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ARE ITALIAN COURTS DIRECTLY BOUND TO GIVE EFFECT TO THE JURISDICTIONAL IMMUNITIES JUDGMENT?

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The answer to the question of whether Italian courts are directly bound to give effect to the Jurisdictional Immunities decision depends on both the content of the obligations established by the International Court of Justice (ICJ) concerning remedies and the peculiarities of the Italian legal system. While the ICJ affords a certain margin of appreciation to Italy in the implementation of the dispositif, the requirement that judicial decisions infringing Germany’s immunity must cease to have effect confirms a consistent trend towards the expansion of the subjective scope of ICJ judgments. The problem of whether action by either the executive or the legislative branches of government is an essential prerequisite for court implementation of the ICJ judgment should be solved by having regard to both preexisting domestic judicial proceedings and the hierarchical rank of the obligation to comply under domestic law. It is argued that national courts have to ensure the direct application of the Jurisdictional Immunities judgment in ongoing proceedings where no decision has become final. In addition, recent practice shows that even the tension between the duty to comply and the principle of res judicata might be resolved by the judiciary, giving prevalence to the former.

10.1163/22116133-90000216
/content/journals/10.1163/22116133-90000216
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/content/journals/10.1163/22116133-90000216
2011-01-01
2016-12-10

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