Civil judicial cooperation doesn’t tend to be a dinner party conversation-starter but it is important and, as we near EU exit, it is undoubtedly on the minds of legal professionals. It is technical in its nature, but also tangible in its impact: it enables families, consumers, businesses and investors alike to resolve legal disputes across national borders with certainty and without undue delay.
As with plans for other areas of the Brexit negotiations, the government is seeking to secure an agreement on civil judicial cooperation - the legal framework that governs the interaction between the different legal systems of international jurisdictions in cross-border situations - with the EU so that there is clarity about which country’s law applies when a dispute arises, which country’s courts have jurisdiction to hear a civil, commercial or family case, and how a judgment obtained in one country should be recognised and enforced in another.
The government set out its plans for this in its White Paper earlier this year, which involves establishing a new civil judicial cooperation framework that mirrors as closely as possible the current existing provisions.
We have also made significant progress in the negotiations on the Withdrawal Agreement, with most issues now resolved, including on citizens’ rights and the financial settlement and we remain confident that we will agree a mutually advantageous deal with the EU.
A good deal is in sight. However, it is the duty of a responsible government to also focus on preparations for a range of potential outcomes, including to be prepared in the event of ‘no deal’. Let me be clear: we do not want, nor expect, a ‘no deal’, but it is right we plan for this.
After 29 March 2019, if there is ‘no deal’, there will be no agreed framework for ongoing civil judicial cooperation between the UK and EU member states. The contingency plans outlined in our technical notice therefore aim to provide as much continuity and certainty as possible.
In this ‘no deal’ scenario, the government believes that certainty is best achieved by repealing most of the existing EU civil judicial cooperation rules and instead relying on domestic rules the UK currently applies to countries outside of the EU. The UK would also apply existing international agreements, such as the Hague Conventions, which provide alternative, rather than the EU-specific, instruments in many areas of civil judicial cooperation.
Where the UK currently participates in Hague Conventions by virtue of its EU membership (the 2005 Hague Convention on Choice of Court Agreements and the 2007 Hague Convention on Maintenance), the UK would make the necessary arrangements to continue to participate in these international agreements in its own right.
The UK would retain some elements of the current EU rules where they either do not rely on reciprocity with other EU countries to operate, or where they form the basis for our existing domestic or international rules. So, for example, we will keep the rules on respecting choice of law in contractual and non-contractual matters which we can operate in the same way whether we are in the EU or not.
Businesses, individuals and legal practitioners would need to consider how these rules interact with the domestic rules of EU countries to determine how jurisdiction in cross-border disputes should be established and how any judgments would be recognised and enforced.
We hope and expect that this ‘no deal’ plan will not be required, but we are taking the necessary steps to prepare responsibly for exit in all potential outcomes.
We will continue to work hard to reach a deal with the EU to deliver a sustainable future partnership that allows businesses, consumers and families in the UK and the 27 member states to grow, shop and get on with their lives with confidence and clarity.
Lucy Frazer QC MP is a parliamentary under secretary of state at the Ministry of Justice.