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Italy

Giuseppe Cataldi

in International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion

In the Italian legal system, treaties are incorporated by means of the laws of ratification and must be consistent with the Constitution. Important indications on the relationship between treaties ... More

In the Italian legal system, treaties are incorporated by means of the laws of ratification and must be consistent with the Constitution. Important indications on the relationship between treaties ratified by Italy and the constitutional order are found in the Constitution, even though the references are to distinguish the legal discipline in force before and after the 2001 constitutional reform. Domestic courts are formally and substantially free from any deference to the views of the government or legislature in interpreting a treaty provision. In the Italian Constitution there is no rule on the power of the legislature or the government to formulate a reservation to a treaty. Thus, in practice, the competence to formulate reservations is exercised by the government and by the Parliament. International customary law is automatically incorporated into the Italian legal system by a rule of the Italian Constitution, and it assumes the same force of constitutional law.Less

Belonging in the Archipelago: Nation, Race, and Citizenship

Valerie McGuire

in Italy's Sea: Empire and Nation in the Mediterranean, 1895-1945

In their later period, European empires invented new forms of citizenship to affirm their imperial sovereignty and respond to increasing resistance from colonial subjects. Inspired by citizenship ... More

In their later period, European empires invented new forms of citizenship to affirm their imperial sovereignty and respond to increasing resistance from colonial subjects. Inspired by citizenship laws in French colonial Algeria, Italy adopted a special form of citizenship for the Southeast Aegean that fits in with this broad trend. But the application of it also presents some peculiarities related to diasporic modalities of Italian citizenship. The chapter retraces how Italian Aegean nationality was reshaped by the large-scale emigration practiced by the local population; like their Italian rulers, the natives of the Aegean depended on remittances from their family members living abroad. In ways that closely echoed the transformation of Italian citizenship to account for hundreds of thousands of Italian emigrants abroad, the Italian state chose to make this local citizenship increasingly robust so as to be able to include Aegean diaspora communities of the Mediterranean. While the application of the citizenship was revised after the invasion of Ethiopia and the establishment of colonial anti-miscegenation or race laws, the original formulation of it in the 1920s has implications for some former colonial subjects of the Aegean.Less

Testamentary Formalities in Italy

Alexandra Braun

in Comparative Succession Law: Volume I: Testamentary Formalities

This chapter gives an overview of formality requirements for testamentary dispositions in Italian law, both from a historical and a comparative perspective. Italian inheritance law is deeply rooted ... More

This chapter gives an overview of formality requirements for testamentary dispositions in Italian law, both from a historical and a comparative perspective. Italian inheritance law is deeply rooted in French law and the provisions concerning formalities therefore resemble those of the French Civil Code (as entered in to force in 1804). As well as ordinary wills, including holograph and notarial wills (whether public or secret), the Italian legal system also recognises a number of special wills as well as international wills. The chapter examines the requirements for each of these different types of will, discusses their popularity, and compares their pros and cons. It further outlines the impact of defects of form requirements on the validity of wills and considers the approach of the Italian courts to such defects. Finally, it shows that unlike in some other European countries, in Italy, the number of wills has decreased whereas will-substitutes have become more and more popular.Less

Italy

Riccardo Pavoni

in The Privileges and Immunities of International Organizations in Domestic Courts

This chapter begins with a brief overview of Italian case-law on international organizations with a view to outlining its current state. It illustrates some exceptional cases of explicit judicial ... More

This chapter begins with a brief overview of Italian case-law on international organizations with a view to outlining its current state. It illustrates some exceptional cases of explicit judicial dialogue arising from that case-law, while a separate analysis is devoted to a possible implicit form of trans-judicial cross-fertilization disclosed by the Italian decisions endorsing the theory of the availability of alternative remedies as a condition for the immunity of international organizations. The discussion then turns to certain significant Italian court misinterpretations vis-à-vis the problem of the legal personality of international organizations, for the purpose of clarifying that a transnational legal methodology would have prompted correct solutions.Less

Corporate Boards in Italy

Guido Ferrarini, Gian Giacomo Peruzzo, and Marta Roberti

in Corporate Boards in Law and Practice: A Comparative Analysis in Europe

This chapter turns to Italy to discuss the role, functioning, and law governing corporate boards. The chapter is organized as follows. The first section is about the environment in which boards ... More

This chapter turns to Italy to discuss the role, functioning, and law governing corporate boards. The chapter is organized as follows. The first section is about the environment in which boards operate and corporate governance of financial institutions. The chapter also looks here at available corporate board models. Section 2 examines the relationship between the board and the management of the company. Special attention is given to the information streams in the company, both to the board and from the board, including committee work. The third section considers in detail the relationships between the board and the shareholders, the stakeholders, and the creditors. The next section examines how company law is enforced by civil courts, criminal courts, and regulators. Section 5 turns to reform.Less

