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PARTY AUTONOMY IN THE LEGAL REGULATION OF ADULT RELATIONSHIPS: WHAT PLACE FOR PARTY CHOICE IN PRIVATE INTERNATIONAL LAW?

Published online by Cambridge University Press:  26 October 2012

Janeen Carruthers
Janeen Carruthers*
Affiliation:
Professor of Private Law, University of Glasgow, [email protected].
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Abstract

This article is an examination of the merits of permitting the exercise of party autonomy in choice of court and choice of law in respect of the personal and patrimonial aspects of adult relationships. It provides a commentary on the party autonomy provisions of EU harmonization instruments, actual and proposed, in family law. The treatment considers the particular issues of drafting which arise from the specialties of family law, and ponders whether or not the refinements required render the exercise of permitting party autonomy self-defeating.

Keywords

choice of courtchoice of lawMaintenance RegulationMatrimonial Property proposalparty autonomyrestrictions on choiceRome IIISuccession Regulation
Type
Articles
Information
International & Comparative Law Quarterly , Volume 61 , Issue 4 , October 2012 , pp. 881 - 913
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, art 23. See also 2005 Hague Convention on Choice of Court Agreements.

2 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), art 3.

3 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), art 14.

4 Though see North, PM, Essays in Private International Law (OUP 1993)Google Scholar, ch 4; and ch 7, ‘Choice in Choice of Law’, 187–91.

5 See, for background detail, Yntema, HE, ‘“Autonomy” in Choice of Law’ (1952) 1(4) AmJCompL 342Google Scholar; and Nygh, P, Autonomy in International Contracts (Clarendon Press 1999) 4–5CrossRefGoogle Scholar.

6 Briggs, A, Agreements on Jurisdiction and Choice of Law (OUP 2008) Preface, viiiGoogle Scholar.

7 ibid para 1.05.

8 ibid para 1.02.

9 Nygh (n 5) 258.

10 Briggs (n 6) para 1.22.

11 See Brilmayer, L, ‘Rights, Fairness and Choice of Law’ (1989) 98 YaleLJ 1278Google Scholar: ‘Choosing to talk in terms of rights rather than policies or interests represents a fundamental jurisprudential commitment which is reflected in the way that concrete problems are resolved.’

12 cf Yntema (n 5) 344 and 357.

13 North (n 4) 176.

14 See eg criticism of Cheshire's intended matrimonial home theory in relation to capacity to marry in North (n 4) 175. cf misgivings about ascribing the regulation of commercial capacity to contract to the putative proper law, unless objectively ascertained: ‘intention cannot here be allowed free play’ (GC Cheshire, International Contracts (David Murray Lecture) (1948)).

15 See eg Yntema (n 5) 343.

16 ibid.

17 North (n 4) 176.

18 This is a core theme of modern family law. Contra Briggs (n 6) Preface, viii (‘the common law of private international law is much more about the resolution of civil disputes that the regulation of civil relations …’).

19 Protocol No 21 on the position of the UK and Ireland in respect of the Area of Freedom, Security and Justice (OJ 2008 C115/295) (ex-Protocol No 4 (OJ 1997 C340/99)). See also Protocol No 22 on the position of Denmark (OJ 2008 C115/299) (ex-Protocol No 5 (OJ 1997 C340/101)).

20 Yntema (n 5) 342–3.

21 Briggs (n 6) para 1.17. cf Yntema (n 5) 343, ‘l'Etat, c'est tout’.

22 Brilmayer (n 11) 1294. Governmental interest analysis proponents in the USA would weigh the interests of the forum and of other states, respectively, and would subject the parties’ will to (legitimate) state interests, thereby rejecting party autonomy in favour of state autonomy.

23 cf Rix LJ's reference in Radmacher v Granatino [2009] EWCA Civ. 649, at [71] and [83], to the dangers of a principle whereby public policy trumps private autonomy: ‘… while the public interest in a fair and just exercise of the court's discretion remains, there is fairness and justice too in a proper appreciation of party autonomy; and … there are dangers in overly paternalist or patronising attitudes or in an insufficiently international outlook.’ See below, Section IV.C.2.

