PREMISE

During the course of the past 20 years, the EU has undertaken the ambitious task of unifying – ‘Europeanising‘ – private international law rules on a supranational level. As part of this mission to create ‘a genuine European area of justice‘ for those that make use of their free movement rights within the Union, several instruments have been introduced that specifically address family matters (matrimonial matters, parental responsibility, property relations and maintenance) and succession. The process of unifying private international law rules on a Union level is distinguished not only by its ambitious scale, but also by its tendency towards novelty.

Arguably one of the most prominent of such developments is the widespread inclusion of party autonomy in the EU‘s instruments concerning family matters and succession. Although party autonomy is not unheard of within Member States‘ own jurisdictional and conflict-of-laws rules on these topics, its appearance has until now been sporadic between states and subject areas. Its large-scale introduction within the realm of cross-border family matters and succession in Europe provides considerable scope for examination. Most notably, there has been to date little scrutiny concerning the purpose and validity of its introduction in the European Union context.

This book pursues an examination of the party autonomy provisions established within the EU‘s instruments on family matters and succession in view of the status of such rules as measures of Union law. This involves identifying the particular values that the EU attaches to party autonomy, as well as the more general objectives behind legislative action in the Union setting, and evaluating the coherence of these provisions with the established parameters. The conclusions that are generated will present a valuable critique of the ‘state of affairs‘ following the flurry of legislative activity that has taken place over the past two decades.

DELINEATION OF PARTY AUTONOMY

In concise terms, the concept of party autonomy refers to the opportunity for parties to make a choice of court or choice of law agreement (or, in the case of a succession, a professio juris) in the private international law context. It should be distinguished from the related (but distinct) notion of private autonomy in substantive law.

INTRODUCTION

The previous chapter has delineated the subject matter (material and personal scope) of the instruments that allow for party autonomy in the EU‘s private international law rules relating to family matters and succession. Before embarking upon an examination into the precise connections through which a choice can be made in those contexts, it is also necessary that the ‘focus‘ of the choice at hand is established.

For the present purposes, this focal point is either the competent Member State court or the applicable national law that applies to a particular matter or proceeding. The parameters of these elements within the context of the EU private international law rules on family matters and succession will be established and contrasted in the following sections (‘court‘ – 5.2. and ‘applicable law‘ – 5.3.).

This examination will follow the format of the previous chapter in presenting this evaluation in a synthesis (5.4.), which will present the findings on the delineation of the focal points, the coordination and interaction between related subject matter in this particular context, and the gaps to be addressed.

COURT

The first of the two focal points upon which party autonomy is based is that of the ‘court‘: the authority that applies the law and pronounces a decision on the matter at hand. This section will begin by outlining the general definition of ‘court‘ as set out in the relevant instruments concerning property relations, maintenance, parental responsibility and succession (5.2.1.), before delving further into issues that arise from these provisions, namely: the scope permitted for the inclusion of non-judicial authorities by the respective instruments (5.2.2.); the procedural guarantees and requirements that are imposed upon the functioning of these bodies (5.2.3.); the question of whether religious or other private authorities (5.2.4.) or arbitral tribunals (5.2.5.) are to be viewed as decision-making bodies within the scope of the relevant regulations; and finally, the requirement for Member States to notify the Commission regarding the presence of non-judicial bodies in their jurisdictions (5.2.6.).

INTRODUCTION

At the ultimate stage of this evaluation into the EU‘s private international law rules on family matters and succession, this final substantive chapter seeks to address the factors that influence the enforcement of choice: the diverse range of variables that aff ect a choice of court and/or choice of law made according to the relevant instruments.

The influences that will be discussed in this chapter fall into a broad range of categories: the variables that impact upon the success of a designation of a competent court (exclusivity of jurisdiction and the lis pendens rule – 10.2.); the variance of the applicable law through overriding mandatory provisions (10.3.), public policy (10.4.), and the application of substantive provisions from the relevant instruments (10.5); and finally, the impact of fragmentation upon the recognition of agreements, both in terms of the Member States‘ approach towards the growing number of parties in ‘non-traditional‘ relationships (10.6.) and the patchwork participation of Member States in certain of the instruments in this present framework (10.7). In the same manner as the preceding chapters in this evaluation, there will be a concluding synthesis (10.8) that establishes an overview of the findings identified in the respective sections, an examination of the interplay between the respective provisions within this context and a presentation of the author‘s suggested improvements that have emerged as a result of this evaluation.

EXCLUSIVITY OF JURISDICTION AND LIS PENDENS

The first topic to be dealt with in this exploration of the variables that impact upon the enforcement of choice in the EU private international law framework relating to family matters and succession centres on jurisdictional context. This section firstly examines the exclusive nature of jurisdiction (and the exceptions thereof) established by the choice of court provisions in the relevant instruments (10.2.1.), before considering the impact of the lis pendens rule on this present context (10.2.2.)

EXCLUSIVITY OF JURISDICTION

Both the Property Regulations and the Succession Regulation stipulate that a choice of court is to be considered exclusive in nature.

INTRODUCTION

As the first step to evaluating the party autonomy provisions within the EU framework of unified rules on family matters and succession, this chapter will establish and analyse the parameters that underpin a choice of court or choice of law in the present setting.

In establishing the material and personal remit of agreements in the present realm, this chapter will begin by considering the prerequisite elements that underlie all situations that fall within the scope of the EU‘s unified rules on crossborder family matters and succession (4.2.), before proceeding to delineate the particular subject matters and parties that the respective instruments concern. Matrimonial matters will be considered first (4.3.), followed by the other major area involving adult relationships: property relations between spouses and registered partners (4.4.). Maintenance obligations (4.5) and parental responsibility (4.6.) will be dealt with next, before finally turning to consider succession (4.7.). By way of exception to the simultaneous approach that is pursued in this book, this present chapter will establish the material and personal scopes of the respective areas of law addressed here on a successive basis.

