Brexit and Commercial Litigation
What impact could Brexit have on the process of litigation in England and Wales?
Choice of Court
The Brussels Regulation sets out which courts of EU member states should have jurisdiction in civil and commercial disputes. This is a reciprocal agreement between EU member states and cannot simply be incorporated into UK law in the same way as Rome I and Rome II.
The UK could accede to the Lugano Convention 2007 (requires consent from the EU) or the Hague Convention on Choice of Courts Agreements 2005.
In the absence of an agreement with the EU, English courts are likely to respect the provisions in contracts which confer jurisdiction by agreement on the English courts. The question of how such clauses would be treated by EU member states will be a matter of law for those states.
As it stands if proceedings are brought in the courts of more than one EU member state involving the same or related issues, the courts of the member state first seised of the dispute decides the issue of jurisdiction. This reduces the risk of parallel proceedings within the EU.
If the UK accedes to the Lugano Convention 2007 the prohibition on parallel proceedings will remain.
If the UK does not accede to the Lugano Convention or an alternative, there will be no bar on parallel proceedings.
The English courts would be once again able to issue anti-suit injunctions to prevent proceedings from being brought in other EU member states, something that they are not able to do at the moment because of the effect of the Brussels legislation.
The general positon of the English courts pre-Brexit has been there is no need to apply for permission to service out of jurisdiction if service is to be effected in the EU. If the UK does not enter in to the Lugano Convention 2007 it is likely that it would become necessary again to apply for permission to serve English court proceedings within the EU.
Recognition and enforcement of judgments
In the absence of an agreement on enforcement, the enforceability of judgments of the English courts within the EU would depend on the laws of each member state and local legal advice would be required.