Civil and commercial litigation after Brexit
On 22 August 2017, the government published a position paper on the cross-border civil judicial framework after Brexit.
The position papers makes clear that the government wishes to maintain a close cooperative relationship between the legal systems of the UK and EU and ensure that individuals, consumers and business are able to resolve their disputes in a clear, predictable way. The optimum outcome is an agreement which closely reflects the existing relationship.
For businesses, it is positive to note that the UK will continue to support contracting parties’ decisions agree which country’s law will apply to a contract. The UK intends to incorporate the Rome I and II instruments on choice of law and applicable law in contractual and non-contractual matters. Under the Rome Convention, parties are free to choose the law to govern the contract. In the absence of party choice, a contract will be governed by the law of the country with which it is most closely connected. Rome II provides that courts in all member states apply the same choice of law rules to disputes involving non-contractual obligation. The UK is also committed to continue to be a member of the Hague Conventions, which deal with cross-border civil litigation, and the Lugano Convention.
The position on issues such as which courts will have jurisdiction and enforcement of judgments is less clear.
Ultimately, any final arrangement will be reciprocal but it is encouraging to note that the UK wishes to ensure that the final arrangement for cross-border litigation mirrors the current framework.
The position paper can be found at: https://www.gov.uk/
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