Jean Monnet
Lifelong Learning Programme
‘Cross-Border Litigation in Italy’
Workshop Report No 2
19th November 2012
"This project has been funded with support from the European Commission. This publication reflects
the views only of the authors, and the Commission cannot be held responsible for any use which may be
made of the information contained therein."
BACKGROUND
On Monday 19th November 2012, academics from Italy and academics
connected with the Centre for Private International Law met at the second of
seven workshops dedicated to promoting the debate on how cross-border
litigation functions across Europe. The purpose of the second workshop was
to offer the opportunity for a free and frank exchange of ideas about crossborder litigation and the application of the harmonised private international
law instruments from an Italian perspective.
This report intends to provide a brief overview of the ideas that emerged
from the workshop without attributing any views to any particular
individual.
Part I
CROSS-BORDER LITIGATION IN EUROPE AND A VIEW FROM ITALY ON BRUSSELS I
 Cross-Border Litigation in Europe: Research Activities – Aims and Objectives
Background issues were identified surrounding the development of private
international law within Europe. European integration, the consolidation of
industry and an increase in migration of people across Europe were put
forward as reasons for the increase in cross border disputes.
The success in private law within Europe so far has been the
harmonisation of private international law instruments, with the intention to
preserve the diversity in legal traditions. However Europe has gone a step
further in trying to harmonise some procedural rules, which has proved
difficult.
Three questions were put forward for consideration in relation to Italy:
 Do litigants often bring cross-border claims in Italy?
 Do litigants often settle before going to trial and why?
 What problems arise most frequently in cross-border litigation?
Six potential areas for future research were put to the floor for criticism.
 The importance of private international law for resolving cross-border
disputes in family, civil and commercial matters, which may effect
businesses, consumers and families, raises concerns as to the uniform
application of the various private international law instruments across
the Member States within the EU.
 The current European judicial architecture poses problems for litigants
with disputes with an international element. Such litigants would have
to take cross-border litigation risks and incur higher costs.




The high costs and the high level of uncertainty could adversely affect
cross-border claimants’ litigiousness, as a number of potential litigants
may believe that the risks of litigation outweigh the benefits.
Whilst Alternative Dispute Resolution appears to be a cheaper
solution, which is advocated by the EU legislator, it is difficult to see
how ADR could develop before case law precedents have been more
clearly established. (Directive 2008/52/EC on certain aspects of
mediation in civil and commercial matters OJ [2008] L136/3)
The ability of the Court of Justice to deal appropriately with the private
international law issues may be questioned. A review of the
institutional architecture of the European judiciary may be key for
creating “a Europe of law and justice”.
The increased reliance on harmonised private international law
instruments in the EU indicates that the interpretation should go to a
special European Court or a specialised chamber of the Court of
Justice.
Empirical research was identified as being useful in order to get response
from practitioners, in particular analysis of the relationship between litigants,
the strategies employed and the expenditure for both parties in cross-border
cases. However it was suggested that funding would be difficult to obtain for
this purpose.
Comparative study was put forward as valuable but only if it was of
sufficient quality. It should take into account the dynamics of the rules, and
the way they shape litigant’s tactics with regards to cross border actions in
Europe.
A cross-border consortium would be able to promote debate across
boundaries in the targeted countries, identify country specific issues feeding
them into cross-border debate and identify a workable solution for private
international law in a European context. The need to get practitioners
involved in the process was reiterated.
Brussels I
Two areas were put forward for discussion. The first was whether the Italian
court rulings aligned with the European Court of Justice and the second
looked at the Italian court rulings on certain interpretative issues on which
the ECJ has not yet stated its position.
Article 5(1)(b) of the Brussels I Regulation concerning the jurisdiction
on sale of goods agreements and the definition of what constituted a “place in
a Member State where the goods were delivered or should have been
delivered” was discussed. The initial position of Italian case law was that the
relevance to the place of delivery of the goods to the first carrier in
compliance with article 31 CISG, is that the seller is not bound to deliver the
goods to any other particular place. His obligation to deliver consists of
handing the goods over to the first carrier for transmission to the buyer.
The position of the Italian Supreme Court is that relevance for the
purpose of the identification of the “place of delivery” and consequently of
the place in which the jurisdiction must be established should apply to all
obligations arising out of the agreement. The position of ECJ is that the “place
of delivery” is “1) the place where, under the contract, the goods were
delivered or should have been delivered or, in absence, 2) the place where the
physical transfer of the goods took place at the final destination of the sales
transaction.”
