After the Romans: Private International Law Post Brexit (Michael McParland QC)

On 10 December 2018 the Ministry of Justice published a draft statutory instrument dealing with the private international law of obligations after Brexit. This Regulation has the pithy title of "The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2018":

These Regulations are made in the exercise of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018 in order to "address failures of retained EU law to operate effectively and other deficiencies… arising from the withdrawal of the UK from the European Union". It is intended they will come into force on exit day.

Part 2 of the Regulations contain amendments to primary legislation, including amendments to the Contracts (Applicable Law) Act 1990, which is the English statute that implemented the 1980 Rome Convention on the law applicable to contractual obligations. The Explanatory Memorandum now says that "the United Kingdom will no longer be a contracting party [to the Rome Convention] after exit day". This is modestly surprising, given that the Rome Convention was not actually part of the Community acquis: see Michael McParland, "The Rome I Regulation on the Law Applicable to Contractual Obligations" (para. 1.99). But the current desire to disentangle the UK entirely from any vestiges of things European appears to be overwhelming. Consequently, these Regulations convert the most of the rules found into the Rome Convention into domestic law, and continue to apply them to contracts entered into between 1^st April 1991 and 16^th December 2009 in the same way as they did before. Further amendments are also made to the Prescription and Limitation (Scotland) Act 1973 and the Private International (Miscellaneous Provisions) Act 1995.

Part 3 deals with amendments to secondary legislation which had been originally created to deal with the coming into force of the Rome I and Rome II Regulations.

Part 4 is entitled "Amendment of retained EU Law". This deals with substantive amendments to both the Rome I and Rome II Regulation to take account of the UK ceasing to be a Member State.  The full impact of the changes can be considered against the original texts. The changes to the Rome I Regulation and their implications will feature in the second edition to my book on the subject which I am currently working on: https://global.oup.com/academic/product/the-rome-i-regulation-on-the-law-applicable-to-contractual-obligations-9780199654635?cc=gb&lang=en&

Part 4 of the Regulation also revokes Regulation EC No. 662/2009 which established the procedure for the negotiation and conclusion of agreements between EU Member States and third countries on the law applicable to contractual and non-contractual obligations: see McParland, (para. 2.100).

The following is a link to the Ministry of Justice's web-site.