With the UK having left the EU on 31 January, below is a timely reminder of the transitional provisions in the Withdrawal Agreement on the matters of applicable law, jurisdiction and enforcement of judgments, and service and taking of evidence.
The transitional arrangements provide a period for the UK's future relationship with the EU to be negotiated. Given the range of issues to be considered by the end of the year, the question of "deal or no deal" remains applicable from the end of 2020. The final column in the table below summarises the "no-deal" position.
|Transitional provisions (applicable to end December 2020)||"No deal" considerations from the end of 2020|
|Applicable law||Rome I will continue to apply in the UK to contracts concluded before the end of the transition period (31 December 2020 in the current draft, although this can be extended). Rome II will continue to apply in the UK to non-contractual liability where the event giving rise to damage occurs before the end of the transition period.||There will be little practical impact because the provisions of Rome I and Rome II do not depend on mutual reciprocity. The courts of EU member states will continue to apply the provisions of Rome I and Rome II. The UK government intends to retain the provisions of Rome I and II in domestic legislation and has prepared an SI for the purpose (Law Application to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) (Regulations) 2018).|
|Jurisdiction and enforcement of judgments||The Recast Brussels Regulation will continue to apply to legal proceedings instituted before the end of the transition period and to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period.||
The Recast Brussels Regulation will cease to apply in the UK.
The UK will accede to the Hague Convention. There is significant doubt as to whether contracting parties will be able to rely on the streamlined processes in the Hague Convention in respect of agreements entered into prior to exit day.
If the Hague Convention does not apply, it will be necessary to rely on member states' domestic rules on enforcement as regards certain agreements. Most UK judgments will be enforced under the domestic rules of member states, but the processes have varying degrees of complexity and will usually take longer (and cost more) than under the Recast Brussels Regulation.
A further option is the Lugano Convention which also provides a streamlined process, but without the full benefits of the Recast Brussels Regulation (the main issue being it does not prevent so-called "Italian torpedo" proceedings – the tactical commencement of proceedings in one member state, usually a state whose courts are slower to progress proceedings, in breach of an exclusive jurisdiction clause). The Lugano Convention's ratification process requires the UK to gain the approval of all of its members who have up to a year to respond. The UK has recently received statements from Norway, Iceland and Switzerland in support of its intention to accede to the Lugano Convention.
Pursuant to the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, in the event of no-deal the UK courts will most likely apply the current rules under the Recast Brussels
|Service||The current provisions in relation to service and the taking of evidence will apply where (i) the relevant document for service; or (ii) the request for the taking of evidence, was received before the end of the transition period.||The EU Service Regulation and the EU Taking of Evidence Regulation will no longer apply to the UK after exit day other than to outstanding requests for documents to be served or evidence taken when the requests were made before exit day. Service of proceedings will have to be completed by reference to the service requirements of individual member states e.g. the Hague Service Regulation and the Hague Evidence Convention.|