Developments in PIL Journals

Rivista di diritto internazionale privato e processuale (RDIPP): Issues 2 & 3 of 2023

The second and the third issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP) are out.

The second issue, in addition to recent case law and other materials, features three contributions.

Yuriko Haga, Avatars, Personalities in the Metaverse: Introductory Analysis on Conflict-of-Laws

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.

Pietro Franzina, 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)

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, 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)

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.

In addition to recent case law and other materials, two contributions appear in the third issue.

Pietro Franzina, Un nuovo diritto internazionale privato della protezione degli adulti: le proposte della Commissione europea e gli sviluppi attesi in Italia (A New Private International Law on the Protection of Adults: The European Commission’s Proposals and the Developments Anticipated in Italy)

The European Commission has presented on 31 May 2023 two proposals aimed to enhance, in cross-border situations, the protection of adults who are not in a position to protect their interests due to an impairment or the insufficiency of their personal faculties. One proposal is for a Council decision that would authorise the Member States to ratify, in the interest of the Union, the Hague Convention of 13 January 2000 on the international protection of adults, if they have not done so yet. The decision, if adopted, would turn the Convention into the basic private international law regime in this area, common to all Member States. The other proposal is for a regulation the purpose of which is to improve, in the relationships between the Member States, the cooperation ensured by the Convention. The paper illustrates the objects of the two proposals and the steps that led to their presentation. The key provisions of the Hague Convention are examined, as well as the solutions envisaged in the proposed regulation to improve the functioning of the Convention. The paper also deals with the bill, drafted by the Italian Government and submitted to the Italian Parliament a few days before the Commission’s proposals were presented, to prepare for the ratification of the Convention by Italy and provide for its implementation in the domestic legal order. The bill, it is argued, requires extensive reconsideration as far as the domestic implementation of the Convention is concerned. Alternative proposals are discussed in the paper in this regard.

Riccardo Rossi, Reflections on Choice-of-Court Agreements in Favour of Third States under Regulation (EU) No 1215/2012

The article deals with the absence of a provision addressing choice-of-court agreements in favour of third States under Regulation (EU) No 1215/2012 (“Brussels Ia Regulation”). The CJ case law and the present structure of the Regulation leave no room for the long-debated argument of effet réflexe. In light of Arts 33 and 34 (and Recital No 24), enforcing such agreements is now limited to the strict respect of the priority rule in the trans-European dimension. The first part of the article deals with the consequences of such a scheme. Namely, forum running, possible interferences with the free circulation of judgments within the EU pursuant to Art 45(1)(d), and inconsistencies with the 2019 Hague Convention. In its second part, from a de lege ferenda perspective, the article examines the most delicate issues raised by the need for introducing a new provision enforcing jurisdiction agreements in favour of third States: from the jurisdiction over the validity of such agreements, to the applicable law, to the weight to be given to the overriding mandatory provisions of the forum. Finally, it proposes a draft of two new provisions to be implemented in the presently-discussed review of the Brussels Ia Regulation.

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