Disgorgement, Compensation and Restitution: A Comparative Approach

“Indemnity clauses in sale and purchase agreement under Italian law” This work is a comparative analysis of the problems arising from indemnity clauses in sale and purchase agreements under Italian Law. In a contract for the sale of shares of a s.p.a or a s.r.l., the seller usually provides representations and warranties by which he guarantees to the buyer the presence of certain characteristics of the target company’s assets. The collateral asset, financial and income provided for this purpose is usually integrated and completed by indemnity clauses, through which the parties regulate the activation and the limits of the guarantees, as well as the consequences and remedies arising from their breach of these representations and warranties. In particular, the content of indemnity clauses may consist of an obligation to: a) indemnify and hold the buyer harmless from any current or potential contingent liability (usually existing at the last balance sheet date); b ) indemnify the buyer for any undeclared debt or loss of assets; c) compensate for any loss or damage suffered by the target that would not have occurred if the financial situation of the company were correctly represented and described in the business warranties contained in the sale and purchase agreement. The thesis contains three sections: (i) a description of the main theoretical problems arising from the application of indemnity clauses, typical of the common law systems, to the Italian legal system; (ii) an exam of the different ways in which an indemnity clause could be drafted by the parties in the most common cases, as well as the interpretative issues involved; (iii) a study of the strong difficulty to frame the indemnity clause under the categories of the Italian legal system (such as, for example, damages, price adjustment, penalty clauses) with an attempt to understand how to recognize the indemnity clause its own juridical autonomy. Granting such autonomy and, as the author tried to do, identifying a set of rules which could be used to regulate the indemnity clause appears to be necessary. This is not only in the light of the difficult application of Italian law to the issues created by the breach of business warranties in sale and purchase agreements, but also in the light of the cross-border and transnational scenario in which the indemnity clause is usually used and operates.

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.

This article prospects the dynamic phenomenon of the in house providing and analyses the extension that the related principle, forged by the European Courts, has had in the Italian system over the last decade, interpreting the main relevant trends of Italian Institutions, with the purpose of identifying the current rules governing this subject. Providing a general overview of the fragmented and, often, conflicting legislative relevant reforms, this work shows how the in house criteria, general principle for the carrying out of public services and instrumental services pursuant to European Law, has firstly become a secondary and residual criteria, due to legislative interventions pursuing the declared goal of privatization and reduction of public debt, and subsequently has returned back to its initial position as an effect of the referendum of 2011. In highlighting such fluid legislative scenario, a particular focus is given to the key role played by AGCM and by Italian Courts in such dynamic subject, whose decisions have not only helped to clear out the actual scope of the in house principle - despite of highly segmented laws - but also restored the compliance of Italian rules with the principles of European Law, protecting the will expressed by citizens with the referendum.

The establishment in 2020 of liability for crimes related to the establishment and spread of criminal influence in Articles 255–2553 of the Criminal Code of Ukraine has caused serious criticism due to the imperfect definition of certain key legal features. Proposals to abolish criminal liability for these crimes are being made. Scientists emphasize the violation of the requirements of legal certainty and the problems of interpreting the norms of the Criminal Code of Ukraine related to the introduction of the «criminal influence» category and some concepts derived from it. The judicial practice is a powerful means of resolving problems of interpretation of legal provisions by clarifying legal norms in specific cases. The article uses the example of Italy to examine the importance of the influence of Case law on the formation of the content of concepts and terms used in the Criminal Code of Italy, 1930, namely the contribution of Italian case law to the definition of the concept of «mafia-type criminal association» and the clarification of the elements of the «mafia method» of criminal influence. The definition of the concept of mafia-type unlawful association in the Italian legal system is currently given in Article 416- bis of the Criminal Code of Italy, 1930, as amended by the Laws of 1982 and 2008. The current text is the result of legislative reforms that took place on the basis of the interpretive work of the courts to clarify the legal meaning of the term «mafia-type association». The study demonstrated: the influence of the jurisprudence within the Court of Cassation of Italy has proven to be significant for the formulation of the legislative provisions of Article 416-bis of the Criminal Code, as well as for understanding the constituent elements of the concept of “mafia-type association”, in particular, such as the power of intimidation stemming from the bonds of the association, and the resulting conditions of submission and silence. These features constitute the essence of the so-called «mafia method» of criminal influence, which distinguishes an illegal mafia-type association from a general-type criminal organization (Article 416 of the Criminal Code of Italy). It is emphasized that the problem of the content of the elements of crimes provided for in Articles 255–255-3 of the Criminal Code of Ukraine should be resolved not by abolishing liability for them, but by rationally taking into account the legal positions of the Supreme Court, since they define the boundaries of criminal legislation application and eliminate legal uncertainty.

