Government aims to “mirror closely” current system of civil justice co-operation with EU post-Brexit

European Court of Justice: end to “direct jurisdiction”

The government said yesterday that it is seeking a “close and comprehensive” framework of civil justice cooperation with the EU post-Brexit, which would “mirror closely” the current system.

In an announcement welcomed by lawyers, the Department for Exiting the EU (DExEU) said it intended to incorporate into domestic law the Rome I and II regulations on choice of law, while remaining part of the Hague and Lugano Conventions.

In a paper on civil judicial cooperation, the DExEU said: “Existing international conventions can provide for rules in some areas, but they would not generally provide the more sophisticated and effective interaction, based on mutual trust between legal systems, that currently benefits both EU and UK business, families and individual litigants.

“The optimum outcome for both sides will be an agreement reflecting our close existing relationship, where litigating a cross-border case involving UK and EU parties under civil law, wherever it might take place, will be easier, cheaper and more efficient for all involved.

“The UK will therefore seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework.

“As we legislate for our withdrawal from the EU, it is also our intention to incorporate into domestic law the Rome I and II instruments on choice of law and applicable law in contractual and non-contractual matters.”

Leaving the EU would bring an end to the “direct jurisdiction” of the Court of Justice of the European Union (CJEU), but the DExEU said this “will not weaken the rights of individuals, nor call into question the UK’s commitment to complying with its obligations under international agreements; 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 department said it intended that the UK should continue to be a “leading member” of the Hague Conference on Private International Law and participate in both the Hague and Lugano Conventions.

In its position paper published in early July, the European Commission proposed that all cross-border civil legal matters started before Brexit should continue to operate under EU law after the UK leaves the union, but it left the question of what should happen to matters that post-date Brexit up for negotiation.

Andrew Langdon QC, chair of the Bar Council, said the paper appeared to include “sensible and sound proposals” and showed that the government had been “in listening mode” on this crucial topic.

“We are encouraged by the fact the government sees value in preserving much of what is already in place in existing arrangements between the UK and the EU, as well as the UK’s relationships internationally and third parties. However, the devil will be in the detail.”

Christina Blacklaws, vice-president of the Law Society, said the government had made a “strong commitment” to maintaining “clear and effective” rules post-Brexit.

However, she warned: “The government clearly has a big task ahead of it to turn these ideas into details that can effectively replace the range of agreements and institutions outlined in the paper.

“It will need to ensure that new arrangements not only deliver on the aspirations they have outlined, but meet the needs of both the UK and EU citizens and businesses who will use them, all while working through the give-and-take of the Brexit negotiations.”

Daniel Eames, chair of family lawyer group Resolution’s international committee, commented: “Without reciprocal rules, there can be no legal certainty in treatment with all the ensuing complications, delays and potential costs for families and children or local authorities undertaking their child protection function.

“These issues may not make headline news, but for families affected by a cross-border dispute, it can be deeply distressing. For their sake, the more clarity on what the situation will be after March 2019, the better.”

Gary Campkin, director of policy and strategy at TheCityUK, added: “Through continued participation in the Hague and Lugano conventions, and by committing to incorporating into domestic law the Rome I and II instruments on choice of law and applicable law in contractual and non-contractual matters, the UK has given a strong signal of its intention to maintain close judicial cooperation with the EU on civil matters.

“It should put these commitments into action as soon as possible. We also hope the EU recognises the UK’s proposals as the significant positive step they are and works with the UK to achieve the best outcome for businesses on both sides of the Channel.”

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