This chapter will consider the following questions in conjunction with the factors of evaluation established in Chapters 2 and 3: (i) Firstly, how well are the subject areas delineated? What matters are expressly included / excluded in the scope of the respective instruments? And are there any grey areas?(ii) Secondly, what are the connections between the subject areas concerned, and is there any risk of overlap?(iii) Are there any notable absences with regard to the subject matter that need to be addressed?The answers to these questions will be brought together in the synthesis (4.8.).

PRELIMINARY OBSERVATIONS

Before proceeding with the presentation and examination of the respective material and personal scope of the relevant instruments that unify the EU‘s private international law rules on family matters and succession, it is necessary to outline a number of overarching elements which permeate all aspects of the subject matter.

INTRODUCTION

This examination has arrived at the end point of its journey through the various aspects involved in exercising a choice of court or choice of law within the present EU private international law framework relating to family matters and succession. By employing a simultaneous approach, the provisions that allow for party autonomy within the relevant instruments have been evaluated in successive stages: (i) the preliminary elements of choice; (ii) the content of choice; and (iii) the variables aff ecting choice. This final step involves a reconsideration of the established manifestation of party autonomy with a view to establishing coherence with the parameters attached to this concept in the Union context.

This concluding synthesis brings together the strands of this investigation by integrating the findings back into the context of the values through which this evaluation has been conducted. In the interests of clarity, the synthesis will invert the order of the two introductory chapters that established these principles, presenting the impact of the relevant provisions in view of the EU legislator‘s objectives in unifying Member States‘ private international law rules (11.2.–11.4.), before taking the final step of (re-)considering the manifestation of free will in the EU‘s private international law rules relating to family matters and succession in light of the findings that have been established (11.5.).

The following sections follow the pattern established in the main chapters by examining (i) the general findings; (ii) the interplay between related areas; and (iii) the gaps to be addressed. The final considerations, set out in 11.6., will propose a number of closing suggestions in view of the key findings of this book.

LEGAL CERTAINTY

Turning attention first to the impact of party autonomy upon the specific obstacles that the unification of the EU‘s private international law rules on family matters and succession seeks to address (see Chapter 3), this synthesis begins by recapping on the aspects of legal uncertainty that international parties face in exercising their right to free movement in the European Union. Legal certainty is a difficult principle to succinctly describe, and its definition is not comprehensively examined in the relevant instruments or accompanying documentation.

INTRODUCTION

This final section of the examination carried out by this book aims to evaluate the choice of court and choice of law provisions contained in the EU private international law rules relating to family matters and succession in the context of the variables that further restrict the formation or enforcement of an exercise of party autonomy. The present chapter, the first of two, considers the impact of the temporal, formal and material (or substantive) requirements that are imposed upon choice.

As such, the chapter will begin by examining the beginning and end points within which party autonomy can be employed in the relevant provisions (9.2.). Following on from this, the formal validity requirements for choice of court and choice of law agreements will be discussed (9.3.). For the present purposes, a wide interpretation of this topic will be employed, extending beyond the form of written agreements in order to cover acceptance of jurisdiction through the parties ‘conduct. Finally the matter of material (or substantive) validity will be considered (9.4.), which will address measures designed to safeguard the fullness of the parties‘ consent. In the same manner as the other main chapters, there will be a concluding synthesis (9.5.) that brings together the findings of this chapter, whilst also evaluating the cohesion between the requirements imposed in related areas and presenting the gaps that have emerged during the course of this evaluation that require addressing.

TEMPORAL LIMITS OF CHOICE

The first topic to be considered in this chapter involves the delineation of the temporal limits for exercising a choice of court or choice of law in the EU private international law rules relating to family matters and succession. This will examine the point at which a choice can be manifested in relation to the proceeding that it concerns, as well as the end point of its exercise in relation to the court being seised of proceedings or the question of whether the designation can continue indefinitely. The following subsections will examine these issues in the choice of court (9.2.1.) and choice of law contexts (9.2.2.).

INTRODUCTION

The previous chapter addressed the intrinsic value of free will within the present context of party autonomy in the EU private international law relating to family matters and succession. It was established that although free will holds value as the guiding force that drives party autonomy, for the present purposes the concept is essentially restricted by the legal system and context in which it is set.

There are other justifications that have been proposed for the usage of party autonomy in private international law besides that which focuses on its inherent value; for instance those based upon the beneficial impact of party autonomy to the parties themselves, as well as wider society. However, this examination specifically focuses upon the underpinnings of this principle in relation to its status as a unified measure of EU law. In order to do this, the specific goals behind the EU‘s unification of private international law rules on family matters and succession must be presented.

This chapter begins by presenting the context in which such unification is embedded by illustrating the ideological and legal changes that have taken place over the past 25 years in order to accommodate private international law measures on family matters and succession (3.2.). Leading on from this, the aims of party autonomy in its role as an EU measure that purports to facilitate the free movement of persons will be considered by setting out the potential obstacles that people face in cross-border family matters and succession, namely legal uncertainty (3.3.), a lack of affinity with the applicable law (3.4.), and practical hindrances to accessing justice (3.5.) Along with the exercise of free will as defined in the previous chapter, these identified obstacles will make up the elements through which the evaluation carried out in this book will be conducted.

THE EUROPEANISATION OF PRIVATE INTERNATIONAL LAW ON FAMILY MATTERS AND SUCCESSION

To set the scene for considering the objectives of EU action to introduce unified measures for private international law in family matters and succession, the manner in which the Union came to be involved in this field must first be considered.