European Union: Two Roads Diverge: Outcomes For Civil Judicial Cooperation Post-Brexit - A UK View

Last Updated: 11 October 2017
Article by Diarmaid Gavin and Mark Murran

The Future Partnership Papers published by the UK in advance of the last round of negotiations in Brussels are high in sentiment but short on detail. What is clear from the paper on cross-border civil judicial cooperation is that Theresa May's 'red line' on the role of Court of Justice of the European Union (CJEU) in a post-Brexit United Kingdom is perhaps closer to a shade of pink.

The paper serves to highlight perhaps a more realistic assessment that any future relationship between the parties must necessarily involve some sort of recognition of the CJEU while at the same time reiterating the UK's view that the direct jurisdiction of the CJEU must come to an end.

The UK restates its commitment to maintaining cooperation for the benefit of individuals, families, consumers and businesses and its longing for a "deep and special relationship" with the EU, but it is hard to see this happening in any meaningful way before deadline day without the UK softening its approach or agreeing to some sort of transitional arrangement.

However the publication of the papers has been overshadowed by the elephant in the room that is the divorce settlement, encompassing citizens' rights, the exit bill and Northern Ireland. They come at a time when the EU's chief negotiator Michel Barnier is keen to refocus the talks on these issues and the EU position that there can be no negotiation of any future relationship until this stalemate is rectified.

A Future Framework?

The paper recognises that existing international conventions will cover some but not all areas hence the need for a more comprehensive agreement which should reflect the principles of cooperation under the current EU framework.

The UK states its intention to incorporate the Rome I & II Regulations into the domestic legal order in line with the 'Great Repeal Bill'. This would provide certainty in relation to choice of law for contractual and non-contractual obligations. However this can only be the case where the UK is required to follow or give due account to past as well as future CJEU rulings if there is to be any uniformity in its application.

Rome I & II do not however cover jurisdiction, or recognition and enforcement of judgments. Without a robust solution being proposed this will undoubtedly lead to a situation whereby parties to a contract will move away from English jurisdiction clauses in search of certainty.

This has the potential to impact England and Wales as one of the world's largest dispute resolution hubs while at the same time representing a huge opportunity to competing jurisdictions. Ireland would be well placed to capitalise on this shifting market as the last remaining native English speaking member of the EU.

The UK says it wants to "continue and deepen civil judicial cooperation internationally", signalling a move towards a more global regime. To this end they clearly state their intention to continue participation in the Lugano Convention of 2007 which covers jurisdiction and the recognition and enforcement of judgements.

The Lugano Convention was however modelled on the earlier Brussels I Regulation so will not take into account many of the updates from the Brussels Recast Regulation. A further fly in the ointment is that the convention is only open to EU Member States, future members of the European Free Trade Area (EFTA), which is another matter entirely, or other third party states upon unanimous agreement of all contracting parties which is by no means guaranteed.

The UK also wants to continue being a "leading member" in the Hague Conference and participate in conventions to which they are already a party and those to which they are already a party by virtue of the membership of the EU i.e. the 2005 Convention on Choice of Courts Agreements.

In this regard service of documents abroad would fall to be dealt with under the 1965 Convention to which the UK is already a party other than in their capacity as an EU Member State. The 2005 Convention on the other hand would have to be ratified afresh. While this would go some way to helping, the 2005 Convention is not the truly global solution the UK seeks, in that at present Mexico and Singapore are the only non-EU countries party to it.

The UK is adamant that leaving the EU will not weaken the rights of individuals and businesses but it is hard to see the transition being seamless when they are proposing to adopt measures which are not tailored to deal with the situation they find themselves in.

The Road Less Travelled

The paper also sets out guidelines should agreement between the parties not be reached. EU rules governing applicable law for contractual and non-contractual obligations should continue to apply for contracts concluded prior to the withdrawal date.

EU rules governing jurisdiction should continue to apply for all legal proceedings instituted before the withdrawal date. Where choice of court has been made prior to the withdrawal date the existing EU rules should continue to apply.

The existing EU rules around recognition and enforcement of judicial decisions should continue to apply to decisions given before the withdrawal date or to proceedings instituted before the withdrawal date.

While this provides some helpful clarity to governing law and jurisdiction in commercial contracts enter into before formal withdrawal of the UK the enforcement of such contracts after withdrawal remains uncertain.

The Road Not Taken...

The tone of the paper gives the impression that the UK is sorry it cannot travel both roads, wanting all the perks that come with membership of the EU without the supervision. The question remains that come March 2019 will the UK look back and be happy with its choice.

We may gain more insight into the UK's priorities sooner than we think as Downing Street has announced that Theresa May will give a speech on 22 September in Florence which will delay the next round of negotiations, which were due to resume this week.

At the very least the speech will act as a yardstick to assess whether the UK has softened its approach to Brexit since Theresa May's Lancaster House address in January of this year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.