WHAT WILL BE THE IMPACT OF A NO-DEAL BREXIT ON CIVIL JUDICIAL COOPERATION BETWEEN THE UK AND EU?
As the UK looms ever closer to ‘exit day’ on 29 March 2019, the risk of the UK crashing out of the European Union (EU) without an agreement seems ever more likely. It is an unfortunate reality that the precise legal implications of Brexit are still remarkably murky. This article considers the impact of a ‘no deal’ Brexit on governing law and jurisdiction in litigation and the recognition and enforcement of judgments between the UK and EU.
Governing law
The UK currently applies the following European instruments to determine applicable law: (i) the Rome Convention on the law applicable to contractual obligations, which applies to contracts entered into pre-17 December 2009; (ii) Rome I, which applies to contracts entered into on or after 17 December 2009; and (iii) Rome II. These three instruments provide a set of rules, pursuant to which, the law governing contractual or non-contractual obligations can be determined in a uniform manner by courts of EU Member States.
With regard to contractual obligations, the general rule is that a contract will be governed by the law chosen by the parties. Where the governing law has not been specified, Rome I sets out how to determine the applicable law. With regard to non-contractual obligations, Rome II specifies the general rule that the applicable law is the law of the country in which the damage occurs, with some enumerated exceptions.
Apr-Jun 2019 issue
Kirkland & Ellis International LLP