The EU Succession Regulation and third country courts

The European Union Succession Regulation (Regulation (EU) No. 650/2012) (hereafter Succession Regulation) provides a comprehensive treatment of the diverse private international law issues concerning succession, encompassing within the same instrument rules on jurisdiction, applicable law and the recognition and enforcement of decisions and authentic instruments in succession matters. At the same time, each of these sets of rules coexisting within the Regulation bears its own regime in terms of spatial applicability. As concerns the rules on jurisdiction, these tend to regulate comprehensively all succession disputes, including those more closely connected to a third country, by providing for subsidiary jurisdiction rules and for a rule on forum necessitatis. Still, the rules contained in the Regulation as concerns choice of forum, as well as lis alibi pendens and related actions, are conceived from a purely inter partes perspective. This causes on the one hand the impossibility of re-establishing Gleichlauf where the deceased made a professio iuris in favour of the law of a third country, and, on the other hand, does not ensure a satisfactory coordination with parallel proceedings pending before third country courts. The subsidiary jurisdiction rules may in turn cause an excessive enlargement of the scope of the jurisdiction of Member States’ courts, and could also hinder the unity of the succession. The latter concern is likely to arise also in respect of the mechanism embodied in Article 12(1) of the Regulation, which achieves a rather incomplete coordination with the jurisdiction exercised by third country courts. Some suggestions will be submitted for amendments to be made to the Succession Regulation in order to overcome these shortcomings.