The EU regulations on the property regimes of international couples : a commentary

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The EU regulations on the property regimes of international couples : a commentary

edited by Ilaria Viarengo, Pietro Franzina

（Elgar commentaries in private international law）

Edward Elgar Pub., c2020

  • : cased

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Includes index

Description and Table of Contents

Description

This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. It offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered. Written by experts from a variety of European countries, this Commentary draws on scholarship and practice from a number of EU states to enrich its analysis and explore pertinent questions of jurisprudence. It also highlights the close relationship of the Regulations with other legislative measures of the EU in the field of private international law, such as on matters of succession and matrimonial matters. This Commentary will be a crucial reference source for practitioners working as family litigation lawyers, estate planning lawyers and notaries. It will also be of interest to scholars and other practitioners working in the field of private international law. Contributors include: G. Biagioni, A. Bonomi, B. Campuzano Diaz, J. Carruthers, S. Corneloup, G. Cuniberti, E. D'Alessandro, P. Franzina, M. Gebauer, C. Kohler, S. Marino, C. Mariottini, D. Martiny, C.I. Nagy, J. Re, C. Ricci, A. Rodriguez Benot, L. Sandrini, I. Viarengo, P. Wautelet

Table of Contents

Contents: Preface xxi General introduction 1 Pietro Franzina and Ilaria Viarengo CHAPTER I SCOPE AND DEFINITIONS 14 Introduction by Pietro Franzina Article 1 Scope 17 Comment by Andres Rodriguez Benot Article 2 Competence in matters of matrimonial property regimes [of property consequences of registered partnerships] within the Member States 29 Comment by Silvia Marino Article 3 Definitions 32 Comment by Andres Rodriguez Benot CHAPTER II JURISDICTION 46 Introduction by Andrea Bonomi Article 4 Jurisdiction in the event of the death of one of the spouses [partners] 50 Comment by Andrea Bonomi Article 5 Jurisdiction in cases of divorce, legal separation or marriage annulment [in cases of dissolution or annulment] 67 Comment by Ilaria Viarengo Article 6 Jurisdiction in other cases 78 Comment by Pietro Franzina Article 7 Choice of court 85 Comment by Pietro Franzina Article 8 Jurisdiction based on the appearance of the defendant 92 Comment by Sabine Corneloup Article 9 Alternative jurisdiction 103 Comment by Pietro Franzina Article 10 Subsidiary jurisdiction 111 Comment by Pietro Franzina Article 11 Forum necessitatis 117 Comment by Giacomo Biagioni Article 12 Counterclaims 125 Comment by Giacomo Biagioni Article 13 Limitation of proceedings 130 Comment by Pietro Franzina Article 14 Seising a court 137 Comment by Pietro Franzina Article 15 Examination as to jurisdiction 146 Comment by Pietro Franzina Article 16 Examination as to admissibility 151 Comment by Pietro Franzina Article 17 Lis pendens 158 Comment by Csongor Istvan Nagy Article 18 Related actions 166 Comment by Csongor Istvan Nagy Article 19 Provisional, including protective, measures 171 Comment by Lidia Sandrini CHAPTER III APPLICABLE LAW 185 Introduction by Pietro Franzina Article 20 Universal application 187 Comment by Dieter Martiny Article 21 Unity of the applicable law 191 Comment by Dieter Martiny Article 22 Choice of the applicable law 195 Comment by Christian Kohler Article 23 Formal validity of the agreement on a choice of applicable law 212 Comment by Christian Kohler Article 24 Consent and material validity 222 Comment by Christian Kohler Article 25 Formal validity of a matrimonial [partnership] property agreement 232 Comment by Pietro Franzina Article 26 Applicable law in the absence of choice by the parties 241 Comment by Dieter Martiny Article 27 Scope of the applicable law 260 Comment by Janeen M. Carruthers Article 28 Effects in respect of third parties 271 Comment by Janeen M. Carruthers Article 29 Adaptation of rights in rem 283 Comment by Patrick Wautelet Article 30 Overriding mandatory provisions 295 Comment by Martin Gebauer Article 31 Public policy (ordre public) 306 Comment by Martin Gebauer Article 32 Exclusion of renvoi 312 Comment by Martin Gebauer Article 