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Brexit & Dispute Resolution States before Brexit. It is similar to the Service Regulation in that it also operates through a system of (i) central authorities designated to receive requests for service and (ii) classes of party entitled to request service abroad. This instrument is already well-known and utilised for service in international disputes, with 74 states having acceded to it, albeit it is slightly slower and more complicated than the system prevailing under the Service Regulation. Ultimately, service of proceedings involving the UK will not be significantly affected, although it will be somewhat less convenient.

UK element, as Article 2 of Rome I and Article 3 of Rome II provide that the law specified by either Rome I or Rome II shall be applied, whether or not it is the law of an EU Member State. Where parties have, in their contracts, expressly chosen a particular governing law, that choice will also be given effect. The courts of the EU Member States are already required to give effect to choice of law clauses, regardless of whether one of the parties is from outside the EU. The UK courts are also expected to continue to give effect to the choice of law of the parties in a no-deal scenario. Service of Proceedings One perceived area of risk in the conduct of civil and commercial proceedings post-Brexit relates to whether service of process will become more difficult. Currently, UK court proceedings may be served on defendants in other EU Member States, and proceedings from EU Member States may be served on UK-based defendants, in accordance with the Service Regulation (Regulation (EC) No 1393/2007) (the “Service Regulation”). This can be relatively quick and cost effective. If the Withdrawal Agreement comes into force, the current provisions regarding service that apply pursuant to the Service Regulation will continue during the transition period to the end of December 2020. It is unclear what will happen at the end of the transition period, but either a new arrangement

will be negotiated or the no-deal Brexit scenario will apply. In the event of a no-deal Brexit: • The UK Government has prepared a draft statutory instrument (draft Service of Documents and Taking of Evidence in Civil and Commercial Matters (Revocation and Saving Provisions) (EU Exit) Regulations 2018) which provides that documents for service received before exit day (but as yet unserved) will still be served in the UK in accordance with the Service Regulation. However, the EU’s Notice to Stakeholders, Withdrawal of the United Kingdom and EU rules in the field of Civil Justice and Private International Law, published on January 18, 2019, indicates that pending requests for service from the UK, will not be progressed after Brexit. • More generally, claimants will be able to effect service on defendants in EU Member States in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (the “Hague Convention on the Service of Documents”). This will govern (i) proceedings issued post-Brexit, (ii) proceedings from EU Member States not received by the UK authorities for service before Brexit, and (iii) UK proceedings received but not yet served by EU Member

Notwithstanding the potential benefits of the Service Regulation over the Hague Convention on the Service of Documents, one way of avoiding this issue is to include within contracts with a UK counterparty a provision authorising service on a process agent at a designated address, whether within the UK or Ireland. Service in this way – on a process agent – will be wholly unaffected by Brexit, whatever the outcome of negotiations. Enforcement of Foreign Judgments If a counterparty against which judgment may be obtained has assets or enterprises in other jurisdictions against which enforcement may be required, enforceability can be a significant factor when it comes to choosing governing law and jurisdiction in contracts. Parties need to be confident that they will be able to enforce their contractual obligations in a straightforward manner. The rules relating to the recognition and enforcement of judgments in EU/EFTA Member States are currently set out in: • the Brussels Regulation (Regulation (EC) No 44/2001) for proceedings commenced before January 10, 2015, and Brussels Regulation (Regulation (EU) No 1215/2012) (the “Brussels Recast Regulation”) for proceedings commenced on or after January 10, 2015, for disputes between parties domiciled in EU Member States (together the “Brussels Regime”); • the Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters 2007 for disputes involving parties domiciled in the EU and Norway, Switzerland and Iceland (being EFTA Member States) (the “Lugano Convention”); • the Hague Convention on Choice of Court Agreements of 2005 (the

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Retail News April 2019  

Retail News, is Ireland’s longest established FMCG B2B magazine. It has been around for over 60 years, from the birth of the supermarket, th...

Retail News April 2019  

Retail News, is Ireland’s longest established FMCG B2B magazine. It has been around for over 60 years, from the birth of the supermarket, th...

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