¿Qué norma de conflicto de leyes hay que adoptar para determinar la ley aplicable a las cuestiones previas a efectos de la sucesión?

Abstract

This paper deals with the classic topic of «incidental or preliminary question» in the conflicts of laws. The start point is the question nº 13 of the Green Paper Succession and wills. There is no consensus on the answer to the incidental question. Understandable, as this is indeed the begin of every theoretical problem. However, there is no consensus either regarding the concept of incidental question. And this is something that precludes any proper discussion. As a result, the author proposes to reject the theory (rectius: the theories) of the preliminary question and to adopt a case by case approach. This ad hoc approach is based, among other reasons, upon the multiple rules and exceptions (many of them very reasonable) proposed by authors, especially in German doctrine. In some cases «recognition» (and not conflicts of laws) can be the most appropriate approach; in others any of the classic proposals [...] will provide with the better answer, depending on the circumstances and the most preponderant interest involved; it is also possible to avoid the problem through a proper «characterization» of the situation. The main weakness of this proposal, that is, the requirements of legal certainty, is a fully manageable one, and in any case it is a proposal not weaker than the current heterogeneous scenario.