University of Sussex
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Bridging the gap between civil and common law: an analysis of the proposed EU succession regulation

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posted on 2023-06-08, 21:42 authored by Philip Bremner
In October 2009, the Commission of the European Union published its proposal for a regulation dealing with the private international law aspects of succession. Towards the end of last year, the UK Government exercised its right not to opt-in to the Regulation at that stage. This thesis examines the reasons behind the UK’s decision not to opt-in and considers the possible ways in which the UK’s concerns might be addressed during the course of the on-going negotiations. In doing this, the thesis will discuss the main points of contention in the regulation, which evidence a gulf between the English common law and the civil law of continental Europe, and how this might be overcome. This thesis attempts to illustrate that the current intransigence of some Member States as regards certain aspects of the regulation shows a disregard for the historical evolution of the civilian legal tradition in those countries. By emphasising the historical development of such civilian concepts as forced heirship and domicile, this thesis suggests that there is greater scope for a compromise solution than has been envisaged until now. By a similar token, domestic reform within the UK indicates that there is room for manoeuvre within the common-law approach to succession. Based on this, the thesis argues for more flexible negotiating positions during discussions relating to the Regulation. Overall, the conclusion that the thesis draws is that problems relating to claw-back and the connecting factor(s), in particular, are not insurmountable. It asserts that a greater cognizance of history coupled with an increased awareness of the failings of domestic regimes can lead to compromises which would ultimately promote a more acceptable regulation to which the UK would feel more comfortable opting-in.


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University of Aberdeen

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