The first issue of the Rivista di diritto internazionale privato e processuale of 2022 is out. It features two essays and two shorter papers.
Stefania Bariatti, Sul riconoscimento in Italia dei restructuring plans inglesi (On the Recognition in Italy of English Restructuring Plans)
An English court order sanctioning a restructuring plan is likely to be recognized by an Italian court as a judgment in civil and commercial matters or in insolvency matters both under the 1964 convention between Italy and the United Kingdom for the reciprocal recognition and enforcement of judgments in civil and commercial matters and under Law No 218/1995, since all the relevant requirements envisaged therein appear to be met. Indeed, (i) the requirement that the English court is vested with indirect jurisdiction is satisfied when the debtor’s COMI is located in England and (ii) restructuring plans do not appear to be contrary to Italian public policy, since the effects of the restructuring plan procedure, the procedural aspects and the substance of the provision envisaged in Part 26A of the Companies Act 2006 are common to the concordato preventivo procedure and the accordi di ristrutturazione del debito procedure that Italian Bankruptcy Law provides for companies encountering financial difficulties.
Sara Tonolo, Criticità e incertezze derivanti dall’applicazione del rinvio di qualificazione (Qualifikationsverweisung) (Critical Issues and Doubts in the Application of the Two-Fold Characterisation Theory (Qualifikationsverweisung))
In the context of academic literature on renvoi, and its various functions, for a century now a special role has been attributed in many legal systems to the Qualifikationsverweinsung (Renvoi de qualification). The relevance of this mechanism, founded on the complete reconstruction of the content of foreign private international law, has now been investigated by the Italian Supreme Court as an instrument for coordination within contemporary private international law. In the absence of any rules concerning characterization under Italian Law No. 218/1995, the original process of characterization by the court seised, which is referred to as primary, and the secondary characterization subsequently performed after the forum has decided to apply the law of another jurisdiction, can lead to a Qualifikationsverweisung to the lex fori. However, this result opens up a broad debate on the limits to the operability of the mechanism in question, especially with regard to other general principles, such as the principle of unity of succession.
Chiara Ragni, Riconoscimento in Italia di adozioni omoparentali e ordine pubblico internazionale (Recognition in Italy of Adoptions by Same-Sex Couples and International Public Policy)
This article aims to provide a critical analysis of judgment No 9006 of 2021 rendered by the Italian Court of cassation in plenary session, regarding the recognition in Italy of the legal effects of a foreign full adoption granted by the Surrogate Court of New York in favor of a same-sex couple. In particular, the investigation focuses on the contribution made by the Court with regards to: the question of identifying the regime applicable to the recognition of foreign adoption orders; the definition of the notion of public policy; and, finally, the reconstruction of the material content of public policy in the context under consideration, having regard to the importance of the child’s interest in preserving his or her family status for the purposes of that assessment.
Carlotta Maresca, La qualificazione della responsabilita` derivante da rottura brusca di relazioni commerciali stabili: gli effetti delle sentenze della Corte di giustizia sulla giurisprudenza francese (Characterisation of Liability Arising from Abrupt Termination of a Long-Standing Business Relationship: The Impact of the Judgments of the Court of Justice on French Case-Law)
The French provision governing the abrupt termination of long-standing business relationships (Art. L. 442-1, II code de commerce) raises in the context of private international law some issues that are still debated: notably, the question of the characterization of the nature of the liability under this provision. The French Court of Cassation has classified this liability in terms of its nature as both contractual and non-contractual. In particular, the latter characterization (délictuelle) appeared to have prevailed in the French case-law, the majority of which identified French courts as having jurisdiction over, and French law as applicable to, the present case (following the underlying logic of protection of the French victim and market). This trend has been partially changed following the intervention of the Court of Justice of the European Union (“CJEU”). In fact, in the presence of certain circumstances (in particular, in the presence of a silent contract), in Granarolo the CJEU characterized the liability in question as contractual. This article analyzes how this decision can foster the unity of private international law solutions at the European level.
The journal has just launched its new website. It comes with a “News” section and gives access to the table of contents (in Italian and English) of current and past issues, as well as to dedicated databases of articles, case notes, judgments and book reviews which appeared on the journal ever since its foundation.
