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Domestic courts construct their reasoning starting from the general scheme for cross-border interpretive incompatibilities:

Foreign provision n may have more interpretation-outcomes O1,…, Om depending on which interpretive canon c1,…, cn is applied, where m ≤ n.

O1,…, Om are incompatible.

There exists an interpretive canon ci that can solve such incompatibility.

Canon ci may belong to LSi,…, LSz.

In our semi-formal language, the following holds:

 n is the textual provision of the foreign law that has to be applied by the Italian court k according to choice of law rules;

 Interpretation outcomes O1,…, Om are the sentences expressing all the different meanings attributed to the foreign provision n, i.e., the applicable norms ob-tained by applying a certain canon of interpretation (or more canons, as the next bullet item specifies);

 m ≤ n means that canons c1,…, cn may all have different interpretation out-comes O1,…, Om, but may also produce the same interpretive outcome Oi;

 The existence of more normative systems (LSi,…, LSz) is assumed;

 If the existence of more normative systems (LSi,…, LSz) is assumed, then, the foreign legal system (LSF) and the Italian one (LSI) may be not the only inter-pretive references for the case; rather, other legal orders may be involved in the process: e.g., because of the peculiar interests and rights discussed, the Europe-an legal system (LSEU), or international treaties (LSINT),¹³⁰ could provide for specific rules of interpretation.

Let us explain what interpretive incompatibility means, so to identify the cases, in which O1,…, Om can be said to be indeed incompatible. Besides, it is worth in-vestigating if and how the fact that O1,…, Om refer to different legal systems, first-ly, influences the definition of incompatibility, and, secondfirst-ly, is perhaps the way out the interpretative doubt in the end.

Several concepts of complementary interpretations may be presented. As a first step, we endorse the basic idea of incompatible interpretations drawn from Rotolo et al. (2015), adapting it to the private international law context: interpretations O1

and Om of the foreign provision n are incompatible whenever O1 is different from Om, irrespective of any possible logical relation (entailment, semantic overlapping, etc.) between O1 and Om. Such definition should then be enlarged in light of the peculiarities of cross-border reasoning, so to include the following insight: when-ever canons and interpretations are moved from their natural environment to an-other legal system, as it happens when foreign provisions are applied in the do-mestic system, even a plain interpretation may result incompatible with the system of destination. What follows illustrates both hypothesis of incompatibility.

Each interpretation-outcome Oi is the conclusion of an interpretive argument Ai

based on a precise interpretive canon ci, seen as rule of inference: the canon allows the interpreter to draw the result of an interpretative activity (Oi), which is, in turn, the applicable norm derived from the foreign provision n. They are so structured:

Interpretive Argument A1 Z1,…, Zl, c1 → O1

Interpretive Argument A2 Z1,…, Zl, c2 → O2

… …

Interpretive Argument Am Z1,…, Zl, cn → Om

130 From a strictly legal perspective, public international law, including customary law, jus co-gens, and international treaties, is part of the Italian legal system, either by virtue of constitution-al reference (art. 10, par. 1, referring to customary law), or of ratification orders, attributing the status of laws to treaties. Considering public international law a separate legal order (LSINT) aims to highlight that, in the interpretive reasoning, it may provide a different outlook on the legal is-sue in question, to which inner law and foreign law applied in LSI need to adapt.

Where Z1,…, Zl hold m ≤ n

Each interpretive argument Am reads as follows: “If cm applies and Z1,…, Zl hold, n should be interpreted as Om.”

Z1,…, Zl are extra-conditions that characterise the interpretive arguments A1,…, Am. So, there will ultimately be as many interpretive arguments A1,…, Am not only as many different interpretive canons c1,…, cn apply to the same provision n, but also as many different extra-conditions feature that interpretation.

Extra-conditions are, firstly, the legal systems LSi,…, LSz that are involved in the cross-border legal relation or dispute. Further extra-conditions may concern:

 The validity of the provision n: validity is here broadly understood, so to in-clude its temporal validity in LSF, its constitutionality with reference to LSF, the fact that it has been promulgated by the competent authority in LSF; as already noted, in case the court profits from the assistance of foreign law experts, as-sessment on validity of n is concurrent with the evaluation of experts, whereas, when governmental channels are preferred, it is inevitably assumed that they convey legally valid information, unless evidence of the contrary subsists.

