I. INTRODUCTION
On 29 March 2017 Theresa May, Prime Minister of the United Kingdom, notified Donald Tusk, President of the European Council that the United Kingdom wished to withdraw from the European Union. After a process that started with the Brexit Referendum on 23 June 2016, and following a decision of the Supreme CourtFootnote 1 as well as approval of the Lower and the Upper Houses of the UK ParliamentFootnote 2 (and the Royal Assent) there is now little doubtFootnote 3 that the European Union, for the first time in its history, will lose a Member State.Footnote 4 What this will mean for the UK and the European integration project in the long run is, of course, an open question. In the short run, however, Brexit creates the need to put the relationship between the EU and the UK on a new footing.
Unfortunately, however, it is still largely unclear what this relationship will look like: the Brexit negotiations between the EU and the UK that started in June 2017 have not yet yielded any tangible success as regards the politically most pressing issues, notably the UK's continued access to the European Single Market, the post-Brexit status of EU citizens in the UK or the post-Brexit status of UK citizens in the EU. And negotiations about other, less political issues—such as judicial cooperation in civil and commercial matters—have not even begun at the time of writing.Footnote 5 Recently, however, the UK has published two Position Papers that detail the UK's vision for the future of judicial cooperation in civil and commercial matters.Footnote 6 Building on two previously published White Papers,Footnote 7 these sketch how the UK wants to deal with the core issues of choice of law, jurisdiction and recognition and enforcement of foreign judgments after Brexit.Footnote 8 The two papers, however, leave many questions unanswered and ample room for discussion and political manoeuvring. The following article, therefore, sheds light on the most important issues at stake and discusses what the future framework for judicial cooperation in civil and commercial matters could and should look like. It thereby seeks to make a positive difference in the lives of all the UK and EU citizens, families and businesses, who will continue to work, live, travel and do business abroad after Brexit.
The article is organized in three parts: The first part sketches the current, ie pre-Brexit, European legal framework as regards choice of law, jurisdiction and recognition and enforcement of foreign judgments (Section II). The second part discusses how this framework will change post-Brexit in the absence of any special arrangement between the UK and the EU and in the absence of other (unilateral, bilateral or multilateral) actions of the UK (Section III). The third part then explores how the UK and the EU may avoid the negative consequences of a ‘hard Brexit’ as described in the second part (Section IV). For reasons of space the article focuses on civil and commercial matters.Footnote 9
II. STATUS QUO: THE CURRENT STATE OF JUDICIAL COOPERATION IN THE EU
Ever since the adoption of the Treaty of Amsterdam,Footnote 10 judicial cooperation in cross-border matters has been high on the agenda of the European legislature. On the basis of Article 81 TFEU (ex-Art 61 lit. c), 65 ECT it has—to date—adopted a total of 18 Regulations. Of these 18 Regulations 12 are applicable in the UK,Footnote 11 among them virtually all that relate to civil and commercial matters.Footnote 12 Those in force include, in particular, the Rome I and the Rome II RegulationsFootnote 13 that determine the law applicable to contractual and non-contractual obligations as well as the Brussels Ia RegulationFootnote 14 that deals with jurisdiction, recognition and enforcement of foreign judgments in civil and commercial matters. Also in force are a number of Regulations that are meant to ease the settlement of cross-border disputes more generally but which will not be discussed here. These include the Service Regulation,Footnote 15 the Evidence Regulation,Footnote 16 the Enforcement Order Regulation,Footnote 17 the Small Claims Regulation,Footnote 18 the Payment Order RegulationFootnote 19 and the Insolvency Regulation.Footnote 20 Together, all these Regulations establish a fairly clear and predictable legal framework for the settlement of disputes with a foreign element. This is not the least because courts in the UK will apply the same provisions to determine the applicable law and the competent court as courts in the remaining Member States. And they will apply the same provisions to recognize and enforce foreign judgments.
Now, what will happen with all these Regulations once the UK leaves the EU? Unfortunately, Article 50 TEU doesn't say. Article 50(3) TEU merely provides that the ‘Treaties’, ie the TEU, the TFEU as well as any Protocols and Annexes,Footnote 21 will cease to apply in the UK from the date of entry into force of the withdrawal agreement. However, there is broad agreement that European secondary law will also cease to have direct effect in the UK with the entry into force of the withdrawal agreement.Footnote 22 This is because Article 288 TFEU which provides that regulations and directives shall have binding force in all Member States will cease to apply to and to be binding in relation to the UK on that day.Footnote 23 In addition, the entry into force of the withdrawal agreement will be coupled with the repeal of the European Communities Act 1972Footnote 24 which lays the foundation for the UK's membership in the EU and provides in Section (2)1 that ‘[all] such rights, powers, liabilities, obligations and restrictions … created or arising by or under the Treaties … are without further enactment to be given legal effect or used in the United Kingdom …’.
However, European secondary law will also cease to have direct effect if the UK and the European Union do not manage to negotiate a withdrawal agreement and if the European Communities Act 1972 is not repealed. This is because Article 50(3) TEU provides that the withdrawal will, in this case, become effective and the Treaties will cease to apply within two years after submission of the withdrawal notification referred to in Article 50(2) TEU.Footnote 25 To be sure, one could argue that the European Communities Act 1972, absent a repeal by the UK legislature, will not be affected by the expiration of the two-year period of Article 50(3) TEU and that, therefore, European secondary law will remain effective and applicable. However, the majority view in the UK is that the European Communities Act 1972 will lose its practical significance because there will be no more rights, powers, liabilities, obligations or restrictions created by or arising under the Treaties in the meaning of Section 2(1) once the Treaties cease to apply pursuant to Article 50(3) TEU.Footnote 26 Against this background, the above mentioned 12 Regulations, and notably the Rome I and II Regulations and the Brussels Ia Regulation, will cease to have direct effect in the UK once Brexit becomes effective.Footnote 27 By the same token they will cease to apply in the remaining Member States if and to the extent that they do not cover cases involving third States.Footnote 28
III. THE BASELINE: CONSEQUENCES OF A ‘HARD BREXIT’ FOR JUDICIAL COOPERATION
The above analysis triggers the question of which provisions will take the place of the Rome I, the Rome II and the Brussels Ia Regulations once a withdrawal agreement enters into force. The answer to this question depends, of course, on the steps the UK and the EU will take (unilaterally, bilaterally or multilaterally) to fill the void. However, before discussing the various options that the UK and the EU have in this respect (Section IV), I will analyse what will happen if the UK leaves the EU without any special arrangement as regards choice of law, jurisdiction and recognition and enforcement. To be sure, in the light of the recently published UK Position Papers, and especially the UK government's plan to convert some of the above-mentioned European Regulations into English law by way of the European Union (Withdrawal) Bill,Footnote 29 this scenario is not the most likely. However, analysing what happens if nothing happens shows what is at stake—and why both the UK and the EU have an interest in avoiding a ‘hard Brexit’ in the field of judicial cooperation. In the following sections I will first discuss whether international Conventions, notably the Rome and the Brussels Conventions which were applicable in the UK and some EU Member States prior to the unification of private international law in the EU, may revive and become applicable again after Brexit (Section III.A). Then I will analyse which national provisions might take the place of the Rome I, the Rome II and the Brussels Ia Regulations (Section III.B–D)
