Brexit is a joyless kaleidoscope. With every twist, a different, complex pattern emerges, but the permutations are endless. The politicians wrestle for control of the mechanism, each with his or her own view of what is pleasing to the eye.
Meanwhile, the events of 23 June 2016 have turned the rest of us into end of the pier fortune tellers. We are starved of signal, and befuddled by noise.
In a process in which the auguries have never looked propitious, this is a particularly inauspicious time to write on a Brexit related legal topic, and one might wonder whether any discussion at all is worthwhile. In the febrile Parliamentary setting, a paper written on Monday might be torn up on Tuesday, rewritten only to be seriously compromised on Wednesday, and have nothing useful to say by Thursday. The life of Solomon Grundy comes to mind.
Although Parliamentary forces now appear aligned against a ‘no deal Brexit’, it remains the default option under both treaty and legislation. In a note available here, I look at the UK’s preparations for the possibility of leaving the European Union without a negotiated deal with respect to civil justice in non-family cases. The note focusses on three legislative instruments made under section 8 of the European Union (Withdrawal) Act 2018. Two of these deal with questions of jurisdiction and the recognition and enforcement of judgments: Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018 (SI 2018/1124); Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479). The third deals with the law applicable to contractual and non-contractual obligations: Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/xxxx, approved but awaiting publication).
Aside from the obvious implications for the UK’s civil justice system if the no deal scenario should eventuate, the UK’s approach to these issues offers a fascinating insight from a comparative law perspective as to how legal concepts and ways of thinking can persist beyond any obligation in international law to follow the rules of the club. These legislative instruments show that EU’s influence on UK private international law will continue well beyond any exit date or transitional period, whatever the nature of the future partnership. Thus, the UK will continue to apply the EU’s rules for determining the law applicable to matters of obligation (contained in the Rome I and Rome II Regulations), even to the extent of preserving distinctions between EU and non-EU facing situations. Moreover, in certain cases, the UK will apply the 2005 Hague Choice of Court Convention under a fiction of continuing membership of the EU. Finally, questions of jurisdiction with respect to parties domiciled in the UK will continue to be governed by rules modelled on the 1968 Brussels Convention (see s 16 and Schedule 4 of the Civil Jurisdiction and Judgments Act 1982, as amended by SI 2019/479). The common law will not roam free in this area.
Even if other scenarios should transpire, the content of the instruments is noteworthy. In the absence of any reference to provision for civil justice matters in the Political Declaration, the signalling of the UK’s intentions with regard to these matters forms an important part of the background against which negotiations on a future UK-EU relationship would be conducted. If, on the other hand, the final outcome is destined to be ‘no Brexit’, this legislation provides a snapshot – hopefully interesting in itself - of a system of private international law that never came into being.
(The note, available here, is based upon a presentation to the Bi-Annual Conference of Wissenschaftliche Vereinigung für Internationales Verfahrensrecht in Hamburg on Friday 15 March. I am grateful to the organisers of that conference for inviting me to speak on that occasion. The views expressed in this post and in the note are my own.)
Andrew Dickinson is Fellow and Tutor, St Catherine's College; Professor of Law, Oxford University.