Main post-Brexit legal perspectives for the UK

I am grateful  to Lorraine Lauriot dit Prévost, trainee for a few weeks in my Law firm, for this article 

As of 1 January 2021, the UK officially ceased to be a member of the European Union. However, the negotiations on the Withdrawal Agreement, which have been prolonged by multiple postponements, have largely ignored the fundamental legal issues.

As part of the sovereigntist project that is Brexit, outlined by Theresa May in her speech of 17 January 2017, the pre-eminence of UK law over any additional legal system is reinforced [1].

The return to private international law is therefore to the detriment of the Community system of European law, of which no preferential regime remains.

The latter, under the authority of the Court of Justice of the European Union (CJEU), has in particular allowed the simplification of judicial cooperation and better access to justice.

Among its main tools, the Brussels I bis Regulation is one of the most advanced: it facilitates the handling of transnational cases and simplifies exequatur procedures between member countries. The UK is no longer a member. Only the Rome II Convention, by virtue of its universal character, continues to determine the law applicable to extra-contractual obligations under English law [2].

Having regained its independence, the United Kingdom now needs to sign new agreements in order to overcome the complexity of private international law, which is disparate, and to avoid legal isolation which is harmful to English and European nationals and economic agents.

Thus, as the procedures for bringing actions on foreign judgments become more cumbersome and less predictable, several options have so far been considered

On the one hand, the UK could accede to the 2007 Lugano Convention, an international treaty between the EFTA countries (European Free Trade Association) and the EU. Its terms are similar to the Brussels regime in the areas of jurisdiction, recognition and enforcement of judgments in civil and commercial matters. In other words, the choice of forum is codified, and the exequatur procedures are streamlined in a relatively homogeneous framework with the European institutions, with the advantage of not being subject to the action of the CJEU[3].

However, the UK's accession to the Lugano Convention remains hypothetical. In May 2021 the European Commission opposed the UK's application to join EFTA, pending a vote in the Council of Europe [4]. In the absence of the agreement of the contracting members, this prospect of cooperation is on hold. Moreover, the systemic differences between continental civil law and common law make it difficult to apply the Convention in practice: this raises the question of a potential bilateral agreement specific to the legal relations between the EU and the UK [5]. However, less than two years after the Brexit agreement, this option does not seem to be on the agenda.

On the other hand, the UK could become a signatory to the 2005 Hague Convention, from which it ceased to be a party after the Brexit. Unlike the Lugano Convention, it is open to all states and does not require the agreement of the contracting parties. Through choice of court agreements, the Hague Convention legislates on the competent jurisdictions for - commercial - disputes. It provides certainty by rejecting the doctrine of forum non conveniens, according to which a court or forum may declare itself incompetent to deal with a case and refer it to another court or forum[6]. It should be noted, however, that accession to the Hague Convention requires a 12-month period during which the terms of the treaty can be reviewed bilaterally, so this second option does not offer greater certainty.

In conclusion, the UK's legal prospects are defined around the Lugano (2007) and Hague Conventions. An alternative regime of cooperation with the EU appears necessary to avoid the isolation of English law, without which the UK, although more autonomous, would suffer from many uncertainties.

What about UK/France relations?

UK court decisions remain enforceable in France without review of the merits of the case, subject to an exequatur procedure which examines the conditions of the enforceable judgment. [7] This recognition can take between 10 and 18 months, during which time certain provisional measures can be taken, followed by the enforcement of the English judgment.

Lorraine Lauriot dit Prévost

lorraine.prevost.20@ucl.ac.uk

[1] May, Theresa. The Government’s Negotiating Objectives for Exiting the EU: PM Speech. Prime Minister’s Office, 10 Downing Street, Department for Exiting the European Union.

[2] Squire Patton Boggs. “Adoption Du Règlement Rome II Sur La Loi Applicable Aux Obligations Non Contractuelles.” Larevue.squirepattonboggs.com, 15 Oct. 2007, larevue.squirepattonboggs.com/adoption-du-reglement-rome-ii-sur-la-loi-applicable-aux-obligations-non-contractuelles_a86.html.

[3] Muir Watt, Horatia. Rapport Sur Les Implications Du Brexit Dans Le Domaine de La Coopération Judiciaire En Matière Civile et Commerciale Du Haut Comité Juridique de La Place Financière de Paris. Haut Comité Juridique de la Place financière de Paris, 30 Jan. 2017.

[4] European Commission. Communication from the Commission to the European Parliament and Council / Assessment on the Application of the United Kingdom of Great Britain and Northern Ireland to Accede to the 2007 Lugano Convention. 4 May 2021.

[5] Hess, Burkhard. “The Unsuitability of the Lugano Convention (2007) to Serve as a Bridge between the UK and the EU after Brexit.” Max Planck Institute Luxembourg for Procedural Law Research Paper Series, vol. 2018, no. 2, Jan. 2018, pp. 0–10.

[6] Ibid 3

[7] Clifford Chance. How English Judgements Will Be Enforced in the Post-Brexit EU. Clifford Chance, 2021.