A. Revival of the Rome and the Brussels Conventions?
The unification of private international law on the European level is a rather recent phenomenon. It only became possible following the entry into force of the Treaty of Amsterdam in 1999,Footnote 30 which conferred near to full competence for private international law on the European legislature. Prior to that the Member States achieved judicial cooperation in civil and commercial matters by way of international treaties. In 1968 they agreed on the Brussels Convention on jurisdiction and recognition and enforcement of foreign judgments,Footnote 31 and in 1980 they adopted the Rome Convention on the law applicable to contractual obligations.Footnote 32 Both Conventions were never formally cancelled after entry into force of the Rome I and the Brussels I Regulation. Therefore, a number of authors have recently suggested that they may revive and (re-)gain application after Brexit. Footnote 33 This suggestion is interesting—and surprising—in and of itself because there is broad agreement that a return to both Conventions is not really desirable.Footnote 34 The Brussels Convention, for example, does not reflect the substantial improvements which the conversion into the Brussels I Regulation of 2001 and the recast of 2012 have brought about.Footnote 35 Moreover, its geographical reach is limited since it does not extend to Member States who joined the European Union after its conversion into the Brussels I Regulation.Footnote 36 But be it as it may: the above-mentioned authors argue that neither the Rome nor the Brussels Convention were ever formally cancelled. And since the Rome I and the Brussels Ia Regulation require their application as regards some overseas territoriesFootnote 37 they conclude that both the Rome and the Brussels Conventions are still alive.
The problem with this view, however, is not only that it would lead to application of provisions that are widely considered as outdated, but that it would also result in the application of the Rome and the Brussels Convention in a non-Member State—even though both Conventions were never meant to apply in non-Member States and even though only Member States were allowed to accede.Footnote 38 Of course, the UK was a Member State of the European Community at the time of signing the Conventions. However—and contrary to what the above-mentioned authors claimFootnote 39 —membership in the European Union or the European Community was not merely a requirement for joining the Convention but a permanent condition for being a contracting State.Footnote 40 This follows not only from the genealogy of the Convention but also from its preamble, which stresses the need for further unification of law within the European Community, ie among Member States.Footnote 41
In addition, when the Member States decided to convert the Rome and the Brussels Conventions into the Rome I and the Brussels I Regulation they never had a revival of the old Conventions in mind.Footnote 42 As follows clearly from Article 24 Rome I Regulation and Article 68 Brussels I Regulation (now: Article 68 Brussels Ia Regulation), both Regulations were meant to fully replace the Rome and the Brussels Convention as between those (then-)Member States participating in the Rome I and the Brussels I Regulations. Continued application of the Conventions was clearly limited to Denmark and some overseas territories.Footnote 43 This implies that the Rome and Brussels Conventions were not merely suspended with the entry into force of the Rome I and the Brussels I Regulation, but terminated under public international law.Footnote 44 This termination was, of course, partial: both Conventions remained alive and applicable as regards the overseas territories mentioned in Article 24 Rome I Regulation and Article 68 Brussels I Regulation (now Article 68 Brussels Ia Regulation) as well as regards Denmark. But as regards the other (then-)Member States they were terminated.
Doctrinally this view may be based on general principles of international law, notably the principle of consensual termination of international treaties. This principle is, for example, enshrined in Article 54 lit. b) of the Vienna Convention on the Law of Treaties of 1969Footnote 45 and allows the contracting States to terminate an international treaty at any time by consent of all the parties after consultation with the other contracting States. If, however, the Vienna Convention on the Law of Treaties allows the contracting States to completely terminate a treaty it must also be possible for the contracting States to agree on a partial termination, ie a termination only between some contracting States. As regards the Rome and the Brussels Convention the contracting States participating in the Rome I and the Brussels I Regulation agreed that these Regulations would fully replace the Rome and the Brussels Convention. And as follows clearly from Protocol No 22 on the Position of Denmark, Denmark consented to this.Footnote 46 So, all contracting parties to the Rome and the Brussels Convention, including Denmark, agreed to terminate it partially in the above-described sense.Footnote 47 As a consequence they cannot revive after Brexit.Footnote 48
Application of the Rome and the Brussels Conventions, however, also fails if one does not follow the above view and if one assumes that both Conventions were not partially terminated with the entry into force of the Rome I and the Brussels I Regulation: both Conventions form part of the acquis communitaire in a wider sense.Footnote 49 As such they cannot remain unaffected by the withdrawal of a Member State from the EU pursuant to Article 50 TEU. In fact, as Burkhard Hess has recently argued, they will be terminated on the day of Brexit because Article 50(3) TEU must be classified as a special provision providing for consensual termination of the Rome and the Brussels Conventions in the meaning of Article 54 lit. b) of the Vienna Convention on the Law of Treaties.Footnote 50 In any event, it is likely that Brexit amounts to a fundamental change of circumstances in the meaning of Article 62 of the Vienna Convention, thus, allowing the remaining Member States to withdraw from the Conventions after Brexit.Footnote 51 Alternatively, one might consider applying Article 63 of the Vienna Convention by analogy. So, even if the Rome and the Brussels Conventions were not terminated either with the entry into force of the Rome I and the Brussels I Regulations or on the day of Brexit, they would not, at least not as a matter of public international law, fill the void left by the Rome I and the Brussels Ia Regulation after Brexit.Footnote 52 The question is, then: which provisions will fill the void if the UK and the EU do not take any (unilateral, bilateral or multilateral) steps?
