CHAPTER 5: Jurisdiction, Recognition
and Enforcement
99. The Commission proposal envisages the single
basic rule that the court of the Member State in which the deceased
was habitually resident at the time of death should have jurisdiction
to deal with a succession.
100. The same test would be applied to cross-border
successions involving a third country where the deceased was habitually
resident in a Member State. But this could only resolve any conflict
of jurisdiction there might be between Member States. Any conflict
with a third country could only be resolved by agreement with
that country.
101. Specific provision is also made in the proposal
to resolve any conflict of jurisdiction between Member States
where the deceased was not habitually resident in the EU at the
time of death. This is termed "residual jurisdiction"
in the proposal.
102. The Commission proposal also envisages establishing
consistent rules to simplify the recognition and enforcement of
decisions given by the courts of the Member States and also of
authentic instruments produced by notaries. This would not apply
to decisions or authentic instruments from third countries.
Jurisdiction
103. The laws of the individual Member States
can give rise to different answers to the question of which court
is to deal with a cross-border succession, and the possibility
that more than one could, by its own law, have jurisdiction to
do so. This gives rise to the further possibility that there may
be a race by those contemplating litigation to start proceedings
in the jurisdiction they perceive will give them an advantage.
For example, delay in reaching a decision may favour one party,
with a resultant rush by that party to start proceedings in a
jurisdiction which is slow to process litigation.
104. The resolution of the question of which
court has jurisdiction is different from the question of which
law should apply to the succession. It may be the case, for example,
that all the litigants in a succession dispute live in a Member
State other than that of the applicable law, making it more convenient
for the court of their Member State to resolve their dispute.
There is, however, a strong link between the jurisdiction and
the applicable law in that it is cheaper and more convenient for
the court dealing with succession to apply its national law.
105. For Richard Frimston, including in the proposal
provisions dealing with jurisdiction was one of the matters making
the proposal difficult in practice because it was so novel (Q 65).
None of our other witnesses questioned the underlying benefit
in principle of EU legislation providing a single rule for determining
which court should have jurisdiction. However there were questions
as to how the proposal seeks to achieve this. The Commission proposes
that jurisdiction should be determined by the habitual residence
of the deceased at the time of death, mirroring the basic rule
of determining the applicable law. This choice raises the same
issues of certainty as arise from using this connecting factor
to determine the applicable law. It raises the spectre, in a case
where it is uncertain where the habitual residence of the deceased
was, of a race to start proceedings. As the proposal stands the
first court to which the matter is brought would have the sole
right to deal with the case unless and until it decides that it
did not have jurisdiction, irrespective of the objective merits
of the various claims for habitual residence.
106. However jurisdiction would not follow applicable
law where a person chooses to apply the law of his nationality.
In this case jurisdiction remains with the court of the Member
State of habitual residence, but that court would have a discretion
to invite the parties concerned to use the court of the nationality
of the deceased which would also be the court of the applicable
law.
107. Professor Matthews, Richard Frimston,
the Chancery Bar Association and the joint evidence of the Law
Society, STEP and the Notaries Society favoured jurisdiction following
the applicable law (QQ 37, 51, pp 61, 83).
This approach would avoid the added cost and inconvenience arising
from the need to provide expert evidence of the content of the
law applicable to the case and the need for the court to apply
a law with which it was not familiar.
108. This is a particularly important question
for the UK where succession can involve complicated issues of
trust law with which the courts of most other Member States are
not familiar and which can often require an assessment of oral
evidence, after cross-examination, to be resolved. The legal traditions
of most other Member States favour written evidence including
notarial acts. They tend to relegate oral evidence to a lower
level and do not employ the technique of cross-examination to
test the veracity of witnesses.[31]
109. Jonathan Faull indicated that the Commission
had chosen the approach found in its proposal because it envisaged
that most Member States would not be persuaded to make the link
between the applicable law and jurisdiction mandatory. Instead
it had chosen flexibility (Q 110).
110. We consider that the connecting factor
to determine jurisdiction should be the same as that used to determine
the applicable law, including in cases where a testator has chosen
the applicable law.
111. Different considerations apply where the
cross-border element of the succession involves third countries.
The proposal would apply the rule applicable to Member States
if the deceased died habitually resident in the EU. If, on the
other hand, the deceased died habitually resident in a third country,
there would be a hierarchy of connecting factors to determine
which Member State has residual jurisdiction. The hierarchy is:
the previous habitual residence in a Member State of the deceased,
the nationality of the deceased, the habitual residence of those
inheriting (irrespective of the size or proportion of the inheritance),
and the location of the property which is the subject of the proceedings.
These clearly provide the potential for more than one Member State
to have residual jurisdiction. Where this happens the first court
to which any dispute is brought would have sole jurisdiction until
it decided otherwise.
112. In their Explanatory Memorandum[32]
the Government identified a need to tighten the categories for
attributing residual jurisdiction. For example the rules set out
in the proposal could lead to the court of a Member State of an
heir who only benefits from a very small inheritance having jurisdiction.
113. Jonathan Faull characterised the circumstances
in which residual jurisdiction would arise as "circumscribed"
and thought the hierarchy sufficiently clear. He accepted that
the test of this would be the extent to which they would invite
or facilitate forum shopping by potential litigants (Q 112).
Professor Matthews saw nothing wrong in having a hierarchy
of factors to determine residual jurisdiction, but accepted that
it was for negotiation precisely what it ought to be (Q 37).
