This helpful book will equip the lawyer – whether notary, barrister or solicitor – with the legal information necessary to understand what an authentic instrument is (and what it is not), what it can (and what it cannot) be used to do in the course of contentious or noncontentions legal proceedings.

The book takes a two part approach. Part one focuses on an explanation of the nature of the foreign legal concept of an authentic instrument, setting out the modes of creation, typical domestic evidentiary effects and the typical domestic options to challenge such authentic instruments. Part two then examines and analyses authentic instruments under specific European Union private international law regulations, focusing on the different cross-border legal effects allowed and procedures that apply to each such.

Rigorous, authoritative and comprehensive, this will be an invaluable tool to all practitioners in the field.

Table Of Contents

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