Book contents
- Frontmatter
- Foreword
- Acknowledgements
- Contents
- List of Cases
- List of Contributors
- Introduction: Nigel Vaughan Lowe: An Appreciation
- Part I Family and Child Law in England and Wales
- Part II International Family Law
- Judging Parental Child Abduction: What Does it Mean to Adopt a Children's Rights-Based Approach?
- Judicial Activism: A 20-Year Evolution
- Globalisation of Adjudication in International Family Law: Serving International Families by Producing International Solutions
- Creating International Families: Private International Law and the Industry of Parenthood
- Issues in International Divorce Cases
- Non-Judicial Divorce in France: Progress or a Mess?
- The Istanbul Convention: Is Domestic Abuse Violence Against Women?
- Nationality and Migration Status in International Children's Law
- The Development of Child Protection Across International Borders for Children at Risk of Harm
- Nigel Lowe and International Family Law: An Immense Contribution
- The Spanish Constitutional Court and Protracted Child Abduction Proceedings: Time is of the Essence
- Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aft ermath of the 2015 ‘Refugee Crisis’
- Juvenile Justice in Bulgaria: Reforms and Resistance
- Overriding Mandatory Provisions in EU Family Law Regulations
- Part III The Future for Family and Child Law
Overriding Mandatory Provisions in EU Family Law Regulations
from Part II - International Family Law
Published online by Cambridge University Press: 12 October 2018
- Frontmatter
- Foreword
- Acknowledgements
- Contents
- List of Cases
- List of Contributors
- Introduction: Nigel Vaughan Lowe: An Appreciation
- Part I Family and Child Law in England and Wales
- Part II International Family Law
- Judging Parental Child Abduction: What Does it Mean to Adopt a Children's Rights-Based Approach?
- Judicial Activism: A 20-Year Evolution
- Globalisation of Adjudication in International Family Law: Serving International Families by Producing International Solutions
- Creating International Families: Private International Law and the Industry of Parenthood
- Issues in International Divorce Cases
- Non-Judicial Divorce in France: Progress or a Mess?
- The Istanbul Convention: Is Domestic Abuse Violence Against Women?
- Nationality and Migration Status in International Children's Law
- The Development of Child Protection Across International Borders for Children at Risk of Harm
- Nigel Lowe and International Family Law: An Immense Contribution
- The Spanish Constitutional Court and Protracted Child Abduction Proceedings: Time is of the Essence
- Non-Recognition of Child Marriages: Sacrificing the Global for the Local in the Aft ermath of the 2015 ‘Refugee Crisis’
- Juvenile Justice in Bulgaria: Reforms and Resistance
- Overriding Mandatory Provisions in EU Family Law Regulations
- Part III The Future for Family and Child Law
Summary
INTRODUCTION
This contribution on overriding mandatory provisions in EU family law is dedicated to my highly esteemed colleague Nigel Lowe. For nearly two decades we have worked together in the Commission on European Family Law (CEFL), to develop common principles in different fields of family law and bridge the differences between civil and common law approaches. Throughout this time I have respected Nigel Lowe's openness to foreign law and his exceptional competence. He has also made outstanding contributions to the Council of Europe and the Hague Conference, in particular on child abduction and child protection. He also recognised the impact of European Union law on family law at an early stage. Today, as we are confronted with a whole range of European Regulations in the field of international family law, we face some challenges as old problems are brought into a new light.
THE PROBLEM OF MANDATORY AND OVERRIDING MANDATORY PROVISIONS
Mandatory law (ius cogens) means rules that cannot be derogated from by contractual agreement. Such rules are not a new phenomenon in family law. Quite to the contrary, in many fields of family law there was no party autonomy in either domestic or international cases. However, today there is a growing ‘contractualisation’ in domestic family law. There is also a growing, if limited, recognition of party autonomy in international family law. As a result, the issue of placing limits on this autonomy and the protection of the weaker party has gained importance.
In European private international law the applicable law is determined by uniform conflict-of-laws rules. These provisions generally distinguish between different categories of national mandatory rules. ‘Simple’ mandatory rules form a part of the applicable law, the lex causae. If they are of foreign origin, they will be applied together with the foreign law. This means that in fields where there is party autonomy a choice of a law by the parties is also a choice of the mandatory rules of that law. There is, however, also another category of mandatory provisions. Such rules of fundamental importance are ‘internationally mandatory’ or ‘overriding mandatory’ rules. Domestic rules of this kind will be enforced directly also against a chosen foreign law.
- Type
- Chapter
- Information
- International and National Perspectives on Child and Family LawEssays in Honour of Nigel Lowe, pp. 297 - 312Publisher: IntersentiaPrint publication year: 2018