33 States with more than one legal system - territorial conflicts of laws 319 Comment by Beatriz Campuzano Diaz Article 34 States with more than one legal system - inter-personal conflicts of laws 327 Comment by Beatriz Campuzano Diaz Article 35 Non-application of this Regulation to internal conflicts of laws 330 Comment by Beatriz Campuzano Diaz CHAPTER IV RECOGNITION, ENFORCEABILITY AND ENFORCEMENT OF DECISIONS 332 Introduction by Pietro Franzina Article 36 Recognition 334 Comment by Pietro Franzina Article 37 Grounds of non-recognition 344 Comment by Gilles Cuniberti Article 38 Fundamental rights 354 Comment by Martin Gebauer Article 39 Prohibition of review of jurisdiction of the court of origin 360 Comment by Carola Ricci Article 40 No review as to substance 367 Comment by Csongor Istvan Nagy Article 41 Staying of recognition proceedings 370 Comment by Elena D'Alessandro Article 42 Enforceability 374 Comment by Gilles Cuniberti Article 43 Determination of domicile 379 Comment by Jacopo Re Article 44 Jurisdiction of local courts 384 Comment by Jacopo Re Article 45 Procedure 387 Comment by Elena D'Alessandro Article 46 Non-production of the attestation 391 Comment by Elena D'Alessandro Article 47 Declaration of enforceability 393 Comment by Elena D'Alessandro Article 48 Notice of the decision on the application for a declaration of enforceability 395 Comment by Elena D'Alessandro Article 49 Appeal against the decision on the application for a declaration of enforceability 398 Comment by Elena D'Alessandro Article 50 Procedure to contest the decision given on appeal 403 Comment by Elena D'Alessandro Article 51 Refusal or revocation of a declaration of enforceability 405 Comment by Gilles Cuniberti Article 52 Staying of proceedings 409 Comment by Elena D'Alessandro Article 53 Provisional, including protective, measures 411 Comment by Lidia Sandrini Article 54 Partial enforceability 419 Comment by Gilles Cuniberti Article 55 Legal aid 422 Comment by Csongor Istvan Nagy Article 56 No security, bond or deposit 425 Comment by Csongor Istvan Nagy Article 57 No charge, duty or fee 428 Comment by Csongor Istvan Nagy CHAPTER V AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS 430 Introduction by Pietro Franzina Article 58 Acceptance of authentic instruments 432 Comment by Pietro Franzina Article 59 Enforceability of authentic instruments 445 Comment by Pietro Franzina Article 60 Enforceability of court settlements 452 Comment by Gilles Cuniberti CHAPTER VI GENERAL AND FINAL PROVISIONS 455 Introduction by Pietro Franzina Article 61 Legalisation and other similar formalities 456 Comment by Csongor Istvan Nagy Article 62 Relations with existing international conventions 458 Comment by Cristina M. Mariottini Article 63 Information made available to the public 468 Comment by Jacopo Re Article 64 Information on contact details and procedures 470 Comment by Jacopo Re Article 65 Establishment and subsequent amendment of the list containing the information referred to in Article 3(2) 474 Comment by Jacopo Re Article 66 Establishment and subsequent amendment of the attestations and forms referred to in point (b) of Article 45(3) and Articles 58, 59 and 60 477 Comment by Silvia Marino Article 67 Committee procedure 480 Comment by Silvia Marino Article 68 Review clause 481 Comment by Silvia Marino Article 69 Transitional provisions 483 Comment by Giacomo Biagioni Article 70 Entry into force 489 Comment by Giacomo Biagioni Annex 1 Preamble to Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes 493 Preamble to Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships 508 Annex 2 Council Decision (EU) 2016/954 of 9 June 2016 authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships 524 Annex 3 Commission Implementing Regulation (EU) 2018/1935 of 7 December 2018 establishing the forms referred to in Council Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes [2018] OJ L314 529 Annex 4 Commission Implementing Regulation (EU) 2018/1990 of 11 December 2018 establishing the forms referred to in Council Regulation (EU) 2016/1104 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships [2018] OJ L320 531 Annex 5 Information provided by the Member States in accordance with Article 64 of the Property Regimes Regulations 533 Index 535

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