Posts Tagged Brexit
In Bournemouth, Christchurch and Poole Council v KC et al  EWFC 20, Dancey J at 62 ff is the first UK judge to my knowledge to discuss the implications of the UK’s separation from the EU’s civil procedure /justice and home affairs agenda, particularly in the transition period. It includes a discussion of the UK’s Brexit (EU Exit) Regulations 2019/2003, reg 3, and the European Commission notice on transition provisions.
The care proceedings concern W, a girl aged 9, nearly 10. W’s parents, who were married, are Polish nationals and W was born there. Following the separation of the parents in Poland in April 2016, contested contact proceedings there resulted in an order providing that W live with the mother with contact to the father. The father’s parental responsibility was limited to decisions about medical treatment and education. Following the breakdown of the father’s contact with W, the mother brought her to the UK in June 2018 where they have remained since. That was done without the father’s agreement, although he was aware the mother planned to relocate and acquiesced once the move had taken place. The mother did not tell the father of her and W’s location within the UK.
The legal framework, therefore, is Brussels IIa, Regulation 2201/2003. Dancey J at 63 concedes that by reg 8 of 2019/2003, dealing with saving/transitional provisions, the UK’s revocation from Brussels IIa does not apply to proceedings before a court in a Member State seised before 31 December 2020. However he then refers to the EC Notice to Stakeholders: Withdrawal of the United Kingdom and EU Rules in the Field of Civil Justice and Private International Law: 18/1/2019, and suggests it means that EU rules on recognition and enforcement will not apply to a UK judgment, even if the judgment was given, or enforcement proceedings started, before 1 January 2021 unless the judgment has been exequatured (declared enforceable by the courts of the Member State where recognition or enforcement is required) before 1 January 2021. Support for his opinion is found I suspect mostly in Heading 2.2 of that Notice – although I should warn against the matter of factly nature of that notice without much justification given for the positions it takes. Update 29 03 2020 and as Xavier Lewis has pointed out to me, the notice was put out there in the eventuality of a no deal – Dancey J does not refer to the Withdrawal Agreement at all.
At 66 Dancey J suggests in practice the consequence should not be too dramatic in the case at issue for ‘one or other of the parents should apply promptly in Poland for a declaration recognising this judgment and the order that will follow (exequaturing the judgment).’ That absence of real delay in the case at issue may well be true (it is confirmed by a letter from the Polish consulate) however the implications are already clear and no surprise. Enforcement of UK judgments will be a lot less smooth post Brexit.
Two negatives a positive make? A brief report on anti anti-suit in (among others) continental courts.
A flag on anti anti-suit. Steve Ross reports here on the Paris Court of First Instance (Tribunal de Grande Instance) judgment in RG 19/59311 IPCom v Lenovo /Motorola granting a preliminary injunction. IPCOM GmbH & Co. KG is an intellectual property rights licensing and technology R&D company. Lenovo/Motorola a telecommunications company. As Steve writes, the French Court held that it had jurisdiction over the case with regard to a patent infringement claim and ordered Lenovo to withdraw the motion for an anti-suit injunction which that company had brought before the US District Court of the Northern District of California in so far as it concerns the French part of the patent.
Steve notes (I have not read the actual judgment) that ‘according to the French Court, the international French public order (ordre public) does not recognise the validity of an anti-suit injunction, except where its purpose is to enforce a contractual jurisdiction clause or an arbitral clause. Under all other circumstances, anti-suit injunction proceedings have the effect of indirectly disregarding the exclusive power of each sovereign state to freely determine the international jurisdictional competence of their courts.’
Peter Bert also reports last week a German anti anti-suit injunction at the Courts in Munchen, also for IPR cases.
For progress in the US anti-suit (one ‘anti’ only) application see order here.
Juve Patent report (as does Peter) that the High Court, too, has issued a (partial) anti anti-suit in the case however I have not been able to locate the judgment.
Note that continental courts (see in the French case) finding that anti-suit in general infringes ordre public is an important instruction viz future relationships with UK court orders post Brexit (should the UK not follow EU civil procedure).
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1.
A short update on the innovation principle‘s continued (corporate-sponsored, let’s be frank) journey.
Thank you first of all prof Maria Lee for signalling the UK’s planned introduction of an ‘innovation test’, to be piloted as part of industrial strategy. Its goal is expressed as ‘We will create an outcome-focused, flexible regulatory system that enables innovation to thrive while protecting citizens and the environment.’ Not much more detail is given. Formulated as such, it does nothing that the current EU regulatory model does not already address – its true goal undoubtedly is a post-Brexit libertarian regulatory environment.