With regards the interconnection between the lis alibi pendens and
choice of court agreements there is harmony between the Italian case law and
ECJ. In 2007 the Italian Supreme Court gave a ruling concerning the nonpayment of the consideration under an exclusive sale agency agreement in
relation to which the defendant contests the jurisdiction of the Italian Court
on the basis of a previous proceeding pending before a Portuguese Court
arising from the same agreement. It was held that the Italian Court should
apply art. 27 of the Regulation and stay proceedings until the Portuguese
court has assessed its jurisdiction even in the presence of a choice of court
clause in favour of the same (Italian) Court.
In the Gasser case the ECJ stated that a court second seised whose
jurisdiction has been claimed under an agreement conferring jurisdiction
must nevertheless stay proceedings until the court first seised has declared
that it has no jurisdiction. The position under Brussels I Recast is that under
art 3(2) “Without prejudice to article 26, where a court of a Member State on
which an agreement referred to in art 25 confers exclusive jurisdiction is
seised, any court of another Member State shall stay the proceedings until
such a time as the court seised on the basis of the agreement declares that it
has no jurisdiction under the agreement.”
How the Italian Courts have interpreted the Brussels I Regulation was
then put forward for discussion. Article 5(3) of the Regulation concerning
jurisdiction of the courts of the place where the harmful event occurred or
may occur was the first point to be discussed. The Italian Supreme Court
affirmed jurisdiction of the Italian Courts under art 5(3) of the Regulation in
case no 8034 April 2011, concerning an offer of financial instruments by Irish
and Swiss companies, which were referable to a Mr Madoff on the Italian
market. Both the fact that the investment scheme did not provide for the
prescribed separation between the manager and the custodian and that the
inaccurate prospectus which was made available to potential investors in
order to solicit investment were held to fall under art 5(3).
In case no 5032 September 2011 concerning derivative transactions
entered into by a public entity the exclusive jurisdiction of the Italian
Administrative Court was affirmed as administration is excluded from the
scope of the Regulation thus indirectly confirming art 22 of the Regulation.
Conversely the European Court of Justice in Berliner Verkehrsbetriebe (BVG) v
JPMorgan Chase Bank NA, Frankfurt Branch has held that “art 22(2) of the
Brussels I Regulation must be interpreted as not applying to proceedings in
which a company pleads that a contract cannot be relied upon against it
because a decision of its organs which led to the conclusion of the contract is
supposedly invalid on account of infringement of its statutes.”
A case no 3568 February 2011 relating to damages to certain ferried
goods belonging to an Italian company claimed against the bill of lading
underwriter containing a choice of court clause in favour of the Courts of the
People’s Republic of China found that there was non applicability of the
regulation, thereby applying the relevant national rules and confirming the
choice of court clause. The Court stated that the fact that the regulation is
silent on the derogation of the member states jurisdiction does not mean in
itself that the derogation is excluded, in any event within the limits in which
the parties may derogate to the same under the Regulation. It was noted that
the Recast of Brussels I Regulation does not explicitly deal with the
derogation of member states jurisdiction. It was left to the Hague Choice of
Court Agreements Convention to find a solution for the problem when the
EU ratifies it.
The final case to be put forward, no 5127 February 2002, concerned a
decision given by a Greek court first seized affirming jurisdiction that had
been disregarded by the second seized Italian Court. It was held necessary for
the second seized Italian court to take the Greek decision into consideration,
since it is a fully recognisable decision under article 33 of the Regulation.
The cases presented, of which not all can be mentioned in this report
are predominantly last instance cases and it was asked why the courts hadn’t
requested preliminary rulings. It was noted that the Italian court has never
requested a preliminary ruling, yet it was agreed that the Supreme Court
should have asked for explanations. The reasoning for the court not
requesting a preliminary ruling was put down to concerns over time and was
not a trust issue.
Part II
CHOICE OF LAW IN OBLIGATIONS
a. Rome I
An assessment of how the Italian courts might apply the Rome I Regulation
was considered, as the Italian courts have not yet had to make any decisions
applying the Regulation due to the fact that it only came into effect in 2009.
However several decisions have been rendered in application of the Rome
Convention. Reference to these decisions were made, and compared to the
potential outcomes had the same disputes been decided under the Rome I
Regulation, also with a view, of course, to the relevant judgments rendered by
the Court of Justice of the European Union.
Under Article 3(1) Rome Convention on freedom of choice, where the
choice of the governing law is not expressed, it must be demonstrated with
reasonable certainty by the terms of the contract or the circumstances of the
case. In 2010 the Cassazione (Corte di Cassazione, judgment 25 November
2010 No 23933) addressed the issue of an implied choice of the law that
governed the employment contract between a German employer and an
Italian employee. In the case at issue, the Court held that the law governing
the contract was German law, and in doing so it pointed to a number of
elements as indicating such an implied choice. Notably, the court pointed to
the fact that the contract had been written in German, it had been drafted and
entered into in Germany, it indicated the amounts due under the contract in
German Marks, and finally it provided German health and pension benefits.