B. Legal Framework as Regards Choice of Law
1. Applicable (default) provisions
As regards choice of law the situation will be rather straightforward. In the UK the Rome II Regulation will be replaced by Part III of the UK Private International Law (Miscellaneous Provisions) Act of 1995.Footnote 53 To the extent that the UK Private International Law (Miscellaneous Provisions) Act 1995 does not contain any choice-of-law rules, which holds true, for example, for the tort of defamation and unjust enrichment, the traditional rules of the common law will step in.Footnote 54 As regards contractual obligations, the Contracts (Applicable Law) Act 1990 will apply. And since the Contracts (Applicable Law) Act 1990 calls for application of the Rome Convention to the extent the Rome I Regulation does not apply, UK courts will have to resort to the Rome Convention to determine the applicable contract law after Brexit. Of course, this comes as a surprise given that the Rome Convention was (partially) terminated under public international law. However, the UK belongs to those countries where application of international treaties requires implementation by the national legislature.Footnote 55 To the extent that international treaties have been implemented they must, therefore, be applied by national courts no matter what their status is under public international law. If the Rome I Regulation ceases to apply as a result of Brexit, the Rome Convention will, therefore, revive and become applicable before UK courts as a matter of UK national law.Footnote 56
In the remaining Member States, the situation likewise seems to be straightforward: Both the Rome I and the Rome II Regulation are based on the principle of universal application.Footnote 57 Therefore, they apply to all cases with a foreign element irrespective of whether the foreign element relates to a Member State or a third State. As a consequence one is tempted to assume that courts in the remaining Member States will apply the Rome I Regulation as regards contractual obligations and the Rome II Regulation as regards non-contractual obligations. And while this is generally accepted to be true in the context of non-contractual obligations,Footnote 58 the case of Denmark teaches us that things are more complicated when it comes to contractual obligations.Footnote 59 As indicated earlier, Denmark does not take part in any measures relating to judicial cooperation in civil and commercial matters. Therefore, the Rome I Regulation does not have to be applied by Danish courtsFootnote 60 —just like the Rome I Regulation does not have to be applied by UK courts after Brexit. It is, however, unclear which legal instruments courts in other Member States have to apply to determine the applicable contract law if the case has a relationship to Denmark. Some courts and scholars take the view that the Rome Convention—and not the Rome I Regulation—applies in cases relating to Denmark.Footnote 61 They argue that the Rome Convention was never formally cancelled and that it, therefore, takes precedence over the Rome I Regulation by virtue of Article 25 of the Regulation.Footnote 62 If one assumes—contrary to the position taken in this article—that the Rome Convention was not (partially) terminated with the entry into force of the Rome I Regulation one might, therefore, be inclined to hold the Rome Convention applicable in cases having a relation to the UK after Brexit.Footnote 63 However, even as regards cases with a relation to Denmark, the majority of scholars advocate application of the Rome I Regulation over application of the Rome Convention.Footnote 64 They argue that the Rome I Regulation is universally applicable and, therefore, applies to all cases with connections to foreign countries—and not only to cases with connections to Member States. In addition, they argue that Article 25 Rome I Regulation does not apply to the relationship between the Rome I Regulation and the Rome Convention because that relationship is exclusively regulated by Article 24 Rome I Regulation.Footnote 65 Even if one were to assume that the Rome Convention was not terminated with the entry into force of the Rome I Regulation, courts in the remaining EU Member States would, therefore, have to apply the Rome I Regulation in cases relating to the UK.Footnote 66 This view is supported by the fact that a number of Member States, among them Germany, repealed the national provisions implementing the Rome Convention with the entry into force of the Rome I Regulation. National legislatures, thus, apparently assumed that there would be no room for application of the Rome Convention after the entry into force of the Rome I Regulation.
2. Consequences
As a consequence of the preceding analysis, issues of choice-of-law will be subject to different legal regimes depending on whether a suit is brought in the UK or in the remaining Member States. If the UK and the EU do not take any steps to deal with choice of law post-Brexit, courts in the EU will continue to apply the Rome I and II Regulations, whereas courts in the UK will resort to the Contracts (Applicable Law) Act and, thus, to the Rome Convention as regards contractual obligations and to Part III of the Private International Law (Miscellaneous Provisions) Act 1995 in combination with the rules of the common law as regards non-contractual obligations. Of course, the practical effects of this finding depend on the extent to which these regimes actually differ.Footnote 67 However, no deep comparative inquiry is necessary to say that there will be differences. Take, for example, choice-of-law clauses which would otherwise offer a good means for creating legal certainty. Here, Article 14 Rome II Regulation allows commercial parties to choose the law applicable to non-contractual obligations whereas the Private International Law (Miscellaneous Provisions) Act 1995 and the common law do not clearly bestow any such right on the parties.Footnote 68 In addition, the Rome I Regulation contains separate provisions for insurance contracts and carriage contracts which restrict the use of choice-of-law clauses vis-à-vis policyholders and passengers in ways unknown to the Rome Convention.Footnote 69 By the same token, the Rome I Regulation restricts choice-of-law clauses in consumer contracts in a much more complex fashion than the Rome Convention.Footnote 70 And, finally, the Rome I Regulation limits the effects of a choice-of-law clause in purely European Union casesFootnote 71 and provides for a new rule on the application of (foreign) overriding mandatory provisions.Footnote 72
Differences between the applicable legal regimes, however, will not be the only source of uncertainty that parties will face following Brexit if the UK and the EU refrain from taking any steps. Further uncertainty will arise because it is unclear when the applicable legal regime will actually change in the UK, ie when UK courts will actually stop applying the Rome Regulations. Of course, as indicated previously both Regulations will cease to have effect in the UK on the day Brexit becomes effective. However, it is unclear whether this means that UK courts will have to apply the Private International Law Act and the Rome Convention from that very day—or whether they may or must continue applying the Rome Regulations for a transitional period, notably to choice-of-law clauses concluded prior to Brexit.Footnote 73 For obvious reasons, neither the Rome I nor the Rome II Regulation provides clear-cut answers. However, the Homawoo judgment of the ECJ tells us that the Rome II Regulation applies to all events giving rise to damage that occur after its entry into force on 11 January 2009.Footnote 74 This could be understood to mean that a choice of law concerning non-contractual obligations will be governed by the Rome II Regulation even after Brexit if the event giving rise to damage occurs before the Regulation ceases to be in force in the UK, ie before Brexit.Footnote 75 As a consequence, Article 14 Rome II Regulation would apply even after Brexit, if the choice-of-law clause relates to events giving rise to damage occurring on or after 11 January 2009 but before the day of Brexit. And Article 3 Rome I Regulation would apply if the choice-of-law clause relates to a contract concluded between 17 December 2009 and the day of Brexit.
