This article has been extracted from our “A litigator’s yearbook: 2019 (England and Wales)”. If you would like to read the full yearbook (which covers key developments relating to a range of topics including jurisdiction, privilege, contract law, settlement and various aspects of court procedure), it is available on our Litigation Notes blog.
The most significant question in the area of conflicts of laws over the past year has been the continuing uncertainty over Brexit and how it will affect jurisdiction and enforcement of judgments as between the UK and the EU27. (It is clear that Brexit will have little impact as regards choice of law.)
What happens next will of course depend to a large extent on the outcome of the general election later this week. If the UK leaves the EU on 31 January 2020 on the terms of the draft withdrawal agreement dated 19 October 2019, the current rules on both jurisdiction and enforcement will apply where proceedings are commenced before the end of the agreed transition period (ie the end of December 2020, unless extended). What comes after that will depend on what, if anything, is agreed during that period.
If there is a no-deal Brexit on 31 January 2020, the UK’s accession to the 2005 Hague Convention on Choice of Courts Agreements will take effect from 1 February 2020. In that case, if an exclusive English jurisdiction clause is agreed after that date, it should generally be given effect by EU27 courts and judgments given pursuant to it should be enforceable throughout the EU27. The same is likely to be true where an exclusive English jurisdiction clause was entered into pre-Brexit (and after 1 October 2015 when the Hague Convention took effect for the UK as an EU Member State) but this is less certain. If the Hague Convention does not apply, and no other agreement is reached, then each country in the EU27 will apply its own domestic rules to questions of jurisdiction and enforcement. For more detail see this blog post: A no-deal Brexit: The implications for disputes. Although that was written with an eye to a potential no-deal Brexit on 31 October 2019, it applies equally if there is a no-deal Brexit on 31 January or indeed some later date.
We have also published a decision tree on enforcement of English judgments in the EU27 post-Brexit, which is intended to act as a quick reference guide to help determine which rules will apply post-Brexit – whether the current rules in the recast Brussels Regulation, or the 2005 Hague Convention on Choice of Court Agreements, or the local rules in each EU27 country. You can click here to access the decision tree, which has been updated in light of the various extensions to the Brexit deadline.