Table Of ContentTHE PRIVATE INTERNATIONAL LAW
OF AUTHENTIC INSTRUMENTS
Th is 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 noncontentious legal proceedings. Th e author 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, the typical
domestic evidentiary eff ects and the typical domestic options to challenge such
authentic instruments. Part two then examines and analyses authentic instruments
under specifi c European Union private international law regulations, focusing on
the diff erent cross-border legal eff ects allowed and procedures that apply to each.
Rigorous, authoritative and comprehensive, this book will be an invaluable tool to
all practitioners in the fi eld.
Volume 30 in the series Studies in Private International Law
Studies in Private International Law
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Th e Private International Law
of Authentic Instruments
Jonathan Fitchen
HART PUBLISHING
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First published in Great Britain 2020
Copyright © Jonathan Fitchen, 2020
Jonathan Fitchen has asserted his right under the Copyright, Designs and
Patents Act 1988 to be identifi ed as Author of this work.
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statement in it can be accepted by the authors, editors or publishers.
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the work is Parliamentary Copyright © . This information is reused under the terms
of the Open Government Licence v3.0 ( http://www.nationalarchives.gov.uk/doc/
open-government-licence/version/3 ) except where otherwise stated.
All Eur-lex material used in the work is © European Union,
http://eur-lex.europa.eu/ , 1998–2020.
A catalogue record for this book is available from the British Library.
Library of Congress Cataloging-in-Publication data
Names: Fitchen, Jonathan, author.
Title: The private international law of authentic instruments / Jonathan Fitchen.
Description: Oxford, UK ; New York, NY : Hart Publishing, an imprint of Bloomsbury Publishing Plc,
2020. | Series: Studies in Private International Law ; volume 30 | Includes bibliographical
references and index.
Identifi ers: LCCN 2020022695 (print) | LCCN 2020022696 (ebook) |
ISBN 9781509907632 (hardcover) | ISBN 9781509907625 (ePDF) | ISBN 9781509907649 (EPub)
Subjects: LCSH: Confl ict of laws. | Confl ict of laws—European Union countries. |
Confl ict of laws—Great Britain.
Classifi cation: LCC K7040 .F59 2020 (print) | LCC K7040 (ebook) | DDC 340.9—dc23
LC record available at https://lccn.loc.gov/2020022695
LC ebook record available at https://lccn.loc.gov/2020022696
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SERIES EDITOR ’ S PREFACE
Dr Jonathan Fitchen builds on his unrivalled expertise in the English-speaking
world on the private international law of authentic instruments, evidenced primar-
ily in a series of signifi cant articles in the Journal of Private International Law, to
produce this substantial monograph. It is the fi rst English language monograph on
the private international law of authentic instruments. It is highly scholarly with
full referencing of the literature in English, French and German.
As the writer acknowledges it is essentially a book on EU private international
law of authentic instruments. Nonetheless it does cover French and German
substantive law on authentic instruments and, briefl y, some global private inter-
national law, notably in the HCCH Apostille Convention 1961 (pages 93 – 94)
and on the Maintenance Convention and Protocol 2007 in the chapter on the EU
Maintenance Regulation. Th e writer also shows proper awareness of the interna-
tional dimension, and its impact on the development of EU private international
law, in the chapter on the various iterations of Brussels II by referencing the HCCH
Divorce Convention 1970, Child Abduction Convention 1980 and the Children’ s
Convention 1996. It would have been a lot to expect the book to cover all aspects of
private international law of authentic instruments, and similar private agreements
with some form of State authorisation, given how much new ground the author is
breaking in English language scholarship. Perhaps one can hope that the author
will have a chance in a subsequent edition of the book to develop its international
and comparative aspects to more fully refl ect the comprehensive nature of its title.
Th e analysis of the elements of the EU Private International Law instruments
dealing with authentic instruments is properly set in the broader context of what
those instruments are trying to achieve. Th e writer examines the negotiating
history of each instrument carefully with full references to case law and existing,
signifi cant academic analysis.
Th e UK reader will be fascinated to see some insightful analysis of Scots law
on authentic instruments and on intra-UK private international law at pages 14,
98, 166 and 341 – 342.
Th e breadth of the book ’ s insights is illustrated by the careful exposition of
the human rights concerns posed by the lack of a public policy exception to
the enforcement regime of the European Enforcement Order Regulation at
pages 248 – 253 and the excellent critique of the Regulation at page 257. It is one
EU Regulation that will not be missed in the UK at the end of the implementation
period aft er the UK ’ s withdrawal from the EU.
vi Series Editor’s Preface
Th e book is completely up to date and this is perhaps best illustrated by the
comparative work on the use of authentic instruments, and other private agree-
ments gaining some kind of State authorisation in EU Member States, on divorce
and parental responsibility (at pages 338 – 343) and in the analysis of the new
provisions relating to these matters in the Brussels IIb Regulation (2019/1111) (at
pages 366 – 382). Once again it might be hoped that a future edition of the book
would take account of the work of the HCCH on family agreements and refl ect
more on how such agreements can be facilitated internationally and in the EU in
the context of child abduction cases.