Richard Frimston described the proposal for residual jurisdiction
as "fairly sensible" (Q 83).
114. We believe that if the proposal is to
deal with jurisdiction it should include provision for residual
jurisdiction. The proposal is however capable of being tightened
up to ensure that the circumstances in which more than one residual
jurisdiction arises are more limited and the connection between
the succession and any residual jurisdiction is stronger.
Recognition and enforcement of
court decisions and authentic instruments
115. The potential benefits to be derived from
the simplification of the rules resolving conflicts of applicable
law and jurisdiction can be enhanced by making the decisions taken
in one Member State recognisable and enforceable in another. A
person benefiting from a decision in one Member State would not
incur added expense and delay in going through a process in another
Member State in order to have that decision given effect. The
question arises whether such recognition or enforcement should
be subject to safeguards to protect the public policy of the Member
State in which recognition or enforcement is sought. This might
happen, for example, if the original decision were made without
an interested party having what was considered to be a sufficient
opportunity to contest it.
116. The Commission proposes that decisions made
in one Member State, whether made by courts or by notaries in
the form of authentic instruments, should be recognised and enforced
in other Member States in accordance with rules based on those
currently in place in respect of civil and commercial matters.[33]
117. Recognition of a decision of a court in
another Member State would not require any special procedure,
but the court in which recognition is requested might refuse on
limited grounds: that recognition was "manifestly contrary"
to public policy, the defendant had insufficient opportunity to
arrange the defence, and the decision was irreconcilable with
an existing decision in a dispute between the same parties. The
procedure for enforcement, following the rules for civil and commercial
matters, would involve obtaining a declaration of enforceability
in the court of the Member State of enforcement according to a
single simplified procedure. If contested, a declaration of enforceability
could only be refused on the grounds on which recognition could
be refused.
118. In contrast, an authentic instrument would
have to be recognised unless it was "contrary" to the
public policy of the Member State in which recognition was sought.
The procedure for enforcement of an authentic instrument would
follow that of a court decision save that the only ground for
refusal would be that enforcement was contrary to the public policy
of the Member State in which enforcement was sought.
119. The recognition and enforcement of court
decisions was regarded by Richard Frimston as an objective worthy
of pursuing, but one which could raise tricky issues. He cited
the example of Malta, which does not have a law of divorce. He
asked whether that meant that a Maltese court would not recognise
a divorce obtained elsewhere, with a consequential effect on succession
issues which were dependent on whether the marriage was regarded
as continuing to exist up to the time of the death (Q 86).
Other witnesses did not raise objections to the provision for
recognition and enforcement of judgments.
120. On the other hand there was widespread concern
at the recognition and enforcement of decisions taken by notaries
in the form of authentic instruments. Professor Matthews
explained that the functions of notaries are to record and give
publicity to transactions. Those transactions are generally concluded
in the context of an agreement by the relevant parties, rather
than a dispute. Given the absence of litigation, transactions
before a notary tended not have the same procedural safeguards
built into them as do decisions of courts. In particular a notary
might not have been made aware of the existence of a dispute affecting
the succession to a particular property and might not have given
all interested parties a chance to state their case. Professor Matthews
therefore advocated that authentic instruments should have the
status of high quality evidence rather than be recognised and
enforceable (Q 38, p 11).
121. Lord Bach and Oliver Parker raised a serious
concern about the recognition and enforcement of authentic instruments
which had been apparent from the early discussions of the proposal
in the Council Working Group. It arises from the fact that the
proposal would provide rules for resolving conflicts of jurisdiction
between courts but would not apply the same rules to determine
who should be able to produce an authentic instrument. This discriminates
against court-based systems in favour of systems which use notaries.
The specific example used to illustrate this concern is outlined
in Box 8 (Q 162).
BOX 8
An effect of the proposal for recognition
and enforcement of an authentic instrument
A contested succession is being litigated in London
according to the jurisdiction provisions of the proposal. A disgruntled
party could nevertheless seek an authentic instrument from a notary
in another Member State and that notary could properly issue one
as the jurisdiction rules only apply to courts. The notary might
not even be made aware of the contested proceedings in London.
The likelihood is that the authentic instrument could be obtained
before any judgment was delivered by the London court.
Recognition and enforcement of the authentic instrument
is automatic unless it can be proved to be in breach of public
policy in the enforcing state, which is likely to be difficult
to achieve in the majority of cases. The effect would be to pre-empt
or undermine the London judgment.
122. Jonathan Faull suggested that the Commission
had not gone too far in providing for the mutual recognition and
enforcement of authentic instruments because of the important
role that notaries played and the safeguards provided (Q 118).
He pointed out that notaries were firmly established as an indispensable
part of the system in the Member States where they took a prominent
role in overseeing successions (Q 122).
123. We consider that the mutual recognition
and enforcement of court decisions is likely to be sufficiently
non-controversial to be acceptable in principle. However we do
not consider that there is sufficient mutual trust at present
to justify making authentic instruments recognisable and enforceable.
We consider that authentic instruments should be given the status
of evidence rather than being recognisable and enforceable.
31 Evidence of Professor Matthews (p 9). Back
32
http://europeanmemorandum.cabinetoffice.gov.uk/files/Numbered%20EMs%2009/14001-15000/14722-09.pdf Back
33
Regulation 44/2001 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters. Back
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