“Loyalty” in termination of public contracts in Italy. The case of rate swap contracts according to the Italian Administrative Judges and to the English High Court

This paper tries to outline the issue of “loyalty” in the performance of public contracts (and particularly public procurements contracts) in Italy, with specific reference to the power accorded to Italian public administration to unilaterally terminate public (procurement) contracts during their performance. The implicit assumption of this paper is that unilateral termination is treated differently in the performance of public contracts and in private contracts, which is what happens in Italian law but also in other European legal systems. I will shortly discuss this issue in paragraph 2, even if it expands a little the title of this paper, because I think it is however a necessary framework to keep in mind. Paragraph 3 describes the state of the art in Italian law about the unilateral termination of public contracts by initiative of the contracting authority. As we will see, Italian law provides the contracting authority with at least three different legal “tools” for unilaterally terminating an ongoing contract: the civil code, the law on administrative procedure (Law 241 of 1990) and the specific provisions set forth in the code of public procurements.

Mario E. Comba
no 3
s. 95