24 Briggs describes choice of law rules as a ‘higher form of law, which litigants take as they find in the court where they litigate’ (n 6, para 1.19).

25 cf Yntema (n 5) 343–4, citing Niboyet's description of “le paroxysme de la volonté des parties” (J P Niboyet, Note, Cass. Civ. 21 Juin 1950, S. 1951.1.2.).

26 cf Nygh (n 5) 106; and Yntema (n 5) 344.

27 See, however, Family Law (Scotland) Act 2006, section 39(6)(b), discussed below, Section IV.C.1.

28 Section IV.D, below

29 See generally Fentiman, R, Foreign Law in English Courts (OUP 1998)CrossRefGoogle Scholar; and Esplugues, C, Iglesias, J-L, and Palao, G (eds), Application of Foreign Law (Sellier 2011)Google Scholar.

30 Yntema (n 5) 344; North (n 4) 172; and Briggs (n 6) para 2.19

31 North (n 4) 176.

32 Ross v Ross 1930 SC (HL) 1, per Lord Buckmaster at 6. Also De Bonneval (1838) 1 Curt. 856; Whicker v Hume (1858) 7 HLC 124; Crookenden v Fuller (1859) 1 Sw.&Tr. 441; Woodbury v Sutherland's Trs 1939 SLT 93; Latta v Latta 1954 SLT (News) 74; Scappaticci v Att.-Gen. [1955] P.47; Re Sillar [1956] IR 344; Tennekoon v Duraisamy [1958] AC 354; Revenue Commissioners v Matthews (1958) 92 ITLR 44; and Reddington v Riach's Executor 2002 SLT 537. See, exceptionally, In Re M. [1937] NI 151.

33 Especially in view of the disarray of authorities on the meaning and interpretation of habitual residence, context by context and forum by forum. This example of party autonomy by actings could be akin to taking part in a lottery.

34 In England, Berthiaume v Dastous [1930] AC 79, per Lord Dunedin at 83; and, in Scotland, confirming the common law position, Family Law (Scotland) Act 2006, s 38(1).

35 North (n 4) 174, citing Reed v Reed (1969) 6 DLR (3d) 617.

36 North (n 4) 174: ‘It is not possible … actually to choose a law different from that of the place of celebration to govern matters of formal validity.’

37 Wills Act 1963, section 1: a will is to be regarded as validly executed in form if it complies with the law of the place of execution. This is true, even if the testator was on a temporary visit to that place: Re Wynn [1983] 3 All ER 310.

38 Mann, F A, ‘The Proper Law of the Contract’ (1950) 3(1) ILQ 68Google Scholar.

39 North (n 4) 183.

40 Belgium, Bulgaria, Germany, Greece, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia were the States who addressed a request to the Commission indicating that they intended to establish enhanced cooperation among themselves in the area of applicable law in matrimonial matters. Greece withdrew its request on 3 March 2010 (Rome III, recital (6)).

41 The UK exercised its right not to opt-in to the proposed measure: Hansard 18 Apr 2007: Col WS7.

42 Green Paper on Applicable Law and Jurisdiction in Divorce Matters (March 2005, COM (2005) 82 final).

43 COM (2006) 399 final. See also Commission Staff Working Document, Annex to the Proposal (19 July 2006) (JUSTCIV 174, 11818/06).

44 Council Regulation (EC) No 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, Recital (31).

45 cf approach in Cyprus, Denmark, Finland, Ireland and Sweden (House of Lords EU Committee, Rome III – Choice of Law in Divorce: Report with Evidence, HL Paper 272 (2006), para 8).

46 Wolff, M, Private International Law (2nd edn, Clarendon Press 1950) 373–4Google Scholar. cf North (n 4) 164.

47 Yntema (n 5) 358.

48 See eg Zanelli v Zanelli (1948) 64 TLR 556.

49 See, however, academic discussion in North, PM (1980) 1 Hague Recueil 9, at 87–8Google Scholar.

50 North (n 4) 164.

51 See issues in respect of time, below, Section V.

52 Recital (16).

53 Contra Rome I Regulation, Recital (13), ‘This Regulation does not preclude parties from incorporating by reference into their contract a non-State body of law or an international convention’.

