UK: Jurisdiction And Applicable Law After Exit Day: If Not That Agreement, Then What?

Last Updated: 4 January 2019
Article by Joshua Folkard

There is just over 3 months to go until Exit Day, defined by the European Union (Withdrawal) Act 2018 as 11pm on 29 March 2019.

If no agreement can be reached between the UK and the European Union on judicial co-operation in civil and commercial matters before then, what rules will apply to jurisdiction, the recognition/enforcement of judgments and applicable law from that date?

Sections 2 to 4 of the European Union (Withdrawal) Act 2018 ("the Withdrawal Act") adopt a 'copy-paste' approach to existing EU rules and EU-derived domestic legislation, which will become "retained EU law". Section 8 of the Withdrawal Act enables secondary legislation to cure "deficiencies in retained EU law".

As Exit Day approaches, an increasing amount of secondary legislation has been passed or published in draft. The key provisions already on the statute book or recently released in draft are summarised below:

Applicable Law

Draft "Law Applicable to Contractual Obligations and Non-Contractual Obligation (Amendment etc.) (EU Exit) Regulations 2018" were published on 10 December 2018, with an Explanatory Memorandum.

Those Regulations 'tweak' the wording of the Rome I and Rome II Regulations (as copied over into domestic law) and seek to "preserve the substantive rules of the [Rome] Convention so that they will continue to apply to existing contracts entered into between 1 April 1991 ... and [the entry into force of Rome I]": Explanatory Memorandum, at [2.3].

The Brussels Scheme

The general rules relating to jurisdiction / the recognition and enforcement of judgments are largely contained within the Brussels Recast (for claims commenced on or after 10 January 2015) or Brussels I (for claims issued prior to that date).

The Government explained in its Technical Notice "Handling civil legal cases that involve EU countries if there's no Brexit deal" dated 13 September 2018 its intention in a 'no-deal' scenario that the Brussels Recast would be "repealed for all parts of the UK" and that it would "repeal most of the existing civil judicial cooperation rules and instead use the domestic rules which each UK legal system currently applies in relation to non-EU countries".

That plan is given effect by the draft Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 published on 12 December 2018, along with an Explanatory Memorandum. Broadly, those Regulations revoke the Brussels Recast and Brussels I Regulations and extinguish the rights etc. derived from the earlier Brussels Convention. In their place, "jurisdiction and the recognition and enforcement of judgments will be determined by a combination of the existing common law and statute which currently applies to cases to which the Brussels regime does not apply": Explanatory Memorandum, at [7.2].

There are exceptions, however, for some of the specific consumer and employment rules contained within the Brussels Recast: see, in particular, the draft sections 15B and 15C of the Civil Jurisdiction and Judgments Act 1982, which would be inserted by Regulation 26 of the draft Jurisdiction Regulations. Transitional provisions would also apply: (i) with regard to jurisdiction, for proceedings commenced in the UK but not concluded before Exit Day; and (ii) regarding the recognition and enforcement of judgments given by Courts seised prior to Exit Day, provided that the English Court has not considered or concluded its consideration of the issue before that date: Regulation 92.

The Hague Convention

The UK is currently a party to the Hague Convention on Choice of Court Agreements dated 30 June 2005 ("the Hague Convention") through the ratification of that Convention by the EU on behalf of its Member States: the parties to the Convention can be found here.

The Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018 (SI 2018/1124) seek to an extent to maintain the continued application of the Hague Convention before the UK re-joins in its own right, which is the Government's stated aim: Technical Notice "Handling civil legal cases that involve EU countries if there's no Brexit deal" dated 13 September 2018.

Those Regulations will come into force on 29 March 2019: Article 1.

European Enforcement Order Regulation

The European Enforcement Order Regulation 805/2004 ("the EEO Regulation") deals with the recognition and enforcement of judgments, court settlements and authentic instruments given on "uncontested claims": Article 3(1).

Subject to some transitional provisions, the European Enforcement Order, European Order for Payment and European Small Claims Procedure (Amendment etc.) (EU Exit) Regulations 2018 (SI 2018/1311) revoke the EEO Regulation.

The EEO Regulation will, however, continue to apply if (i) the relevant Judgment, Court Settlement or Authentic Instrument has been given; approved or concluded; or drawn up or registered before Exit Day; and (ii) the application for the EEO Certificate is made before that date: Article 16(1).

Those Regulations will come into force on 29 March 2019: Article 1.

Only the political process, however, will tell us whether the rules set out above are those which we will in fact be applying after 11pm on 29 March next year.


To receive the talk "Jurisdiction and Applicable Law after Exit Day – What You Need to Know", please contact marketing@4newsquare.com

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions