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*BREXIT WRITING COMPETITION RUNNER UP* - Brexit: The End of the Road for Conflicts Harmonisation in the UK?

In his entry, Jordan Rhodes of fourth year considers the uncertain future for Private International Law following the Brexit vote...

"Brexit: The End of the Road for Conflicts Harmonisation in the UK?" - Jordan Rhodes (4th year)

On 24 June 2016, the electorate of the United Kingdom voted to leave the European Union by 51.89% to 48.11%. With matters such as migration control, legislative sovereignty and membership fees engulfing the debates in the run up to the referendum, one can hardly imagine the average voter contemplating the potential ‘exit effects’ on the conflict of laws when marking his ballot. This area, also known as private international law[1] (‘PIL’), is the branch of law designated to resolving legal issues with a ‘foreign element’. The discipline is typically broken down into the three primary questions it addresses: (i) what court has jurisdiction to hear a case?; (ii) what state’s law applies to a case?; and (iii) to what extent should a decree granted by a foreign court be recognised? Each of these pillars has been significantly reformed at the hand of the European draftsman – a process coined ‘Europeanisation’.[2]

Before 1999, judicial co-operation in civil matters between EU Member States was a matter of intergovernmental co-operative effort.[3] The products of this were negotiated conventions, pursuing “the simplification of formalities governing the reciprocal recognition and enforcement of judgements of courts or tribunals and of arbitration awards”.[4] On 1 May 1999, the Treaty of Amsterdam came into force, delegating legislative competence in PIL to the EU’s institutions.[5] In other words, PIL became a matter of EU “hard-law”.[6]

The EU mechanism initially exploited in the harmonisation process was the convention. The two primary exemplars are the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters and the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Both of these enactments have almost completely been superseded by progeny instruments. Following Amsterdam, the legislative tool used is the regulation, which is directly applicable in Member States,[7] provides a uniform date of force and provides an automatic right of appeal on interpretation points to the Court of Justice of the European Union[8] – reflecting the desire for consistency, uniformity and speed.[9]

Today, jurisdiction and enforcement (questions (i) and (iii) above) are essentially governed by the so-called ‘Brussels I Regime’.[10] This was established by the Brussels Convention and, in the context of civil and commercial matters, consists of two superseding regulations, namely: The Brussels I Regulation[11] and the Brussels I Regulation Recast.[12] Jurisdiction in family matters is governed by the Brussels IIbis Regulation.[13] Choice of law, viz. the determination of the applicable law (question (ii) above) is considerably, though not wholly,[14] regulated by the ‘Rome family’. In the UK, the two operational instruments are the Rome I Regulation[15] and the Rome II Regulation.[16] The former designates the law that is to apply to cross-border contractual issues, and the latter concerns non-contractual matters, such as torts and delicts,[17] product liability[18] and unfair competition.[19]

These developments have led commentators to assert that PIL is “no longer English law”.[20] Instead, “Its civil and commercial core, in particular, has been taken over and is now found in European laws”.[21] Clearly the implications of Brexit cannot be understated. Art.50 of the Treaty of the European Union provides that, after a transitional period, the treaties will cease to apply. The UK Parliament will subsequently repeal the European Communities Act 1972, thus repealing the PIL regulations. The Brussels and Rome conventions, however, are not regulations. Rather, they are conventions incorporated into domestic law not via the 1972 Act, but via the Civil Jurisdiction and Judgments Act 1982 and the Contracts (Applicable Law) Act 1990. Professor Dickinson considers the possibility of the Rome Convention ‘reviving’ under statutory interpretation of the 1990 Act, and states that it is ‘strongly arguable’ that the UK’s treaty obligations under public international law would revive post-withdrawal.[22]  A similar, though “less compelling”, argument is advanced in respect of the Brussels Convention.[23]

The more realistic proposition is that the future of UK PIL will fall at the mercy of the exit treaty negotiated between the UK and the EU. Although it is questionable whether PIL will sit at the top of the agenda, its Europeanisation and the uncertainties that Brexit consequently carries should urge both sides of the Channel to set up some sort of short-term bilateral agreement conferring reciprocal rules pertaining to jurisdiction, choice of law and recognition of foreign judgements – at least until a fully-fleshed out conflicts framework is arrived at. Such a uniform system is only in the interests of both parties, whose citizens will continue to engage in cross-border legal relations long after the art.50 journey is complete.

 

[1] Or more accurately, international private law. See J. Fawcett & J.M. Carruthers, Cheshire, North & Fawcett: Private International Law 14th edn. (Oxford, 2008), 17.

[2] E.B. Crawford & J.M. Carruthers, International Private Law: A Scots Perspective 4th edn. (Edinburgh, 2015), 6.

[3] Fawcett, Cheshire, 13.

[4] Treaty of Rome 1957, art.220.

[5] Treaty of Amsterdam 1997, arts.61 and 65.

[6] E.B. Crawford & J.M. Carruthers, Conflict of Loyalties in the Conflict of Laws (2005) 3 Jur Rev 251, 252.

[7] Treaty on the Functioning of the European Union, art.288.

[8] TFEU, art.267. See Crawford, A Scots Perspective, 10.

[9] Crawford, Loyalties, 264.

[10] A. Dickinson, The Brussels I Regulation Recast (Oxford, 2015), 1.

[11] Regulation (EC) No.44/2001 (December 22, 2000) on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.

[12] Regulation (EU) No.1215/2012 (December 12, 2012) on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.

[13] Regulation (EC) No.2201/2003 (November 27, 2003) concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility.

[14] Property and succession remain areas where the applicable law is determined by common law principles.

[15] Regulation (EC) No.593/2008 (June 17, 2008) on the Law Applicable to Contractual Obligations.

[16] Regulation (EC) No.864/2007 (July 11, 2007) on the Law Applicable to Non-Contractual Obligations.

[17] Ibid., art.4.

[18] Ibid., art.5.

[19] Ibid., art.6.

[20] A. Briggs, Private International Law in English Courts, (Oxford, 2014), v.

[21] Ibid.

[22] A. Dickinson, Back to the Future: The UK’s EU Exit and the Conflict of Laws (2016) 12:2 Journal of Private International Law 195, 204.

[23] Ibid.

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