The advantage of this view is obvious: choice-of-law clauses would be subject to the same legal provision no matter when legal proceedings were commenced. However, the problem with this view is equally obvious: it would require UK courts to apply the Rome II Regulation—and for what it is worth the Rome I Regulation—for quite some time after Brexit, ie after European secondary law has ceased to have direct effect in the UK. It is, therefore, unclear whether the ECJ or UK courts would actually accept that interpretation. For the parties this means that they will have to live with a substantial degree of uncertainty. Absent a clear provision in the withdrawal agreement, they will have to accept that they will not be able to know at the time of choosing the applicable law which regime will eventually govern their choice of law should they end up in UK courts.Footnote 76 This is particularly dramatic for choice-of-law clauses concerning non-contractual obligations because the common law and the UK Private International Law (Miscellaneous Provisions) Act 1995—in contrast to the Rome II Regulation—do not clearly allow the parties to choose the applicable law.Footnote 77
C. Legal Framework as Regards Jurisdiction
1. Applicable (default) provisions
As regards jurisdiction, UK courts will likewise have to resort to UK national law after Brexit in the absence of any specific arrangement providing otherwise. This is because the Brussels Convention of 1968 would be inapplicable.Footnote 78 Nor would other international conventions, notably the Lugano Conventions of 1988 and 2007 and the Hague Choice of Court Convention of 2005.Footnote 79 As regards the Lugano Convention of 2007 and the Hague Choice of Court Convention of 2005, this follows from the fact that the UK itself is not a party to these Conventions.Footnote 80 Both were signed by the EU within its competence to conclude international treaties on behalf of the Member States. Therefore, the UK is bound to the conventions only pursuant to Article 216(2) TFEU. As soon as Brexit becomes effective, Article 216(2) TFEU and, hence, the Lugano Convention of 2007 and the Hague Convention of 2005 will cease to apply in the UK as a matter of European law. The situation is somewhat different as regards the Lugano Convention of 1988. That Convention is the predecessor of the Lugano Convention of 2007 and was not signed by the EU, but by the Member States themselves, including the UK. However, the problem with the Lugano Convention of 1988 is that it was fully replaced by the Lugano Convention of 2007 and, hence, terminated in accordance with Article 59 of the Vienna Convention on the Law of Treaties.Footnote 81
In the remaining Member States international jurisdiction will continue to be governed by the Brussels Ia Regulation to the extent that it applies to third States, which is, for example, the case if the defendant has its domicile in a EU Member State or if a consumer domiciled in a EU Member State sues a professional domiciled in the UK. In all other cases the Member State courts will apply their own national rules of jurisdiction.
2. Consequences
The consequences of the preceding analysis are straightforward: in the absence of any specific arrangement as regards jurisdiction, determination of the competent court will become more difficult because different legal regimes will apply depending on where proceedings are eventually instituted. And just like choice-of-law clauses will not be able to overcome the uncertainty associated with a ‘hard’ Brexit, choice-of-forum clauses will not do the trick. Assume for example that the parties confer jurisdiction upon UK courts, but one party later commences proceedings in the courts of one of the remaining Member States. In this case, unless the Brussels Ia Regulation applies by way of exception, courts will turn to their own law to determine whether they have jurisdiction. And this will include a consideration of the derogative effect of the choice-of-forum clauses, ie the question of whether the parties have validly opted out of the jurisdiction of a Member State. To be sure, a number of authors suggest—with good arguments—that Article 25 Brussels Ia Regulation and, hence, a uniform regime should be applied to answer this question.Footnote 82 However, the ECJ has adopted this view only in a single case relating to an employment contract.Footnote 83 In all other cases the ECJ has—at least thus far—adhered to a decision of 2000 in which the court refused to apply Article 17 of the Brussels Convention, the pre-predecessor of Article 25 Brussels Ia Regulation, to the choice of non-Member State courts and held national law applicable.Footnote 84
This, however, is not the end of the story. Further uncertainty will be added after Brexit because the parties may no longer trust that courts of Member States will stay proceedings that are instituted in violation of a choice forum clause designating UK courts.Footnote 85 This is because the newly introduced Article 31(2) Brussels Ia Regulation (recast) applies only between the courts of Member States. If one party commences proceedings in a Member State despite the parties having previously agreed on a choice of UK courts, the Member State court seized is not required to stay its proceedings to allow UK courts to go forward. Instead, Article 33 Brussels Ia Regulation (recast) applies which provides Member States with discretion to stay its proceedings if the court of the non-Member State has been seized first and is expected to render a decision that is capable of recognition and enforcement in that Member State.
