Party Autonomy Under the New Brussels IIa (Recast) Regulation: Stalemates and Innovation

The Brussels IIa (Recast) Regulation – the long-anticipated revision of the 2003 Brussels II bis Regulation – has brought about significant changes to the EU’s jurisdictional rules that apply to cross-border matrimonial matters (divorce and legal separation) and matters of parental responsibility. However, the role of party autonomy – in this context, the opportunity for parties to the proceedings to designate a closely-connected jurisdiction – continues to be a divisive matter under this renewed instrument. Whilst the pre-existing possibility for parties to participate in the determination of jurisdiction for matters of parental responsibility has been fine-tuned by this recast, the new instrument negates to include a much-needed choice of court provision for cross-border divorce and legal separation. This omission has wide-ranging consequences, both for the use of the instrument itself, as well as for the possibility of coordination with jurisdictions that govern related proceedings.