Creation of subsidiary jurisdiction rules in the recast of Brussels I: back to the drawing board?

This paper is concerned with the increasing approximation of EU Member States’ private international law rules. The European Commission issued a proposal (COM 2010 748 FINAL) to amend the Brussels I Regulation by inter alia approximating Member States’ subsidiary (or residual) jurisdiction rules. The proposal highlights the potential emergence of a third wave of European private international law. In the context of current debates on emerging global governance techniques, this paper will briefly appraise the role of conflicts justice in coordinating national pluralism and the changing role of private international law as a form of secondary rules. The paper seeks to assess first, whether this aspect of the Commission’s proposal could be justified and second, how a third wave of European private international law has the longer term objective to re-conceptualise private international law in disputes involving non EU defendants brought before the courts of a Member State.