"No Deal Brexit": The New EU Update On Civil Justice & Private International Law

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.

Jurisdiction

• For civil proceedings involving a UK domiciled defendant that are pending in a court of EU 27 Member States on the withdrawal date of 29 March 2019, the existing EU rules for international jurisdiction will continue to apply to those cases.
• For civil proceedings initiated on or after the 29 March 2019 in the EU 27 Member States the international jurisdiction rules in EU private international law instruments for civil and commercial law and in family law will no longer apply unless those instruments contain jurisdiction rules with regard to third countries.

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:

• If a UK court judgment has been "exequatured" in the EU-27 before the withdrawal date but not yet enforced, the UK judgment can still be enforced in the EU27, and the fact it was originally a judgment handed down by a UK court is irrelevant.
• But in such cases, unless a UK judgment has been "exequatured" before the withdrawal date, the EU rules on recognition and enforcement of such judgments will not apply to a UK judgment, even if:
• It was handed down before the withdrawal date; or
• the enforcement proceedings were commenced before the withdrawal date.
• For proceedings to enforce a UK judgment that are commenced "as of the withdrawal date" in the EU-27 courts, then EU rules will no longer apply.

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:

• proceed further with such pending judicial cooperation procedures involving the UK; and
• launch any new such judicial cooperation procedures involving the UK.

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