Brexit and private international law

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

GlobesIt is unlikely that many voters, when deciding how they would vote in the recent EU referendum, would have given any thought to the implications of Brexit for private international law in the United Kingdom. Nevertheless, Brexit is likely to have profound consequences in this (admittedly) complex and specialist field. The greatest effect will be felt in the commercial arena: in the context of cross-border litigation, for example, the EU has established, in civil and commercial matters, a common framework for the jurisdiction of national courts, the determination of the applicable law and the reciprocal recognition/enforcement of judgments granted by Member State courts. Brexit will also take the United Kingdom out of the EU-wide systems for the allocation of divorce jurisdiction and the mutual recognition of divorces and nullity decrees.

Jurisdiction and judgments in civil and commercial matters

Back in 1968 the original six Member States of the (then) EEC concluded a convention for the allocation of jurisdiction and for the mutual recognition and enforcement of judgments in civil and commercial matters (the Brussels Convention). With a view to strengthening legal protection within Europe, the Brussels Convention supplemented the four freedoms of the Treaty of Rome by adding a fifth freedom: the free movement of commercial judgments. The Brussels Convention came into force in the United Kingdom in 1987, since when the basic regime has been extended to the EFTA states (through the Lugano Convention of 1988, amended in 2007) and re-enacted (with amendments) by the Brussels I Regulation (recently amended and replaced by the Brussels I Recast, which came into force in 2015).

On the face of it, following Brexit, this ‘Brussels I regime’, which has harmonised jurisdiction rules and greatly simplified the mutual enforcement of judgments in Europe, will cease to operate between the United Kingdom and the Member States. Obviously, the Brussels I Recast will no longer be part of UK law and it seems likely (though by no means certain) that, without a specially negotiated agreement designed to come into effect on Brexit, the United Kingdom will not be able to fall back on the original Brussels Convention of 1968 and/or the Lugano Convention of 1988. Accordingly, as regards the allocation of jurisdiction, the English courts will revert to applying solely the pre-Brussels Convention rules. As regards judgments granted by the courts of Member States, the regime for recognition and enforcement will be provided either by the common law (which generally applies to judgments granted by the courts of third states) or, as regards Austria, Belgium, France, Germany, Italy, Norway and the Netherlands, by bilateral treaties that pre-date the Brussels Convention and which are given effect by the Foreign Judgments (Reciprocal Enforcement) Act 1933. Similarly, Brussels I will no longer apply to the recognition and enforcement of the judgments of UK courts in the Member States; whether an English commercial judgment is enforceable in, say, Spain or Poland will depend on whatever system is provided by Spanish or Polish law (etc). Such a framework, based on national laws, inevitably is more complex and uncertain than the Brussels I regime.

The law applicable to contractual and non-contractual obligations

As regards choice of law, Brexit will produce a less profound revolution, notwithstanding the fact that the Rome Regulations – which deal with the determination of the applicable law for contractual obligations (Rome I) and non-contractual obligations (Rome II) – will cease to apply in the United Kingdom. After Brexit, as regards non-contractual obligations, the relevant choice-of-law rules will be found either in Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (tortious obligations, other than defamation, which in any event is excluded from Rome II) or in the common law (restitution and defamation). In practical terms, this change will not normally alter the fundamental principles. The changes in the field of contractual obligations will be even less marked. This is because the Rome I Regulation is a re-enactment (with relatively minor amendments) of the Rome Convention of 1980, which was concluded by the (then) members of the EC and implemented into UK law by the Contracts (Applicable Law) Act 1990. There is every reason to think that, once the Rome I Regulation ceases to apply in the United Kingdom, the courts will revert to being bound by the (largely identical) Rome Convention, as implemented by the 1990 legislation.

Other issues concerning civil and commercial matters

While the Brussels I Recast and the Rome Regulations are the most frequently encountered elements of the EU system of private international law, they are by no means the only conflict-of-laws instruments which, in the absence of a specially negotiated agreement between the United Kingdom and the European Union, will cease to apply following Brexit. In the commercial field, the Insolvency Regulation (which is based on the Insolvency Convention which was never brought into force as such) sets out a uniform scheme for the allocation of jurisdiction, the determination of the applicable law and the recognition/enforcement of judgments in matters relating to insolvency. There is also the Service Regulation (which seeks to simplify the cross-border service of legal documents, such as claim forms and default judgments) and the Evidence Regulation (which improves and simplifies co-operation between courts in the taking of evidence and accelerates the process).

In addition, Brexit will bring about a number of indirect consequences. For example, the Hague Choice of Court Convention has been signed by a number of states and by the European Union (which concluded the Convention on behalf of the Member States). The Hague Convention is currently in force between Mexico, Singapore and the Member States. After Brexit, the Convention will cease to apply to the United Kingdom which, if it wishes to continue to be bound by it, will need to take steps to ratify and implement the Convention on its own behalf.

Family law issues

As regards family law, the significant EU instruments which will no longer apply following Brexit include the Brussels II bis Regulation and the Maintenance Regulation (which covers jurisdiction, choice of law and the recognition/enforcement of judgments relating to maintenance obligations). The Brussels II bis Regulation deals not only with jurisdiction and judgments concerning matrimonial causes (mainly divorce and nullity proceedings), but also concerning matters of parental responsibility. (As the United Kingdom chose not to participate in the Succession Regulation, Brexit will not have any consequences in this field.)

Conclusion

For more than forty years, what is now the European Union has provided the focus for the development of private international law in Europe. The fact that the United Kingdom has been part of the common regime established by the Brussels and Rome Regulations has contributed to the pre-eminent position of London as a centre for cross-border dispute resolution. It is not anticipated that Brexit will destroy overnight London’s position in the market for litigation services. But, it would be naïve to imagine that withdrawal will have no consequences in this field. In the negotiations leading up to Brexit, one of the issues which requires serious thought involves how the private-international-law relationship between the United Kingdom and the European Union should be re-formulated. In the coming months, consideration will need to be given to a range of difficult, unanswered questions (such as whether the 1968 Brussels Convention and/or the 1988 Lugano Convention can rise like a phoenix from the ashes after Brexit). Also, at a policy level, a decision needs to be taken whether the United Kingdom should, in private-international-law terms, either revert to the legal position it enjoyed prior to 1987 (when the United Kingdom became bound by the Brussels Convention) or seek to forge a distinctive relationship with the European Union along the lines of the Brussels I regime etc, albeit outside the European Union. It remains to be seen whether, in the anticipated Brexit negotiations, these issues receive the attention they require.

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