Jurisdiction jousts after Brexit: more conflicts ahead?

03/03/21

Wednesday 3 March 2020 at 11am online.  

The recording of the seminar is here.

Members of chambers will discuss the new legal framework and transitional provisions, the effect and limitations of The Hague Convention, the latest changes to the CPR to permit service out and the potential use of anti-suit and anti-enforcement injunctions. 

Chaired by Sir Richard Aikens

Speakers:

• Daniel Jowell QC
• Stephen Midwinter QC
• Charlotte Thomas
• Jacob Rabinowitz

Owing to technical difficulties at the end of the seminar it wasn't possible to have a question and answer session.  Accordingly, here are answers to four questions that were received:

Question: 

(1) I think the Commission has to respond [on Lugano] by the end of March.   It does not look like being positive.   The EFTA countries have said yes. [Is that your understanding]?  

Response:

(1) As we understand the position on Lugano, the EFTA countries and Switzerland have indicated that they would be willing for the UK to join and the Commission is expected to respond on behalf of the EU by the end of March. 

Question: 

(2) What is to stop an English barrister giving advice on Brussels Recast here in London?  Although he/she cannot argue the point in Luxembourg? 

Response:

(2) You should follow the advice of the professional bodies (Bar Council and Law Society) on this issue – and the position is still being clarified.  As we understand the position, however, there is nothing in the TCA at least that stops an English barrister providing EU law advice in the UK to a UK client. However, if the client is based in another EU Member State then there is a possibility that the services could be treated as rendered in that other Member State. If the UK barrister is qualified in another EU Member State (e.g. Ireland) then the barrister can provide advice on EU law at least in the other EU Member State in which they are qualified (e.g. in or to Ireland).  Whether a UK barrister qualified also in another Member State (e.g. Ireland) can provide EU law advice in another Member States where they are not qualified (e.g. France) is currently unclear and may vary by Member State (although they likely can do so if the barrister is a citizen of an EEA Member State). 

Question: 

(3) Do you think that the English courts will be busier than ever now?   

Response:

(3) At least in the short and even medium term, yes. For one thing, we will be busy arguing about the new rules! In the longer term, it is possible that the application of common law rules (including the potential broader availability of antisuit relief and procedural orders to support enforcement) and other factors might actually make this jurisdiction a more attractive venue for litigation. For example, it is also possible that England will come to be seen as a more attractive ‘neutral’ venue for contract disputes between EU and non-EU parties. That may, or may not, be counterbalanced by the greater difficulties with enforceability (discussed below).

Question: 

(4) why is enforcement of English judgments in EU states so important – as some seem to think that it is?   For commerce I would have thought that it is likely that there will be assets in the UK,  specifically in London,  so will that really be an issue?

Response:

(4) In principle, it is desirable for the purposes of attracting legal business to this jurisdiction that our judgments should be as enforceable overseas as easily and widely as possible.  It may be that even the perception of a less portable judgment may be a deterrent in some cases. For that reason, there is a strong business case for the Government exploring ways to improve mutual judgment recognition as between the UK and the EU/EEA, whether that be via Lugano or other multilateral arrangements(perhaps even the new Hague Convention on Recognition and Enforcement of Judgments, in the fullness of time).  

Absent Lugano or an equivalent multilateral arrangement, there are, of course, still other possibilities of enforcement of UK judgments in the EU/EEA.  In particular:

(i) Pursuant to the Hague Choice of Court Convention (where it applies);

(ii) Pursuant to certain old bilateral treaties and agreements that may revive, albeit they will assist only in respect of money judgments. These include treaties with:

• Under the Foreign Judgments (Reciprocal Enforcement) Act 1933: Austria, Belgium, France, Germany, Italy, the Netherlands and Norway – Norway confirmed on 13 October 2020 it would revive the old treaty (with amendments; see Command Paper 314); and
• Under the Administration of Justice Act 1920: Cyprus.

(iii) Pursuant to the private international law rules of enforcement in each Member State (albeit that these may well be less certain or slower than enforcement pursuant to the Lugano or Brussels regimes).

Whether potential difficulties in enforcement in the EU/EEA will actually deter large numbers of clients from litigating here is hard to say.  As a physicist once said: prediction is a difficult business, particularly when it involves the future!  Of course, the EEA is a very large economic zone and there may be specific parties with considerable assets located there against which the party bringing proceedings may wish to enforce.  However, it is likely also to be the case that many such defendants will also have assets in the UK and specifically London (or would be no less able or inclined to remove assets to thwart enforcement regardless of the European jurisdiction the assets are currently located in).  Moreover, there are many other very powerful countervailing reasons to bring proceedings in England, and English courts are able to promote the enforceability of English judgments through the making of procedural orders to support enforcement.  We will have to wait and see. 

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