The support of party autonomy in contracts was the core of the Rome
Convention, as it is for the Rome I Regulation. The Convention’s provisions
on the choice of the applicable law have been reproduced in the Rome I
Regulation, which at Recital 11 states that: “The parties’ freedom to choose
the applicable law should be one of the cornerstones of the system of conflictof-law rules in matters of contractual obligations.” However, unlike the
Convention, where the choice must simply be expressed or demonstrated
with reasonable certainty by the terms of the contract or the circumstances of
the case, under the Rome I Regulation the choice must be “made expressly or
clearly demonstrated by the terms of the contract or the circumstances of the
case”.
It was noted that the slightly different wording adopted within the
Regulation apparently aims at narrowing the courts’ discretion and at
facilitating predictability of the law governing the contract. It is therefore
possible that the new wording in the Regulation will lead courts, including
Italian courts, to be more cautious in applying this part of the provision thus
reducing the scope of the concept of implied choice.
As for the closest connection under Article 4 of the Rome Convention,
the Tribunale di Udine (judgment 2 August 2002) displaced the presumption
at Article 4(2) of the Convention, while trying to establish jurisdiction
pursuant to Article 5(1) of the Brussels Convention. In a dispute between an
Italian contractor (plaintiff) and an Austrian undertaking (defendant), where
the contract was entered into in Austria, the construction works were to be
carried out in Austria, the contract’s execution was subject to Austria’s
technical regulations, the contract had been written in German, the amounts
due were expressed in Austrian schillings and were to be paid at an Austrian
bank account, the Italian court of first instance ruled that Austrian law (as
opposed to the law of the characteristic performer’s habitual residence, i.e.
Italy) governed the contractual relationship.
However the Cassazione (Cassazione plenary session, 11 June 2001 No
7860) ruled that, pursuant to Article 4(2) of the Rome Convention, the
characteristic performance has to be concretely determined based upon the
circumstances of each single case. In a distribution agreement between an
Austrian distributor (plaintiff) and an Italian supplier, to consider merely
distribution as the characteristic performance (as a result of the fact that
distribution is the non-monetary performance in an agency agreement) would
be tantamount to overlooking a fundamental part of the contract: i.e., the
function of exchange carried out with the contract. Accordingly, in the case at
issue the characteristic performance was marked by the provision of the
goods that were later to be distributed. As a result of the fact that the goods
were being supplied in Italy, where they were also manufactured, the contract
was governed by Italian law. Moving from the assumption that the dispute
addresses a provision of goods rather than a distribution contract, the
Cassazione’s outcome appears to be in keeping with the Rome I Regulation,
whereby a contract for the sale of goods shall be governed by the law of the
country where the seller has his habitual residence (Article 4(1)(a)).
In a dispute over the breach of a contract between an Italian carrier and
an Austrian client for the carriage of goods from Spain to Greece, the
Cassazione (Cassazione plenary session, 3 May 2005 No 9106) ruled that the
characteristic performance was the performance of the carrier. Accordingly,
Italian law governed the contract. Pursuant to Article 5(1) of the Rome I
Regulation, the law of the place of delivery as agreed by the parties (i.e.,
Greece) would likely govern the contract. The law of the habitual residence of
the carrier (Italy) would not apply since neither the place of receipt (Spain),
nor the place of delivery (Greece), nor the habitual residence of the consignor
(Austria) was situated in Italy.
In a dispute over the breach of a contract between an Italian architect
and his German client for failure to pay, the Cassazione (Cassazione, plenary
session, decree 27 April 2010 No 9965) ruled that, pursuant to Article 4(2) of
the Rome Convention, in a contract for home improvement and building
project in which negotiations were carried out in Italy and the architect was
appointed in Italy where the assignment was also performed, the law
governing the payment obligation was Italian law. This outcome appears to
be in keeping with what is provided at Article 4(1)(b) of the Rome I
Regulation.
The provision at Article 6(2)(a) of the Rome Convention on the law
governing individual employment contracts is fully reflected in Article 8(2) of
the Rome I Regulation. The wording of the provision has slightly changed.