Finally, just as with choice-of-law clauses, uncertainty will arise before UK courts because it is not entirely clear when exactly when the applicable legal regime will change. Again the question is whether UK courts will stop applying the recast Brussels Ia Regulation from the day of Brexit or whether they will continue to apply the recast Brussels Regulation even after the day of Brexit. To be sure, there are good arguments that the Brussels Ia Regulation requires application even after the UK's withdrawal from the EU.Footnote 86 After all, the ECJ has held that choice-of-forum clauses will be subject to the recast Brussels Ia Regulation if they are the subject of proceedings instituted after the entry into force of the Regulation on 10 January 2015.Footnote 87 Applied to the Brexit-scenario this judgment could, therefore, be understood to mean that the Brussels Ia Regulation will apply to choice-of-forum clauses if proceedings start before the day of Brexit. However, it is unclear whether UK courts—or the ECJ—will actually adopt that interpretation. Absent a clear arrangement in the withdrawal agreement, the parties will, therefore, not know which legal regime will govern their choice-of-law clause at the time when they agree on the competent court because parties normally do not know when legal proceedings will be instituted in the future.Footnote 88
D. Legal Framework as Regards Recognition and Enforcement
1. Applicable (default) provisions
This leads to recognition and enforcement of foreign judgments. Both aspects are currently governed by the Brussels Ia Regulation, which has famously established a system of direct enforcement as between the Members States.Footnote 89 After Brexit and in the absence of any specific arrangement this system will cease to apply in the UK which means that the UK will not be required to recognize and enforce judgments from other Member States without any further steps. It is, however, again unclear which provisions will replace the recast Brussels Ia Regulation. As indicated earlier, neither the Brussels Convention of 1968 nor other international conventions will automatically apply after Brexit. However, the UK is party to six bilateral treaties concluded in the 20th century with Austria, Belgium, France, Germany, Italy and the Netherlands.Footnote 90 Of course, these were later replaced by the Brussels Convention and then by the Brussels I Regulation. But since they were never formally cancelled, a number of authors argue that they will revive once the UK leaves the EU.Footnote 91 This view, however, shares similar weaknesses as the view that the Rome and the Brussels Conventions will revive after Brexit: nobody had a revival of the old treaties in mind, and everybody considered them to have become obsolete with the entry into force of the Brussels Convention and, later, the Brussels I Regulation. At least to the extent that there is an overlap in the scope of application of, on the one hand, the old treaties and, on the other, the Brussels Convention and the Brussels I Regulation it therefore seems more convincing to assume that they were terminated between the contracting States.Footnote 92 If one follows this view, recognition and enforcement of (all) Member States judgments will be governed by UK national law after Brexit.Footnote 93
In the remaining Member States the situation will be similar. Since application of the Brussels Ia Regulation is limited to judgments from Member States, the direct enforcement system will not apply to UK judgments after Brexit absent a specific agreement to the contrary. And to the extent that neither multilateral nor bilateral international treaties are applicable, recognition and enforcement of UK judgments will be governed by the national laws of the Members States, ie by 27 potentially different national laws.Footnote 94
2. Consequences
In the light of the preceding analysis it goes without saying that a ‘hard’ Brexit will dramatically change the legal landscape for having a judgment enforced abroad. This is because the applicable default provisions do away with the current system of direct enforcement and require judgment creditors to sue on the judgment prior to enforcement.Footnote 95 Cross-border enforcement of judgments will, then, become more cumbersome, more expensive and more uncertain. This holds particularly true if a party wants to have an English judgment enforced in another Member State. For the enforcement of English judgments will require that party to apply for enforcement in every single Member State according to the (national) provisions applicable in that Member State.
However, legal uncertainty will also increase because—just as with choice of law and jurisdiction—it is unclear when precisely the enforcement provisions of the Brussels Ia Regulation will cease to be applicable. Assume, for example, that a party seeks recognition and enforcement of a judgment which was rendered after the day of Brexit but based on proceedings that were initiated on or after 10 January 2015, ie on or after the day the Brussels Ia Regulation became applicable. Referring to Article 66(1) Brussels Ia Regulation, one might be tempted to submit the recognition and enforcement of that judgment to the direct enforcement mechanism of the Regulation. However, the majority rightly rejects this view,Footnote 96 pointing to the decision of the ECJ in Wolf Naturprodukte.Footnote 97 In that case the ECJ held that the Brussels I Regulation applied only if it was in force and applicable both in the original and the enforcement State on the day the judgment was rendered.Footnote 98 It is, therefore, safe to assume that the Court would not apply the direct enforcement systems of the Brussels Ia Regulation to a judgment issued after the day of Brexit.
This finding, of course, raises the question whether the direct enforcement system of the Brussels Ia Regulation might apply after Brexit to a judgment issued before Brexit on the basis of the Brussels Ia Regulation. Pointing to the ECJ's decision in the Wolf Naturprodukte case one might be tempted to answer this question in the affirmative. After all, the ECJ held that the Brussels I Regulation applied if it was in force and applicable in both the original and the enforcement State on the day the judgment was rendered. However, this view would ignore the fact that the Wolf Naturprodukte decision revolved around a case in which the Brussels I Regulation had not yet been in force in the enforcement State on the day the judgment was issued (instead becoming applicable later). In contrast, it did not discuss the question of whether the enforcement regime of the Brussels I Regulation may apply if it is no longer in force and applicable in one of the States involved. Absent a clear provision in the withdrawal agreement it is, therefore, unclear whether the ECJ would actually allow direct enforcement of pre-Brexit English judgments in the remaining Member States— and enforcement of pre-Brexit Member State judgments in the UK—after the day of Brexit.Footnote 99
