Interpreting the Foreign Rule

4.2. Interpreting the Foreign Rule

Art. 15 of law no. 218/1995 establishes that foreign provisions are applied accord-ing to their own criteria of interpretation and application over time. Such rule di-rectly ensues from choosing a private international law system that accepts the foreign law as proper law, demanding the judiciary to search for the interpretation methods and canons followed by their foreign colleagues. So, not only it proves hard for the court to get familiar with the content of the foreign law and its usual interpretation in the foreign country for all the reasons we have mentioned above, but also it opens scenarios of conflicts among interpretative traditions once, in the ideal situation, those canons have accessed the Italian system. In fact, if the gap existing between facts and legal concepts challenges the application and interpre-tation of the law within one legal system (Prakken 2005), all the more, it challeng-es the application of foreign law in the system of dchalleng-estination, requiring for com-parisons with domestic legal concepts, categorisations, and institutions. Conflicts between normative systems may thus eventually emerge at the level of interpreta-tion, as the next chapter shows in detail.

Since doubts have soon arisen about the concrete application of article 15, the Supreme Court has often intervened to clarify and specify its content and function-ing. First, it is worth noting that the interpretation guidelines there included are considered generally applicable: they work not only when the foreign law is iden-tified by national conflict rules, but also when it is referred to by international treaties or EU regulations, the most recurrent situation nowadays.⁹²

The Court has also established the following directives for a correct application of art. 15:⁹³

 The foreign legal system is referred to as a whole and in as much as it is practi-cally experienced and applied by the foreign legal experts;

 Reference to foreign criteria of interpretation and application over time should not be understood as implying a strict obligation for the domestic court to ac-quire all the possible documentation relating the way the foreign rule is always applied in concrete cases;

92 Cass., civ. sect. I, 26/10/2015 no. 21712.

93 Cass. 26/02/2002 no. 2791; Cass. no. 21712/2015 (already cited).

 In particular, although domestic courts have to take action to acquire the for-eign law content as well as its prevailing mode of interpretation, this does not mean that they should obtain and examine all the related case law; rather, they should investigate if there is a prevailing trend in foreign case law with refer-ence to the application of that piece of law;

 It should be read as referring to the rules that, in the foreign legal system, regu-late entry into force of laws, their temporal validity, hierarchy among sources of law, interpretation of criminal and special provisions;

 It should also be taken into account that interpretation of the foreign law cannot disregard public policy considerations, which now convey both internal and in-ternational or supranational interests, purposes, and values.

Additionally, the interpreter’s task in cross-border cases is better understood if the following private international law mechanisms are kept in mind. Examined, in a scattered way, in the preceding pages, they end up subtly, but pervasively im-pacting on the concrete possibility of interpretive conflicts among different legal systems.

First, distinct legal systems may protect the same rights as well as pursue the same goals differently. Not only is this phenomenon absolutely normal, for such differences are expression of different lawmakers, legal traditions, and linguistic communities, but also it cannot be removed altogether. National courts facing the variety between legal solutions are tempted to make use of the public policy reser-vation, or to easily resort to overriding mandatory rules, and consequently to reject the foreign law. Still, different regulations do not necessarily mean them to be wrong or substantially incompatible with the domestic legal order, as recently re-affirmed by the Supreme Court.⁹⁴ On similar occasions, domestic courts should ra-ther assess whera-ther the foreign legal solution is capable of protecting the rights and of reaching the normative goals involved, even if in alternative ways. System-atically disregarding the applicable foreign law in front of regulatory discrepancies ultimately deprives private international law of its own purpose and raison d’être.

Also, from the perspective of globalisation of legal orders, private international law should favour the transnational circulation of legal rules, and not contribute to their further fragmentation.⁹⁵

Secondly, private international law has been touched, and transformed, by the dynamics of supranational and international law: today, a broad legal framework, variously overcoming national borders, encompasses the majority of national legal systems. As a result, not only conflict rules are always more often derived from sources other than national ones, as it has been often remarked above, but also the principles and peculiar purposes of other legal levels and systems influence the in-terpretation of both foreign and national law: consider the pervasive effects of the EU consumer protection law, or of the European Convention on Human Rights

94 Cass. 15/4/2015 no. 7613.

95 As expressed by the cited decree no. 9978/2016 of the Court of Cassation.

(Kiestra 2014), which has established a proper multilevel protection of fundamen-tal rights in Europe.

Domestic courts should enlarge their interpretive horizon, rising above merely national perspectives and walking previously unexplored interpretative paths as for legal solutions and concepts. In particular, if law application is assumed to be an argumentative activity that is firstly and essentially interpretative in kind, then, legal systems ultimately interact through interpretive arguments. Even concretely avoiding conflicts between different normative systems depends on how national judges reason in such situations: what interpretive arguments they build, how they decide upon potential normative gaps, clashes between principles, and vague con-cepts, how superior principles are referred to in the cross-border decision-making.

Apparently, both the law seen as a problem-solving activity, and the renewed plu-ralist approaches to conflict of laws could provide for useful conceptualisations, putting the interpretative challenge in the perspective of what the finest legal solu-tions are in an interdependent and globalised legal world.

Lastly, it could be questioned whether the foreign law should be compliant with the constitution of the source legal system, and domestic courts should check its original constitutionality as a consequence. In fact, the reply depends on the type of judicial review existing in the foreign legal system. For example, Italian courts, in case of uncertain constitutionality of a piece of inner legislation that applies to a particular case, can interrupt the proceedings before them, and remit the relative question to the Constitutional Court, empowered to evaluate the constitutional compliance of legislative acts (art. 134, Constitution). If the Constitutional Court deems the rule unconstitutional, it pronounces on it with a constitutive opinion that has retroactive effects. In fact, unless it specifies that the pronouncement im-pacts only on future cases starting from the one that originated the judicial review, the unconstitutional law is removed from the legal order as if it was never validly promulgated: tamquam non esset, claims the Latin brocard.

Italy has clearly opted for a form of concentrated judicial review, which can be activated by courts incidentally, i.e., in trials underway, and cannot elude the role of the Constitutional Court, the only judicial authority allowed for ruling on mat-ters of constitutionality. Contrarily to the concentrated one, the diffuse judicial re-view entails that all the judiciary are authorised to invalidate laws and opinions held incompatible with constitutional provisions, without the need to resort to a superior court for solving doubts of constitutionality. The constitutional review is thus carried out by any court of the system, which will eventually set aside the un-constitutional piece of law, but just in respect to the particular case.

As a result of the distinction between concentrated and diffuse forms of judicial review, it is argued that Italian courts can proceed to examine the original consti-tutionality of the identified foreign law, if the foreign legal system admits some type of diffuse judicial review (Mosconi and Campiglio 2015). Only afterwards, the court shall assess if the interpreted foreign law is compatible also with the sys-tem of destination: public policy is partially constituted exactly by the fundamen-tal constitutional principles of the domestic system.