SOME REMARKS ON CHOICE OF COURT ISSUES IN EU CROSS-BORDER SUCCESSSION CASES

This article reassesses the choice of court rule from Art. 5 of the European Succession Regulation (ESR) in light of its systemic relation to the rules on adjustment of jurisdiction when the choice of law has been made (Arts. 6 – 9 ESR) and other rules of ESR, primarily to the choice of law rule from Art. 22 ESR and relevant ESR Recitals. Firstly, it examines whether the parties concerned with succession may choose to leave out some succession matters to the jurisdiction of the courts competent under Arts. 4 and 10 (1) ESR, as a literal interpretation of Art. 5 (1) ESR suggests, or whether the jurisdiction of the prorogated court of the chosen law shall encompass the succession as a whole. Then, it explores which interpretation is more aligned with ESR’s rules and objectives and better off in the pursuit of the effective operation of Arts. 5 – 9 ESR in practice. To that end, the present article considers a test example of the EU cross-border succession case that exposes challenges to the proper functioning of justice caused by inadequate interpretation and application of Arts. 5 – 9 ESR and reviews the ongoing legislative discussions for the amendment of choice of court rule of ESR through the scope of its foregoing findings.