The old whiskey advert used to advise the nation “don’t be vague, ask for Haig”.
Unfortunately, when it comes to the UK’s post-Brexit accessions to the Hague Conventions, being “vague” is very much in vogue.
One thing is clear. The UK’s accession as a Contracting State to the Hague Convention on Choice of Court (2005) (see here), which was due to take effect on 1st April 2019, has now been suspended.
The UK’s indicated in a declaration lodged with the Depository on 28 March 2019 that this suspension was to be until either 13 April 2019 or 23 May 2019: the two dates reflecting the alternative Article 50(3) extension periods which had been agreed with the EU Council (see here) . The Depository issued a notice regarding the UK declaration on 29 March 2019.
But, in the light of the Commons’ refusal to accept the Withdrawal Agreement by the 29 March, the operative date for the Convention coming into force in the UK as Contracting State in its own right will now be 23 May 2019. (This is, of course, unless a further extension or Withdrawal Agreement style transition period is agreed).
As a consequence, the UK will remain bound by the Hague Convention through its EU Membership until the 22 May 2019.
Originally, there would have been something of a jurisprudential grey-area (see here) concerning the applicability of the Convention to jurisdiction agreements concluded between 29 March (when the Convention ceased applying to the UK as an EU Member State) and 1 April 2019 (when the Convention began to apply to the UK in its own right).
One happy consequence of this current suspension is that the “gap” between the end of the old and the beginning of the new regime will be eliminated.
Subject to probably inevitable and ingenious arguments in foreign courts that seek to challenge the applicability of the Convention to UK jurisdiction clauses (based on arguments as to whether the UK actually had the competence to deposit the notice of accession and / or declare a suspension while still an EU Member State) the new regime will commence on 23 May, the day after the UK is currently due to the leave the EU.
Right. Anyone fancy a whiskey?