Chapter 31 REMARKS ON THE IMPACT OF THE EU SUCCESSION REGULATION ON SWISS-EU SUCCESSIONS
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As evidenced by the attention it has received among Swiss academics and practitioners, Regulation No. 650/2012 will have a momentous impact on successions that have ties with Switzerland and one or more Member States. Provisions of the Regulation and the Swiss Act ('LDIP') on applicable law are largely similar, with a domiciliary nexus - habitual residence and domicile respectively - playing a pivotal role. Additionally, the joint recognition of the ability for the de cujus to select the law of his or her nationality injects a welcome flexibility and allows for real choices. Those shared principles and values will enable EU and Swiss citizens and residents to anticipate and shape with greater certainty how their property will devolve upon death, which should result in less cross-border litigation among their survivors. With respect to jurisdiction, however, situations of parallel proceedings are likely to increase. The ordinary regime of the Regulation does not apply when habitual residence is outside the EU - and all three subsidiary grounds for jurisdiction will face difficulties on the Swiss side - nor does the lis pendens and the recognition friendly regime adopted by the Regulation. The fact that Switzerland has 'third State' status restricts the ambit of ordinary European rules under the perspective of the Member States themselves, which threatens to cause poor coordination as well as unnecessary costs and hassle with no discernible benefit for anybody. An agreement between Switzerland and the EU - which may take varying forms - is likely to prove beneficial to EU and Swiss citizens and residents while simplifying the task of their authorities and saving their taxpayers' money. Be that as it may, the coming together of the two instruments will stimulate greater 'cross-fertilization'. Just as the Regulation aligns with basic approaches embraced by the Swiss Act, some European solutions - for example with respect to dual citizens, administration of estates, acceptance of the succession, and 'pactes successoraux' – seem to be better crafted and more advanced so as to offer some inspiration for the proposed revision of the LDIP.

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