Authentic Instruments and European Private International Law in Civil and Commercial Matters: Is Now the Time to Break New Ground?

An authentic instrument is a document created by a State Agent, eg a notary operating in a civil law legal system, which formally and authoritatively records declarations by the parties so as to render those declarations as enforceable legal obligations; thereafter the authentic instrument may allow its 'creditor' immediate access to the actual enforcement provisions of the State without any need of a prior court judgment. Article 57 of Council Regulation 44/2001 (the Brussels I Regulation) empowers the cross-border enforcement of such civil and commercial authentic instruments within any of the Member States of the European Union. This article explains and considers the 'foreign' legal institution of the civil and commercial authentic instrument from the perspective of the UK by setting out its nature and use in the French and German legal systems. Thereafter the cross-border enforcement of civil and commercial authentic instruments under the Brussels I Regulation is addressed. Finally, a critically assessment is offered of the European Commission's controversial plans to reform the Brussels I Regulation so as, inter alia, to remove the requirement of a foreign exequatur before a civil and commercial authentic instrument created in one Member State may be enforced in another.