The author illustrates the normative framework of protection against religious discrimination in Italian legal system, scattered over several different pieces of legislation. The analysis is devoted to the substantive and procedural rules on the principle of equal treatment irrespective of religion. The analysis shows that the law guarantees every aspect of freedom of personal convictions in religious matter and protects not only people who belong to traditional organized religions, but all people who have held religious beliefs or practices. Italian law prohibits discrimination in regard to religion, not just in employment, but also in other areas. Consequently, the scope is wider than the EU Non-discrimination Directive 2000/78/EC, which only covers discrimination in employment, occupation and working conditions. The rules for the procedure before the court, designed to ensure the protection for persons who have been subject to discrimination are then examined. The author focuses in particular on the provisions regarding the legal standing, the burden of proof, and the remedies, which are crucially important for the effective implementation of the principle of equality.

This article pays specific attention to the cultural plurality of the contemporary societies, contextualising it as subject of study and debate in the penal field. Since the contents of criminal law are deeply permeated by the culture of members of the majority culture and reference society, between the dominant system and the ethnic minority can rise particularly intense cultural conflicts - criminal lawsuits at the expense of members belonging to these groups happen always more frequently, and in this field the debate denotes whether the cultural background of the perpetrator influenced the origin and the executive modality of his behaviour. The paper seeks to analyse the specific juridical categories of the Italian legal system - the cultural factor weaves together tipicality, illegality, guiltiness and punishability – in order to verify whether in our legal system the cultural defence of the perpetrator can basically be accepted. Another fundamental point concerns with all the safeguard actions of the victims who endure serious violations of their rights, including physical and psychological integrity, through behaviour aimed at recognizing a reinforced protection as in situations of vulnerability of particularly intensity. Therefore, instruments aimed at protecting the victims are taken into consideration adding a critical and constructive approach in the perspective of finding solutions for an effective protection.

While megaprojects are widely investigated from an economic point of view, there are few studies that analyse them from a legal perspective. The purpose of this paper is to begin to fill this gap, delving into the role that contracts play in the implementation of megaprojects. Given the absence of any international legal framework of reference, the most commonly used contractual models (FIDIC and NEC) will be taken into consideration. After examining the main clauses of such models, their compatibility with the Italian legal system will be explored.

INTRODUCTION The free movement of goods and services are central to the functioning of the internal market of the European Union (EU). The provisions of the Treaty on the Functioning of the European Union (TFEU) governing the free movement of goods (Article 28 et seq TFEU) and services (Article 56 et seq TFEU) principally address Member States, though may under certain circumstances also extend to private actors. While many scholars have devoted their attention to analysing those circumstances and the way in which they have been articulated in the case law of the European Court of Justice (‘Court of Justice’), considerably less attention has been paid to the exact consequences in private law of the application of the free movement of goods and services. Does such application to private law relationships create, modify or extinguish rights and obligations, does it affect existing private law remedies, and if so, how? Not surprisingly, EU lawyers do not regard these consequences as part of their core business, yet scholars of private law, and national courts dealing with civil matters in particular, grapple with the questions that follow from the application of the free movement of goods and services to private law disputes. It is argued in this chapter that the impact of the free movement of goods and services on private law rights and remedies, and the underlying relationships that are governed by them, is pervasive and multi-faceted, yet not well understood in legal scholarship and practice. EU lawyers conceptualise – and do so rightly – the cases brought before the Court of Justice on free movement of goods and services, as cases of internal market law. However, if we remember that trade in goods and services typically takes place based on private law arrangements, namely contracts, we must admit that the decisions rendered by the Court will also have an impact on underlying contracts and related private law rights and obligations of individuals. Even if a contractual relationship is absent in the context, it was at least the potential of a private party to engage in a contractual relationship with a party based in another Member State that was at stake, and thus led to the decision by the Court.