While Article 6(2)(a) of the Convention provided that “Notwithstanding the
provisions of Article 4, a contract of employment shall, in the absence of
choice in accordance with Article 3, be governed: a) by the law of the country
in which the employee habitually carries out his work in performance of the
contract, even if he is temporarily in another country”, Article 8(2) of the
Rome I Regulation provides that, absent the parties’ choice, “… the contract
shall be governed by the law of the country in which or, failing that, from
which the employee habitually carries out his work in performance of the
contract”. The changes brought to the provision actually broaden the chances
that the provision at Article 8(2) be applied in lieu of the subsidiary provision
at Article 8(3) which provides that “Where the law applicable cannot be
determined pursuant to paragraph 2, the contract shall be governed by the
law of the country where the place of business through which the employee
was engaged is situated”. Such added flexibility is the result of the fact that
the country in which or from which the employee carries out his work is
actually considered to be more likely to represent the (unitary) centre of
gravity of the contract.
In so far as the objective of Article 6 of the Rome Convention is to
guarantee adequate protection for the employee, that provision must be
understood as guaranteeing the applicability of the law of the State in which
the employee carries out his working activities rather than that of the State in
which the employer is established. It is in the former State that the employee
performs his economic and social duties and it is there that the business and
political environment affects employment activities. Therefore, compliance
with the employment protection rules provided for by the law of the country
where the employee performs his working obligations must, in as much as
possible, be guaranteed. This approach is also in keeping with the ECJ’s case
law on the jurisdiction in individual employment contracts pursuant to the
Brussels I Regulation, whereby the Convention’s goal is to guarantee
adequate protection to the employee as the weaker of the contracting parties
(see, to that effect, Case C-383/95 Rutten [1997] ECR I-00057, paragraph 22,
and Case C-437/00 Pugliese [2003] ECR I-3573, paragraph 18).
As such, the application of Article 6(2) is facilitated by the EU
legislator. Indeed, the criterion of the place of performance of the employee’s
working obligations shall be interpreted autonomously: its meaning and
scope must be established according to consistent and independent criteria in
order to guarantee the full effectiveness of the Rome Convention in view of
the objectives which it pursues (see, by way of analogy, Case C-125/92 Mulox
IBC [1993] ECR I-4075, paragraphs 10 and 16).
While addressing a motion to dismiss for lack of jurisdiction under
Article 5(1) of the Brussels Convention (to which reference was made under
Article 3 of the law reforming the Italian system of PIL, Law No 218/1995),
the Court of Cassazione (in Cass. plenary session, 17 July 2008 No 19595)
ruled that, in order to determine the place where the maritime worker
habitually carries out his work and/or where the place of business through
which he was engaged is situated, relevance must be given to the “nonoccasional territorial connections”, that is to say to the significant connections.
In the case at issue, the Cassazione gave specific priority to the place where
the operational unit was located and at the place where the main port of
reference was situated. The Court further pointed out that the ship, although
it could be considered as a plant or an establishment, however does not have
any relevance as for the determination of the applicable law: in fact, a ship
cannot be identified as a “place”, given that it is capable of moving.
Citing this very judgment, the following year the Cassazione (Cass.
plenary session, 20 August 2009 No 18509) granted motion to dismiss for
want of jurisdiction in a case between a steward and his employer (a Belgian
airline). In the case at issue, the employer only had a desk in Italy, where it
checked (and not issued) tickets and where it gathered personnel and
passengers. The Cassazione refused to take into consideration for
jurisdictional purposes the employee’s statement that he was working at the
airline’s Italian office, from which the plaintiff took off for his flights and to
which he returned. The Court did not consider these elements as sufficient to
assess that the airline company had a detached organizational unit in Italy. To
the contrary, the Court traced such an organizational unit back in Belgium as
a result of the more significant connections that the working relationship bore
with that State. The Court pointed at the fact that the working relationship’s
ties to Italy were purely functional to the performance of the employee’s
contractual obligations, and that the working relationship was structurally
tied to Belgium as a result of the fact that, not only the airline’s seat was in
that State, but that the actual relationship between the employer and the
employee was being carried out in that State (inter alia, the court pointed to
the fact that in the working relationship taxation, as well as pension and
health benefits were granted according to Belgian law). Accordingly it
granted the motion to dismiss.
The Cassazione’s approach appears to have anticipated the ECJ’s
recent ruling in Koelzsch (Case C-29/10, not yet published), where the ECJ
was asked whether the rule under Article 6(2)(a) of the Rome Convention is to
be interpreted as meaning that, in the situation where the employee works in
more than one country, but returns systematically to one of them, that
country must be regarded as that in which the employee habitually carries
out his work.
As the Court pointed out, in the light of the objective of Article 6 of the
Rome Convention, the criterion of the country in which the employee
“habitually carries out his work” must be given a broad interpretation, while
the criterion of “the place of business through which [the employee] was
engaged”, set out in Article 6(2)(b) of the Regulation, ought to apply in cases
where the court dealing with the case is not in a position to determine the
country in which the work is habitually carried out.
