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Post-Brexit Jurisdiction and Conflict of Laws Landscape
11 November 2020
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The Brexit transition period ends on 1 January 2021 and so will the application in the UK of the Recast Brussels Regulation, which provided a comprehensive framework for determining jurisdiction in civil and commercial matters.
The UK will accede to the 2005 Hague Convention on Choice of Court Agreements, which partially addresses the gaps that will be left by the Recast Brussels Regulation. However, the scope of the 2005 Hague Convention is limited to exclusive jurisdiction clauses. Further, although the 2005 Hague Convention came into force in the UK on 1 October 2015 when the EU acceded to the 2005 Hague Convention on its Members’ behalf, there is now a risk that EU Member States’ courts will not apply the Convention to exclusive jurisdiction clauses concluded before 1 January 2021 in favour of the English courts on the basis that the UK had not acceded to the 2005 Hague Convention in its own right before that date. Therefore, parties may wish to revisit their existing jurisdiction agreements to ensure that the 2005 Hague Convention applies to them after 1 January 2021.
The UK requested to accede to the 2007 Lugano Convention, but EU Member States have not (yet) consented to the accession. Whether and when the UK will accede to the Lugano Convention remains uncertain. Meantime, from 1 January 2021, the Courts will apply the old common law rules, which might be seen as a welcome revival for UK-domiciled defendants looking to challenge the English Courts’ jurisdiction in favour of a non-EU Member State’s courts or litigants wanting to protect their dispute resolution agreement from parallel proceedings in the EU through an anti-suit injunction.
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