Brexit: Jurisdiction, Enforcement and Conflict of Laws: A case of “Fog in Channel, Continent cut off?”

17/10/16

On Monday 17th October, Brick Court Chambers hosted the second in its series of panel discussions on the legal implications of Brexit. The event was chaired by Helen Davies QC. 

Julian Makin, the global co-head of mining and metals at Freshfields Bruckhaus Deringer opened the presentations. He discussed the global strength and importance of the UK legal services market due to the certainty, clarity and predictability of the law and the quality of the UK lawyers and judiciary. Post-Brexit, the key issue will be retaining this certainty. Matters that will need to be addressed include the operation of the ‘Great Repeal Act’, the power to amend and repeal EU law once it has been converted into English law and the status of CJEU decisions. 

Sir Richard Aikens considered the impact of Brexit on the Brussels Regulation regime. Sir Richard observed that on the UK’s withdrawal from the EU, the Brussels I Recast Regulation and Lugano Convention 2007 will cease to have any effect. However, the Brussels Convention still has the force of law in the UK, and would arguably bind Member States who joined the EU after the Brussels I Regulation. The best solution going forwards would be for the UK to enter a bilateral treaty with the EU allowing the UK to participate in the Brussels Regulation regime. This would, however, give rise to both practical and political difficulties. 

Oliver Jones addressed the possibility of a resurgence for anti-suit injunctions on Brexit. He observed that in the unlikely scenario that the default position on Brexit was a return to the common law, the anti-suit injunction would return with full force.  Noting, however, that the restrictive EU case law arose under the Brussels Convention, the result of Brexit may be that the UK remains subject to the EU jurisdictional regime with none of the benefits negotiated in the Recast Regulation. Agreeing with Sir Richard, he agreed that the best outcome would be for the UK to remain subject to the Brussels I Recast Regulation. 

Ben Woolgar considered the enforcement of judgments. Having outlined the current system, he noted that it works well because it is procedurally simple, covers a wide range of decisions, is relatively quick and also has a high degree of certainty due to the narrow scope of the defences. The best option on Brexit would therefore be to retain the Brussels I Recast Regulation if the necessary reciprocity can be agreed. Considering the other options, he observed that the Lugano and Brussels Conventions would require a judgment to be recognised in the other state prior to enforcement. Enforcement under the Hague Choice of Courts Convention or the common law is significantly more difficult. 

Finally, Andrew Henshaw QC discussed two topics.  First, the current EU Evidence and Service Regulations compared to the default Brexit position.  In the absence of these Regulations, the UK would fall back on the relevant Hague Conventions and other bilateral arrangements. However, problems would include the fact that not all EU Member States are parties, the processes are significantly slower, and the scope for participation in the taking of evidence would be reduced. Secondly, Andrew discussed precautions parties can take in relation to all the topics covered, and where intervention by the UK Government will be essential, focussing on (a) jurisdiction and the “Italian torpedo” problem under the Brussels Convention, (b) severability of jurisdiction clauses, (c) arbitration and (d) enforcement of judgments.

The presentations were followed by a Q&A session. 

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