Jurisdiction after Exit Day: What does the draft Withdrawal Agreement tell us?
The Draft Withdrawal Agreement
The draft Withdrawal Agreement between the United Kingdom and the European Union was approved by the UK Cabinet on Wednesday 14 November 2018.
Formally the “14 November 2018 Draft Agreement on the Withdrawal of the United Kingdom … from the European Union and the European Atomic Energy Community”, the draft Agreement has now been published.
Of course, the draft Agreement requires the approval of (among others) the UK Parliament and the Member States who will remain in the EU. Donald Tusk, the European Council President, announced on Thursday morning that a special EU Brexit summit would take place “if nothing extraordinary happens” on 25 November 2018.
If the draft Withdrawal Agreement is approved what would be the rules on jurisdiction and the recognition and enforcement of judgments after Exit Day (currently scheduled for 11pm on 29 March 2019)?
What does the draft Withdrawal Agreement say about Jurisdiction?
Jurisdiction is dealt with by Article 67(1) of the draft Withdrawal Agreement. Broadly, that draft agreement provides “[i]n the United Kingdom, as well as in the Member States in situations involving the United Kingdom” for:
- The continued application of the Brussels (Recast) Regulation 1215/2012 for legal proceedings “instituted before the end of the transition period”: Article 67(1).
- The Brussels (Recast) scheme for legal proceedings which although not instituted by that date “are related to such proceedings” pursuant to Articles 29, 30 & 31: Article 67(1). Those Articles contain some of the Brussels Recast’s lis pendens provisions, in particular involving (i) same cause of action, same parties (Article 29), (ii) related actions (Article 30); and (iii) exclusive jurisdiction of several courts (Article 31).
And the Recognition and Enforcement of Judgments?
As to the recognition and enforcement of judgments, “[i]n the United Kingdom, as well as in the Member States in situations involving the United Kingdom” Article 67(2) provides for the Brussels (Recast) still to apply to “judgments given in legal proceedings instituted before the end of the transition period”.
How is the European Enforcement Order dealt with in the draft Withdrawal Agreement?
The European Enforcement Order Regulation 805/2004 (“the EEO Regulation”) deals with the recognition and enforcement of judgments, court settlements and authentic instruments given on “uncontested claims”: Article 3(1).
Provided that the relevant EEO Certificate was applied for before the end of the transition period, the draft Withdrawal Agreement provides for the continued application of the EEO Regulation to:
- “[J]udgments given in legal proceedings instituted before the end of the transition period”; and
- “Court settlements approved or concluded and authentic instruments drawn up before the end of the transition period”: Article 67(2)(d).
So, when is the “end of the transition period”?
The draft Withdrawal Agreement defines the “transition period” as ending on 31 December 2020: Articles 2(e) and 126.
However, Article 132(1) provides a mechanism for a single extension of the transition period before 1 July 2020. In the draft Withdrawal Agreement currently released, the date to which that period can be extended is given merely as “[31 December 20XX]”. This is one aspect of the draft still to be decided.
Only the political process will tell us whether the draft Withdrawal Agreement in fact contains the rules which we will be applying after 11pm on 29 March next year.
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Written by Joshua Folkard
Josh is regularly instructed in commercial disputes concerning jurisdiction/service out and applicable law and cases concerning application of the EEO Regulation. He is the author with Graham Chapman QC and George Spalton of the talk “Jurisdiction and Applicable Law after Exit Day – What You Need to Know”.
Disclaimer: this article is not to be relied upon as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.
© Josh Folkard of 4 New Square, November 2018.