IV. ALTERNATIVE OPTIONS: A ‘SOFT BREXIT’ FOR JUDICIAL COOPERATION?
The preceding analysis suggests that a ‘hard Brexit’, ie a withdrawal from the UK without any (unilateral, bilateral or multilateral) arrangement for judicial cooperation, would make the settlement of international disputes markedly more complicated and certainly less predictable.Footnote 100 Since issues of choice of law, jurisdiction and recognition and enforcement would no longer be subject to the same provisions in the UK and the remaining Member States, parties would have a hard time to determining which law would apply, which court would be competent to hear a case and whether a judgment would be enforced abroad.Footnote 101 The worst thing, however, is that commercial parties would no longer be able to trust that choice-of-law and choice-of-forum clauses would do their job and create legal certainty.Footnote 102
Against this background, there is broad consensus both in the UK and in the EU, that the consequences of a ‘hard Brexit’ should, if at all possible, be avoided.Footnote 103 After all, parties from the UK and the remaining EU Member States will remain important trading partners even after Brexit. And even after Brexit people from the EU will (want to) travel, work and live in the UK just like people from the UK will (want to) travel, work and live in the EU. A predictable, ideally uniform legal framework for judicial cooperation will, therefore, be of the essence for the daily lives of a large number of people.Footnote 104 The remainder of this article will discuss essentially four options for a ‘soft Brexit’ in the field of judicial cooperation. In so doing it will take into account and critically examine the recently published UK Position Paper on judicial cooperation in civil and commercial mattersFootnote 105 as well as the UK Position Paper on enforcement and dispute resolution.Footnote 106
A. Agreement on Continued Application of EU Framework
The first—and probably best—option for a ‘soft Brexit’ would certainly be to pretend that Brexit did not happen and to aim for an agreement between the UK and the EU that the Rome I, the Rome II and the Brussels Ia Regulation will continue to apply even after Brexit.Footnote 107 This might look counterintuitive at first sight. After all, it was—and still is—the very purpose of Brexit to get rid of European rules and to take back ‘control of our own laws’.Footnote 108 However, the Rome I, the Rome II and the Brussels I Regulation, including the latter's recent recast, were well received in the UK and considered to be a change for the better.Footnote 109 In addition, the draft Withdrawal Bill proves that the UK government has the intention to keep at least some European rules post-Brexit as national law post-Brexit.Footnote 110 And since judicial cooperation was not on the agenda of the Brexiteers,Footnote 111 preserving the status quo in private international law would probably not do much political harm. Technically, the agreement could either be part of the withdrawal agreement to be negotiated between the EU and the UK in accordance with Article 50(3) TEU or it could be integrated into an independent treaty along the lines of the Agreement between the EU and Denmark on the application of the Brussels I RegulationFootnote 112 .Footnote 113
Of course, obvious and straightforward as the first option might seem at first blush, it comes with a number of problems on closer inspection. To begin with, it does not follow clearly from the UK Position Paper on judicial cooperation whether continued and unconditional application of EU instruments is what the UK government has in mind. To be sure, it emphasizes that common, reciprocal rules which reflect the current EU framework are of the essence.Footnote 114 However, it also makes clear that the UK strives for a new framework for choice of law, jurisdiction and recognition and enforcement of foreign judgments.Footnote 115 But even if the UK were inclined to agree to the continued application of the existing EU instruments, it is not quite clear whether the EU would also do so.Footnote 116 Indeed, the EU might be tempted to withhold its consent for various reasons. It might, for example, want to set an example vis-à-vis other Member States that toy with the idea of leaving the EU.Footnote 117 Or it might want to avoid the impression that the UK may ‘cherry pick the elements of EU membership that it considers favourable to it’.Footnote 118 . And last but not least, it might also be that EU will not be willing to extend the current legal framework to ‘a context not presided by the philosophy of integration’.Footnote 119 In other words, the ‘blind reciprocal trust’Footnote 120 that comes in particular with application of the Brussels Ia Regulation might be considered as being available only to States that take part in and commit to the ‘greater common good’Footnote 121 of European integration. The EU's consent might, therefore, depend on the UK making a credible commitment to some core European values. And, of course, it is unclear whether the UK will be ready to do so. Media reports that Theresa May is considering withdrawal from the European Convention on Human Rights (ECHR)Footnote 122 after BrexitFootnote 123 rather fuel the concern that the UK will continue to move away from Europe once it has officially left the EU.Footnote 124
Another problem that would come with the continued application of the Rome I, the Rome II and the Brussels Ia Regulations relates to their interpretation and enforcement. The EU's consent to continue applying these EU instruments would certainly depend on the UK accepting the jurisprudence of the ECJ in one form or the other. However, it was—and still is—one of the central aims of Brexit and the UK government to ‘bring an end to the direct jurisdiction of the CJEU’.Footnote 125 To bridge these diverging—and seemingly irreconcilable—positions some authors have suggested seeking inspiration from the Agreement between the EU and Denmark on the application of the Brussels I Regulation.Footnote 126 Article 6(2) of the Agreement requires Denmark to give ‘due account’ to ECJ decisions when applying the Brussels I Regulation and, thus, goes a long way to ensuring uniform interpretation. Nonetheless, the EU–Denmark Agreement does not appear to be a good match for the post-Brexit EU–UK relationship.Footnote 127 To begin with, Article 6(1) of the Agreement requires Denmark to refer questions of interpretation as regards the Brussels I Regulation to the ECJ. It is, however, unlikely that the UK will accept being required to turn to the ECJ for interpretative advice (let alone being required to follow it).Footnote 128 By the same token, it is unlikely that the EU will be willing to grant the UK direct access to the ECJ. After all, the UK will—unlike Denmark—no longer be a Member State following Brexit. Ultimately, Article 7(1) allows the Commission to bring proceedings against Denmark if it does not comply with the Agreement. It goes without saying that it is hard to conceive that the UK will submit to any form of supervision by the European Commission after Brexit.
As an alternative model, some authors,Footnote 129 as well as the UK government in its recent Position Paper on enforcement and dispute resolution,Footnote 130 suggest looking to the Lugano Convention of 2007. It regulates the relationship between the EU Member States and third States, namely Switzerland, Norway and Iceland, and thus seems to be better equipped to regulate the relationship between the EU and the UK post Brexit. As regards the jurisdiction of the ECJ, Article 1(1) of Protocol No 2 to the ConventionFootnote 131 requires the courts of all contracting States, including the courts of non-Member States, to ‘pay due account’ to the principles laid down by any court of a contracting State as well as the ECJ concerning the provisions in questions as well as similar provisions of the Lugano Convention of 1988, the Brussels Convention of 1968 and the Brussels I Regulation. However, in contrast to the EU–Denmark Agreement, Protocol No 2 to the Lugano Convention does not require (or allow) the courts of contracting States which are not EU Member States to directly approach the ECJ. Article 2 of the Protocol No 2, however, allows these States to submit statements of cases or written observations and hence guarantees that their voice will be heard. Protocol No 2, therefore, seems to establish a compromise that might turn out to be acceptable for both the EU and the UK after Brexit.Footnote 132 To be sure, nowhere in any of the Position Papers does the UK government say so explicitly. But the UK government approvingly cites the model of the Lugano Convention when discussing alternatives to direct jurisdiction of the ECJ as regards rules in international treaties that replicate provisions of EU law,Footnote 133 and it has, therefore, indicated that it might be willing to accept jurisprudence of the ECJ along the lines of Protocol No 2.Footnote 134
However, even if the UK and the EU agree on the Lugano model—or if they manage to design a ‘new model’ to account for the specifics of the post-Brexit situation—yet another problem would most likely arise: the UK would probably want to have a say during any reform process before being required to apply any amendments or changes to the Rome I, the Rome II or the Brussels Ia Regulation.Footnote 135 The EU, in contrast, would not be very inclined to grant the UK a seat at the negotiation table if it is no longer a Member State. A compromise might be to allow UK to join the negotiations as an observer without a voting right. This would at least make sure that the UK position would be heard. As to everything else the EU would probably be willing to offer the UK the same ‘deal’ as Denmark: according to Article 3(1) and (2) of the EU-Denmark Agreement, Denmark is only bound by amendments to the Brussels I Regulation if it chooses to be so bound and if it notifies the European Commission accordingly. If, however, Denmark decides not to accept the amendments or fails to notify the European Commission or fails to implement the amendments in accordance with Article 3(3) to (5), the entire Agreement will be deemed terminated by virtue of Article 3(7). Whether the UK would be happy with this take-it-or-leave-it approach is, of course, unclear.Footnote 136 However, it is likewise unclear whether the EU would be willing to grant the UK more favourable terms, for example, by allowing application of the unamended versions of the Regulations in cases that bear a relationship to the UK.Footnote 137
B. Negotiation of a New Treaty with the EU
The second option for a ‘soft Brexit’ is as straightforward as the first. It consists of negotiating a new international treaty with the EU on issues of choice of law and jurisdiction and, of course, recognition and enforcement.Footnote 138 This option probably comes closest to what the UK government has in mind because it clearly reflects its wish for a new civil judicial cooperation framework.Footnote 139 It would allow the UK and the EU to build on the current, reciprocal EU framework—and to improve it where necessary and appropriate.Footnote 140 The UK might, therefore, try to renegotiate the current European position, shaped by various ECJ judgments, as regards the doctrine of forum non conveniens and as regards the use of anti-suit injunctions. The EU on the other hand might appreciate the occasion to review the above-mentioned Regulations and to examine which provisions may be extended to apply to the UK as a non-Member State.
