Chapter 10 - Enforcement of Choice

Summary

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.