BOOK REVIEW - THE PRIVATE INTERNATIONAL LAW OF AUTHENTIC INSTRUMENTS
QC; Professor of Private International Law, University of Oxford
THE PRIVATE INTERNATIONAL LAW OF AUTHENTIC INSTRUMENTS. Jonathan Fitchen, Professor of Law, University of Aberdeen. Hart, Oxford (2020) xvii and 455 plus 24 pp Index. ISBN 978-1-5099-0763-2. Hardback £81.
The untimely death of Professor Fitchen meant that, although he lived to see the publication of this magisterial volume, he would not hear the rounds of reviewer applause which were his due, and which fact only makes a cruel situation sadder still. But there should be no mistake: the ability of a common lawyer to produce almost 500 pages of deep and detailed analysis of the authentic instrument in private international law was unique. His patient exposure of the intricacies of the law serves to answer questions which few of us would have been able to formulate, never mind respond to. The fact that those with the power to do so have, for the barren present at least, chosen to cut the United Kingdom off from the continent in which such instruments are commonly used, and from any obvious means of giving them the effect which the Brussels regime had for forty years accorded them, is just another detail for the bill of indictment or attainder which must soon be filed.
The book lays its foundations well, by examining in Part I, and in proper detail, the authentic instrument in the notarial laws of France and Germany; it then probes the cross-border effects of such instruments. In Part II it analyses their treatment under the Brussels I Regulations and (here devastatingly) the European Enforcement Order, followed by the Brussels II and the Maintenance Regulation. It looks also at those Regulations on Succession, and on Matrimonial and Registered Partnership Property, to which the United Kingdom objected even before Brexit. Nothing in the English language comes within a country mile of this careful and exhaustive treatment.
The Brexit/Lugano failure may prompt the immediate question whether the common law is capable of evolving to fill the gap, by patching together a rule for the reception—recognition, if one prefers (which Professor Fitchen does not: p.99)—of foreign authentic instruments into the English legal system. The book raises the possibility that they may arrive for enforcement in England via registration in the Books of Council and Session in Scotland, this registration in accordance with Scots law then being liable to be enforced in England as a Scottish judgment under the Civil Jurisdiction and Judgments Act 1982, s.18. But, that improbable version of exequatur sur exequatur aside, what can the common law do? The suggestion is: nothing. As instruments, no matter how authentic, are not within the common law’s conception of judgments, the most that it can do is use them as notarial evidence of the obligation to which they attest, and sue on that obligation, which seems to be rather inadequate. With the Regulations referred to above now torn out of the statute book, nothing in the common law can, it seems, replicate their reception of authentic instruments.