The directors of a credit company placed under extraordinary administration for serious irregularities learned that an employee had covertly given the company's former general manager some confidential company documents, which he had had no reason to access. The employee was subject to internal disciplinary proceedings and dismissed for a serious breach of the obligation of loyalty to her employer, but challenged her dismissal in court.
A recent Supreme Court of Cassation decision examined whether there were justified objective reasons for an employer to dismiss an employee following his refusal to reduce his hours in the wake of a company reorganisation to reduce labour costs and increase productivity. The court examined previous case law in this regard, reassessed the parameters of justified objective reasons for dismissal and set out the scope of judicial examinations of such a dismissal's legitimacy.
A client company recently sued a leading Italian bank, arguing that the interest rate swap contracts concluded between the parties should be declared null and void because, among other things, no master agreement had been executed and the contracts had allegedly been concluded in violation of the bank's general duties of correctness and delay. However, the bank rejected the claims based on the preliminary argument that the limitation period for taking action had already elapsed.
The Milan Court of Appeals recently rejected an appeal against a Milan Court of First Instance judgment concerning an interest rate swap derivative contract. The complainant had asked the first-instance court for a statement of nullity regarding the contract, claiming that its purpose could not be determined and that no adequate risk exposure information had been provided. However, the first-instance court confirmed existing case law and excluded any reason for nullity of the contract.
The Supreme Court of Cassation recently stated that following the legislative amendment introduced by Law 134/2012, the amended Article 345(3) of the Code of Civil Procedure forbids the filing of new documents during appeal. This is regardless of whether the documents appear to be essential, except for when the party proves the impossibility of filing them before the court of first instance for reasons beyond its control.
In a recent decision, the Supreme Court of Cassation consulted its united sections on an important question regarding the specificity of reasons for appeal under Article 342 of the Civil Procedure Code. The question concerned whether the code requires an appellant to specify different content as part of its reason for appeal or provide only a detailed criticism of sections of the appealed decision.
The Supreme Court of Cassation recently found that a bankruptcy receiver has the right to institute civil and criminal proceedings for liability against company directors, even in relation to unfair preference in a bankruptcy committed through preferential debt payments in violation of the equality of creditors' principle. The court underlined the error in the argument that preferential payment "could cause a decrease of company capital by more than what would occur respecting the principle of the equality of creditors".
The Court of Milan recently issued a decision regarding Ryanair's alleged abuse of dominant position by refusing to allow an online travel agency to access its database and booking procedures. This is one of several disputes between online travel agencies and Ryanair, whose website's general conditions restrict access for commercial purposes, thereby prohibiting online travel agencies from mediating transactions with customers.
Sovereign immunity is a fundamental principle of international law, providing that states are immune from jurisdiction in other states, save for where such immunity has been waived or otherwise limited. A recent decision of the Milan Court of Appeal has shed further light on the crucial issue of which party bears the burden to prove the elements giving rise to immunity.
In 1980 a jetliner was en route from Bologna to Palermo when it crashed into the Tyrrhenian Sea off the island of Ustica; all 81 passengers and crew members were killed. The cause of the accident was never officially established. However, the Supreme Court recently issued its decision on the matter, which has significant implications for both Italian government ministries and the families of the victims.
For the first time in Italian court history, a private class action seeking to obtain damages from a tour operator has been successful. This was made possible with the modification of the Consumer Code during the course of the proceedings, which effectively extended the availability of class actions and made them easier to initiate. This reform of the code will have a significant impact on future class actions.
In January 2012 the Costa Concordia capsized while carrying around 3,200 passengers and 1,000 crew members. The disaster is one of the worst in the cruise industry's recent history, and will likely be the largest marine insurance loss on record. One year on, a host of issues regarding the victims' compensation claims remain unresolved.
Unilateral jurisdiction clauses grant one party the possibility to choose from several jurisdictional options for contractual disputes while the other party is bound to bring an action or claim before a single jurisdiction. Such clauses are generally considered valid, although their validity has been questioned – most recently before the Supreme Court – on the grounds that they lack mutuality or are completely unilateral.
The Supreme Court has upheld the validity of the jurisdiction clause contained in a letter of undertaking. The decision is the latest instalment in the Italian side of the long-running dispute between the insurers of the charterers of the vessel Front Comor and its owners, West Tankers. It further confirms the trend followed by Italian courts in favour of the validity of choice of jurisdiction clauses.
A recent Supreme Court decision confirms that awards of punitive damages are non-enforceable in Italy because they are contrary to public policy. However, it is possible to seek the enforcement of a judgment awarding punitive damages when purely compensatory damages can be separated from the punitive element and the punitive damages can therefore be set aside.
The Supreme Court has held that a creditor which is owed a sum of money under one contract may not divide its claim into a number of judicial actions, whether these are brought simultaneously or not. The court found this to breach not only the principle of fairness and good faith, but also the constitutional principle of just process.
Including: Jurisdiction; Venue; Parties and counsel; Pleadings and service; Ordinary proceedings; Special proceedings; Enforcement proceedings; Class actions.
In recent years the traditional civil law principle that legal rules are derived primarily from written legislation, rather than being made by judges, has been increasingly eroded. A recent Supreme Court decision raises particularly significant issues relating to medical malpractice and the rights of the unborn child, but also contains instructive comments on the powers and duties of the courts in Italy's civil law system.
The Civil Code expressly states that natural and legal persons must act 'in good faith' or 'fairly' in their contractual relationships. In a case arising from a leading car manufacturer's decision to terminate certain dealers' contracts without cause, the Supreme Court examined the issues of good faith and abuse of rights in the courts' assessment of contractual parties' dealings and interests.
The Code of Criminal Procedure provides that where the same facts are considered in both criminal and civil proceedings, the civil court must assess facts and questions of liability autonomously and may not simply rely on a criminal court's findings. A Supreme Court decision has shed light on this principle and the differing standards of proof in civil and criminal cases.