It follows from the foregoing that the criterion set out in Article 6(2)(a) of the
Rome Convention can apply also in a situation where the employee carries
out his activities in more than one Contracting State, if it is possible, for the
court seized, to determine the State with which the work has a significant
connection.
As the Court highlighted, this interpretation is consistent also with the
wording of the new provision introduced by the Rome I Regulation. As the
ECJ stated, the seised court shall determine in which State is situated the place
from which the employee carries out his transport tasks, receives instructions
concerning his tasks and organises his work, and the place where his work
tools are situated. The court must also determine the places where the
transport is principally carried out, where the goods are unloaded and the
place to which the employee returns after completion of his tasks.
Accordingly, Article 6(2)(a) of the Rome Convention must be interpreted as
meaning that, in a situation in which an employee carries out his activities in
more than one Contracting State, the country in which the employee
habitually carries out his work in performance of the contract, within the
meaning of that provision, is that in which or from which, in the light of all
the factors which characterise that activity, the employee performs the greater
part of his obligations towards his employer. This approach appears to be in
keeping with that adopted by the Cassazione in 2008 and 2009.
Under Article 16 of the Rome Convention, the application of a rule of
the law of any country specified by the Convention may be refused only if
such application is manifestly incompatible with the public policy of the
forum. This provision is exactly mirrored at Article 21 of the Rome I
Regulation. And, as stated by the ECJ with reference to both the Brussels
Convention and the Rome Convention (cf. Case 102/77 Hoffman [1978] ECR
01139, and Case C-78/95 Hendrikman [1996] ECR I-04943), as a result of the
principle of predictability and uniformity of the applicable law, the public
policy clause may be opposed to the rules of the law otherwise applicable
only in truly exceptional cases.
As for public policy in Italian courts under the Rome Convention, in a
dispute between an employer and his employee who had worked in the U.S.
where the working relationship was governed by U.S. law (and notably, the
laws of the State of New York), the Corte di Cassazione, (judgment 11
November 2002 No 15822) held that, pursuant to Article 6(2) of the Rome
Convention, a foreign law that does not grant any protection against firing an
employee without just cause clashes against public policy.
b. Rome II
There is no case law in Italy concerning Rome II. However a survey of case
law under the former legislation applicable in Italy was given, including
article 62 of the Italian law on private international law and article 5(3) of
Brussels I Regulation.
The areas for analysis were the general rule of locus damni art 4(1) of
the Brussels I Regulation, the economic and moral damages, common
residence, choice of law and punitive damages.
Under article 62 the law of tort was where the damage occurred. This
applied to citizens who are resident in the same state, the law of that state is
applicable. It is possible to choose between lex damni and locus actus. Under
Italian law the lex loci actus has been seldom used. An example of a case using
lex loci actus was a claim for damages for forced labour in Germany during
World War II. The court held that the relevant harmful event was the capture
in Italy therefore the plaintiff argued that Italian law was applicable. The facts
were interpreted to avoid splitting the tort into harmful event and damages.
In a case concerning an Italian citizen who went to the US for an
operation and returned to Italy with the HIV virus the question was where
had the damage occurred. The patient claimed the harmful event had
occurred in US, but that the damage had occurred in Italy. The court
dismissed this and said that the harm had occurred in the US. This case shows
that Italian law of private international law is in line with the Regulation.
With regards to economic loss and moral damages there was a case
concerning the death of an Albanian worker in Spain where the Italian court
decided that there should not be unjustified enrichment. It was decided that
the damages should be calculated according to Albanian purchasing power.
Recital 3 Rome II states that the court should take all relevant circumstances
of the victim into account but this only applies to road traffic accidents.
In another case involving the death of Italian citizens in a Cuban air
crash. The relatives claimed damages in the Italian court. In theory the
applicable law should be Cuban, however the court decided that the damage
caused to the relatives was autonomous which gave the Italian courts
jurisdiction and the applicable law was Italian. It should be noted that
damages are not permitted under Cuban law. The general rule in Rome II
does not favour the victim so this could be a difference in approach.
Common habitual residence under Article 4(2) of the Regulation was
known under the earlier Italian law, but seldom applied. A case concerned
two Italians and 1 Spanish citizen in a car accident in Spain. The Italian court
said that they could apply Italian law due to common residence. Only
material facts should be considered. The court showed that the Spanish
citizen was not party to the proceedings as the initial car accident had not
involved them.
Choice of law was previously not admitted. First case on Rome II
concerns choice of law. Tacit choice of law in a car accident case.
Culpa in contrahendo is traditionally tort under Italian law (art 12) so
in theory there is no problem with classification. However it could be a
problem in applying a solution under Rome II. In all the decisions, which
were examined, there has been no reference to underlying contracts. There
could be a problem if the law of contract has to be applied.
