Brexit: civil judicial cooperation

This paper is no longer being updated.

Increasingly, disputes may involve nationals or companies from more than one country. Civil judicial cooperation is the legal framework that governs the interaction between different legal systems in cross-border situations.

In order to provide certainty and to avoid litigation in the courts of more than one country on the same dispute, a set of rules sets out:

• which country’s law applies;
• which country’s courts have jurisdiction to hear the case;
• the recognition and enforcement in one country of a judgment obtained in another country;
• the approach to managing insolvency.

Civil judicial cooperation may be relevant in a number of contexts, including, for example, commercial agreements; civil cases (eg personal injury); family disputes, including divorce and arrangements for children; and insolvency.

Consideration by Select Committees

In reports published in March 2017, the House of Lords EU Justice Sub-Committee and the House of Commons Justice Committee both expressed concern about the uncertainty which would arise in the absence of alternative arrangements to the EU Regulations now in place. Both Committees called on the Government to provide details of how they intend to proceed.

Post-Brexit proposals

On 13 July 2017, the EU published a position paper, Judicial Cooperation in Civil and Commercial matters, which presents the EU’s position in the context of separation. It sets out the main principles that the Commission considers should apply on the withdrawal date to the winding down of the existing relationship between the EU and the UK. The paper deals only with how withdrawal will affect existing proceedings, including choice of court and choice of law.

The Government’s policy paper, Providing a cross-border civil judicial cooperation framework - a future partnership paper, published on 22 August 2017, is more wide‑ranging. The UK’s position is that it is in the interests of both the UK and the EU for cooperation in this field to continue. It has acknowledged the need to negotiate and agree a new civil judicial cooperation framework for future cases, in order to maintain confidence and certainty in cross-border interactions. The UK is seeking a new agreement mirrored on existing provisions, although it does not set out in detail how this might be structured.

The Government considers that, in cross border interactions, citizens and businesses need to have continuing confidence about which country’s courts would deal with any dispute, which laws would apply, and to know that judgments and orders obtained would be recognised and enforced, as is the case now. It is the Government’s view that a new agreement with the EU would make cross border civil litigation involving UK and EU parties “easier, cheaper and more efficient for all involved”.

The Government does not consider that existing international conventions would be sufficient, on their own, to deal with civil judicial cooperation post-Brexit.

The UK also intends to incorporate into domestic law the Rome I and II instruments on choice of law and applicable law in contractual and non-contractual matters. These regulations do not require reciprocity.

The UK has reiterated that when it leaves the EU, the CJEU will no longer have direct jurisdiction in the in the UK, because the CJEU derives its jurisdiction and authority from the EU Treaties. However, it states that “where appropriate, the UK and the EU will need to ensure future civil judicial cooperation takes into account regional legal arrangements, including the fact that the CJEU will remain the ultimate arbiter of EU law within the EU”.

The Government’s paper also responds to the EU’s paper and sets out the Government’s position on what should happen at withdrawal to existing cases, in the absence of any new agreement (this is stated to be without prejudice to negotiations on the future partnership). The UK’s position, in that event, appears to be largely in agreement with the EU’s position paper, but not identical on all aspects.

Arrangements with countries outside the EU

The UK intends to continue to participate in the Hague Conference on Private International Law and the United Nations Commission on International Trade Law (UNCITRAL). The UK also intends to participate in those Hague Conventions to which it is already a party and those in which it currently participates as an EU member.

The Government will seek to continue to participate in the 2007 Lugano Convention, which, by virtue of membership of the EU, forms the basis for the UK’s civil cooperation with Norway, Iceland and Switzerland.

Views of interested parties

The Law Society considers the Government’s post-Brexit proposals, as set out in its policy paper, to be a “step in the right direction”. It said that it was encouraging that the Government had chosen to listen to solicitors’ concerns and give civil justice cooperation “the high priority it clearly needs”.

The Bar Council welcomed the Government’s policy paper but said that “the devil will be in the detail”.

The Institute of Directors has commented that “The success of Brexit will depend on such seemingly technical details as cross-border judicial cooperation”.