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The EU Regulations on the Property Regimes of International Couples

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The EU Regulations on the Property Regimes of International Couples

A Commentary

9781788115087 Edward Elgar Publishing
Edited by Ilaria Viarengo, University of Milan and Pietro Franzina, Catholic University of Milan, Italy
Publication Date: June 2020 ISBN: 978 1 78811 508 7 Extent: c 568 pp
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. Written by experts from a variety of European countries, 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.

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Critical Acclaim
Contributors
Contents
More Information
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.
Critical Acclaim
‘This Italian initiative for a truly European Commentary on the new Regulations for property regimes of international couples must be warmly welcomed. Conceived with the help of a transnational team comprising some of the best academics in the field, this Commentary will help practitioners understanding the new harmonised regimes, as well as other interested lawyers making the necessary cross-references with other rules of the European judicial area. This new Elgar Commentary will be a guide for and towards the European future.’
– Louis d’Avout, Université Panthéon-Assas (Paris II), France

‘The European Property Regulations for spouses and registered partners have, so far, not attracted much attention in legal literature, compared to other European instruments. Over a year after they became applicable, the supply of books on both Regulations in English is still scarce. This gap will now be closed by Ilaria Viarengo and Pietro Franzina with this truly comprehensive Commentary. The book brings together renowned authors from different Member States and will serve practitioners and academics as a valuable resource.’
– Anatol Dutta, Ludwig-Maximilians-Universität München, Germany
Contributors
Contributors include: G. Biagioni, A. Bonomi, B. Campuzano Díaz, S. Corneloup, J. Carruthers, G. Cuniberti, E. D’Alessandro, P. Franzina, M. Gebauer, University of Tübingen, C. Kohler, S. Marino, C. Mariottini, D. Martiny, C.I. Nagy, J. Re, C. Ricci, A. Rodríguez Benot, L. Sandrini, I. Viarengo, P. Wautelet
Contents
Contents:

