Derivati, Danno Erariale e un Obiter Dictum sulla Causa del Contratto Speculativo

The subject matter of italian derivatives crosses the national borders of “Belpaese”, insofar as to land in the UK, more specifically before the Court of appeal in London. The latter is entrusted with ascertaining the legal capacity of an italian local authority, a “Comune”, Venice in the specific case, and its capacity to enter into derivatives with banks, although the relevant agreement was governed by English law. In going even further the the High Court, the lower Court in London in charge of the first instance case, not only does the decision of the Court of appeal confirms the validity of Italian derivatives, if governed by English law, but also it emphasises the full capacity of italian councils to sign these agreements, including their compliance with art. 119(6), italian
Constitution, to be examined pursuant to English law, rather than the Italian legal framework. To further clarify, albeit indirectly, the unclear interpretations of the italian scholars on the Court decision of the High Court, relating to the “Venice council” derivative, the Court of appeal spells out the principle that even the previous Court decisions of italian courts on the matter, such as the notorious “Cattolica” and “Busto Arsizio”, are not binding on the english Court. This waters down, vis-à-via English Courts, the impact of the ruling delivered by the Italian Supreme Court in the “Cattolica” case.