Punitive damages are traditionally contrary to public policy. Damages
are meant to compensate for actual prejudice and not to punish someone.
There could be a potential problem for cases that are governed by an
applicable law that supports punitive damages, but this is allowed for by
recital 32 to Rome II.
Part III
CROSS-BORDER LITIGATION IN FAMILY MATTERS
a. Brussels IIa and Maintenance
The impact of the EC Regulations No 2201/2003 and No 4/2009 on the Italian
legal system was assessed. These two Regulations are closely connected, since
an action in matrimonial matters or concerning parental responsibility is very
likely to be accompanied by a claim for maintenance as an ancillary claim.
Recent Italian case law illustrates the coordination between the two
Regulations, insofar as divorce or legal separation proceedings and
maintenance proceedings connected thereto can be brought before the courts
of one Member State (Tribunale di Milano, 10 July 2012).
Jurisdiction and recognition of decisions on matrimonial matters
As far as jurisdiction on matrimonial matters is concerned, the entry into force
of EC Regulation No 1347/2000 actually resulted in a partial restriction of the
scope of jurisdiction of Italian courts, since it ruled out some exorbitant
grounds, such as the nationality of one of the spouses and the place of
celebration of the marriage, and severely limited the relevance of the habitual
residence of the applicant. The application of the criterion of habitual
residence did not seem to give rise to practical problems for Italian courts, as
it overlaps with the similar notion already known to national law.
The EC Regulation No 1347/2000 did not provide for any major
innovation in matters of recognition of decisions: under Italian law the
principle of automatic recognition of decisions had been already extended
also to matrimonial matters and Italian officers were requested to update the
civil-status records as a consequence of a foreign judgment without any
special procedure.
Jurisdiction and recognition/enforcement of decisions about parental
responsibility
As regards parental responsibility and child abduction matters, national case
law is far more abundant. Again, the scope of Italian jurisdiction has been
severely restricted after the entry into force of the Regulation. The Italian
Supreme Court interpreted article 8 of the EC Regulation No 2201/2003 so as
to emphasize the exclusivity of the forum of the habitual residence of the
child, as it is intended to preserve the best interests of the child. As a
consequence of the exclusivity of the forum of the habitual residence of the
child, a narrow interpretation of other provisions of the Regulation prevailed.
In particular, the prorogation of jurisdiction was in many cases ruled out
under article 12 of the Regulation, because it had not been accepted by one of
the parents. Only one judgment referring to article 15 of the Regulation is
reported, as yet.
Italian courts were also faced with several cases concerning child
abduction matters. The most sensitive issue concerns article 11 of the
Regulation, as shown by the ECHR judgment in Sneersone and Kampanella case
of 12 July 2011. It is, of course, very difficult to strike a balance between the
necessity of granting the return of a child unlawfully removed or retained and
the risk of psychological harm for the child, recalled by article 13 of the 1980
Hague Convention as well. However, Italian case law shows that national
courts are usually willing to engage in the necessary comparative analysis
and quite often refused to order the return of the child on the ground that
reasons for non-return existed under article 13 of the 1980 Hague Convention
(Corte di cassazione No 16549/10, No 11156/12).
In other cases concerning article 11 of the Regulation the Corte di
cassazione emphasised the right of the child to be heard in proceedings
concerning his/her return, compelling lower courts to allow the hearing.
However, in a recent judgment the Corte di cassazione took the view that
hearing the child is not mandatory when it is impeded by the parent abductor
(see judgment No 11156/12).
On the other hand, Italian courts were not confronted with significant
problems concerning the regime of enforcement of decisions in matters of
parental responsibility. The general regime draws inspiration from the 1968
Brussels Convention, so that it is well known to national courts. The special
regime of decisions in matters of rights of custody and return of the child
seems to be much more challenging, especially because it seems to deprive
the Member State of enforcement of every power to verify the requirements
set forth by the Regulation for the circulation of those decisions. No case law
is, however, reported on the subject matter.
Jurisdiction and recognition/enforcement of decisions in matters relating to
maintenance obligations
In matters relating to maintenance obligations EC Regulation No 4/2009
entered into force only recently and as yet only one judgment is reported to
have recalled it. However, it is possible to elaborate on the impact of some
major innovations contained therein for the Italian legal system.
As regards the rules on jurisdictional competence, the most significant
innovation brought about by the Regulation will be the introduction of the socalled forum of necessity. Such a head of jurisdiction is actually new to the
Italian legal system, because it does not rely upon a link between the dispute
and a State, but is aimed at the protection of the right of action. The possible
lack of predictability of the forum of necessity will probably lead Italian
courts to a very narrow interpretation of article 7.
