Bibliografía (Artículo doctrinal) - Acciones reales mobiliarias y la reforma de Bruselas I

The Proposed New Rule of Special Jurisdiction Regarding Rights in Rem in Moveable Property: A Good Option for a Reformed Brussels I Regulation?
Pietro Franzina, Associate Professor of International Law (University of Ferrara, Italy - Faculty of Law)
El trabajo se publicará en el número 3/2011, de próxima aparición, de la revista Diritto del Commercio Internazionale.
Hasta ese momento, el trabajo ya es accesible a través de Social Science Research Network (SSRN) [aquí]

Abstract: On 14 December 2010, the European Commission published a proposal for the recasting of regulation No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I). The proposal purports, inter alia, to add a provision granting non-exclusive jurisdiction “as regards rights in rem and possession in moveable property” to “the courts for the place where the property is situated”. The paper examines the scope of application of the proposed new rule and the connecting factor it employs, in an attempt to determine whether it would be a useful addition to the existing rules on jurisdiction in civil and commercial matters in Europe. It concludes that, although it may in some cases (and subject to some conditions) serve the goals of proximity of predictability underlying the special heads of jurisdiction of the Brussels I regulation, the provision would bring more disadvantages than advantages, and suggests that the Commission’s proposal in this respect should better be abandoned.

Contents: 1. Introduction. – 2. Setting the context: common features of the rules of special jurisdiction. – 3. The scope of application of the proposed rule. – 3.1. «Rights in rem and possession». – 3.2. «Moveable property». – 4. The connecting factor: the place where the assets are located. – 4.1. The elusive localization of certain particular items of property. – 4.2. The relevant moment for determining the situs of the assets. – 5. Assessing the pros and cons of the proposed new rule. – 5.1. Rules of special jurisdiction should in principle be few and orderly organized. – 5.2. The proposed new rule, while covering a limited range of claims, would reflect relatively weak considerations of policy. – 5.3. The existing rules already provide reasonable opportunities of accessing the justice as regards rights in rem or possession in moveable property. – 5.4. The practical operation of the proposed rule may in some instances give rise to serious difficulties. – 5.5. Some of the advantages that might ensue from the introduction of the proposed rule might be achieved otherwise. – 6. Concluding remarks.