The UK Government has, on 22 August 2017, published a paper on cross-border judicial cooperation after Brexit (the “Paper“). The Paper can be found here.
The Paper is the second in a series of “Future Partnership Papers” (the first being the Customs paper published on 15 August 2017) which set out the key issues that form part of the Government’s vision for the “future deep and special partnership” between the UK and the EU after Brexit.
Judicial cooperation: a future deal
Civil judicial cooperation is the legal framework that governs the interaction between different legal systems in cross-border situations.
The UK currently participates in the EU’s civil judicial cooperation system provided by a range of instruments which determine: which country’s court will hear a dispute (jurisdiction); which country’s law will apply to determine the dispute (applicable law); and how judgments from the courts of member states will be recognised and enforced in other member states (recognition and enforcement).
The Paper outlines the importance of civil judicial cooperation, particularly the predictability and certainty that it provides for citizens and businesses from both the EU and the UK. In order to ensure that such predictability and legal certainty continues after Brexit, the Paper emphasises the need to negotiate and agree a new civil judicial cooperation framework which would reflect, so far as possible, the existing reciprocal cooperation in this area. This would be one aspect of the future partnership between the UK and the EU.
Judicial cooperation: no future deal
The EU has not yet outlined its position in respect of ongoing cooperation in this area post Brexit. However, a paper from the European Commission to the UK published on 13 July 2017 (the “Commission Paper“) (found here) outlines the main principles that the EU considers should apply on the date the withdrawal agreement enters into force.
The position outlined in the Commission Paper assumes no future agreement in this area, but rather considers the principles that should apply to: choices of law and forum that are made prior to the withdrawal date; litigation that has been commenced prior to the withdrawal date; and judicial decisions that are made prior to the withdrawal date.
Whilst the Paper is clear that it is in the interests of both the UK and the EU to continue to cooperate in this area, it nevertheless outlines the Government’s position based on the assumptions made in the Commission Paper. The respective positions of the UK and the EU are broadly similar.
The content of the Paper is perhaps unsurprising. Broadly the general consensus, both legally and politically, has been that future agreement is required in respect of EU/UK judicial cooperation after Brexit. Whilst it is within the UK’s competence to incorporate existing EU principles into UK law – indeed the Government notes in the Paper that it will incorporate rules relating to choice of law into domestic law post Brexit – the UK’s unilateral legislation will not have effect in the EU. The UK will not, for example, be able to legislate to ensure that English court judgments are recognised and enforced in EU member states after Brexit. This is why a future agreement is required.
The fact that the EU has not yet published its position in respect of a future agreement in this area is also unsurprising. The EU has been firm in its position as to sequencing of negotiations – “sufficient progress” on the withdrawal negotiations must be made before the EU will consider negotiating the future agreement. If no “sufficient progress” is made and the UK leaves the EU without a future agreement in place, the UK will likely seek transitional arrangements in this area to avoid legal uncertainty on day one post Brexit until agreement in this area is reached. Overall, given the degree of alignment between the Paper and the Commission Paper, it seems reasonable to conclude that new arrangements are indeed reasonably likely to be agreed which will serve to maintain as much as possible of what currently exists.