54 Recital (12) and Art 4.

55 Protected by art 12.

56 Recital (16).

57 Recital (18).

58 For how would spousal knowledge be tested, or affirmed?

59 by what law?

60 Recital (18).

61 See House of Lords, Written Statements, 18 Apr 2007: Column WS7, per Baroness Ashton of Upholland; and in Scotland, Report of the Justice I Committee of the Scottish Parliament (CJ1004/2005, 7 October 2005). See also, more recently, House of Commons Scrutiny Committee, First Report (2010), Section 80 (Enhanced cooperation in applicable law in certain matrimonial matters).

62 See generally House of Lords European Union Committee, 52nd Report of Session 2005–06, ‘Rome III – Choice of Law in Divorce: Report with Evidence’.

63 cf North (n 4) 169.

64 North (n 4) 164. In the same vein, cf dicta in Ross Smith v Ross Smith [1960] AC 280, per Lord Reid at 306.

65 See, in England, Family Procedure Rules 2010, Part 3 and Practice Direction 3A; and in Scotland, Rules of the Court of Session (Ch 49 – Family Actions), rules 49.1 and 49.23; and Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (SI 1993/1956), as amended, rules 33.22 and 33A.22.

66 But not annulment: while the policy reasons in favour of permitting choice of court for divorcing parties can be argued to apply equally to parties seeking annulment, the choice of law implications in the latter are fundamentally different, being inextricably linked to the forum's construct of choice-of-law rules of marriage.

67 In England and Wales, by the European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (SI 2005/265); and in Scotland, by the European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005 (SSI 2005/42).

68 There continue to be special rules of jurisdiction for actions of declarator of marriage (section 7(3), 1973 Act), and in relation to declarators of nullity of marriage, where one party was dead at the date of the action, and that party was domiciled at death in Scotland, or had been habitually resident there for one year before death (sections 5(4) and 7(3A), 1973 Act).

69 Council Regulation (EC) No 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. For detail see, M Ni Shuilleabhain, Cross-Border Divorce Law: Brussels II Bis (2010); Fawcett, J and Carruthers, JM, Cheshire, North and Fawcett: Private International Law (14th edn, Butterworths 2008) ch 21Google Scholar; Collins, L (ed), Dicey, Morris and Collins, The Conflict of Laws (14th edn, Sweet & Maxwell 2006), ch 18Google Scholar; and in Scotland, Crawford, EB and Carruthers, JM, International Private Law: A Scots Perspective (3rd edn, W Green 2010) ch 12Google Scholar.

70 In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:

  1. (a)

    (a) in whose territory:

    • – the spouses are habitually resident, or

    • – the spouses were last habitually resident, insofar as one of them still resides there, or

    • – the respondent is habitually resident, or

    • – in the event of a joint application, either of the spouses is habitually resident, or

    • – the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

    • – the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made, and is either a national of the Member State in question or, in the case of the UK and Ireland, has his or her ‘domicile’ there;

  2. (b)

    (b) of the nationality of both spouses or, in the case of the UK and Ireland, of the ‘domicile’ of both spouses.

71 A Borras, Explanatory Report on the draft Brussels II Convention, (‘Borras Report’) (OJ 1998 C221/27), para 30.

72 See, for discussion, Ni Shuilleabhain (n 69) paras 4.09 – 4.14.

73 See eg the approach to the meaning of habitual residence taken by the French Cour de Cassation in Moore v Moore (or Maclean) [2006] ILPr 29 viz: ‘The place where the party involved has fixed, with the wish to vest it with a stable character, the permanent or habitual centre of his or her interests’ (emphasis added). cf LK v K (No 2) [2006] EWHC 3280 (Fam), per Singer J, at para 35.

