Exploring the Boundaries of Party Autonomy in Cross-Border Family Matters
Promovendus: Mw. J. Gray
Promotor: Mw. Prof.Dr. K. Boele-Woelki
Duur: 1/12/2012 - 30/11/2016
The application of an optional unified European family law is dependent on the boundaries of party autonomy. The 3 EU regulations and the 4 draft regulations, along with the recent conventions of the Hague Conference on Private International Law, indicate a movement towards greater party autonomy. However, unlike in commercial law, in family law the parties cannot choose a neutral, unconnected applicable law. Consequently, where a choice is permitted, it is restricted to a list of legal systems deemed to have sufficient connection with the parties. Acceptance of the principle of party autonomy has not been extended so far as to permit parties to evade the application of a national family law by opting into a non-state family law system (since such a system does not exist). To date, only the choice of a national law is permitted. It will be investigated how a law other than national substantive family law can be applied in cross-border family relations. Firstly, international family law will be compared with international contract law, where the Convention of the International Sales of Goods (78 contracting states) and the Common European Sales Law (aimed at binding 27 Member States) can be chosen as the applicable law. This comparison gives rise to the following question: how and when would an optional family law be applicable (the express choice by the parties; the formal requirements; the point in time when the choice is given), and what effect will this law have? Secondly, it will be examined which private international law rules of which regulations and conventions should be changed in order to allow families to make a choice for a non-state family law system to govern their relationship.