Megaprojects Contracts: Between International Practices and Italian Law

“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.

The article aims at defining the scope of disgorgement in Italian law, which draws on common law experience, and asks whether the Italian legal system can provide similar recourses. English and US law have conceived “disgorgement damages” as a distinctive concept. I verify whether a rule of disgorgement of profits is principled in the Italian legal system as a generally available private law remedy or is just applicable in certain specific cases. I propose 3 hypothetical cases to measure the attitude of different legal systems. The theoretical foundations of disgorgement as a private remedy are located in different branches of private law (compensation, restitution, property law). English and U.S. law place disgorgement in the more general framework of the law of unjust enrichment and restitution. However, disgorgement can be attracted to other branches of law, as I demonstrate with reference to the Italian legal system. By highlighting the functions that disgorgement may perform in each case proposed, I conclude whether disgorgement is applicable by Italian judges, in addition to the express provisions laid down by legislation.

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.

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 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.

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.

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.

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.

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.

SOMMARIO: 1. Ricognizione costituzionale del fenomeno educativo - 2. L’educazione familiare - 3. L’educazione scolastica - 4. L’educazione religiosa. Educational Institutions in the Italian Constitution ABSTRACT: According to the current Constitution, Italy presents itself as a pluralist and participatory democracy, in which certain functions aimed at enhancing the human person are not taken directly by the State – except in exceptional cases in which the public authorities intervene, for reasons of necessity, in a subsidiary or supplementary way – but they are normally assigned to specific social subjects (or formations), among which the educational institutions have a special and qualified position. The present contribution intends to highlight that the Italian “social State” does not present itself as a “educating State” in its own educational models that the public structures impose in an authoritarian way on the single components of the national collectivity. On the other hand, the Italian Constitution, in recognizing social relevance to the educational function, assigns its concrete management to certain “pedagogical agencies” or “educational institutions” operating autonomously within the civil society: among which the qualified family holds a qualified position. School and religious confessions. They do not operate in the name or on behalf of the State, but operate within a framework of legal, cultural and institutional guarantees and pluralism, within a normative framework dictated in this regard by the constitutional text and by ordinary legislation. By carrying out the special role assigned to them by the Italian legal system, educational institutions participate in the democratic dynamics of the country, contributing with their work to the construction and evolution of the civil and national community.

The Italian administrative justice system is organized on a two-tier basis. The court of first instance is the Administrative Tribunal (TAR) and has mainly consultative functions and support the work of the national administration through advisory opinions. The second level court is the Council of State, whose sections III, IV, V, and VI are jurisdictional. The administered mediation is a procedure fulfilled by private or public bodies listed in a register created by the Ministry of Justice. The common rationale of the mediation procedure is to deflate the amount of controversies burdening the docket of civil judges. The European directive insists on the principles of due process, impartiality of the subject in charge, efficacy, transparency, quickness, equity, privacy, and money-saving. The Italian legal system no longer affords this mediation procedure. Mediation survives only in the voluntary version, even in case of controversies implying public administrations. Keywords: European directive; Italian administrative justice system; mediation procedure

ABSTRACT: In this paper the author analyses different types of insolvency proceedings in the context of the Italian legal system, focusing on the possible effects of bankruptcy law on employment relationships. The concept of‘privileged workers’claims is discussed, taking into account their rank of preference as stated by statutory law and according to the interpretations offered by jurisprudence.One section is expressly devoted to the recent legislation providing a Guarantee Fund for severance allowance claims in case of insolvency, but also in the event of mere nonpayment by the employer. After having covered the concept of 'super‐privileged claims', the paper discusses more widely possible forms of protecting workers in a situation of company crisis and links between social legislation on the one hand, and bankruptcy law on the other.Finally, the author emphasizes the more effective protection now offered by the Italian legal system to workers’claims, although the trade unions have considerable difficulty in keeping the workforce united when insolvency proceedings are opened.

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

The issue of uncontrollable children is no longer peculiar in the present days. Uncontrollable children can be found in almost every country across the globe. Although this issue is no longer novel, uncontrollable children are being defined and treated differently in different jurisdictions. On this note, numerous international legal instruments have been adopted to protect the welfare of all children which includes the protection on the uncontrollable children. This article aims to comparatively analyse the available provisions extracted from international legal instruments that form part of the international legal framework on uncontrollable children with the Malaysian legal framework regarding uncontrollable children to analyse the consistency between the former and the latter legal frameworks. The preliminary finding from this article is that the legal framework on uncontrollable children in the Child Act 2001 has substantially incorporated the proper treatment which is required by the international legal framework and is consistent with the international legal framework. This can be seen in particular following the disintegration of the treatment on uncontrollable children and juvenile offenders as well as the prioritisation of family-based care subsequent to the 2016 amendment of the Child Act 2001. This development to carry out reform process is commendable in the aspect of children’s rights and consistent with the aspiration of the international legal framework in preserving the best interest of the child which includes uncontrollable children. In reaching this finding, content analysis was carried out pertaining to the provisions of the international and Malaysian legal frameworks on the treatment of uncontrollable children which suggests that the Malaysian government has been taking some significant efforts to incorporate the international standards within its domestic law.