The legal nature of the associated firm in Italy.
[:it]
It is now well known that associated law firms are, in fact, without their own legal personalityfalling, according to case law, "toWithin those phenomena of aggregation of interests to which the law attributes the ability to act as autonomous centres of imputation of relations legal,munites of legal representation in accordance with the rules laid down in Article 36 et seq. of the Civil Code."[1]
In bankruptcythis characteristic is highly relevant. In fact, according to a constant orientation of the Supreme Court of Cassation, the associated studios have legal representation, do not claim any privileges when it comes to admission to the liabilities in bankruptcy. For the Supreme Court, the firm is not, in fact, assimilated to the individual subject favoured by the'Article 2751 bis n. 2., this right being insusceptible of analogical extension.
A possible solution to this problem would be the assignment of the claim arising out of the services rendered personally by the individual lawyer to the law firm. This condition, however, must in any event be attached and proven, since it cannot be considered, in the abstract, as a legal or natural effect of the lawyer's participation in the firm, an autonomous centre of interests.[2]
ABSTRACT
the associated Italian firm:
- is a phenomenon of aggregation of interests without legal personality, but with legal representation;
- in bankruptcy does not enjoy the privilege of Article 2751a(2)
- an assignment of the claim arising out of services rendered personally by the individual lawyer is still possible
[:]
The Rome I Regulation and the applicable law.
[:it]
If the parties do not identify the law to which the contractual relationship is subjectthe linking criteria provided for in Article 4 of the Rome I Regulation (593/2008)
Specifically theArticle 4.1 unequivocally identifies which law is to be applied to a series of contracts where the parties have not made the choice (sale, provision of services, franchising, distribution). It reads, in fact, that:
-
a contract for the sale of goods is governed by the law of the country in which the seller has his habitual residence;
-
the contract for the provision of services is governed by the law of the country in which the service provider has his habitual residence;
-
a contract having as its object a right in rem in immovable property or a lease of immovable property is governed by the law of the country in which the property is situated;
-
Notwithstanding (c), the letting of a property concluded for temporary private use for a period of not more than six consecutive months shall be governed by the law of the country in which the owner has his habitual residence, provided that the tenant is a natural person and has his habitual residence in the same country;
-
The franchise contract is governed by the law of the country in which the franchisee has its habitual residence;
-
the distribution contract is governed by the law of the country in which the distributor has his habitual residence;
LArticle 4.2 of the RegulationIt further provides that if the contract does not fall within the categories set forth in Art. 4.1 it shall be governed by the law of the country in which the party to be performed under the contract has its habitual residence;
L'Article 4.3Finally, it provides that if none of these criteria makes it possible to determine the applicable law, the contract shall be governed by the law of the country with which it is most closely connected.
ABSTRACT
In case of no choice check:
- whether the contract falls within the categories covered by Art. 4(1) of the Rome I Regulation
- otherwise, the law in which the party is to perform the characteristic performance applies
- finally, if none of the above criteria allows the determination of the applicable law, the contract is the law of the country with which it is most closely connected
[:]
Jurisdiction under EC Reg. 44/2001.
[:it]
A problem that often arises in connection with contracts concluded by parties with residence or seat in different states concerns the choice of jurisdiction, i.e. figuring out which court is called upon to rule when the parties have not explicitly made that choice.
In civil and commercial matters between an Italian subject and a foreigner, one must firstly
distinguish, relations with counterparties in the European area and counterparties in countries outside that area.
- In the first case, the European legislation governed by the Regulation 44/2001 (Lugano Convention)
- In the second case, on the other hand, the general regime of the Act No. 218/1995 on Private International Lawunless the matter is directly regulated by bilateral conventions of the countries in question.
Analysing briefly the general discipline provided for by the European regulation, it is noted that it is provided for in theArticle 2.1 the general rule of jurisdiction of the defendant's court.
Based on this principle, therefore, in the absence of choice, if one of the parties is domiciled in an EU state, it must be sued in the court of that state.
(e.g. Italian plaintiff, Spanish defendant, but domiciled in Belgium, the contracting court is Belgian)
However, Regulation 44/2001 provides in Articles 5, 6 and 22 of the exemptions to this general principle or:
- Articles 5 and 6 reg. allow in a number of cases to sue a person before courts other than those of the domicile;
- Article 22 provides for a number of exclusive, i.e. non-derogable, forums, irrespective of the domicile of the defendant, such as rights in rem in immovable property, validity, nullity and dissolution of companies, registration and validity of patents and designs;
- the parties are nevertheless free to choose an exclusive forum by means of a clause extending jurisdiction (Art. 23).
ABSTRACT
In the absence of choice and if the relationship is between parties in the European judicial area, which State's courts are called upon to decide a dispute?
- Need to look at reg. 44/2001
- Article 2.1 of Regulation 44/2001 regulates the general principle of the jurisdiction of the defendant's court
- Articles 5 and 6 reg. allow in a number of cases to sue a person before courts other than those of domicile
- Article 22 provides for a series of exclusive, i.e. non-derogable, forums, regardless of the domicile of the defendant
[:]