ITALY LAW AND PRACTICE Contributed by: Giorgio Berlingieri, Alberto Massimo Rossi, Alfredo Lizio, Alberto Torrazza, Simone Gaggero and Filippo Cassola, ADVANT Nctm
insurance-related issues, crew safety and labour conditions and contractual and logistical issues (including breach of performance, delays, port closures, deviation from the shipping route etc). Factual circumstances and critical aspects may vary on a case-by-case basis and must take sev - eral factors, such as the geographical location of the conflict, existing commercial relationships with the states involved, applicable law etc into consideration. Conflicts such as the Houthis’ attacks on vessels navigating towards the Red Sea, for instance, tend to give rise to issues that are generally removed from Italian jurisdiction and are decided in foreign courts under differ - ent applicable law. On the other hand, the outbreak of the conflict between Russia and Ukraine has directly affect - ed the maritime sector in different European states, including Italy, who have been facing several challenges, including: • an increase in the cost of energy, gas, oil and fuel, leading to a general increase in com - modity prices; and • logistic and commercial operational criticali - ties due to the restrictions imposed on the areas affected by the conflict, which have seen logistics operators come to terms with the ever-increasing number of sanctions and marketing bans. In order to address the non-performance of con - tractual obligations, as had already happened during the pandemic, the Italian legal system triggered the force majeure instrument. This is a legal mechanism whose application requires the occurrence of extraordinary, unforeseeable and external events that, going beyond the will and reasonable control of the parties, mean a real supervening impossibility of performance.
This instrument is usually provided for in con - tracts governed by Italian law by the inclusion of ad hoc clauses which, after setting out a period of suspension of the contractual obligations for the duration of the event or for a predetermined period of time, grant the parties the right to ter - minate the contract if the event lasts beyond that period, without the affected party that is unable to perform being required to pay dam - ages, precisely because the non-performance is not attributable to them. This is consistent with the case law, whose (limited) precedents depict a reliance by the courts on general institutions of Italian law, such as force majeure, superven - ing impossibility of performance for reasons not attributable to the debtor and supervening hard - ship in performance. Furthermore, Italy is a signatory to the 1980 UN Convention on Contracts for the International Sale of Goods (CISG), and therefore, in cases where the Convention applies, Article 79, which expressly governs cases of force majeure, is also applicable. 9. Additional Maritime or Shipping Issues 9.1 Other Jurisdiction-Specific Shipping and Maritime Issues Regulation (EU) 2023/1804 on the deployment of alternative fuels infrastructure (the “Alternative Fuels Infrastructure Regulation” or AFIR), repeal - ing Directive 2014/94/EU, was enacted on 13 September 2023 as part of the European regula - tory framework on decarbonisation. The Regu - lation came into force on 13 April 2024 and will have direct implications for the Italian maritime port sector and therefore on the next initiatives that, at a central level, will have to be undertaken by the competent administrations.
311 CHAMBERS.COM
Powered by FlippingBook