Tom Price
Partner
Head of the CIS and CEE desk
Article
7
Following last month's cabinet crisis talks at Chequers and the subsequent cabinet shakeup which saw Dominic Raab appointed as Secretary of State for Exiting the European Union, the UK Government did then publish its new Brexit white paper, "the future relationship between the United Kingdom and the European Union". Here we look at one aspect of that paper - what it has to say about civil judicial cooperation, and what that could mean for cross-border dispute resolution after Brexit.
Civil judicial cooperation refers to the agreements and procedures in place between different legal jurisdictions to coordinate legal proceedings in cross-border disputes. It includes matters such as:
In the white paper, the Government recognises that civil judicial cooperation gives businesses certainty in the event of disputes, and thus inspires confidence in cross-border trade, to the mutual benefit of the UK and EU.
At present, by virtue of its status as an EU member state, the UK enjoys the benefit of a range of regulations and conventions dealing with all aspects of judicial cooperation outlined above. These include for example:
The EU and UK have agreed in principle that these provisions will have continuing effect for the transition period between the date of the UK's withdrawal from the EU (29 March 2019) and 31 December 2020. That is however subject to concluding a formal withdrawal agreement. After that time though, absent making an alternative agreement in the meantime, those arrangements will all cease to have effect and the UK will lose the benefit of these instruments.
In her foreword to the white paper, the Prime Minister talks about the inevitable tensions between the UK and EU's opening positions in Article 50 negotiations. The white paper, she says, sees the UK evolving its proposals while sticking to its principles. As far as civil judicial cooperation is concerned, the proposals in the white paper are certainly evolutionary rather than revolutionary - they closely mirror those outlined by the Government in August last year in its Future Partnership Paper, "Providing a cross-border civil judicial cooperation framework". The proposals in the latest white paper are:
The EU has not yet responded to the latest white paper. The EU has previously signalled it is willing to consider the possibility of post-Brexit judicial cooperation in family law, but the UK wants to see this extended across the sphere of civil judicial cooperation.
Where the UK and the EU do agree, as mentioned above, is that the EU law in force as at the date of the UK's withdrawal will continue to apply during the transition period to December 2020. Although this will provide a degree of certainty as to the rules which will apply to cross-border disputes immediately following Brexit, there is still unwelcome uncertainty about how that position will change from 2020 when the transition period comes to an end.
Another difficulty that is going to have to be negotiated is the position of the Court of Justice of the European Union (CJEU). While the government's White Paper is clear that, with Brexit, the CJEU will cease to have the power to make rulings that bind the UK, any future arrangements on civil judicial cooperation will still need to recognise that the CJEU will remain the ultimate arbiter of EU law within the EU.
As with all things Brexit, it may be some time before we have a definitive picture of how it is likely to impact dispute resolution between UK and EU parties, and how parties should cater for it in their dispute resolution clauses.
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