Further, Nina Holland observed with eagle eyes the link between Nafta 2.0 (USMCA) and innovation, in particular Article 12-A-4 ‘parties’ “recognize the importance of developing and implementing measures in a manner that achieves their respective level of protection without creating unnecessary economic barriers or impediments to technological innovation’ (like the UK initiative: meaningless for already addressed by current international trade agreements; the real intention actually is deregulation). American industry has been arguing that the US should ‘build on’ the new NAFTA when negotiating with the EU (should TTIP ever be resuscitated).
Canary Wharf Limited v European Medicines Agency. High Court holds Brexit is a seismic, but not a frustrating event. (Engages Rome I’s Article 12, and vires issues per lex loci corporationis).
Update 5 July 2019 EMA have dropped their appeal following settlement.
In  EWHC 335 (Ch) Canary Wharf Limited v European Medicines Agency Smith J earlier this week held that Brexit is a seismic, but not a frustrating event under English contract law (at 241). The Agency’s lease would not be discharged by frustration upon Brexit and neither does EMA’s move to Amsterdam constitute a frustrating event. The EMA is to honour its lease obligations.
At 186 brief mention is made of the usefulness of Article 12 Rome I (which lists the isused covered by the lex contractus): ‘Article 12 of the Rome I Regulation provides that the law applicable to a contract by virtue of the Regulation governs – among other things – the “performance” of the contract and “the various ways of extinguishing obligations”. Both are subject therefore to English law (a choice of law clause in the contract, and the premises being in England) whichever way one classifies the theory of frustration.
At 187 the discussion is however extended to the issue of supervening illegality under a foreign law that is not the applicable law. The capacity of a corporation to exercise specific rights is determined – at least in the first instance – by the constitution of the corporation, which is itself governed by the law of the place of incorporation: lex loci corporationis. This itself is discussed at 130 ff, leading to interesting views on the status of EU law in the UK post Brexit and, one infers, a finding that ‘EU law’ is the lex loci corporationis. EMA’s argument then is that under EU law it would be acting ultra vires to continue the lease outside the EU’s territory.
At 188: ‘The question, then, is whether – assuming that the EMA is right as regards the points it makes on vires – these are relevant for the purpose of frustration by way of supervening illegality. The question is whether the English law of frustration, which has regard to questions of legality where the performance of the contract would be unlawful according to the law of the place of performance, should also have regard to the law of incorporation, at least where this affects the capacity of a party to continue to perform obligations under a transaction lawfully entered into by it.’ Smith J after discussing precedent, at 189 holds that it cannot.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 3.
In one of my many ponderings on research I would like to do but might never get an opportunity do (hence my repeated sharing of potential PhD topics) I came across an excellent post by Daniel Jowell QC on the application of EU competition law in the UK courts post-Brexit.
The usual disclaimer of course applies (let’s wait and see what happens in the future Treaty between the UK and the EU) yet one important consideration has wider appeal: how does one apply the classic conflicts suggestion that courts do not apply foreign public law, or if they do, do so with great caution?: both out of comity with the foreign State; and to protect one’s own ordre public.
Competition law is often seen as being of quasi-public nature. Daniel justifiably suggests that post Rome II (in which competition law is assigned a specific (if complicated) lex causae), the UK will revert to its standard rules which increase the possibility that UK courts might refuse to apply foreign competition law, including the EU’s, on public policy grounds.
One to remember.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 4, Heading 4.6.2.
A concise note (I am currently tied up mostly in writing research grants. And and and… I hope to return to the blog in earnest later in the week) to signal prof Hess’ excellent short paper on Brexit and judicial co-operation. Prof Hess focuses on the possibility to use the Lugano Convention. (See here for a draft of Michiel Poesen’s overview). I agree that Lugano would not be a good route if one’s intention is to safeguard as much as possible co-ordination between the UK’s common law approach to private international law, and the EU’s. Neither evidently if one aims to facilitate smooth cross-border proceedings.
Prof Hess has an interesting side consideration on schemes of arrangements. (Including reference to Apcoa). Again I agree that the English courts’ approach to same is not entirely without question marks (particularly jurisdictional issues in the event of opposing creditors: see here). I do not though believe that they would justify hesitation at the recognition and enforcement stage in continental Europe – even after Brexit. At least: not in all Member States. For of course post Brexit, UK judgments become those of a ‘third country’, for which, subject to progress at The Hague, we have no unified approach.
(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.
Update 31 January 2020 on Brexit day, see here and here for a recent overview of the issues, here for Michiel Poesen’s 2017 overview and here for the EFTA States Declaration on the UK joining Lugano 2007.
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.