Applying the Hague Choice of Court Convention post-Brexit

The government has set out how it plans, in the event of a "no deal" Brexit, to ensure that the UK will continue to apply the Hague Choice of Court Convention, which currently applies to the UK by virtue of its EU membership.

As explained previously, the government has made it clear that, in the event of a no deal, the UK would re-join the Convention in its own right, and that it anticipates the Convention would come into force by 1 April 2019. That would mean that the Convention would govern jurisdiction and enforcement of judgments as between the UK and the EU (as well as the other contracting states of Mexico, Singapore and Montenegro) where there was an exclusive jurisdiction clause in favour of one of those states - unless and until some other arrangement is put in place, such as an agreement for the UK to join the Lugano Convention (which applies more broadly than Hague, including because it is not limited to exclusive jurisdiction agreements) or a bespoke agreement between the UK and the EU on jurisdiction and enforcement of judgments.

The Foreign and Commonwealth Office has now published a command paper and explanatory memorandum in relation to the Hague Convention. This explains that "if still appropriate as part of 'No Deal' planning", the UK intends to deposit the relevant instrument of accession so that, assuming that is done before the end of December, the re-entry date of 1 April 2019 will be achieved (since under the terms of the Convention it enters into force on the first day of the month following three months after deposit of the relevant instrument).

There is however some uncertainty as to the Convention's continuity of application, given that the UK will cease to be a contracting state when it leaves the EU three days earlier, on 29 March. This is because the Convention applies only where an exclusive jurisdiction clause was agreed after the Convention came into force for the chosen state and proceedings were instituted after the Convention came into force for the state of the proceedings.

In an effort to plug this gap, so far as it can do so unilaterally, the UK government has made a statutory instrument, the Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018. The Regulations aim to ensure that, so far as the UK is concerned, its membership of the Convention will be treated as seamless from when it took effect for EU member states on 1 October 2015. In brief, the intention is that:

• Where an exclusive jurisdiction clause in favour of a (non-EU) Hague contracting state (ie Mexico, Singapore or Montenegro) was agreed pre-Brexit, the UK courts will continue to respect that jurisdiction clause, and continue to enforce judgments where the relevant court took jurisdiction based on it, in circumstances where the UK courts would do so currently under Hague.
• Where an exclusive jurisdiction clause in favour of a Hague contracting state (including EU member states) was agreed post-Brexit but before the Convention re-enters into force for the UK (that is, assuming all goes to plan, in the narrow window between 29 March and 1 April), the UK courts will respect that jurisdiction clause, and enforce judgments where the relevant court took jurisdiction based on it - whether the UK courts would do so currently under Hague or under the recast Brussels Regulation.

The government has said that it will publish another statutory instrument dealing with transitional provisions relating to the recast Brussels Regulation. We will have to wait for that before we have a complete picture, in particular as to how the UK courts will, post-Brexit, treat jurisdiction clauses in favour of EU member states which were agreed pre-Brexit.

As the government recognises, the UK cannot legislate for how other Hague contracting states (including EU member states) will treat exclusive jurisdiction clauses in favour of the UK which were agreed before the Hague Convention re-enters into force. Unfortunately, that piece of the puzzle is likely to remain unclear for some time.