Also the general regime of recognition and enforcement of decisions,
providing for the abolition of exequatur proceedings, is going to introduce
important innovations, since the Member State of origin is requested to issue
a mere extract from the decision and the defendant is only granted the right to
apply for a subsequent review in the Member State of origin. The abolition of
every procedure of review in the Member State of enforcement gives rise to
some apprehensions: it is, however, far from certain how a balance can be
struck between the abolition of exequatur proceedings and the need for the
protection of fundamental procedural rights.
Questions were put forward concerning fundamental rights and the
need to take it into account when recognising and enforcing decisions. It was
noted that the ECJ is reluctant to take fundamental rights into consideration
when using Brussels IIa.
b. Succession
The possible impact of the Succession Regulation on the Italian system of
private international law was examined. As it currently stands cross border
succession is dealt with almost entirely by domestic law. Italy is not party to
any of the relevant Hague Conventions.
Four inter-related areas were identified for analysis. The first unity and
universality of succession, second the coincidence of jurisdiction and the
applicable law should be facilitated, third party autonomy and finally an area
that is of importance within Italy, the issue related to the protection of those
entitled to a reserved share of the estate.
As far as unity is concerned in Italy it is thought that regardless of the
nature of estate, one law should apply. Italian law of private international law
(ILPIL) art 46(1) states that the law of the country of the nationality of the
deceased at the time of death governs the whole succession. This is a
traditional principle.
Under the Regulation the principle of unity is not absolute. The threat
lies with renvoi. Art 13(1) of ILPIL provides for renvoi similar to art 34 of
Regulation. In Italian case law renvoi is now almost non-existent. Renvoi
does not operate when party autonomy is applicable.
The Succession Regulation uses habitual residence as the connecting
factor for jurisdiction and applicable law. With regards to choice of law, Art 57 of the Regulation provides opportunity of jurisdiction as a consequence of a
choice of law. In art 46 of ILPIL uses nationality of deceased for applicable
law and a variety of jurisdiction options. Concern was raised over the
plurality of heads of jurisdiction in that Italian courts may find themselves
competent even when there is a weak connection for succession. The
succession could be considered in its entire terms even when the assets are
outside of Italy such as in cases where nationality is the connecting factor and
there are no assets within Italy. Contrary to art 12 of the Regulation, there is
no course for Italy to dismiss a claim in view of the fact that the judgment
may not be effective where the goods are situated.
Party autonomy is a key principle of the Succession Regulation. Which
is not surprising. Art 46(2) ILPIL there is a role for party autonomy. To
compare this article with art 22 of the Regulation there is one point which is
markedly different the choice in art 46(2) will not be effective if at the moment
of death the person was not resident in the state. This is a problem where
needs of reserving the assets. The approach is a cautious one. The approach in
art 22 of the Regulation is different in that the person may choose as the law
to govern his succession the law of his nationality at the time of making his
choice or at the time of death. PA is favoured by the regulation as agreement
to succession. This is not mentioned in ILPIL. It should be noted that under
ILPIL the general agreement for succession, there is now the possibility to
enter into an agreement ensure the passing of whole or parts of business to
family members at the time of death without having problems arising from
reserved share.
The protection of those entitled to a reserved share of the estate. The
art 46(2) of ILPIL states that for Italian nationals that choice of law should not
affect the reserved share of the estate providing that the deceased was
resident in the state at the time of death. This is a highly controversial
provision as it is considered discriminatory. Nothing like this exists in the
Regulation. However it is culturally important for Italy both for family and
economic reasons. The rules surrounding the reserved portion do not fall
within Italian public policy. The response from the room was that art 46(2)
had to go.
Part IV
SPECIALIST TOPICS: DO THEY NEED A SPECIALISED REGIME?
a. Private International Law Aspects of Collective Redress
Consumers are able to represent themselves or a group can represent them.
The most difficult step to be passed by the claimants is for the claim for the
class action to be accepted before the court. However it should be easier for
them now as last year saw a change in the rules so that the claimants don’t
have to prove that their claims are identical, just homogenous.
The law does not provide for jurisdiction. Italy has set up commercial
law courts, which deal with these cases. These specialised courts are
important. There should be one for each region, however not all regions have
one, and then the claimant has to go to another one.
It is an opt-in system where consumers have to prove that there is
homogonous interest to allow the court to deal with the case. The statistics for
the number of cases dealing with collective redress appear to vary. There
would appear to have been about twenty. Most of them involve banks as the
defendants. There has been one anti trust case, which is currently waiting a
decision. The General Court has stayed the case until the anti-trust authority
has dealt with it, although their decision is not binding on the court.
