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Brexit & Dispute Resolution

“Hague Convention”) for disputes involving parties domiciled in EU Member States, Mexico, Singapore and Montenegro; the common law for all other disputes.

There is uncertainty as to the extent to which non EU/EFTA judgments will be recognised and enforced across the EU, and they may require separate applications, subject to differing domestic rules in each EU Member State. Enforcement proceedings are regularly subject to jurisdictional challenge and the judgments tend to have to be final and conclusive, as well as merit based. All of this contributes to rendering the enforcement process less certain, less effective, more timeconsuming, more cumbersome and more expensive. For judgments covered by the Brussels Regime and the Lugano Convention (for EU and EFTA Member States), what constitutes a judgment under those instruments is broadly defined and includes orders or judgments in the nature of injunctions and costs determinations as well as interim orders (but excludes insolvency related judgments). Proceedings for cross border recognition and enforcement are straightforward and predictable, with little or no potential for delay. If the Withdrawal Agreement applies to Brexit, it provides (at Article 67(2)) that the Brussels Recast Regulation shall continue to apply to the recognition and enforcement of judgments sought before the end of the transition period (which, by virtue of Article 126, will expire on December 31, 2020) and given in legal proceedings instituted on or after January 10, 2015. Accordingly, the Withdrawal Agreement maintains the status quo until the end of December 2020, during which time it would be for the UK and the EU to reach a long-term arrangement with regard to recognition and enforcement. Once the UK leaves the EU, the Brussels Regime and the Lugano Convention will no longer apply to the UK. Although the UK Government has indicated a desire to reach agreement with the EU27 on continued civil justice co-operation post-Brexit, it remains to be seen what, if anything, will be negotiated. The UK has indicated that it will apply to re-join the Lugano Convention in its own right at a later date. Pursuant to the draft Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations

2019, published by the UK Government in December (the “Exit Regulations”), UK courts will apply current rules in relation to enforcement of judgments where the EU Member State court’s judgment was given in proceedings commenced pre-Brexit. By way of contrast, in the EU’s Notice to Stakeholders, published on January 18, 2019, it is stated that EU Member State courts will not apply the current enforcement rules to UK court judgments unless the exequatur procedure has been completed before exit day, even if the judgment was handed down before exit day or the enforcement proceedings were commenced before exit day. The Brussels Convention of 1968 There is an argument that the Brussels Convention of 1968 (a treaty signed by the then six members of the European Communities and since expanded) could still be used to enforce certain

EU Member State judgments in the UK (or UK judgments in certain other EU Member States), as that instrument has not been abrogated. However, quite apart from the fact that it only has potential relevance to contracting states, both the Brussels Recast Regulation and its predecessor, the Brussels Regulation, purport to “supersede” the Brussels Convention. A party seeking to rely on the Brussels Convention would face a difficult and uncertain argument in the jurisdiction where enforcement may be sought that the Brussels Convention remains a vehicle for enforcement. The ultimate determination of such argument may fall to the European Court of Justice, which is a scenario the UK would presumably seek to avoid, given it is contrary to the principle of Brexit. Accordingly, the more prudent view is that the Brussels Convention cannot be relied upon as a route to enforcement

Profile for Retail News

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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