CONFLICT OF LAWS IN MATTERS CONCERNING MATRIMONIAL PROPERTY PERSPECTIVES FROM EUROPEAN UNION'S ROME IV REGULATION PROPOSAL AND CHINESE AND TAIWANESE NEW CODES OF PRIVATE INTERNATIONAL LAW
CONFLICT OF LAWS IN MATTERS CONCERNING MATRIMONIAL PROPERTY PERSPECTIVES FROM EUROPEAN UNION'S ROME IV REGULATION PROPOSAL AND CHINESE AND TAIWANESE NEW CODES OF PRIVATE INTERNATIONAL LAW
The Europeanization of family law matters attracts attentions of the entire world. It is not just because the European Union has just successfullyharmonized the jurisdiction and recognition and enforcement problems bothin civil, commercial and matrimonial regimes by the Brussels Regulations Iand II, and has set conflict of laws rules in contractual and non-contractualobligations by the Rome Regulations I and II, but also because the variedpossibilities of marriages, registered partners and cohabitation contracts inthe European Union has increased the difficulties for the harmonization ofconflict-of-law rules in family law and has created vivid possibilities for theprobable norms, such as just showed in the recent Council Regulation No1259/2010 of 20 December 2010 implementing enhanced cooperation in thearea of the law applicable to divorce and legal separation (Rome RegulationIII).Following this trends for harmonization, in 2006 the European Com- mission published a Green Paper on conflict of laws in matters concerningmatrimonial property regimes, including the question of jurisdiction andmutual recognition. Moreover, in March 2011, a Proposal for a CouncilRegulation on jurisdiction, applicable law and the recognition and enforce- ment of decisions in matters of matrimonial property regimes (Rome Regulation IV Proposal) was just announced.As indicated in the Proposal of Rome Regulation IV, the basic rule fordetermining the jurisdiction for matrimonial matters would follow the principles of determination of jurisdiction for divorce, legal separations or marriage annulment proceedings (art.4); for the event of the death of one of thespouse, the court of a Member State for succession would have jurisdiction.Besides, for the conflict-of law rules, it follows the principle of party autonomy (art.16) for the matrimonial property; finally, for the recognition ofdecision would be allowed under some exceptions (art.27).This new proposal would facilitate the harmonization of conflict-of-lawrules in European family laws, and also set some references for other countries. For example, both in 2011, China and Taiwan has just promulgatedtheir new Codes of Private International Law (CPIL). Basically, both in China and in Taiwan, there s no rule for the determination of jurisdiction inthese Codes. For the applicable law to matrimonial property, both follow theprinciple of party autonomy, too. But in China, the choice of applicable lawis limited among the law of habitual residence, lex partiae or the lex loci ofthe main property (art.24 of the CCPIL); in Taiwan, it will also be limitedbetween lex partiae of lex domicilii (art.48 of the TCPIL) The reasons forthese delicate differences in choice-of-law rule among the EU, China andTaiwan would be worthy of further analyses.So based on the European Union s Proposal of Rome Regulation IV,Chinese CPIL and Taiwanese CPIL, this article would try to establish somecross-county comparative perspectives for the further harmonization in theglobal conflict of laws in matrimonial property.