On 31 December 2020, the transition period ended following the UK’s withdrawal from the European Union (EU), however there are still areas around international civil procedure that need to be considered. The Trade and Cooperation Agreement between the EU and the UK does not provide for any provisions in this respect. In particular, matters of jurisdiction and enforcement of judgements – which are covered by the Brussels Regime within the EU – remain in limbo.
Regarding the choice of court agreements, the Hague Convention of 30 June 2005 currently applies, to which the EU acceded in 2015 and the UK is a party to since 1 January 2021. However, this alone does not bring light into the darkness. For instance, it is not yet clear whether the UK will be treated as a party to the Convention when considering exclusive jurisdiction clauses agreed before UK’s accession to the convention. Furthermore, the Hague Convention on Choice of Court Agreements does not contain provisions regarding the reciprocal recognition and enforcement of interim measures of protection.
The Lugano Convention could yield hope, as the treaty is very similar to EU regulations and therefore field-tested. The UK already applied for accession in April 2020 to take effect as of 1 January 2021. However, the consent of the other parties is still pending.
At the moment, international civil procedure law between the EU and the UK is on a shaky ground:
“Without accession, English court judgments regarding cross-border disputes risk losing their force within the countries covered by the convention, and the UK would be reliant on older, more fragmented international agreements that determine which country disputes would be heard in.”
In comparison, arbitration also seems to be a safe haven. Brexit does not affect the enforcement of arbitral awards as it is governed by the New York Convention, to which the EU member states and the UK are signatory parties. Therefore, companies having opted for arbitration to resolve their disputes, are not directly affected by the judicial uncertainties of Brexit. Thus, arbitration clauses are the preferred option to agree on as long as implications on international procedural law have not been resolved.