The smooth functioning of international civil legal proceedings across European Union (EU) national frontiers has been one of the benefits of EU membership. With the United Kingdom (UK) now departing from the EU, are cross-border litigation cases going to encounter new obstacles?
Following the recent grant of Royal Assent and the signature of the European Commission, the European Union (Withdrawal Agreement) Bill (Withdrawal Agreement Bill) has become law. Once in effect, the Withdrawal Agreement Bill will incorporate the terms of the “Agreement of the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community” (Withdrawal Agreement) in UK law, thereby effecting the withdrawal of the UK from the EU on 31 January 2020 (Brexit).
The process of Brexit has led to uncertainty regarding the future of the existing legal regime regarding reciprocal enforcement, choice of law, and ongoing judicial cooperation (among others) between UK and EU legal institutions.
Prior to Brexit, judicial cooperation between the UK and EU states was governed by a number of EU regulations and directives, including (but not limited to)
- Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I);
- Regulation (EC) No 846/2007 on the law applicable to non-contractual obligations (Rome II);
- Regulation (EC) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels Regulation);
- Regulation (EC) No 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters (Service Regulation); and
- Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters (Mediation Directive).
In broad terms, the Rome regulations govern choice of law provisions within the EU, and the Brussels regulations govern both cross-border enforcement of court judgments and service of process.
Following the results of the referendum decision in June 2016 and over the course of the negotiations of the terms of Brexit, there were serious concerns that once the UK left the EU, these EU regulations and directives regarding judicial cooperation would no longer apply. If this were to have been the case, the UK would have had to rely on existing common law and statute, resulting in a potentially complicated and relatively outdated system.
As a result of the enactment of the Withdrawal Agreement Bill, however, Articles 66 to 69 of the Withdrawal Agreement as currently drafted will be incorporated into UK law. These articles provide for the continued application of a number of key EU regulations and directives after 31 January 2020 (including those listed above). The provisions do, however, contain a caveat that the relevant regulations or directives will only remain in force in respect of “legal proceedings [or other relevant actions being] instituted before the end of the transition period””. The transition period will (unless an extension is agreed before 1 July 2020) run until 31 December 2020, so until that point the current regime of UK/EU judicial cooperation will remain in place. At this stage, what will become of the regime from 1 January 2021 onwards is unclear, although the UK government has indicated a desire to put in place measures that replicate as closely as possible the existing regime.
For better or worse, there will be irrevocable changes to the relationship between the UK and the EU as of 31 January. However, existing (and potential future) litigants can, at least for now, be comfortable that the existing principles of reciprocal enforcement and judicial cooperation will remain in effect as regards any proceedings begun this year. What becomes of the relevant regimes following 31 December 2020 is another question altogether; it is possible, although far from certain, that some clarity over the future position will emerge during the course of the transition period.