The first issue of 2025 of RDIPP (CEDAM, Wolter Kluwer) has been published and is available, for its subscribers, at Edicola professionale (https://www.edicolaprofessionale.com/). It features three articles, two comments, 12 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: civil proceedings; divorce and legal separation; foreign law; international abduction of children; jurisdiction; maintenance obligations; marriage; non-contractual obligations; power of attorney; protection of minors; 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. Bruno Nascimbene (Professor Emeritus, University of Milan), Cittadinanza: riflessioni su problemi attuali di diritto internazionale ed europeo (Citizenship: Reflections on Current Issues of International and European Law) [in Italian].
The theme of citizenship is the subject of some reflections concerning its meaning and relevance in international, European and national law. The exclusive competence of the State is examined in the light of the evolution of the rules relating, above all, to the protection of fundamental human rights. The traditional domestic jurisdiction undergoes an important process of erosion..
Prof. Paolo Bertoli (Full Professor, University of Insubria), La Palestina nel diritto internazionale privato e processuale (Palestine in Private International and Procedural Law) [in Italian].
The article discusses the applicability of private international law rules to cases involving connections with Palestinian territories or subjects. It argues that the notion of statehood relevant for the operation of private international law rules should be strictly functional, meaning it is detached from the concept accepted in public international law and determined with regard to the specific purposes of private international law. Consequently, the conflict of laws rules that lead to the application of Palestinian law are operational, the Palestinian citizenship can be configured as a connecting factor, it is possible to choose Palestinian courts as the competent forum, and exequatur can be granted to judgments issued by Palestinian courts.
Prof. Filippo Corsini (Full Professor, University of Modena and Reggio Emilia), Arbitrato e misure conservative a tutela dei crediti (Arbitration and Provisional Measures for the Protection of Credits) [in Italian]
Notwithstanding the short duration of the arbitral proceedings, it is crucial that the plaintiff could enjoy the right to obtain injunctions from the arbitration panel, so to avoid that its claim suffers irreparable harms before the issuance and enforcement of the award. The essay analyses the recently enacted provisions of the Italian code of civil procedure, which confer, for the very first time, to arbitrators the power to issue interim measures; the attention is particularly focused on the two conservative measures which are commonly used in order to protect the right of the creditor through the freezing of the assets of the debtor (i.e. “sequestro giudiziario” and “sequestro conservativo”). A major step forward has been made, but still a number of issues remain unsolved. In order to ensure that an effective protection is granted to preserve the right of the plaintiff to enforce its credit vis-à-vis the defendant when the relevant contract includes an arbitration clause, other legislative amendments should be introduced.
Comments’ summary:
Prof. Giovanni Zarra (Full Professor, University of Naples Federico II) and Prof. Ciro Caccavale (Associate Professor, University of Naples Parthenope), Riflessioni sulla legge applicabile alla successione ab intestato del cittadino italiano residente abituale in Svizzera (Reflections on the Law Applicable to the Intestate Succession of an Italian Citizen Habitually Residing in Switzerland) [in Italian]
This paper discusses the law applicable to successions of Italian nationals habitually residing in Switzerland in the absence of a will, highlighting the interplay between (EU) Regulation No 650/2012 and the establishment and consular Agreement concluded on 22 July 1868 and in force as of 1 May 1869. In particular, this paper discusses whether Art 17(3) of the Convention – which apparently only regulates jurisdiction in succession matters – implicitly regulates (based on the alleged desirability of the alignment of jurisdiction and applicable law) also the question of applicable law, as supported by the Swiss jurisprudence and part of its scholarship. Based on the most recent scholarly publications (including from Switzerland), this paper criticizes this approach, highlighting the opportunity for an interpretation of the Convention based on its wording, in compliance with the 1969 Vienna Convention of the Law of Treaties, something which would determine the application (by the national courts of the Member States bound by the Regulation) of the EU Succession Regulation to the issues of applicable law.
Federica Sartori (Ph.D. Candidate, University of Pavia), La quantificazione del risarcimento del danno non patrimoniale nel prisma del diritto internazionale privato (The Determination of the Amount of Compensation for Non-Pecuniary Damage in Private International Law) [in Italian]:
This article focuses on two recent decisions, one by the Italian Court of Cassation and the other by the Court of Justice of the European Union, concerning the quantification of non-pecuniary damage in a transnational case in which foreign law is applicable. Analyzing, respectively, the scope of operation of the criteria for the ascertainment of foreign law and international public order, on the one hand, and of the overriding mandatory rules, on the other hand, both decisions conclude that the lex fori is not applicable as a supplement or replacement to the applicable foreign law, which, as such, must be applied in its entirety, in compliance with the principle of the global application of foreign law.
Finally, this issue features the following book review by Dr. Lenka Válková (Researcher, University of Milan): C. Budzikiewicz, K. Duden, A. Dutta, T. Helms, C. Mayer, The Marburg Group’s Comments on the European Commission’s Parenthood Proposal, Cambridge, Intersentia, 2024, pp. v-116.
The issue’s Index, both in Italian and in English, is available here.