Mediation in Italy: Alternative Dispute Resolution for All

Giuseppe De Palo and Lauren Keller

in Mediation: Principles and Regulation in Comparative Perspective

The number of mediations in Italy is rising exponentially following the enactment of the new Mediation Law (Legislative Decree 28/2010). In implementing the 2008 European Directive on cross-border ... More

The number of mediations in Italy is rising exponentially following the enactment of the new Mediation Law (Legislative Decree 28/2010). In implementing the 2008 European Directive on cross-border mediation, Italian lawmakers decided to go beyond voluntary mediation and introduced mandatory pre-trial mediation in a variety of civil and commercial cases. The law aims to reduce the incredible backlog of civil cases pending in Italy (more than 5.6 million) and to shorten the average eight-year duration of civil cases. Despite the strong opposition to mandatory mediation by a sector of the Italian bar, mediation organisations are moving forward to accommodate the increasing demand, and the procedure as a whole is gaining traction. This chapter aims to present the key regulatory features of the Italian law, as well as to provide analytical commentary on the status of mediation as perceived by the Italian public.Less

Between Church and State: Stem Cells, Embryos, and Citizens in Italian Politics

Ingrid Metzler

in Reframing Rights: Bioconstitutionalism in the Genetic Age

This chapter analyzes the politics of human embryonic stem cell (hESC) research in Italy. It demonstrates how political abstinence reinforced the position of a church whose injunctions of sexual ... More

This chapter analyzes the politics of human embryonic stem cell (hESC) research in Italy. It demonstrates how political abstinence reinforced the position of a church whose injunctions of sexual abstinence were seemingly too well heeded in a nation with a famously declining birth rate. It looks closely at Italian Law 40 and its provisions. This law marked the beginning of the Italian politics of hESC research. The chapter shows that Italy’s national soul searching on the pitfalls of stem cell technologies took the form of lessons about human genomes and excursions into human biology. It suggests that hESCs became the symbols of a battle for rights that peaked in an abrogative referendum.Less

Sociology of Law for Legal Education—Italian Experiences

Vincenzo Ferrari

in Law and Sociology

This chapter briefly describes the sociology of law in Italian academies before speculating whether and to what extent the chances offered by sociology of law in the framework of legal education have ... More

This chapter briefly describes the sociology of law in Italian academies before speculating whether and to what extent the chances offered by sociology of law in the framework of legal education have actually been taken or still can be. Some of the data presented will give an idea of the status of sociology of law in the field of Italian legal studies. From the beginning of their training, Italian law students — much like any other law student — are literally plunged into a theory that aims to supply the tools and the general framework on which they will be expected to base their legal decisions in the future.Less

The Formation of International Law Journals in ItalyTheir Role in the Discipline

Ivan Ingravallo

in A History of International Law in Italy

This chapter analyzes the role played by legal journals as ‘tools’ for international law studies in Italy. The author considers their role in the development of this subject in the domestic arena, ... More

This chapter analyzes the role played by legal journals as ‘tools’ for international law studies in Italy. The author considers their role in the development of this subject in the domestic arena, where there were no specialized legal journals expressly devoted to these topics until 1898. The early journals represented ephemeral experiments, prior to the foundation of the Rivista di diritto internazionale in 1906 under the leadership of Dionisio Anzilotti. The Rivista represented a turning point in this branch of law and was followed by other periodicals established in the 1930s and 40s, which were partly inspired by the political milieu characterizing Fascist Italy, and by those that developed in the aftermath of World War II, which were influenced in turn by the theoretical and methodological premises of the time and by accentuated contrasts between different academic ‘schools’ of thought. Lastly, the author evaluates how the Italian journals of international law dealt with foreign scholars and foreign languages.Less

The Italian Doctrine over Final Decades

Paolo Palchetti

in A History of International Law in Italy

This chapter aims to examine the evolution of Italian international legal scholarship from 1990 onward. After providing some contextual elements that appear of relevance in assessing the persistence ... More

This chapter aims to examine the evolution of Italian international legal scholarship from 1990 onward. After providing some contextual elements that appear of relevance in assessing the persistence of a national identity in international legal scholarship, the chapter focuses on two issues: the methods of Italian scholarship and its fields of interest. It shows that the permanence of a strong rule-based conception of international law, as well as a generalist approach to the study and teaching of international law, continue to be the most striking features characterizing Italian scholarship. On a broader perspective, the methods employed by Italian scholarship appear to be informed by a legal tradition that continues to thrive and largely prevail in many European States, if not beyond.Less