Of course, also this second option comes with problems. To begin with, the negotiation of a new agreement for private international law would be time-consuming. Considering how many years it took to negotiate the existing EU instruments and considering that judicial cooperation will not be the top priority during the upcoming negotiations, it is unlikely that any such treaty could be signed and enter into force on the day of Brexit. The second option, therefore, would require an interim period during which the current EU instruments would continue to apply—and during which the ECJ would continue to have jurisdiction over these instruments even in the UK.Footnote 141 Whether this would be acceptable for the UK is, of course, unclear. However, the UK Position Paper on judicial cooperation stresses the need for an interim period to ensure a ‘smooth and orderly move’Footnote 142 from the current to the future framework. This, in turn, seems to suggest that the UK government might be willing to agree to a temporary extension of the existing EU instruments. And even though it is not expressly spelled out in the Position Paper, it also seems to imply that the UK government might be willing to accept a temporary extension of the ECJ's jurisdiction.Footnote 143
Another problem with the second option relates, of course, to enforcement and dispute resolution. A new treaty covering aspects of choice of law and jurisdiction and recognition and enforcement would need to establish a mechanism for resolving disputes. In this context the same issues would arise as if the UK and the EU agreed on continued application of the Rome I, Rome II and the Brussels Ia Regulations.Footnote 144 However, as set out above, Protocol No 2 to the Lugano Convention might turn out to be an acceptable compromise for both the UK and the EU.Footnote 145
Against this background, the most serious problem with the second option would be its impact on judicial cooperation at large. To be sure, adoption of a new treaty for private international law would put the relationship between the UK and the EU—in the interests of businesses, families and consumers—on a new base and provide legal certainty. However, it would also, at least from the perspective of the EU, lead to further fragmentation and additional complexity in the field. This is because it would require parties and courts in the remaining Member States to apply different sets of rules to the same private international law questions depending on whether the case has a connection to another Member State, to the UK or to some other third State.
C. Unilateral Application of EU Instruments
The third option becomes attractive if the first two options fail because the UK and the EU do not manage to agree on the continued application of the current legal framework and if they do not manage to agree on a new treaty. In this case the UK could simply decide to apply the Rome I, Rome II and the Brussels Ia Regulations unilaterally and, thus, extend the Withdrawal Bill to judicial cooperation in civil and commercial matters. The problem with this option, however, is that it does not work particularly well for jurisdiction.Footnote 146 And it does not work at all for recognition and enforcement of judgements:Footnote 147 the Brussels Ia Regulation rests on the principle of reciprocity.Footnote 148 Therefore, it does not make sense to recognize choice-of-forum clauses in favour of Member States courts on the basis of the Brussels Ia Regulation if Member States courts will recognize choice-of-forum clauses in favour of UK courts only according to their—at times rather restrictive—national laws. The same obviously holds true for the recognition and enforcement of judgments.
Unilateral application, however, works reasonably well as regards choice of law because neither the Rome I nor the Rome II Regulation requires reciprocity.Footnote 149 The UK in its recent Position Paper on judicial cooperation, therefore, confines itself to saying that it will incorporate the Rome I and II Regulations into domestic law while not mentioning the Brussels Ia Regulations and other EU instruments in the field of judicial cooperation.Footnote 150 Nonetheless, two problems remain. The first relates to the question of whether the English legislature actually can decide unilaterally to apply the Rome I and II Regulations. This is doubtful as regards the Rome I Regulation if one adopts the view taken by many (English) authors that the Rome Convention will revive following Brexit.Footnote 151 This is because the UK will then be bound to apply the Rome Convention by way of public international law and cannot simply choose to replace it by a (national) Act of Parliament calling for application of the Rome I Regulation. If one does not follow the argument advanced in this article that the Rome Convention will not revive following Brexit—and it will probably be for the ECJ to make that callFootnote 152 —the UK will first have to denounce the Convention in accordance with its Article 30(3).
The second and certainly more serious problem that remains relates to interpretation. Unilateral application of the Rome I and Rome II Regulations can ensure long-term uniform application—and hence legal certainty—only if the UK also follows or at least ‘pays due account’ to ECJ decisionsFootnote 153 along the lines of, for example, the Lugano Convention of 2007.Footnote 154 However, following Brexit, UK courts will probably be under only a very limited obligation to do so. According to the draft Withdrawal Bill, only lower UK Courts will be required to decide any question as to the validity, meaning or effect of any retained EU law in accordance with any EU case law and any general principles of EU law in force before the day of Brexit.Footnote 155 In contrast, neither the Supreme Court nor High Court will be bound to follow historic ECJ case law.Footnote 156 In addition, no UK court will be bound to follow ECJ case law rendered on or after the day of Brexit.Footnote 157 As a consequence, it is unclear, whether UK courts will systematically apply the Rome I and II Regulations as interpreted by the ECJ and, hence as applied in the remaining EU Member States.Footnote 158 Unilateral application of the Rome I and the Rome II Regulations is thus likely to create only the illusion of uniformity in the long run.
