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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.

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In the Cases C-585/08 Peter Pammer v Reedere Karl Schluter GmbH & Co and C-144/09 Hotel Alpenhof GesmbH v Oliver Heller, the CJEU considered the applicability of article 15(1) (c) of Regulation EC 44/2001 (Brussels I) vis-à-vis the use of web sites in commercial communications with consumers domiciled in other Member States. Article 15 of Brussels I contains special rules which determine the jurisdiction of disputes concerning ‘protected’1 consumer contracts falling within its scope. Articles 15(1)(a) and (b) apply where either the contract is subject to an instalment credit arrangement or where the contract is for a loan to finance the sale of goods respectively. These two recent cases were concerned with article 15(1)(c), itself previously regarded by the Commission as the ‘philosophy of Article 15.’2 The connecting factors in article 15(1)(c) apply in two situations.3 The first is where the seller concludes contracts as a result of commercial activities entered into in the Member State of the consumer's domicile. The alternative applies when a business ‘directs’ its professional or commercial activities to the Member State of the consumer's domicile and a contract is concluded as a consequence of those activities. Article 15(2) also (currently) provides that a non-EU defendant corporation which has a branch or agency in a Member State that contracts with a consumer may be regarded as domiciled in that Member State. The cases are important as for the first time references were made to the CJEU to specifically consider and interpret the extent to which a business' web site should be construed as ‘directing [commercial] activities’ towards consumers domiciled in other Member States. Essentially, what kind of activity should be construed as directing activity when a seller or his agent uses a web site with the intention to facilitate contractual activities with consumers located in a Member State?