In their continuing efforts to protect English jurisdiction clauses post-Brexit, and to preserve as much of the status quo as possible, the UK acceded to the Hague Convention on Choice of Court Agreements (2005) on 28 December 2018 and subsequently submitted the required Instrument of Accession. (For background click here).
In force on April Fools’ Day 2019…
Notification pursuant to Article 34 of the 2005 Convention was given to the Netherlands Ministry of Foreign Affairs on 2 January 2019. This confirmed that, in accordance with Article 31, the 2005 Convention will enter into force for the UK on 1 April 2019 with declarations excluding insurance contracts (save for those situations expressly stipulated).
Click here for a copy of the UK’s notification.
… but maybe not
However, the UK’s accession to the 2005 Convention is entirely conditional on the fate of the current UK-EU Withdrawal Agreement. For the government’s notification contains a diplomatic Note Verbale indicating that the submission of the required Instrument of Accession was “only in preparation” for a situation where the current EU Withdrawal Agreement is not signed, ratified, approved by the parties, and does not come into force on 30 March 2019.
Things are different if the Withdrawal Agreement does come into force on that date. For the UK government says:
“In the event that the Withdrawal Agreement is signed, ratified and approved by the United Kingdom and the European Union and enters into force on 30 March 2019, the United Kingdom will withdraw the Instrument of Accession which it has today deposited. In that case, for the duration of the transition period as provided for in the Withdrawal Agreement as stated above, the United Kingdom will be treated as a Member State of the European Union and the 2005 Hague Convention will continue to have effect accordingly”.
What does this mean?
If the Withdrawal Agreement does come into force on 30 March 2019 then the UK will not accede to the 2005 Convention on 1 April 2019 and will withdraw their Instrument of Accession. Instead, until the end of the Transition Period on 31 December 2020, the UK and the EU 27 will carry on as if nothing has changed, with the 2005 Convention applying in the UK as if it were still an EU Member State. In practical terms while the UK remains an EU Member State (or is treated as one) the 2005 Convention is irrelevant to UK-EU 27 cases, as the jurisdiction clause provisions of Article 25 of the Brussels I (Recast) Regulation (1215/ 2012) have priority and would continue to do so under the terms of the Withdrawal Agreement.
If the Withdrawal Agreement does come into force as planned, whether or not other non-EU signatories to the 2005 Convention (currently Denmark, Singapore, Mexico, and Montenegro) would be prepared to treat the 2005 Convention as continuing to have effect in relation to UK jurisdiction clauses during this Transition Period is not something that either the UK or the EU 27 can themselves agree on. Indeed, all the notification says is that the UK and the EU have agreed that the EU “will notify other parties to international agreements” that during the transition period the UK is treated as a Member State for the purposes of such agreements, including the 2005 Convention. Whatever comfort might be derived from this is unclear as, from a legal perspective, such notification is meaningless.
Presumably, at some stage during the Transition Period, the UK government would accede again to the 2005 Convention, even if the UK’s proposals for a new international convention with the EU to replace the Brussels I (Recast) Regulation were agreed to by the EU.
If the Withdrawal Agreement does not come into force, then on 1 April 2019 the 2005 Hague Convention will apply in the UK to jurisdiction agreements concluded as from that date (ignoring for present purposes any arguments about the “theological grey-area” over whether or not the UK actually had lawfully authority to accede to the 2005 Convention while still a Member State of the EU in the first place). Jurisdiction agreements concluded up to 11 p.m. on 29 March 2019 should be covered by the 2005 Convention (as per the UK’s former EU membership).
Clients are thus perhaps best advised to not enter into any jurisdiction agreements between the 29th and 31st March 2019.
However, in existing proceedings (in both the UK and EU 27 Member States) where jurisdiction disputes have not been resolved prior to 30 March 2019 and no Withdrawal Agreement comes into force, the precise nature of the relationship between the 2005 Hague Convention (in its pre-or-post Brexit incarnations) and English jurisdiction agreements that currently fall within the material scope of Article 25 of the Brussels I (Recast) Regulation (1215/2012) may end up being a matter of some dispute.
For all cross-border litigators, no one can doubt that we live in “interesting times”.
Michael McParland QC