The European Commission has published a Notice to Stakeholders setting out the rules that it considers will apply in the field of civil and private international law once the Brexit transition period comes to an end on 31 December 2020 (assuming no other agreement is reached).
At the end of the Brexit transition period, the current reciprocal regime that governs jurisdiction and the enforcement of judgments between the UK and the EU will no longer apply.
Where there is an exclusive jurisdiction clause in favour of a UK or EU court, any dispute may fall within the 2005 Hague Convention on Choice of Court Agreements. However, the 2005 Convention applies only if the exclusive jurisdiction clause was entered into after the Convention’s entry into force for the state of the chosen court. The 2005 Convention originally entered into force for the UK on 1 October 2015, when the EU acceded on behalf of all Member States (apart from Denmark, which acceded separately from 1 September 2018). Under the UK/EU Withdrawal Agreement, it was agreed that the UK would be treated as an EU Member State for the purposes of international agreements (including the 2005 Convention) until the end of the transition period. The UK’s intention is to re-accede to the 2005 Convention in its own right from 1 January 2021, so that the 2005 Convention continues to be in force for the UK after that date.
However, the Commission’s view is that the 2005 Convention will apply to exclusive English jurisdiction clauses only if they are entered into after 1 January 2021. We believe the better view is that the 2005 Convention should apply to exclusive English jurisdiction clauses entered into from 1 October 2015 onwards but the issue will fall to be determined by the relevant EU Member State court hearing any dispute.
For further discussion of this issue, see this post on our Litigation Notes blog.
For the latest on Brexit and the changes that are coming on 1 January 2021, see our ebulletin which gives a brief update on prospects for a deal, the implications for business with or without one and where to find more information and assistance to navigate the changes. There is also an invitation to our next Brexit video webinar on 24 September.
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