Da interpretação, aplicação do artigo 21 do código civil e da dificuldade de prova da fraude à lei em direito internacional privado

Abstract

The plurality of states and the sovereignty immanent in them, also shows the plurality of legal systems that differ from each other, and in these cases the lex fori courts sometimes have to interpret and apply laws in concrete cases under the sign of legal situations that are plurilocalisable, at least in terms of the applicable law, given the competition between the various parallel legal systems in terms of ordering. In view of this, when determining the meaning and scope of the technical legal concepts used either to delimit the object of the reference or to designate the connecting element, account must be taken of the solutions laid down in domestic substantive law. However, although interpretation is anchored in domestic substantive law, it is not subordinate to it insofar as conflict law, which has to deal with various foreign legal orders and sometimes with non-state law, requires that the interpretation of the concepts of the conflict rule take into account the proper purposes and interests at stake in private international law. There are cases, even if this process results in a determination of the competent law among the various potentially competent ones, in which the addressees of the private international rule use fraudulent means to deflect this determination with a view to interests that are contrary to the proper purposes of private international law rules. However, if fraud is invoked in these cases, it will be necessary to prove, at least in abstract terms, that such fraudulent indications have been verified, and it will therefore be up to the judiciary to prove them and provide legal grounds.