The European Commission has today (18 January 2019) published a new “no-deal Brexit” notice on the withdrawal of the UK and its effect in the field of Civil Justice and Private International Law. It replaces their 21 November 2017. A copy of the notice is here:
Some key aspects are set out below.
Recognition and Enforcement of judgments
The outcome depends on whether the EU private international law instrument in question envisages foresees exequatur before enforcement. If so:
The Hague Conventions
The Commissions recognise that, in some instances, international jurisdiction and recognition and enforcement of UK judgments may be governed by international conventions, such as those developed by the Hague Conference on Private International Law, provided both the EU and / or its individual Member States and the UK are parties to the Convention in question.
The most obvious, and potentially most significant, will be the Hague Convention on Choice of Court Agreements (2005) which will come into effect from 1 April 2019 in the UK. See my earlier posts on the subject.
Other EU Procedures
The other EU private international law procedural instruments, such the European Payment Order or the European Procedure for Small claims will follow the same approach as for jurisdiction and recognition and enforcement of UK as set out above.
The Commission’s Advice
The Commission’s sub-silentio but obvious desire to see EU-27 Member States take advantage of “the opportunities of Brexit” and undermine the UK’s predominance in civil litigation within Europe is reflected in their declaration that that all stakeholders are advised to take these matters “…into consideration when assessing contractual choices of international jurisdiction”.
As for facilitating judicial co-operation in relation to service of documents, taking of evidence or matters within the context of the European Judicial Network in Civil and Commercial Matters, the Commission instructs the EU-27 to not:
Indeed, the Commission also “advises” the national Central Authorities of Member States that assess whether judicial cooperation procedures risk being pending on the withdrawal date and whether the procedure can continue under national law or a relevant international convention (such as the Hague Evidence or Service Conventions). Where this is possible, the Commission advises that the Central Authority “…should consider submitting an additional request under the relevant national law / international convention which would be conditional upon the United Kingdom withdrawing from the Union without [a] withdrawal agreement”.
In short, in the event of a no-deal Brexit, cross-border litigators may find yourself being “messed about” in Europe. Quelle surprise!
Michael McParland QC
39 Essex Chambers