D. Negotiation and Adoption of International Treaties
This leads to the fourth option: the UK could replace the current European regime with a more global framework by negotiating new treaties with non-Member State countries in the framework of the Hague Conference on Private International Law and the United Nations Commission on International Trade Law (UNCITRAL). This is in line with UK's commitment to ‘increasing international civil judicial cooperation with third parties’Footnote 159 as detailed in the recently published UK Position Paper on choice of law, jurisdiction and recognition and enforcement. It includes the negotiating of new judicial cooperation treaties, but it also covers the signing of Conventions to which the UK is already a party by virtue of its membership in the EU,Footnote 160 such as the Lugano Convention of 2007 and the Hague Choice of Court Convention of 2005.Footnote 161 Both Conventions deal with aspects of jurisdiction as well as recognition and enforcement and are currently in force and applicable in the UK pursuant to Article 216(2) TFEU. The binding force of both Conventions, however, will fall away with the UK's withdrawal from the EU.Footnote 162
1. Lugano Convention 2007
The Lugano Convention of 2007 is currently applicable in the EU Member States on the one hand, and in three non-Member States on the other, namely Switzerland, Norway and Iceland.Footnote 163 It regulates jurisdiction as well as recognition and enforcement of foreign judgments in basically the same way as the Brussels I Regulation did before the recast. Signing the Lugano Convention would preserve, therefore, many advantages associated with the old Brussels regime.Footnote 164 However, the process of signing might come with problems.Footnote 165 According to Article 70(1) lit. (a) of the Lugano Convention only Member States of the European Economic Area (EEA) may become contracting States without further requirements. The UK, however, is currently not an EEA State and, thus far it does not look as if the UK has any intention of becoming one (again) for the very simple reason that this would require the UK to guarantee the very four fundamental freedomsFootnote 166 that the Brexiteers wanted to move away from.Footnote 167
In order to join the Lugano Convention, the UK would, therefore, have to proceed in accordance with Article 70(1) lit. (c) which, in turn, would require the UK to submit its civil justice system to an extreme vetting procedure and to agree to ‘pay due account’ to ECJ decisions.Footnote 168 And while the UK has not yet expressly said that it would do so, the UK Position Paper on judicial cooperation suggests that the UK is actually willing to do just that.Footnote 169 The real stumbling block for the UK's accession to the Lugano Convention of 2007 might, therefore, be that all other contracting States, including all EU Member States, would have to consent unanimously to the UK joining the Lugano Convention. And, of course, it is unclear, how inclined the remaining EU Member States are to let the UK in.Footnote 170
In any event, however, accession to the Lugano Convention of 2007 would not be the solution to all problems.Footnote 171 This is because the Lugano Convention has not been aligned with the Brussels Ia Regulation, and there are currently no plans of doing so in the near future.Footnote 172 As a consequence, the substantial improvements that the recast has brought about, some of which were introduced because the UK lobbied hard for them,Footnote 173 would not extend to the UK.Footnote 174 The UK would, therefore, not benefit from the abolition of exequatur that allows parties to enforce judgments from one Member State in any other Member State according to essentially the same procedure as domestic judgments. By the same token, the UK would not benefit either from the new Article 25 which allows parties to choose the court of a Member State regardless of their domicile or from the new Article 31 which reverses the infamous ECJ Gasser judgmentFootnote 175 and requires a Member State court to stay proceedings if it has been seized in violation of an exclusive jurisdiction agreement. Finally, the new Articles 33 and 34, which allow courts in a Member State to stay proceedings in favour of courts in third States if certain requirements are met would likewise not apply in relation to the UK.
2. Hague Choice of Court Convention 2005
The situation looks much brighter for the Hague Choice of Court Convention of 2005.Footnote 176 In contrast to the Lugano Convention 2007 the UK could sign that Convention on the very day of Brexit because Article 27(1) and (3) of the Convention allows any State to accede.Footnote 177 And, it would help to avoid at least some of the negative effects of a ‘hard Brexit’ because the Convention will ensure enforcement of choice-of-forum clauses in the contracting States—including all Member States of the EU with the exception of Denmark—as well as enforcement of all judgments rendered on the basis of any such choice-of-forum clauses.Footnote 178
Nonetheless, becoming a party to the Hague Convention would not solve all problems. To begin with, its substantive scope is limited:Footnote 179 Pursuant to Article 1 it applies only to exclusive choice-of-forum clauses concluded in an international situation in civil and commercial matters that are not excluded by virtue of the—fairly long—list found in Article 2. In addition, also the geographic scope of the Convention is limited.Footnote 180 In fact, the Convention is not—at least not yet—the global convention it was meant to be. It is in force only in the EU, Mexico and Singapore,Footnote 181 and it thus still has a somewhat limited reach. For the same reason there is as of yet little experience with the workings of the Convention in practice.Footnote 182
V. CONCLUSIONS
Judicial cooperation in civil and commercial matters is generally perceived to be of a rather ‘specialist and technical nature’.Footnote 183 Therefore, it did not play a major role in the public discussions during the Brexit referendum campaign, nor has it attracted much public or political attention since.Footnote 184 However, for ‘UK and EU citizens, families and businesses, who work, live, travel and do business within the EU’Footnote 185 the legal framework for choice of law, jurisdiction and recognition and enforcement is of paramount importance.Footnote 186 Consequently, without any clear rules as regards judicial cooperation firms and individuals from both the UK and the EU would have to carry the post-Brexit burden of decreased legal certainty and potentially disruptive legal proceedings.Footnote 187
Unfortunately, given the many political constraints, especially as regards the future role of the ECJ, there is no easy and no perfect way out of the ‘mess’ Brexit will create. However, the best short-term option for both the UK and the EU would be either to agree on the continued application of the existing EU instrumentsFootnote 188 or to strive for the conclusion of a new agreement that closely replicates these instruments.Footnote 189 If no such agreement can be reached— because, for example, the UK and the EU cannot settle the issues of enforcement and dispute resolution—the UK should apply the Rome I and Rome II Regulations unilaterallyFootnote 190 and become a party to the Lugano Convention of 2007 as well as the Hague Convention on Choice of Court Agreements.Footnote 191 However, for the reasons set out above, this would certainly not be more than the second-best option.Footnote 192 In the medium- and long-term both the UK and the EU are probably well advised to apply a more global strategy and to foster the conclusion of international treaties in the framework of the Hague Conference on Private International Law.Footnote 193
