La difesa dei valori fondamentali dell’ordinamento italiano nel diritto internazionale privato delle persone, della famiglia e delle successioni

[Autom. eng. transl.] The rules of private international law perform a function that can be defined as relational. It is up to them to establish in which circumstances and in what way the legal system of the forum opens up, according to the regulation of cases of a private nature, to the legal values ​​of other state systems. This openness takes different forms depending on the practical need that is to be satisfied and the rules used to respond to it. The rules on conflicts of laws, i.e. those designed to identify the law applicable to the situation in question, sometimes require the authorities of the forum to take as a parameter, in the exercise of their functions, the general and abstract rules of a foreign system. The rules governing the effectiveness of foreign decisions and acts provide that, under certain conditions, what has been decided or ascertained by the authorities of a foreign state must be considered as decided or ascertained in the forum. In every opening towards others there is inherent risk. The foreign law that the conflict rules makes applicable in the forum could be inspired by values ​​that contradict those of the forum; the foreign sentence whose recognition and execution is proposed could consecrate a structure that the court considers unfair or be the result of a proceeding that the court does not consider fair. Hence the provision of special safeguards aimed at avoiding this danger, starting from the so-called exception of public order, i.e. the provision by virtue of which the law referred to by the conflict rules must not and cannot be applied when its application would produce effects incompatible with the values ​​that define the identity of the legal system of the forum, and – similarly – the foreign sentence, even when the conditions that normally suffice to guarantee its effectiveness in the forum are met, cannot and must not be implemented when its recognition would be irremediably in conflict with those same values. The image that has just been outlined - that of a system that defends its own values, jeopardized by contact with foreign values ​​- actually tells only part of the story. Those who see a danger to the values ​​of the forum in the openness promoted by the rules of private international law often do not see that this very openness actually constitutes a particular way of realizing the values ​​of the legal system. In other words, it is the same values ​​of the forum that require, in some cases, to open up the local legal system to the general and abstract rules of a different country or to the provisions of the relevant authorities. A preconceived closure towards the outside, in the name of its diversity, would constitute an obstacle to the full and efficient realization of those values.