Testamentary Formalities in Italy

“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.

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.

Italian government policies concerning foreign immigration have to be understood in the context of laws on nationality. Since the time of unification, Italian laws on nationality have been closely determined by policies on emigration and immigration. As a result, the laws regarding the nationality status of Italian emigrants returning from abroad, and for foreign immigrants in Italy, have on the whole been determined by the procedures adopted for the acquisition or deprivation of Italian nationality. This is a subject that has not been studied and this article reconstructs the principal stages in the development of Italian nationality laws from the early twentieth century to the present. This reveals that Italian nationality law treats Italian emigrants and foreign immigrants in very different ways. Both the legal system and government policy has in the past been extremely generous towards the former and has made both the preservation and the reacquisition of nationality relatively easy for Italian nationals, even before there were practical motives for this (e.g. the right for Italians living overseas to vote). When it comes to foreign immigrants, however, Italian law is amongst the most restrictive in western Europe. The article concludes by arguing that this underlying imbalance is a major but largely ignored weakness in Italian democracy.

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.

Copyright, Contract and Access to Knowledge: A Comparative Analysis

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 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.

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.

Abstract: The UK Supreme court recently rendered two important decisions on penalty clauses: Cavendish v. Makdessi and ParkingEye v. Beavis. The penalty clause is a controversial legal concept in Europe because it can result in high and unreasonable payment obligations. Most European legal systems agree that some form of protection against unreasonable penalty clauses is needed, but differ in the way penalty clauses are restricted. The most extreme approach is followed by English law, where a distinction is made between invalid penalty clauses and valid liquidated damages clauses. The new UK Supreme Court cases introduce new elements in English law in this respect. In this issue, the two decisions are discussed from a comparative perspective by a number of authors from different legal systems (English & Welsh, Belgian, German, Dutch, French, Italian, Swedish and Polish law).

The Italian legal system related to patient autonomy presents two different faces. On the one hand, legislation, especially constitutional law, seems to pay a lot of attention to the topic. The informed consent principle is central in the medical field, and its range, thanks to law 219/2017, is also extended to life-saving treatments. On the other hand, criminal law appears to be deficient in safeguarding of the patient’s autonomy. The Italian criminal law system does not have specific provisions dedicated to the issue and it has to adapt the existing ones, created in the 1930s, to those cases of medical treatment implemented without consent. Current Italian criminal law is therefore unable to cope with all the issues involved in a proper recognition of the informed consent principle, and reform is urgently required.

749 Amidst the COVID-19 outbreak, Italy as well as a number of other European states, including Austria, Germany and Spain, enacted emergency legislation suspending subordination of shareholders and intragroup loans in order to help companies stay afloat. While this measure was clearly prompted by extraordinary circumstances, it should be noted, however, that unlike jurisdictions which adopt automatic subordination, such as Germany and Spain, or where subordination is also based on quantitative criteria, such as Austria, subordination in Italy is based on flexible standards that may not strictly call for an emergency suspension. The COVID-19-related suspension of subordination provides the momentum for reassessing the scope of application of the subordination of shareholder and intragroup loans under Italian law. Although substantially unexplored in the international legal literature, subordination was introduced in Italy in 2003 and has now been applied for nearly twenty years. The system is quite sophisticated and also recognizes a variety of restructuring exemptions allowing priority to the loans. This paper examines subordination of shareholder and intragroup loans under Italian law, seeking to establish a workable construction of the standards of the excessive imbalance between debt and equity and of the reasonableness of a capital contribution on which the application of the remedy is predicated. Building also on relevant economic studies, the paper argues that the Italian subordination system has the potential to distinguish between desirable and undesirable shareholder and intragroup loans based on whether the loan is intended to finance positive net present value projects, restricting the latter while not deterring the former, so as to guarantee the goal of increasing the expected total value of the company and producing better satisfaction of creditors’ claims. 750

The Italian Regulation of Tender Offers at 15: One Step Forward, But How Many Steps Back?

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 Italian family law system, which is based on a child-centred, constitutional-based approach to the rela-tionship between adults and children, allows for a critical analysis of the recent Italian case law on same-sex parenting. The analysis focuses on whether courts have tended to keep the child's interest as a primary and preventive criterion, acting to limit the wishes of adults and their choices within a very narrow perimeter of rules, in harmony with current regulatory provisions, or whether, on the contrary, courts have adopted an adult-centric trajectory with regard to the freedom of self-determination of adults, consequently applying the child-best interests in a secondary and remedial way.