74 Borras Report, para 32.

75 Borras Report, para 33.

76 Re N (Jurisdiction) NDO v JFO [2009] ILPr 8.

77 Borras Report, para 31.

78 Green Paper on Applicable Law and Jurisdiction in Divorce Matters (March 2005, COM (2005) 82 final) para 3.6.

79 COM (2006) 399 final.

80 Explanatory Memorandum to the Commission Proposal, 8 (with fns 81–83 added).

81 Family Law Act 1986, section 44, provides that no divorce or annulment obtained in any part of the British Islands shall be regarded as effective in any part of the UK unless granted by a court of civil jurisdiction. This is the position, irrespective of parties’ domicile(s) and religion. By contrast, divorces obtained outside the UK in a variety of extra-judicial ways (eg divorce by mutual consent—H v H (Validity of Japanese Divorce) [2006] EWHC 2989 (Fam), [2007] 1 FLR 1318; or by religious authority) may be accorded recognition in the UK, in terms of section 46 of the 1986 Act. It was not intended in the Proposal formally to extend to parties the power to choose a non-judicial forum.

82 Not a non-Member State: the decision of a non-EU court whether or not to accept jurisdiction, is not one over which the EU has any control.

83 No requirement was proposed that one of the parties still resides there, nor indeed that one of them still resides anywhere else in the EU. The relationship between this provision, and art 3.1(a), indent 2 of Brussels II bis is curious. Art 3a(b) would appear to be stricter than art 3.1(a), indent 2 in terms of the time prescription, but less strict insofar as it does not require a continuing personal connection with either spouse. The need for the three-year connection (an apparently arbitrary figure) is not clear, and is excessive.

84 Less strict than art 3.1(b), which requires common nationality or common domicile on the part of spouses.

85 Borras Report, para 30.

86 Not necessarily covered by art 3.1(a), indent 1 or 2.

87 Art 6 confirms the exclusive nature of jurisdiction under arts 3, 4 and 5.

88 Commission Staff Working Document, Annex to the Proposal (19 July 2006) (JUSTCIV 174, 11818/06), para 5.5 (Policy Option 5—‘Giving the spouses a limited possibility to choose the competent court’).

89 The current jurisdiction rules do not allow spouses to apply for divorce in a Member State of which only one of them is a national, in the absence of another connecting factor.

90 cf 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, art 10, which confers limited power on parties to prorogue the jurisdiction of the ‘divorce court’. See P Lagarde, Explanatory Report, para 61.

91 Art 12 is not confined to children who are resident in the EU: Re I (A Child) (Contact Application: Jurisdiction [2009] UKSC 10.

92 Art 12.1. See eg X v Y [2009] ILPr 22 (Cour de Cassation) (re. Brussels II); Re S-R (Contact: Jurisdiction) [2008] 2 FLR 1741; Bush v Bush [2008] EWCA Civ. 865; and C v FC [2004] 1 FLR 317.

93 Section IV.C, below.

94 OJ 2009 L7/1.

95 The concept of maintenance obligation is interpreted autonomously for the purposes of the Regulation, but it is intended to cover all maintenance obligations which arise from a family relationship, parentage, marriage or affinity, in order to guarantee equal treatment of all maintenance creditors: Recital (11) and art 1.

96 Recital (19).

97 Recital (18). cf, in choice of law, art 9 of the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations (see Section IV.B.2, below).

98 Art 4.1. cf Brussels I Regulation, art 23.1.

99 Art 5. cf Brussels I Regulation, art 24.

100 See generally A Bonomi, Explanatory Report (2009).

101 Council Decision of 30 November 2009 on the conclusion by the European Community of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (2009/941/EC), Recital (11), and art 3. Contrast Council Decision of 31 March 2011 on the signing, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (2011/220/EU), in the adoption and application of which the UK is a participant (recital (6)).

102 See, for Scotland, Family Law (Scotland) Act 2006, section 40.

103 House of Commons European Scrutiny Committee, 17th Report (2008–09), section 4.

104 Art 2.

105 Art 7 permits the maintenance creditor and debtor to choose the law of the forum for the purpose only of a particular proceeding in a given State, eg in the case of divorce, permitting the spouses to choose the lex fori in the matter of maintenance as well as substance.

106 Presumably the forum would apply its own law to assess whether either/both party(ies) was/were ‘fully informed’ and aware of the consequences of their choice.

107 There are no corresponding statutory choice of law rules for the property consequences of civil partnership. Section 39 does not apply in relation to the law on aliment, financial provision on divorce, transfer of property on divorce or succession: section 39(6).

108 cf in domestic law, Family Law (Scotland) Act 1985, s 16 (agreements on financial provision).