The historical period we are living is characterized by very rapid technological innovations, on many different fields. Our society and our legal system are not always ready to immediately embrace new technologies as they usually need a testing and adaptation period, but also adequate regulation. An important innovation already implemented has been the rides sharing (sharing mobility). It is very relevant in the market, especially in Italy, and has changed the way we perceive cars ownership and use. Self-driving cars are also a very important innovation, not only due to the fact that they significantly increase the number of users or the available mobility services, but also mainly for a significant increase in road safety concerns. Based on that, this paper will analyze how the Italian legal system regulates the protection for victims of traffic accidents caused by autonomous vehicles in terms of civil liability and motor insurance rules.

In the Italian legal system, the taxation of family income has undergone profound changes over the years, in line with the economic-social balances that characterized the original structure and subsequent evolution of the family, a term for which there is no univocal definition. The family today can be founded on marriage, civil union or de facto cohabitation; the first two models, by attributing the status familiae to the partners, identify the family aggregation as a place of production of wealth as well as affection and, therefore, an expression of ability to pay, with consequent relevance also on a tax level; the third model, rising to a mere fact resulting in significant effects on a legal level, instead has a completely marginal fiscal discipline. This essay, starting from an analysis of the choices made within the OECD and from the diachrony of the sources of Italian law, examines critical issues in the current legislation from a proactive perspective, from which, despite the warnings expressed on more than one occasion by the Judge of Laws on the basis of Italian constitutional principles, the lack of an organic tax regime designed for families becomes evident, the system being based on an atomistic vision of interpersonal relationships.

Matrimonio e Famiglia Non Fondata sul Matrimonio (Marriage and Family Not Founded on Marriage)

The increasing use of the internet by minors has made public the risk they run of becoming victims of serious cyber-crime. This awareness has led to the adoption of binding and soft-law instruments in the field of International and EU law aimed at combating new forms of crime and protecting minors in the cyberspace. This paper, after having critically analysed the main acts adopted at International and EU level, focuses on their implementation in the Italian legal system. In doing so, cybercrimes committed by adults against children and those committed among peers will be separately considered. The study shows that, despite the legislator’s attempt to carry out the obligations deriving from International and EU Law, there are still several critical profiles in the national law.

This work addresses the issue of protection afforded to priority rights in bankruptcy agreements. The approach of the Italian legal system is twofold: collectivized for non secured creditors and individualized for secured ones. Non-secured creditors are always considered as a group, subject to majority rule, although not necessarily as a single group. They must be divided into different classes, according to their respective position relative to other creditors in the division of the debtor's assets value. Non-secured creditors are protected, individually, only through this compulsory division. They remain subject to the decisions taken by the group of creditors to which they belong. Terefore, the majority are allowed to abdicate to a common position, considered as a collective right, not an individual one. Instead, claims of secured creditors are considered as individual rights, at least within the limits of the value of the related collateral. Normally, secured creditors are entitled to receive, through the process of reorganisation, the entire value of their claim. However, as regards the value of any claim exceeding the value of the related collateral, as determined by an independent valuation, it is possible to turn these individual claims into collective ones.

The effects of the terrorism ‘blacklists’ on the Italian legal system and criminal proceedings - It is well known that at the UN the blacklisting mechanism is managed by an ad hoc Committee acting under the authority of the Security Council. In 2001 in Italy was created a new institution, the Financial Security Committee, playing a crucial role in the blacklisting mechanism. The Italian legislation on this topic, however, does not seem to offer an adequate protection of the human rights of the ‘suspected’ financial supporter for international terrorism, mainly for the potential role of the intelligence. In this context, it is important to evaluate the case-law of the Italian Supreme Court (Corte di Cassazione) on the role of the ‘blacklists’ in criminal proceedings. While some of the sentences decided in the aftermath of the emergency situation of the post 9/11 period show the unwillingness of the Court to criticize the use of the ‘blacklists’ in the criminal proceedings, at a later stage the Court expressed its opinion in the strongest way: the ‘blacklists’ derive from a political determination and cannot be considered as evidence; in the criminal proceeding they are only one among many elements that the prosecutors and the judges have to evaluate (Bouyahia case, decision no. 1072, October 11, 2006).

Jurisdictions all over the world are continually reforming the procedural aspects of their legal systems. This paper uses a ‘dimensions of the quality of justice’ framework – broadly categorised as time, cost, and accuracy – to review some past and suggested civil procedure reforms within the Italian legal system. It shows that reform suggestions rarely have a positive effect on all three dimensions at once, regardless of whether the reforms are structural, process, or resource-related.