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Brexit & Dispute Resolution post-Brexit. The Hague Convention could act as a fallback for a no-deal Brexit. The UK deposited its Instrument of Accession to the Hague Convention on December 28, 2018. The UK Government has indicated it will withdraw its Instrument of Accession to the Hague Convention if the Withdrawal Agreement enters into force. The Hague Convention, however, is limited in its scope. The parties to a dispute must have entered into an agreement containing an exclusive jurisdiction clause in favour of one of the contracting states, which agreement must have been concluded after the Hague Convention came into force for that state. In terms of the recognition and enforcement of judgments under the Hague Convention, only judgments on the merits are covered. It is not, therefore, possible to seek enforcement of interim rulings. In addition, certain types of claim, such as contracts for carriage and certain intellectual property claims, are excluded; and the Hague Convention does not extend to insolvency, arbitration, consumer, employment, antitrust and insurance matters (and certain other specific matters). For all cases which fall outside the scope of the Hague Convention, enforcement of UK court judgments in Ireland (and vice versa) will be dependent on common law rules of private international law. This means that receivership and enforcement will only be possible where the judgment is final and conclusive and involves a fixed monetary amount. In addition, other considerations such as questions of jurisdiction and public policy may also be relevant to whether it will be recognised and enforced. Enforcement of UK judgments in other EU jurisdictions will similarly depend on their domestic rules on the enforcement of foreign judgments, which may differ between jurisdictions. Recognition and enforcement of non-final or non-money judgments are not facilitated at common law, rendering it necessary to bring fresh proceedings in Ireland in which the foreign judgment or order forms the basis of the action. If You Are Still Negotiating: If you are still negotiating your arrangements with a counterparty, but fear for the prospects in the future of enforcement of an Irish judgment in the UK, or vice versa, you should endeavour to defer concluding your agreement until after exit day, and include an exclusive jurisdiction clause. If the counterparty

has assets in other jurisdictions and you would like to preserve the option of additionally enforcing a judgment in another EU or EFTA country, you should consider including an exclusive jurisdiction clause in favour of Ireland or another EU Member State, so that you can avail of the Brussels Regime. If you already have a judgment and want to enforce it in the UK, the Brussels Recast Regulation will continue to apply to the recognition and enforcement in the UK of judgments given in proceedings commenced prior to December 31, 2020 if the Withdrawal Agreement comes into effect. However, in the event of a no-deal Brexit, enforcement of a judgment already obtained will depend on whether you have a UK judgment to be enforced in Ireland, or an Irish judgment to be enforced in the UK: • For a UK judgment to be enforced in Ireland, the EU Notice to Stakeholders addresses the position once the UK becomes a non-EU Member State (ie a third country). It clarifies that EU rules

on recognition and enforcement of judgments will not apply to UK judgments unless the judgment involved has been enforced before the withdrawal date. This is so, even where the UK judgment was handed down before the withdrawal date or the enforcement proceedings were commenced before the withdrawal date. • For an Irish judgment to be enforced in the UK, the Exit Regulations provide that the UK will continue to enforce judgments from EU Member States where the relevant proceedings were commenced before exit day (even though it seems that the EU will not reciprocate). In the event of a no-deal Brexit, if UK judgments are obtained against corporations with assets spread across the EU, it will potentially be necessary to make applications for enforcement in each EU Member State. For more information, visit www.matheson.com/brexit-forum.

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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