109 [2011] 1 AC 534.

110 [78].

111 [2009] EWCA Civ 649, at [27].

112 V v V [2011] EWHC 3230 (Fam), per Charles J at [36]. See also Z v Z [2011] EWHC 2878 (Fam).

113 There's the rub. Baroness Hale, at [135] of her dissenting judgment, referred to relationships characterized by imbalance of bargaining power, and in this area, above all, certain protective measures have to be put in place. See below, Section V.D: Weaker Party Protection.

114 COM (2006) 400 final. See also Annex (SEC (2006) 952), partially comprising the fruits of an EU-commissioned study entitled, ‘Matrimonial Property Regimes and the Property of Unmarried Couples in Private International Law’ (JAI/A3/2001/03).

115 Explanatory Memorandum, para 5.3.

116 COM (2011) 126 final; 2011/0059 (CNS).

117 COM (2011) 127 final; 2011/0060 (CNS).

118 And the Registered Partnerships Proposal.

119 Art 21 guarantees the principle of universality.

120 See also Recitals (19) and (20). By art 5.2, parties can confer jurisdiction on the Member State whose law has been chosen under art 16. A form of (limited) indirect choice rests in this relationship between party choice of court, and choice of law. Inferred or presumed choice of law through the exercise of choice of court was the subject of debate during the negotiations on the Rome I Regulation (see, ultimately, Recital (12)).

121 Joint consultation by the Ministry of Justice, Scottish Government, and the Northern Ireland Department of Finance and Personnel, ‘Matrimonial Property Regimes and the property consequences of registered partnerships – How should the UK approach the Commission's proposals in these areas?’ (Consultation Paper CP 8/2011, 2011), para 39.

122 ibid.

123 Ministry of Justice, Scottish Government, and the Northern Ireland Department of Finance and Personnel, ‘European Commission's proposed Regulations on matrimonial property regimes and the property consequences of registered partnerships – Response to Public Consultation’ (CP(R) 8/2011, 2011) paras 14 and 15.

124 eg the House of Lords in De Nicols v Curlier [1900] AC 21 (and No 2 [1900] 2 Ch 400, per Kekewich J at 413) was prepared to investigate and apply French law.

125 The scission principle refers to the split nature of the Scottish and English choice of law rule in succession, which differentiates between the law governing succession to moveables (the ultimate domicile of the deceased) and that governing succession to immoveables (the lex situs).

126 Dellar v Zivy [2007] ILPr 60.

127 Re Scott [1915] 1 Ch. 592.

128 [1961] AC 727. Also Levick [1963] 1 WLR 311.

129 [1961] AC 727, HL at 760–761.

130 cf North (n 4) 196.

131 COM(2009) 154 final (2009/0157 COD). See also Commission Staff Working Document accompanying the Proposal: Summary of the Impact Assessment (SEC(2009) 411 final).

132 OJ 2012 L201/107.

133 Arts 83.1(c) and 84.

134 Art 20 confirms the principle of universality of application.

135 cf 1988 Hague Convention on the law applicable to succession to the estates of deceased persons (which has never entered into force), art 5 of which adopted a principle of limited party choice of applicable law.

136 See Recital (38). The alternative of ‘domicile’, normally afforded to the UK and Ireland, is not offered, presumably because of the exercise by each country of the right not to opt-in to the instrument: Recital (82) (contra Recital (32) of the Succession Proposal).

137 Contra 1988 Hague Convention on the law applicable to succession to the estates of deceased persons, art 6.

138 Undefined in the Regulation. See generally Recital (28).

139 This choice-of-court provision is rather different from the discretionary jurisdiction transfer mechanism contained in art 5 of the Succession Proposal, the intended purpose of which was to permit the court of the deceased's habitual residence to defer to that of his nationality if the former court considered that the latter was better placed to rule on the succession.

140 UK Ministry of Justice, ‘European Commission proposal on succession and wills: a public consultation’ (Consultation Paper CP41/09).

141 See House of Lords EU Committee, 6th Report of Session 2009–10, The EU's Regulation on Succession: Report with Evidence, HL Paper 75 (‘HL Succession Report’).

