, which finds confirmation in international law. Second, it addresses the alternative remedies argument, noting that in international and national jurisprudence the argument is not applied to immunity from enforcement measures, but only to immunity from jurisdiction. Finally, the article focuses on the fate of Greek claimants who have obtained an exequatur in Italy, who seem to suffer an unfavourable treatment compared to Italian victims of the Third Reich due to the lack of access to the Compensation Fund. The article concludes by pointing out that, among the three aspects discussed, the open and most important question remains that of immunity from jurisdiction, both in the Italian-German dispute and in the light of possible developments in customary international law.
Finally, this issue features the following book review by Prof. Francesca C. Villata (Full Professor, University of Milan):
M. Gridel, Marchés et instruments financiers en droit international privé, Bruylant, Bruxelles, 2023, pp. 11-1111.
The issue’s Index, both in Italian and in English, is available here.