Summary
Under Articles 2 and 6(1) of Regulation (EC) No 44/2001 and of the corresponding provisions of the Lugano Convention of 30 October 2007, Italian courts have jurisdiction over an action (which may not be characterized as an inheritance claim) brought against a plurality of defendants domiciled in Italy, in a different Member State and in Switzerland, for the declaration of invalidity of a trust and of the deeds of transfer, by means of which shares directly or indirectly owned by the deceased were transferred into the trust. In fact, an action against multiple defendants may be lodged with the court of the place where one of the defendants is domiciled provided the claims are so closely connected that it is expedient to hear and determine them together.
Accordingly, the clause which prorogates the jurisdiction in favour of the courts of the United Kingdom is ineffective every time rights and obligations stemming from the trust and its functioning are disputed. When such clause is inserted in the deed of trust pursuant to Article 23(5) of Regulation (EC) No 44/2001 (and of the corresponding provisions of the 2007 the Lugano Convention) it shall be binding not only for the trust settlor but also for the trustees and the trust beneficiaries regardless of the fact that they have not personally agreed to the clause; it shall however not bind those individuals that are in a position of third parties with respect to the trust and to whom the paternity of the clause may not, in any way, be associated.
The fact that the trust is situated in the United Kingdom is also irrelevant provided that the ground for jurisdiction of the courts of the Member State in which the trust is domiciled, laid down at Article 5(6) of the Regulation, is alternative to the general forum of the defendant’s domicile.
The request for provisional measures, filed during the proceeding on the merits and declined on the grounds of lack of fumus boni iuris on the issue of jurisdiction, does not preclude a request for a ruling on jurisdiction (regolamento di giurisdizione). In fact, a ruling on provisional measures does not amount to a judgment, not even when a question of jurisdiction has been contextually decided, unless it is indisputable that the question of jurisdiction only referred to the proceedings for the provisional measures