 The normative goals (g) that n supposedly pursues in LSF: more goals g1,…, gm

may be assigned to n (in superscript: gⁿ1,…, gⁿm), so to condition its interpreta-tion outcome On; such goals g1,…, gm may in turn have different relevance de-pending on the LSi,…, LSz of reference;

 The values characterising the legal systems LSi,…, LSz considered: provision n is grounded on many values v1,…,vn that may guide the prevalence of one in-terpretation O1 against another O2.

Multiple interpretive arguments, so, imply that more interpretations, in the form of both multiple canons and outcomes, are possible with reference to the applica-ble foreign provision n. Still, not all of them instantiate incompatibilities in the sense we have defined beforehand.

Consider, for instance, the following case:

Example (a)

Interpretive Argument A1 Z1,…, Zl, c1 → Oi

… …

Interpretive Argument Am Z2,…, Zl, cn → Oi

Where Z1, Z2,…, Zl, hold and i = n

Multiple Applicable Canons c1 ≠ … ≠ cn

One Interpretive Outcome Oi

Example (a), along with case D in the previous section, shows that multiple in-terpretive canons do not necessarily entail different norms. If anything, when speaking the law in similar cases, judges need to justify why an interpretive canon has been preferred to other, equally applicable rules of interpretation. This is part of the grounds of the ruling: courts are generally required to provide the parties with an accurate and comprehensive motivation, regarding both questions of fact

(de facto) and questions of law (de iure). The circumstance that applicable is a foreign provision instead of a national legal rule does not exempt domestic courts from properly motivating its application and legal consequences. However, the applicable norm is just one and no interpretative uncertainty nor incompatibility confront the national judges in that respect, unless that interpretation contrasts with the domestic system.

On the other hand, a multiplicity of interpretive arguments may actually reveal such incompatibility when their interpretive outcomes O1,…, Om are different with one another, as the next example illustrates:

Example (b)

Interpretive Argument A1 Z1,…, Zl, c1 → O1

… …

Interpretive Argument Am Z2,…, Zl, cn → Om

Where m ≤ n and Z1, Z2,…, Zl all hold Multiple Applicable Canons c1 ≠ … ≠ cn

Different Interpretive Outcomes O1 ≠ … ≠ Om

If the result is O1 ≠ … ≠ Om, then an interpretive incompatibility exists since the applicable norm needs to be one.

Still, as already mentioned, even a plain interpretation as Oi in example (a), ap-parently a rather safe occurrence, may ultimately result incompatible with the do-mestic system as a whole: e.g., if it conflicts with its public policy. It is a second level incompatibility, following the requirement that interpretations fit the system of destination.

Such interpretive incompatibilities, though instantiated in many different ways, are all faced, and possibly solved, by national courts by opting for one interpretive canon (ci) or outcome (Oi) and by adequately justifying their choice. In so doing, courts establish preferences among different interpretations and, correspondingly, order concurrent arguments. Of course, the context is broader than that courts usu-ally face on occasion of domestic law application, and this weighs on the result.

Besides, it is worth noting that this is a form of meta-reasoning: not only are the courts interpreting the foreign law¹³¹ to derive the norm to be applied, but they are also managing, and thus reasoning about, arguments and canons pertaining to var-ious legal systems. The idea of meta-argumentation is used also for formally de-veloping the theoretical model here presented, as section 5 will explain.

Lastly, before analysing the reasoning schemata, it should be noted that private international law stems from the necessity to meet the parties’ reasonable expecta-tions, as regarding the law applicable to their cross-border legal relation. Such re-mark encourages to think that, in case of multiple interpretive outcomes, if there exists an interpretation that promotes the application of foreign law and prevents resorting to national law discretionarily, that interpretation should be preferred, in

131 In fact, legal interpretation may be considered a form of meta-reasoning, irrespective of the specific law object of interpretation.

compliance with core values of the recipient domestic system. This rule of inter-pretation adapts to private international law, which, as autonomous branch of law, tries, at the same time, to adequately rule private law relations with international characters, to safeguard inner coherence of national systems, and to promote val-ues and goals of superior normative systems, thus also fostering international legal cooperation.