Some Contributions from and Influence of the Italian Doctrine of International Law

Giovanni Distefano and Robert Kolb

in A History of International Law in Italy

This chapter deals with the contribution of Italian scholarship to public international law. Its approach is two-fold. First, adopting an “external” perspective, the contribution of Italian scholars ... More

This chapter deals with the contribution of Italian scholarship to public international law. Its approach is two-fold. First, adopting an “external” perspective, the contribution of Italian scholars to the highly esteemed series of Hague Courses of the famous eponymous Academy may shed some light on what the Italian conception brought to international legal scholarship but also on how Italian scholars were perceived by their foreign brethren, and in what context they were quoted. Second, selecting a specific issue, the chapter focuses on the influence of Italian legal thinking on the shaping of doctrines of State responsibility. Among all the many areas of international law, this is one where the Italian school is constantly viewed as pioneering (together with the German school). For example, the writings of Anzilotti or Cavaglieri are often quoted as astonishingly modern exposés of that branch of the law, providing thus a test-case to verify the contribution and influence of the Italian doctrine of international law.Less

Italy: National Correspondents: Prof Avv Filippo Corsini and Avv Giorgio Corno

in Rescue of Business in Europe: A European Law Institute Instrument

This report states the law in Italy as at 16 March 2019. Delegation law (legge delega) no 155 of 19 October 2017 provides for the principles to be followed by the Italian government in drafting the ... More

This report states the law in Italy as at 16 March 2019. Delegation law (legge delega) no 155 of 19 October 2017 provides for the principles to be followed by the Italian government in drafting the reform bills (decreti delegati) aimed at significantly amending the existing bankruptcy law. The principles included within the said delegation law provide, among others, for amendments to the existing insolvency proceedings (with the exception of Amministrazione straordinaria), inclusive of the renaming of the fallimento (bankruptcy) proceeding into judicial liquidation proceeding; introduce the so-called ‘alert procedures’ as well as the possibility to appoint a mediator within a restructuring proceeding; provide rules on group insolvencies. The Italian government issued on 12 January 2019 legislative decree (decreto legislativo) no. 14, named ‘codice della crisi e dell’insolvenza’ which was published on the Official Gazette of the Italian Republic on 14 February 2019 which shall become effective on 15 August 2019 (art. 389). Certain specific provisions of law shall, however, become effective after 30 days from its publication. Decree 14/2019 shall have a major impact on certain rules regarding, among others, the following restructuring proceedings: concordato preventivo; accordi di ristrutturazione; composizione della crisi da sovraindebitamento. Less

Particular Remedies for Non-Performance

Nils Jansen and Reinhard Zimmermann

in Commentaries on European Contract Laws

If a comparative lawyer was asked to draw up a list of problems in which continental and common law systems fundamentally and characteristically diverge, the question of ‘specific performance’, ... More

If a comparative lawyer was asked to draw up a list of problems in which continental and common law systems fundamentally and characteristically diverge, the question of ‘specific performance’, ‘exécution forcée en nature’, or ‘Erfüllungsanspruch’ would probably make one of the top places. Will the law compel a debtor personally to do what he has promised to do? Or will it release him by way of payment of a sum of money? In other words, will the non-performance of a contractual obligation entitle the creditor to request performance in kind or will the creditor be relegated to a claim for damages? The starting points of both systems hardly appear reconcilable. Less

The Republic of Italy

Steven Gow Calabresi

in The History and Growth of Judicial Review, Volume 2: The G-20 Civil Law Countries

This chapter looks at Italian judicial review and the Italian Constitution’s Bill of Rights. The Italian Bill of Rights and Italian judicial review emerged primarily as the result of a rights from ... More

This chapter looks at Italian judicial review and the Italian Constitution’s Bill of Rights. The Italian Bill of Rights and Italian judicial review emerged primarily as the result of a rights from wrongs process. This is shown by the Italian Constitutional Court’s first case in which it overturned an Italian Fascist-era law forbidding the distribution of political pamphlets. Moreover, judicial review has thrived in Italy because, unlike Japan, the Italian Constitution sets up a variety of different competing power centers among which the Constitutional Court can navigate to get its way. Meanwhile, the complex Italian political party systems in the last sixty years may have allowed the Italian Constitutional Court more freedom to navigate the Italian political process for the same reason that radical proportional representation in Israel helped Aharon Barak in cementing in place Israeli constitutionalism. Finally, Italy’s multiparty system may have caused alliances on the left and on the right to constitutionalize rights for “insurance and commitment” reasons.Less

