The post below was first published on our Litigation blog
On Friday last week (29 March 2019), the depositary for the 2005 Hague Convention on Choice of Court Agreements issued a notice communicating that the UK’s accession to the Convention is suspended until 13 April or 23 May 2019, depending on the date of the UK’s exit from the EU, following a declaration to that effect received from the UK government last Thursday. The intention is that the accession should take place the day after the UK’s exit from the EU, to achieve continuity in the Convention’s application to the UK following Brexit (when the UK will cease to be a party to Hague by virtue of its EU membership).
The UK deposited its instrument of accession to the Convention in December 2018 (see this post) with the intention that the Convention would come into force for the UK on 1 April 2019 (in accordance with article 31 which provides for the Convention to enter into force on the first day of the month following the expiration of three months after the relevant instrument is deposited). That would have left a short “gap” in the Convention’s application to the UK following the original Brexit date of 29 March. Assuming there are no objections to the recent suspension of the UK’s accession, it seems that such a gap may now be avoided.
However, there remains some uncertainty over whether other contracting states to the Convention will apply Hague rules where an exclusive English jurisdiction clause was agreed before the UK re-joined Hague in its own right, even if the clause was agreed when the UK was party to Hague by virtue of EU membership (referred to as the “change of status” risk).
Click here for our recently published decision tree aimed at helping to determine which rules will apply to enforcement of English judgments in the EU27 post-Brexit – whether the current rules in the recast Brussels Regulation, or the 2005 Hague Convention, or the local rules in each EU27 country. As noted above, however, the potential gap in the application of Hague post-Brexit, as referred to in the decision tree, may not now materialise.