However the important issues for class actions have been unfair
commercial practice and private enforcement. Out of twenty cases, the court
admitted only four. The admissibility test is the major obstacle in class
actions. It was noted that English case law has raised interesting questions
concerning jurisdiction. The English courts have said that even where there is
no English company directly sanctioned by the European Commission
involved in the cartel, if the companies abroad have the same financial
identity they can be sued for the purposes of art 2. In the case of E&I the
parties were not the same, the defendants were not the same in Italy as the
UK, so lis pendens could not apply. The courts then looked at art 28 and
accepted that the parties were connected, but nevertheless made the decision
that the courts would take too long to make a decision in Italy and made the
decision themselves. To say that the Italian courts are slow is obviously
controversial in the context of mutual trust.
The Milan court also decided on art 5(3) and 6(1). They said that there
was a claim for declaratory relief that there was no infringement of
competition law and that there are no damages to be restored. They said they
couldn’t apply art 5(3) as the damages were in different jurisdictions and as
the damages were differentiated damages art 6(1) could not be applied. This
decision has been appealed. It was suggested that art 6(1) should have been
applicable.
Questions were raised as to whether jurisdiction should be covered by
legislation. The general view was that it shouldn’t. Forum shopping was a
concern, but it was asserted that wealthy defendants would always pay the
costs to bring the cases in the jurisdiction that suited them. It was also held
that it was good for business in London, as it was perceived as having good
judges.
A request was made to invite academics from the Netherlands whose
efficient courts deal with a high number of cross border cases. It was felt that
it would be beneficial to research this area further.
b. Private International Law Aspects of Intellectual Property
The starting point was that the Italian case law was poor in this area. The
courts give a strict interpretation of competence in IP matters. They usually
give themselves competence where national patents are concerned but not
where foreign patents are involved. This is due to a number of different
principles, the application of GAT doctrine and self-restraint in negative
declaration claims.
Case law was considered with five issues in mind; the application of
the GAT Principle, the competence of limited declaration, the place of the
harmful event, copyright and the provisional jurisdiction.
The GAT principle states that when dealing with foreign cases the
court that is competent to hear the case is the court of the state where the
patent was registered. This is easy and plain to understand. Before the GAT
principle the case law was uncertain. Article 22(4) of Brussels Regulation was
not an obstacle to a court in a tort case declaring itself competent. After GAT
the case law is uniform and well adjusted. The court does not have
jurisdiction when validity is raised.
Competence on limited declaration. These cases are the typical case.
The claimant seeks a declaration of non-infringement on foreign patent and if
the case is brought in forum of domicile, which is rare, the court will assist
without problems. The problems arise when it is brought under art 5(3) of the
Brussels Convention. The case law was consistent that there was no
jurisdiction and a literal interpretation was given, that where the harmful
event occurred, that the damage must exist prior to the claim. But when the
Brussels Regulation came in there was different wording, the courts denied
jurisdiction drawing the distinction between future possible events from the
place where no event occurred at all. The second problem was the issue of
forum shopping under art 5(3) Brussels Regulation.
Place of harmful event in patent cases – how do we work it out to get
the real connection. The ECJ does not provide any explanation as to what a
real connection is. Traditional ILPIP sticks to territoriality. There can only be a
violation of IP right only where it is protected. However, the courts try to
never argue against territoriality. Instead they try to work out where the
centre of the case lies. In patent cases this might be where the work is put on
the market or ‘commercialised’. But this can be interpreted in different ways.
For example it can be interpreted as where the goods are sold or advertised or
where the parties enter into competition. Case law has shown the place of the
harmful event can be where the goods are advertised via the Internet in Italy.
In copyright cases the place of harmful event can be broader. The
application is wider. Violation of copyright through the Internet is interesting.
A case involved an Italian television company against Google and YouTube
involving uploading of TV show. Italian courts did not have jurisdiction as
the server was in US. However the Italian courts said the place of uploading
was only potentially harmful – the place of harm was where it affected the
market so the damage was where the harm occurred which was Italy and
therefore the Italian courts had jurisdiction.
Provisional jurisdiction is famous in places for the possibility to issue
cross border measures. There is one case for article 31 which concerned a
previous agreement for transfer of patent rights between Austrian and Italian
Companies. Due to the failure to comply with the agreement the Austrian
party revoked the patent in Austria. The Italian company put in a claim in the
Italian courts to prevent an injunction preventing the use of the patent in
Italy. The competent court in the agreement was the Austrian court. However
the Italian court found that article 31 gave them jurisdiction but that it should
be heard in Rome and not Turin where it was registered and that there was no
need for protection.