PROCEDURAL IMPLICATIONS FOR CROSS-BORDER LITIGATION: A POST-BREXIT BRIEFING NOTE
The start of a new year is often greeted with the phrase ‘out with the old, in with the new’. For those involved in cross-border litigation, the phrase has rarely seemed as appropriate as it does at the start of 2021. 1 January 2021 marked the end of the Brexit transition period, which has resulted in a number of significant changes which litigators and those responsible for drafting commercial contracts will need to have in mind. This note provides a high level overview of the developments in three key areas.
Governing law
The old: EC Regulations No 593/2008 (Rome I) and No 864/2007 (Rome II). Rome I allows parties to choose the law which will govern a contract, and provides a series of rules to determine which law should apply if the contract does not make this clear. Rome II sets out rules which govern the law applicable to non-contractual obligations arising in a number of different contexts, including unfair competition and infringement of intellectual property rights, and also allows parties to agree the governing law. The regulations require the courts of each member state (apart from Denmark) to apply those rules to determine the applicable law in a dispute.
The new: still Rome I and II. Post-Brexit, for the remaining EU member states the Rome regulations continue to apply. Importantly, both Rome I and Rome II make clear that parties can choose as governing law the law of a non-member state. Subject to the existing exceptions contained within the regulations, therefore, EU courts ought to continue to respect parties’ choice of English law.
Apr-Jun 2021 issue
Gibson, Dunn & Crutcher LLP