Articles for category: Remedies against Immunity?

No Consensus – but Hope at Villa Vigoni

The Colloquium on the judgment of the Italian Constitutional Court (ICC) No. 238 of 22 October 2014 could hardly have been held at a more fitting venue. It brought together German and Italian lawyers from 11 to 13 May 2017 at the Villa Vigoni Conference Centre on the shores of Lago di Como, property of Germany devoted to cultural exchange between Germany and Italy. Recently, Villa Vigoni was seriously threatened by a legal mortgage obtained by one of the applicants who had been successful in suing Germany before Italian courts on account of damage suffered during World War II at ... continue reading

18. Mai 2017

Suggesting Solutions: Do the Right Thing

This short presentation distils the conclusions of the panel regarding the international law angle of the post-Sentenza scenario. They reflect some degree of consensus which was reached on certain crucial points, including the steps ahead. Keep calm… The applicable rules of international law are clear. A State’s immunity in the civil courts of another State is granted also in the case of serious human rights violations, and irrespective of whether the victims could bring their cases to other courts or resort to an alternative remedy. This is what the law is. What the law should be is another story, one ... continue reading

15. Mai 2017

Suggesting Solutions: A European Way?

The conveners asked the third panel of the conference to take a European law perspective, as we are dealing, after all, with a conflict between two European countries. This European perspective raises several questions, many of which you can find in the programme. These questions can be roughly organised into two main categories. First, is there or should there be a particular European law of state immunity? Second, is there a particular European way of dealing with conflicts that could help find a short-term solution or teach us a long-term lesson? 1. European Law on State Immunity Is there a ... continue reading

14. Mai 2017

Suggesting Solutions: What about Concessions to be Made by Both Sides?

In the following I will briefly give you an overview over the issues discussed in Panel II which was dedicated to “Concerns” from the Italian perspective, presented from a German and an Italian point of view with regard to decision 238 of the Italian Constitutional Court. This topic raised very concrete and difficult aspects because as a consequence of decision 238 Italian tribunals have now to decide on the merits of reparation claims which until then were peacefully sleeping under the veil of jurisdictional immunity. I will come to this in a moment after having made two preliminary remarks. Firstly: ... continue reading

14. Mai 2017

Suggesting Solutions: Providing Compensation to the Victims as a Moral and Legal Duty

The first panel dealt intensively with the question as to whether, and if so how, reparation should be awarded to victims even after Sentenza No. 238/2014 was released. The judgment as such did not make a possible upholding of State immunity conditional upon any compensation scheme. On the contrary, it asserted that the right to access to justice as protected by Article 24 of the Italian Constitution is infringed upon insofar as a foreign State is granted immunity from the Italian jurisdiction to adjudicate the action of damages put forward by victims of crimes against humanity and gross violations of ... continue reading

14. Mai 2017

A clever and dangerous move – or: a Roman Court goes Lutheran

2 ½ years after it was rendered, Sentenza 238/14 of the Italian Constitutional Court remains an intriguing decision and continues to divide opinion.  Was this a heroic act in defence of fundamental values, or a foolish, pointless exercise in ‚token resistance‘? While the language is more guarded, many of the papers presented at a German-Italian Workshop at the Villa Vigoni are inspired by one or the other assessment. The following short comment recognises the controversies prompted by the Judgment. My focus is not on the outcome, though, but on the Constitutional Court’s reasoning – and on two features of that ... continue reading

12. Mai 2017

After Sentenza 238: A Plea for Legal Peace

1. INTRODUCTORY REMARKS This post summarizes some of the key points of my presentation at the upcoming Villa Vigoni conference organized by the Max Planck Institute and its partners around the theme ‘Remedies against Immunity? Reconciling International and Domestic Law after the Italian Constitutional Court’s Sentenza 238/2014’. There are no easy answers to the questions posed by the title of the conference. In section 2, I venture on a proposal for ‘legal peace’ between Germany and Italy. This proposal does not only arise from frustration with the current impasse, but also from the suspicion that the public good of legal ... continue reading

12. Mai 2017

Judgment 238/2014 and the importance of a constructive dialogue

I will focus here on two facets of Judgment 238/2014 and its legal implications. In the first part, I will shed some light on certain drawbacks of the application of the counter-limits doctrine in the relationship between the Italian Constitutional Court and the International Court of Justice (ICJ). Some of these criticisms show that the dialogue between constitutional courts and the ICJ is quite complex. Opportunities for dialogue are infrequent and the means are not comparable to those available at the European level. In the second part, I will explore how the availability of alternative means of dispute settlement at ... continue reading

12. Mai 2017

Italian Concerns after Sentenza 238/2014

Judicial practice may be a means to overcome the opposition of the State executive to legal development since judicial reliance on customary international law allows for the State’s explicit consent to become less important. At least in democratic constitutional States court networks may, in horizontal dialogues, expedite the development of customary international law even against the expressed intention of the executive branch due to the principle of judicial independence. Thus, while applying the standard of the Italian Constitution Sentenza 238 nonetheless utters the hope that it „may also contribute to a desirable – and desired by many – evolution of ... continue reading

11. Mai 2017