General Provisions

Nils Jansen and Reinhard Zimmermann

in Commentaries on European Contract Laws

The idea of prefacing a legal instrument with an introductory chapter containing a number of ‘general provisions’ was not, of course, an invention of the draftsmen of ULIS and CISG; it has a much ... More

The idea of prefacing a legal instrument with an introductory chapter containing a number of ‘general provisions’ was not, of course, an invention of the draftsmen of ULIS and CISG; it has a much longer pedigree. Thus, we find it implemented in a number of the great European codifications: most prominently and influentially, perhaps, in the Code civil (‘Titre préliminaire’), the Austrian ABGB and the Swiss ZGB (‘Einleitung’), and the Codice civile (‘Disposizioni sulla legge in generale’). Less

The Main International Law Issues Arising in the Aftermath of World War II

Enrico Milano

in A History of International Law in Italy

The present chapter provides an extensive analysis of the main foreign policy issues arising for Italy out of the 1947 Peace Treaty—namely the question of South Tyrol, the Free Territory of Trieste ... More

The present chapter provides an extensive analysis of the main foreign policy issues arising for Italy out of the 1947 Peace Treaty—namely the question of South Tyrol, the Free Territory of Trieste and Italy’s Trusteeship over Somalia—and how these issues were dealt with by the Italian international law doctrine. The chapter also deals with the doctrinal debates ensuing from the proliferation of international organizations, including regional ones in the European continent. The analysis shows that Italian authors produced an impressive bulk of literature engaging directly with the major international law issues resulting from the end of World War II; the conclusion reached is that international lawyers were active participants in the national political effort to become a fully fledged, responsible member of the international community and contributed to the understanding of the novel process of European integration as an antidote against conflict and hostilities in the European continent.Less

Foreign Law in International Legal Practice

Guido Alpa

in Courts and Comparative Law

This chapter begins by tracing the history of the application for foreign law in Italy. It then discusses examples of foreign models used by Italian courts; the use of the institute of Anstalt, a ... More

This chapter begins by tracing the history of the application for foreign law in Italy. It then discusses examples of foreign models used by Italian courts; the use of the institute of Anstalt, a typical device of the law of Lichtenstein; the foreign models used in Italian contractual practice; lex mercatoria and the principles developed by the International Institute for the Unification of Private Law (UNIDROIT); and the rules of the common market of the European Union.Less

The Risorgimento and the “Birth” of International Law in Italy

Edoardo Greppi

in A History of International Law in Italy

The Italian doctrine of international law developed in the mid-nineteenth century, mainly under the influence of the historical events that characterized the so-called Risorgimento, the political ... More

The Italian doctrine of international law developed in the mid-nineteenth century, mainly under the influence of the historical events that characterized the so-called Risorgimento, the political process leading to the political unification and formation of the Kingdom of Italy in 1861. Several scholars largely based their writings on the theory developed by Pasquale Stanislao Mancini, according to which the principle of nationality was the basis for legitimacy and international subjectivity, a theory clearly linked with the political afflatus of the period. This chapter addresses the Italian scholarship of international law during the Risorgimento period, through a series of authors originally so strictly-linked with Mancini’s theories to be qualified, even at the time, as the ‘Italian school of international law’. Such theories were therefore firmly anchored in the Risorgimento, its political ideals and its historical evolution exercising a very significant impact on the international law studies in Italy during those decades.Less

The Pan-European General Principles of Good Administration in the Italian Legal System: A (Sometimes) Contradictory Path

Marco Macchia and Claudia Figliolia

in Good Administration and the Council of Europe: Law, Principles, and Effectiveness

This chapter discusses the impact of the pan-European principles of good administration on Italian administrative law. The chapter presents the main finding that the Italian legal system is generally ... More

This chapter discusses the impact of the pan-European principles of good administration on Italian administrative law. The chapter presents the main finding that the Italian legal system is generally in line with these principles. The case law of the European Court of Human Rights has played a particularly strong role in national administrative law (especially in the context of administrative sanctioning and lengthy court proceedings). At the same time, some limitations to full reception of the said principles remain, the most notable of them being the resistance of constitutional jurisprudence to give ‘generalized’ execution to the pan-European principles and the low degree of recognition of the importance of the Council of Europe’s recommendations and conventions (other than the ECHR) for the development of these principles in national administrative law. The chapter concludes by stressing the (sometimes) contradictory nature of Italy’s acknowledgement of the pan-European scope of these principles.Less