I commend this innovative book to all those interested in EU private interna-
tional law and to all who are interested in authentic instruments.
Paul R Beaumont,
University of Stirling
PREFACE AND
ACKNOWLEDGEMENTS
I fi rst encountered Authentic Instruments as a consequence of reading I did
during the decade in which I taught Private International Law to lawyers who
wished to be admitted as Notaries in England and Wales. My initial researches
into authentic instruments revealed the paradox that – though they cannot be
created and do not exist in the English legal system – they can produce legal eff ects
in that legal system either via provisions of European Private International Law
that allow their independent cross-border enforcement, or as foreign evidence.
Th ough Brexit has irredeemably changed the nature of the relationship of the UK ’ s
legal systems with the body of EU Private International Law, it is not so simple to
undo the engagement of the UK ’ s legal systems and citizens from the EU or its
Authentic Instruments: the UK Government wishes to continue aspects of the pre-
Brexit alignment between the UK and the EU as it concerns civil and commercial
matters – its stated wish is to join the 2007 Lugano Convention (which contains
Authentic Instrument provisions) as a Th ird State; further, many UK citizens are
party to Authentic Instruments as a consequence of foreign loans and foreign
property purchases. It is hence still useful to know what an Authentic Instrument
is, and even more useful to know what it is not.
Th e last statement refl ects the diffi culties of properly understanding a legal
institution that is foreign to one ’ s own legal system. Th e temptation is to attempt to
equate the strange foreign thing with some diff erent, but more familiar, domestic
thing. Th e danger is that this comparison may elide essential aspects of the foreign
thing and appear to suggest, wrongly, that it shares other inappropriate qualities
with the familiar domestic concept of a foreign judgment. Th roughout this book
the point is made that foreign Authentic Instruments should not be equated in a
general sense with foreign judgments. Th is advice is directed not only to those who
would explain the authentic instrument to a common lawyer but also to the draft -
ers and re-casters of European Private International law and to all courts faced
with a foreign Authentic Instrument.
Th ough this has not been an easy book to write, I have been variously
assisted in my task by the kindnesses of various colleagues some of whom are
now mentioned, subject to the usual disclaimer that the mistakes below are mine.
I am particularly grateful to Paul Beaumont for good-naturedly encouraging my
research and publications concerning authentic instruments; to Florian Becker
for help with some German sources; to Anatol Dutta for securing other German
viii Preface and Acknowledgements
sources; to Emmanuel Guinchard for help with securing certain French sources;
and, to Lara Walker for providing a most useful scan. I am also most grateful to
those at Hart Publishing who have helped to make this book a reality. Th e help and
encouragement of those named above must however pale by comparison with the
more general support provided by my wife Kathrin K ü hnel-Fitchen during this
project, and so it is to her that I dedicate this book.
CONTENTS
Series Editor’s Preface ����������������������������������������������������������������������������������������������������v
Preface and Acknowledgements ���������������������������������������������������������������������������������vii
Introduction .....................................................................................................................1
I. Matters Included .........................................................................................2
II. Matters Excluded .........................................................................................4
III. Consequences of a Lack of an EU Competence to Harmonise
the Authentic Instrument or Notarial Practice at the
Domestic Level ............................................................................................5
IV. The European Rather than Global Focus of this Book ...........................8
V. The French and German Legal Systems as Representative
Exemplars of the Domestic Functions and Possibilities
of Notarial Authentic Instruments ..........................................................12
VI. Brexit ...........................................................................................................14
VII. Order of Treatment ...................................................................................15
PART I
DOMESTIC LAWS
1. The Authentic Instrument as a Legal Institution of the Civil Law ..................19
I. The Authentic Instrument in Abstract ...................................................20
II. Notaries of the Civil Law and their Notarial Authentic
Instruments Considered in Abstract ......................................................26
III. An Outline of the Steps Usually Taken by a Notary
to Draw-Up an Authentic Instrument ....................................................27
IV. An Evidentiary Point: What is and is not Proven by the
Authentic Instrument? .............................................................................28
V. Notarial Evidential Determinations in an Authentic Instrument
May Allow Immediate Enforcement.......................................................30
2. The Authentic Instrument in the Domestic Laws of France
and Germany ..........................................................................................................33
I. Early Origins of Notaries and their Notarial Instruments ...................34
A. The Notary and Notarial Instruments in the Legal
Codifications of the Modern Period ..............................................42
