MISCELLANY. Choice of law for immovable property issues: new directions in the European Union and the United States

Georgina Garriga Suau
y Christopher A. Whytock,

In both the European Union and the United States, it is a dynamic period for private international law regarding immovable property issues. The predominant approach has been that these issues are governed by the lex rei sitae —that is, the law of the State where the immovable is located. However, through a comparative examination of recent EU Regulations on succession, matrimonial property regimes, and the property consequences of registered partnerships, and of the new Third Restatement of Conflict of Laws project in the United States, this article shows that on both sides of the Atlantic there is a trend toward reducing the scope of the lex rei sitae rule. It explores both the reasons for and the challenges posed by this trend. It also reveals that despite this trend, the lex rei sitae rule nevertheless persists in relation to certain «core» immovable property issues.

1. INTRODUCTION.—2. THE LEX REI SITAE RULE IN CONTEXT.—2.1. The U.S. Context.—2.1.1. The Role of the Restatements.—2.1.2. The lex rei sitae rule in the First Restatement.—2.1.3. The lex rei sitae rule in the Second Restatement.—2.2. The EU Context.—2.2.1. The lex rei sitae in EU Member State Law.—2.2.2. The Property Gap in EU Private International Law.—3. DYNAMISM IN US AND EU PRIVATE INTERNATIONAL LAW.—3.1. The Third Restatement of Conflict of Laws.—3.1.1. Lex rei sitae Governs Core Immovable Property Issues.—3.1.2. Reduced Scope of lex rei sitae rule.—3.1.3. Reasons for Reducing the Scope of the lex rei situs rule.—3.2. Developments in the European Union.—3.2.1. The Succession, Matrimonial Property, and Registered Partnership Property Regulations: Beyond lex rei sitae.—3.2.2. A Different Approach: Contractual Obligations and the Rome I Regulation.—3.2.3. Defining Core Immovable Property Issues in the EU Context: The Problem of Characterization.—3.2.4. Addressing the Problems of Gaps and Coherence: Some Academic Initiatives.—4. CONCLUSIONS.

Conflict rules; Conflict-of-laws Restatements; European Union; immovables; Matrimonial Property Regulation; property rights; Registered Partnership Property Regulation; Rome I Regulation; Succession Regulation; United States;

REDI Vol. 74 1 2022




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