142 See HL Succession Report, para 86. Under English domestic law, there is no forced inheritance and therefore no clawback.

143 UK Ministry of Justice, ‘European Commission proposal on succession and wills: Response to public consultation’ (CP(R) 41/09 (2010)), Executive Summary.

144 Hansard 16 Dec. 2009: Col.141 WS.

145 Recital (82).

146 Albeit that the extent of such freedom varies from system to system.

147 cf O Kahn Freund's description of the ‘prophylactic’ function of choice of law rules: [1974] III Hague Recueil 147, at 341 and 344.

148 Succession Regulation, Recitals (11) and (12).

149 eg Rome III, recital (19) and art 7 re choice of law.

150 In the Succession Regulation, a person may choose as the law to govern his succession the law of the State whose nationality he possesses at the time of making the choice or at the time of death. This is an improvement on the test of nationality (/domicile) set out in the Succession Proposal, which lacked any temporal qualification or awareness.

151 It was a basic flaw of art 3a (Choice of court by the parties in proceedings relating to divorce and legal separation) of the Commission Proposal re Rome III that no account was taken of mutability of personal connecting factor.

152 eg Rome III, recital (20) and arts 5.2 and 5.3.

153 cf Yntema (n 5) 357.

154 Not applicable under Schedules 4 and 8, Civil Jurisdiction and Judgments Act 1982. cf Presumption of exclusivity in the Maintenance Regulation, art 4.1.

155 cf Bank of Africa Ltd v Cohen [1909] 2 Ch. 129.

156 See, eg, art 18 of the Matrimonial Property Proposal, which allows parties to effect a choice of law, or make a new choice, during the course of their marriage. Art 18 endeavours to ensure that the rights of third parties whose interests might be prejudiced by a change of the couple's matrimonial property regime are protected: the effects of a change of matrimonial property regime are confined to the parties and do not affect the rights of third parties. See Explanatory Memorandum, para 5.3.

157 An apt example is the expression of European disapproval, on public policy grounds, of provisions of the applicable law awarding exemplary or punitive damages ‘of an excessive nature’: Rome II Regulation, Recital (32).

158 eg parties cannot, by agreement, dictate that procedure should be governed by a law other than the forum.

159 cf Harding v Wealands [2004] EWHC 1957 (QB), per Elias J at [76]—the fact that a foreign law does not reflect the policy adopted in England is a ‘far cry’ from saying that it offends English conceptions of public policy.

160 cf Briggs (n 6) para 1.22; North (n 4) 196; and Nygh (n 5) 71.

161 cf and contrast Radmacher v Granatino and De Nicols v Curlier [1900] AC 21, in both of which the party/ies’ financial fortunes changed over the course of the marriage.

162 See also the protective limitations on choice in Rome II Regulation, art 14.

163 See eg overriding mandatory provisions rule in the Matrimonial Property Proposal: art 22.

164 It is worthwhile noting that the weaker party protection offered in the Maintenance Regulation is light-touch; there is no general requirement that parties should obtain independent legal or financial advice before making their choice, but the choice of court provision in art 4 does not apply to any dispute relating to a maintenance obligation towards a child under the age of 18, specifically in order ‘to protect the weaker party’. Recital (19); contra the position which formerly prevailed under art 23, Brussels I Regulation.

165 Section IV.C.2, above.

166 Briggs (n 6) para 2.19.

167 cf Erich Gasser GmbH v MISAT [2005] QB 1.

168 [2005] QB 1.

169 Additional questions could arise, as have emerged in the commercial sphere, as to whether or not, if an exclusive agreement is breached by one party, or is overridden or set aside by the court, a claim in damages should be open to the frustrated party.

170 See Proposal to recast Brussels I Regulation (14 December 2010, COM 2010 748/3), and General Approach agreed by Council of European Union (Justice and Home Affairs) (1 June 2012) (JUSTCIV 209/CODEC 1495), arts 29 and 32.2.

171 At the court of origin's own motion, or upon request by either party.

172 Ni Shuilleabhain (n 69) paras 2.64 and 4.14.

173 Briggs (n 6) para 1.12. See further at paras 2.04 and 2.11.

174 North (n 4) p 200.