The website also covers the series of books associated with the journal, which now consists of more than 80 volumes.
Stefania Bariatti, Sul riconoscimento in Italia dei restructuring plans inglesi (On the Recognition in Italy of English Restructuring Plans)
An English court order sanctioning a restructuring plan is likely to be recognized by an Italian court as a judgment in civil and commercial matters or in insolvency matters both under the 1964 convention between Italy and the United Kingdom for the reciprocal recognition and enforcement of judgments in civil and commercial matters and under Law No 218/1995, since all the relevant requirements envisaged therein appear to be met. Indeed, (i) the requirement that the English court is vested with indirect jurisdiction is satisfied when the debtor’s COMI is located in England and (ii) restructuring plans do not appear to be contrary to Italian public policy, since the effects of the restructuring plan procedure, the procedural aspects and the substance of the provision envisaged in Part 26A of the Companies Act 2006 are common to the concordato preventivo procedure and the accordi di ristrutturazione del debito procedure that Italian Bankruptcy Law provides for companies encountering financial difficulties.
Sara Tonolo, Criticità e incertezze derivanti dall’applicazione del rinvio di qualificazione (Qualifikationsverweisung) (Critical Issues and Doubts in the Application of the Two-Fold Characterisation Theory (Qualifikationsverweisung))
In the context of academic literature on renvoi, and its various functions, for a century now a special role has been attributed in many legal systems to the Qualifikationsverweinsung (Renvoi de qualification). The relevance of this mechanism, founded on the complete reconstruction of the content of foreign private international law, has now been investigated by the Italian Supreme Court as an instrument for coordination within contemporary private international law. In the absence of any rules concerning characterization under Italian Law No. 218/1995, the original process of characterization by the court seised, which is referred to as primary, and the secondary characterization subsequently performed after the forum has decided to apply the law of another jurisdiction, can lead to a Qualifikationsverweisung to the lex fori. However, this result opens up a broad debate on the limits to the operability of the mechanism in question, especially with regard to other general principles, such as the principle of unity of succession.
Chiara Ragni, Riconoscimento in Italia di adozioni omoparentali e ordine pubblico internazionale (Recognition in Italy of Adoptions by Same-Sex Couples and International Public Policy)
This article aims to provide a critical analysis of judgment No 9006 of 2021 rendered by the Italian Court of cassation in plenary session, regarding the recognition in Italy of the legal effects of a foreign full adoption granted by the Surrogate Court of New York in favor of a same-sex couple. In particular, the investigation focuses on the contribution made by the Court with regards to: the question of identifying the regime applicable to the recognition of foreign adoption orders; the definition of the notion of public policy; and, finally, the reconstruction of the material content of public policy in the context under consideration, having regard to the importance of the child’s interest in preserving his or her family status for the purposes of that assessment.
Carlotta Maresca, La qualificazione della responsabilita` derivante da rottura brusca di relazioni commerciali stabili: gli effetti delle sentenze della Corte di giustizia sulla giurisprudenza francese (Characterisation of Liability Arising from Abrupt Termination of a Long-Standing Business Relationship: The Impact of the Judgments of the Court of Justice on French Case-Law)
The French provision governing the abrupt termination of long-standing business relationships (Art. L. 442-1, II code de commerce) raises in the context of private international law some issues that are still debated: notably, the question of the characterization of the nature of the liability under this provision. The French Court of Cassation has classified this liability in terms of its nature as both contractual and non-contractual. In particular, the latter characterization (délictuelle) appeared to have prevailed in the French case-law, the majority of which identified French courts as having jurisdiction over, and French law as applicable to, the present case (following the underlying logic of protection of the French victim and market). This trend has been partially changed following the intervention of the Court of Justice of the European Union (“CJEU”). In fact, in the presence of certain circumstances (in particular, in the presence of a silent contract), in Granarolo the CJEU characterized the liability in question as contractual. This article analyzes how this decision can foster the unity of private international law solutions at the European level.
The journal has just launched its new website. It comes with a “News” section and gives access to the table of contents (in Italian and English) of current and past issues, as well as to dedicated databases of articles, case notes, judgments and book reviews which appeared on the journal ever since its foundation.
The website also covers the series of books associated with the journal, which now consists of more than 80 volumes.
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