Ince Podcasts

Brexit: Jurisdiction clauses and the enforcement of judgments... where are we now?

January 27, 2021 Ince Season 1 Episode 14
Ince Podcasts
Brexit: Jurisdiction clauses and the enforcement of judgments... where are we now?
Show Notes Transcript

The Brexit transition period came to an end on 31 December 2020, shortly before which the UK and the EU were finally able to agree a trade deal.

In this podcast, David Choy sets out key points to take into account when considering the recognition of law and jurisdiction clauses and the enforcement of English court judgments, as of 1 January 2021

Hi, my name is David Choy and I’m a Managing Associate in the London office of Ince. 

Now that the transition period has come to an end, and the UK and the EU have finally reached an agreement on a trade deal, it is a good time to take stock on what this means for the recognition of law and jurisdiction clauses and the enforcement of English court judgments.  

So, as of 1 January 2021:

-   The Recast Brussels Regulation and the Lugano Convention which contained the rules relating to jurisdiction and the enforcement of judgements which applied prior to Brexit no longer applies to the UK for proceedings commenced from this date; 

-   However, the Rome I and the Rome II Regulations containing the rules relating to the law to be applied to disputes do still apply to the UK; and

-   The UK has, in its own right, joined the 2005 Hague Convention on Choice of Court Agreements.  

With this in mind, I thought it would be helpful to set out 5 key points to take into account when considering the recognition of law and jurisdiction clauses and the enforcement of English Court Judgements.

1.  Firstly, Brexit will have no impact on the recognition of arbitration provisions or the enforcement of arbitration awards. London arbitration which accounts for most of our work will not therefore be affected.

2.  Secondly, the recognition of English governing law provisions should not change, as Rome I and Rome II still applies. 

3.  Thirdly, for English Court proceedings commenced before the end of the transition period, the EU regulations shall apply with regards to the recognition of jurisdiction agreements and judgments.

4.  Fourthly, the 2005 Hague Convention, which gives effect to an exclusive jurisdiction clause in which the court of a contracting state is designated, shall apply to exclusive jurisdiction agreements entered into from 1 January 2021 (and judgements arising out of proceedings relating to such agreements). 

However, there is some uncertainty about whether the EU member states will treat contracts concluded between 1 October 2015 and 31 December 2020 as being captured by the 2005 Hague Convention  (i.e. the period during which the UK was only a party to the Hague Convention by virtue of its membership to the EU). 

A possible way of overcoming this potential issue could be for the parties to re-state or re-affirm jurisdiction clauses in contracts entered into during this period. 

5.  Fifthly, the 2005 Hague Convention does not apply to non-exclusive jurisdiction agreements and therefore the courts of the EU27 will apply their own domestic rules (and English courts will apply common law) to decide the enforceability of such clauses.  

If you require any further information on these issues then please reach out to your usual contact at Ince, or myself, and we’ll be pleased to discuss these further with you.