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: Nobody will really be surprised that the assessment if decision 238 viewed from the Italian and the German perspective does not differ essentially. This is due to the fact that we had two very renown international lawyers, namely Prof. Heike Krieger and Prof. Paolo Palchetti, who assessed the international law perspective free from any political bias and thus demonstrated that the law in force governing the questions at stake is clear, but that discussions concerning new developments of the law on immunity do have merit, although they are still situated in the context of lex ferenda and that therefore flexibility in looking for a solution is welcome.

The second remark has particular relevance with regard to the fact that the Italian judiciary was highly interested in pushing forward acceptance for the idea that the customary law on state immunity has changed or is on the point of doing so. The formation of customary international law requires constant general state practice and opinion juris, meaning that the great majority of states acts as they do because they regard this as a legal obligation ...

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