The Private International Law of Authentic Instruments

Jonathan Fitchen is Senior Lecturer in Law at The University of Aberdeen.

Introduction
I. Matters Included
II. Matters Excluded
III. Consequences of a Lack of an EU Competence to Harmonise the Authentic Instrument or Notarial Practice at the Domestic Level
IV. The European Rather than Global Focus of this Book
V. The French and German Legal Systems as Representative Exemplars of the Domestic Functions and Possibilities of Notarial Authentic Instruments
VI. Brexit
VII. Order of Treatment

PART I
DOMESTIC LAWS
1. The Authentic Instrument as a Legal Institution of the Civil Law
I. The Authentic Instrument in Abstract
II. Notaries of the Civil Law and their Notarial Authentic Instruments Considered in Abstract
III. An Outline of the Steps Usually Taken by a Notary to Draw-Up an Authentic Instrument
IV. An Evidentiary Point: What is and is not Proven by the Authentic Instrument?
V. Notarial Evidential Determinations in an Authentic Instrument May Allow Immediate Enforcement
2. The Authentic Instrument in the Domestic Laws of France and Germany
I. Early Origins of Notaries and their Notarial Instruments
II. The Development of Domestic Notarial Authentic Instruments
3. The Cross-Border Legal Effect of Authentic Instruments
I. Introduction
II. An Authentic Instrument Employed Outwith the State of its Creation
III. Distinguishing between Contentious Judgments and Non-Contentious Notarial Authentic Instruments
IV. A Preliminary Aside Concerning Judgments: Can the Contents of the Authentic Instrument be Converted to a Judgment in the Place of Drawing-Up and then be Exported as a Judgment?
V. Producing Private International Law Effects via Foreign Notarial Authentic Instruments: Legalisation
VI. Regulation 2016/1191 Promoting the Free Movement of Citizens by Simplifying the Requirements for Presenting Certain Public Documents in the European Union and Amending Regulation (EU) No 1024/2012
VII. Producing Private International Law Effects via Foreign Notarial Authentic Instruments: Legalisation
VIII. The Circulation of the Legal Effects of Notarial Authentic Instruments via Domestic Civil Procedure Law
IX. The ‘Reception’ of Foreign Authentic Instruments ‘As Such’ by the French and German Legal Systems
X. Allowing Domestic Effect Concerning the Probative Force of a Foreign Authentic Instrument
XI. Allowing Domestic Effect Concerning the Executory Force of a Foreign Authentic Instrument
XII. The Circulation of the Legal Effects of Notarial Authentic Instruments via Bilateral Conventions between Founding Member States of the EEC
XIII. Conclusion

PART II
EUROPEAN PRIVATE INTERNATIONAL LAW REGULATIONS
4. Authentic Instruments in the Brussels I Family
I. Introduction
II. The Legal Requirements for a Cross-Border Notarial Authentic Instrument that is to Circulate via a Member of the Brussels I Family of Conventions and Regulations
III. Brussels I Family Eligibility Criteria Required for an Authentic Instrument to be Capable of Cross-Border Circulation in the EU or EFTA States
5. European Enforcement Order Regulation
I. Introduction
II. The Legal Requirements for the Circulation of an Authentic Instrument via the EEO Regulation
III. What Role for the Enforcement Authorities and Courts in the Enforcement Venue?
IV. Procedural Disadvantage of the Debtor and Issues Related to the Regulation’s Lack of Public Policy Control
V. Conclusion
6. The Maintenance Regulation
I. Introduction
II. Differences in National Perspectives on What is Meant by ‘Maintenance’
III. Drafting the EC’s Maintenance Regulation
IV. The Maintenance Regulation and Authentic Instruments
V. The Maintenance Regulation and Notarial Authentic Instruments, Similarities and Differences with the Regulations Considered so Far
VI. Authentic Instruments in the Drafting of the EC Maintenance Regulation
VII. Reaching the Final Text of the Regulation Concerning Authentic Instruments
VIII. Article 48 Court Settlements and Authentic Instruments
IX. What does Article 48(1) and the Maintenance Regulation Mean by the ‘Recognition’ of Authentic Instruments?
X. Article 48(2), What is Meant by ‘As Necessary’?
XI. Operation of the Regulation: General Requirements
XII. Application of the Maintenance Regulation in the Context of Authentic Instruments
XIII. Conclusion
7. The Brussels IIa Regulation
I. Introduction
II. The Limited but Developing Role of Authentic Instruments and Approved Settlements in the Brussels II Convention and Subsequent Brussels II Regulations
III. The Brussels IIa Regulation
IV. Proceeding to Cross-Border Recognition and/or Enforcement in the Context of Authentic Instruments via the Recast Regulation
V. Conclusion
8. Succession Regulation, Matrimonial Property Regulation, and Registered Partnership Property Regulation
I. Introduction
II. Authentic Instruments in the Succession Regulation
III. Matrimonial Property and Registered Property Regulations