What is it about?
This paper provides a comment to Article 12 of Regulation (EU) No. 650/2012 (the European Succession Regulation). This article provides for a form of coordination of jurisdiction exercised by Member State courts under the Regulation with jurisdiction exercised by third country courts (or by courts sitting in a Member State not bound by the Regulation, like Denmark, the United Kingdom and Ireland) under their respective domestic rules. The mechanism of coordination adopted relies on the exercise of self-restraint by Member State courts having jurisdiction under the Regulation. These may refrain from deciding in respect of assets belonging to the succession located in a third country (or in a Member State not bound by the Regulation) whenever it appears clearly that their judgments would not be recognized in the third country where the relevant assets are located. This paper discusses advantages and drawbacks inherent in this solution.
Featured Image
Why is it important?
This article discusses the advantages and shortcomings of the solution embodied in Article 12 of the European Succession Regulation, underlining on the one side the importance of preventing an unnecessary waste of judicial resources by Member State courts by handing down judgments which would be unenforceable in the third countries (or Member States not bound by the Regulation) where the relevant assets belonging to the succession are located. On the other side, it highlights the difficulties inherent in the application of the said mechanism, exploring the grounds on which the court seized under the Regulation shall assume that its judgment won't be recognized in the third country where the relavent assets are located. This paper briefly comments also on the possibility, left open by Article 12, para. 2, of the Regulation, whereby the parties themselves may decide to limit the scope of the proceedings if this is allowed under the law of the Member State of the court seized.
Perspectives
The mechanism introduced under Article 12 of the European Succession Regulation must be appreciated as a reasonable attempt to coordinate jurisdiction exercised by Member State courts under the Regulation and jurisdiction exercised by third country courts. At the same time, the said goal could have been achieved more extensively, e.g. by providing for cases of lis pendens and related actions before third country courts (as provided under the Brussels Ia Regulation - No. 1215/2012) and by providing for the power of Member State courts to decline jurisdiction in favour of a third country court based on a choice of court agreement by the parties concerned by the succession. This possibility has been explored further by this author in his paper titled "The EU Succession Regulation and Third Country Courts", published in the Journal of Private International Law, 2016 (Vol. 12, Issue 3), pp. 545-565: http://dx.doi.org/10.1080/17441048.2016.1246285
Prof. Fabrizio F Marongiu Buonaiuti
Universita degli Studi di Macerata
Read the Original
This page is a summary of: Limitation of Proceedings, Cambridge University Press,
DOI: 10.1017/cbo9781316422311.014.
You can read the full text:
Contributors
The following have contributed to this page
