Conflict of laws post Brexit. The Commons’ report. And the likely deaf ears.

Update 11 December 2018 there could have been many more updates I could have inserted in between – see e.g.

  • the conflicts provisions in the draft Withdrawal Agreement 
    • Articles 66 to 69. Specifically, for civil and commercial matters:
    • Legal proceedings “instituted before the end of the transition period” will continue to be subject to Brussels I Recast on jurisdiction in civil and commercial matters.
    • Its recognition and enforcement proceedings will continue to apply to “judgments given in legal proceedings instituted before the end of the transition period”.
    • Provided that the relevant EEO Certificate was applied for before the end of the transition period, the European Enforcement Order Regulation (uncontested claims) will also continue to apply
    • Rome I Regulation shall apply in the UK in respect of contracts concluded before the end of the transition period (31 December 2020)
    • Rome II Regulation shall apply in the UK in respect of events giving rise to damage, where such events occurred before the end of the transition period.
    • (Both Regulations continued to be applied by the other MSs post the transition period, given principle of universal application)
  • today the UK provisions for Rome I, II, and the Rome Convention post Brexit, as well as Diana Wallis MEP (rtd) on some of the implications for the victims of car accidents.

Update 21 April 2017 many thanks to Gordon Nardell QC for alerting me to the Bar Council’s Brexit papers which includes one on jurisdiction and enforcement.

The House of Commons’ report on ‘negotiating priorities for the justice system’ reviews more than conflict of laws, indeed it is a tour d’horizon of most (if not all) issues relevant to Justice and Home Affairs in the EU. Martha Requejo makes a number of valid points on the report and indeed plenty of these, and others, have been made by a number of conflicts commentators: I will not review all here. There is a scholarly cottage industry on post-Brexit issues and the area of private international law is no exception.

The report mentions among others that a role for the CJEU in respect of essentially procedural legislation concerning jurisdiction, applicable law, and the recognition and enforcement of judgments, is a price worth paying to maintain the effective cross-border tools of justice discussed throughout our earlier recommendations. That is a very sensible approach, not just within the overall context of UK /continent judicial co-operation: it is also an obvious lifeline for London’s legal services market. Without proper integration into the EU’s civil procedure corpus, judgments from UK courts will immediately lose a lot of their appeal. The Government however have manoeuvred itself into a cul-de-sac by rejecting a role for the European Court of Justice post Brexit. The report’s call, and many with it, therefore is likely to fall upon deaf ears. Both for the UK and for EU conflicts rules, this will be a great loss. Few continental courts live up to the same standards as their UK counterparts when it comes to applying the intricate detail of conflict of laws, whether EU based or not.

Geert.

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