Recognition of Judgements
There are extensive common EU regulations in relation to cross-border legal issues and the enforcement of judgements throughout the European Union. In the event of a no deal Brexit, these rules will cease to apply in the absence of an agreement or provision otherwise. It is likely that the UK would seek reciprocal rules on recognition.
In the event of a no deal Brexit, the following rules would cease to apply respect of the United Kingdom
- the Brussels regulation in relation to rules as to where the proceeding should be heard
- certain other conventions and arrangements with EFTA states and Denmark in similar terms.
The EU provisions on recognition and enforcement of judgements will no longer be available in respect of the UK in other EU states. There will be governed by the national law of the state in which recognition is sought, by international conventions to which both the EU or EU member states and the United Kingdom are a party.
The UK would become a term country in respect of civil justice in Ireland and Ireland, and other EU countries would become a third country in respect of civil justice in the United Kingdom. In each case, the third country regimes applicable would apply to the EU.
Some agreements are not EU agreements as such and may continue to apply such as the Hague Convention
The common law and other statutory provisions on cross-border cases would apply.
Choice of Law
UK courts determine the governing law of a contract in accordance with the Rome I Regulation. Following Brexit, the position is unlikely to change significantly if they courts revert to common law rules, as these are similar to the provisions of Rome I Regulation. An express choice of law in an agreement will most likely continue to be upheld.
With regard to non-contractual liability, the Rome II Regulation does not as closely reflect the previous position of English common law. It appears that the UK and its courts can retain the Rome II rules on the applicable law in non-contractual matters s as they are not based on reciprocal arrangements. The UK has indicated it would rejoin the Hague Convention on the choice of court agreements, directly as a member
Special EU Procedures
The provisions in respect of judicial procedures including EU measures for facilitating cooperation, e.g. in relation to service of documents taking evidence, the European judicial network in civil and commercial matters would no longer apply in respect of the United Kingdom after Brexit.
The EU service regulation and the taking of evidence regulation which are reciprocal would cease to apply. The equivalent Hague Conventions in the area which apply to most EU states would be substituted.
The European payment order procedure European procedure for small claims would not be available in respect of enforcement in the United Kingdom or enforcement of United Kingdom judgements in the EU.
The cross-border insolvency regulation would be displaced in the event of a hard Brexit. IN principle, it would be possible to commence insolvency proceedings in a more unrestricted fashion.
The UK proposes to retain the EU rules regarding the UK courts which have jurisdiction where a company or individual is based in the UK.
It will be necessary to make an application in other EU states under their domestic law in order to have UK insolvency orders recognised there. Recognition would be no longer based on common EU rules.
The special rules in relation to family law cooperation will cease to apply. In the case of some of these rules, they would continue to apply on the basis of UK stand-alone membership of a number of Hague conventions on family law.
Some of the existing EU rules would be replaced by convention rules including those in relation to
- parental responsibility matters including jurisdiction recognition and enforcement rules for the return of wrongly abducted or retained children
- maintenance recognition and enforcement
- central authority cooperation
- divorce recognition
There are some differences between the Hague and the EU rules. In many areas, the Hague rules are not in as strong terms as to cooperation as the EU rules. In the case of maintenance, the UK proposes to adopt the position prior to the maintenance regulation and EU rules.
The UK confirms it will unilaterally recognise incoming civil protection measures of EU states to ensure vulnerable individuals continue to be protected.