Table of Cases

Foreword
General introduction
By Pietro Franzina and Ilaria Viarengo
Chapter I: Scope and definitions
Introduction by Pietro Franzina
Article 1: Scope
Article 1: Scope
Comment by Andres Rodríguez Benot
Article 2: Competence in matters of matrimonial property regimes within the Member States
Article 2: Competence in matters of property consequences of registered partnerships within the Member States
Comment by Silvia Marino
Article 3: Definitions
Article 3: Definitions
Comment by Andres Rodríguez Benot
Chapter II: Jurisdiction
Introduction by Andrea Bonomi
Article 4: Jurisdiction in the event of the death of one of the spouses
Article 4: Jurisdiction in the event of the death of one of the partners
Comment by Andrea Bonomi
Article 5: Jurisdiction in cases of divorce, legal separation or marriage annulment
Article 5: Jurisdiction in cases of dissolution or annulment
Comment by Ilaria Viarengo
Article 6: Jurisdiction in other cases
Article 6: Jurisdiction in other cases
Comment by Pietro Franzina
Article 7: Choice of court
Article 7: Choice of court
Comment by Pietro Franzina
Article 8: Jurisdiction based on the appearance of the defendant
Article 8: Jurisdiction based on the appearance of the defendant
Comment by Sabine Corneloup
Article 9: Alternative jurisdiction
Article 9: Alternative jurisdiction
Comment by Pietro Franzina
Article 10: Subsidiary jurisdiction
Article 10: Subsidiary jurisdiction
Comment by Pietro Franzina
Article 11: Forum necessitatis
Article 11: Forum necessitatis
Comment by Giacomo Biagioni
Article 12: Counterclaims
Article 12: Counterclaims
Comment by Giacomo Biagioni
Article 13: Limitation of proceedings
Article 13: Limitation of proceedings
Comment by Pietro Franzina
Article 14: Seising a court
Article 14: Seising a court
Comment by Pietro Franzina
Article 15: Examination as to jurisdiction
Article 15: Examination as to jurisdiction
Comment by Pietro Franzina
Article 16: Examination as to admissibility
Article 16: Examination as to admissibility
Comment by Pietro Franzina
Article 17: Lis pendens
Article 17: Lis pendens
Comment by Csongor István Nagy
Article 18: Related actions
Article 18: Related actions
Comment by Csongor István Nagy
Article 19: Provisional, including protective, measures
Article 19: Provisional, including protective, measures
Comment by Lidia Sandrini
Chapter III: Applicable law
Introduction by Pietro Franzina
Article 20: Universal application
Article 20: Universal application
Comment by Dieter Martiny
Article 21: Unity of the applicable law
Article 21: Unity of the applicable law
Comment by Dieter Martiny
Article 22: Choice of the applicable law
Article 22: Choice of the applicable law
Comment by Christian Kohler
Article 23: Formal validity of the agreement on a choice of applicable law
Article 23: Formal validity of the agreement on a choice of applicable law
Comment by Christian Kohler
Article 24: Consent and material validity
Article 24: Consent and material validity
Comment by Christian Kohler
Article 25: Formal validity of a matrimonial property agreement
Article 25: Formal validity of a partnership property agreement
Comment by Pietro Franzina
Article 26: Applicable law in the absence of choice by the parties
Article 26: Applicable law in the absence of choice by the parties
Comment by Dieter Martiny
Article 27: Scope of the applicable law
Article 27: Scope of the applicable law
Comment by Janeen Carruthers
Article 28: Effects in respect of third parties
Article 28: Effects in respect of third parties
Comment by Janeen Carruthers
Article 29: Adaptation of rights in rem
Article 29: Adaptation of rights in rem
Comment by Patrick Wautelet
Article 30: Overriding mandatory provisions
Article 30: Overriding mandatory provisions
Comment by Martin Gebauer
Article 31: Public policy (ordre public)
Article 31: Public policy (ordre public)
Comment by Martin Gebauer
Article 32: Exclusion of renvoi
Article 32: Exclusion of renvoi
Comment by Martin Gebauer
Article 33: States with more than one legal system — territorial conflicts of laws
Article 33: States with more than one legal system — territorial conflicts of laws
Comment by Beatriz Campuzano Díaz
Article 34: States with more than one legal system — inter-personal conflicts of laws
Article 34: States with more than one legal system — inter-personal conflicts of laws
Comment by Beatriz Campuzano Díaz
Article 35: Non-application of this Regulation to internal conflicts of laws
Article 35: Non-application of this Regulation to internal conflicts of laws
Comment by Beatriz Campuzano Díaz
Chapter IV: Recognition, enforceability and enforcement of decisions
Introduction by Pietro Franzina
Article 36: Recognition
Article 36: Recognition
Comment by Pietro Franzina
Article 37: Grounds of non-recognition
Article 37: Grounds of non-recognition
Comment by Gilles Cuniberti
Article 38: Fundamental rights
Article 38: Fundamental rights
Comment by Martin Gebauer
Article 39: Prohibition of review of jurisdiction of the court of origin
Article 39: Prohibition of review of jurisdiction of the court of origin
Comment by Carola Ricci
Article 40: No review as to substance
Article 40: No review as to substance
Comment by Csongor István Nagy
Article 41: Staying of recognition proceedings
Article 41: Staying of recognition proceedings
Comment by Elena D’Alessandro
Article 42: Enforceability
Article 42: Enforceability
Comment by Gilles Cuniberti
Article 43: Determination of domicile
Article 43: Determination of domicile
Article 44: Jurisdiction of local courts
Article 44: Jurisdiction of local courts
Comment by Jacopo Re
Article 45: Procedure
Article 45: Procedure
Comment by Elena D’Alessandro
Article 46: Non-production of the attestation
Article 46: Non-production of the attestation
Comment by Elena D’Alessandro
Article 47: Declaration of enforceability
Article 47: Declaration of enforceability
Comment by Elena D’Alessandro
Article 48: Notice of the decision on the application for a declaration of enforceability
Article 48: Notice of the decision on the application for a declaration of enforceability
Comment by Elena D’Alessandro
Article 49: Appeal against the decision on the application for a declaration of enforceability
Article 49: Appeal against the decision on the application for a declaration of enforceability
Comment by Elena D’Alessandro
Article 50: Procedure to contest the decision given on appeal
Article 50: Procedure to contest the decision given on appeal
Comment by Elena D’Alessandro
Article 51: Refusal or revocation of a declaration of enforceability
Article 51: Refusal or revocation of a declaration of enforceability
Comment by Gilles Cuniberti
Article 52: Staying of proceedings
Article 52: Staying of proceedings
Comment by Elena D’Alessandro
Article 53: Provisional, including protective, measures
Article 53: Provisional, including protective, measures
Comment by Lidia Sandrini
Article 54: Partial enforceability
Article 54: Partial enforceability
Comment by Gilles Cuniberti
Article 55: Legal aid
Article 55: Legal aid
Comment by Csongor István Nagy
Article 56: No security, bond or deposit
Article 56: No security, bond or deposit
Comment by Csongor István Nagy
Article 57: No charge, duty or fee
Article 57: No charge, duty or fee
Comment by Csongor István Nagy
Chapter V: Authentic instruments and court settlements
Introduction by Pietro Franzina
Article 58: Acceptance of authentic instruments
Article 58: Acceptance of authentic instruments
Comment by Pietro Franzina
Article 59: Enforceability of authentic instruments
Article 59: Enforceability of authentic instruments
Comment by Pietro Franzina
Article 60: Enforceability of court settlements
Article 60: Enforceability of court settlements
Comment by Gilles Cuniberti
Chapter VI: General and final provisions
Introduction by Pietro Franzina
Article 61: Legalisation and other similar formalities
Article 61: Legalisation and other similar formalities
Comment by Csongor István Nagy
Article 62: Relations with existing international conventions
Article 62: Relations with existing international conventions
Comment by Cristina Mariottini
Article 63: Information made available to the public
Article 63: Information made available to the public
Comment by Jacopo Re
Article 64: Information on contact details and procedures
Article 64: Information on contact details and procedures
Comment by Jacopo Re
Article 65: Establishment and subsequent amendment of the list containing the information referred to in Article 3(2)
Article 65: Establishment and subsequent amendment of the list containing the information referred to in Article 3(2)
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
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
Comment by Silvia Marino
Article 67: Committee procedure
Article 67: Committee procedure
Comment by Silvia Marino
Article 68: Review clause
Article 68: Review clause
Comment by Silvia Marino
Article 69: Transitional provisions
Article 69: Transitional provisions
Comment by Giacomo Biagioni
Article 70: Entry into force
Article 70: Entry into force

Comment by Giacomo Biagioni
Bibliography

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, and 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

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

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

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

Annex 5: Information provided by the Member States in accordance with Article 64 of the Property Regimes Regulations List of contributors

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