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Civil Judicial Cooperation after Brexit, “Providing certainty for businesses families and individuals”


Summary of the session on the Brexit that took place at Fide on January 25th, 2018, with Speaker – Mark Sweeney, Director General for Justice and Courts Policy at the United Kingdom Ministry of Justice; and Moderator – Miguel Sampol, State Attorney and Head of Unit, Spanish Legal Service before the European Court of Justice at the Ministry of Foreign Affairs and Cooperation




Future Civil Judicial Cooperation

Photo taken during the session
Photo taken during the session
The UK’s position on civil judicial cooperation has been laid out in the position paper of August 2017.  The UK is seeking a future relationship with the EU on civil judicial cooperation. The UK’s intention is to ensure that businesses, individuals and families in the European Union and the United Kingdom continue to have access to effective ways of settling cross-border disputes when things go wrong, whether that relates to international commercial contracts, consumer or employment problems, or disputes, for example, about child/parent contact or maintenance arrangements.
 
There was a discussion on the number of cross-border disputes involving parties in other EU Member States and the UK and recognition that cooperation in this area is important, both for protecting and enhancing commercial agreements – which serves the interests of both UK and EU businesses – the rights of consumers, and the rights of parents and children who need to be able to resolve sensitive family issues without undue delay, expense or uncertainty.
 
It was recognised that often contracts between EU businesses from outside the UK involve English Law and English choice of court clauses, including in relation to ISDA Master agreements concerning the trade in stocks and derivatives. Different views were raised on how to approach these issues in the future and the effect of the future agreement or the lack of it in the provision of cross-border legal services in the EU. 

The stages of the negotiations

The group discussed the fact the negotiations had three aspects: (i) the Withdrawal Treaty; (ii) the Transitional Period; and (iii) the future UK-EU relationship. There was a discussion about the current withdrawal negotiations and recognition that the published positions of the EU and UK sides showed a common understanding of the material scope of the civil judicial instruments for which provision needed to be made. However, it was acknowledged that there were still differences in how the UK and EU were approaching the contingency provision for “winding down” cooperation on civil judicial cooperation at the point at which the UK exited the EU, without prejudice to the UK’s expressed wish for a close future arrangement, and discussions were continuing.
It was recognised that the UK position was that they were seeking a transitional period of around 2 years, during which the UK would no longer be a member of the EU but would continue to participate on terms to be agreed in a range of measures. It was acknowledged that certainty about what was covered by the transitional period was important and should be prioritised in the negotiations. The UK’s position was that the transitional period should be based on the existing structure of rules and regulations, so that there was one set of changes for businesses and citizens.
 
The UK wanted to agree the transitional period quickly and is keen to begin discussions with the EU on the future relationship as soon as possible, including in areas such as civil judicial cooperation. 

The role of the CJEU and future dispute resolution for a civil judicial cooperation agreement between the EU and UK

Civil Judicial Cooperation after Brexit, “Providing certainty for businesses families and individuals”
There was a discussion on future role of the CJEU in the UK/EU relationship. It was recognised that the UK position was that the UK wanted to achieve a new relationship with the EU in civil judicial cooperation, and obtain the best framework to support businesses, consumers and families.  This was set out in the UK’s August 2017 position paper.  The CJEU would continue to interpret EU law and to be the ultimate arbiter of EU law for the European Union, just as the UK’s domestic courts would interpret UK law and the UK Supreme Court will be the highest court in the UK. Like all of the other areas where the UK is seeking an agreement with the EU, the UK believed that any civil judicial cooperation agreement could be consistent with the UK position on bring about an end to the direct jurisdiction of the CJEU in the UK, and enable us to have control about how the UK engages in civil judicial cooperation on the international stage (as the EU would control how it engaged). The details on how this would be achieved will be a matter for the negotiations. Some interventions questioned how a homogenous interpretation would be applied in the future and how the system will ensure the consistency of that interpretation. 

International treaties

There was a recognition that the UK’s participation in international treaties which it is currently party to by virtue of its membership of the EU will need to be dealt with. The UK was clear that it was seeking to continue its participation in the Hague 2005 Choice of Courts Agreement, the Hague 2007 Maintenance Agreement and the Lugano Convention 2007 in all circumstances, though as set out in the August 2017 paper it wished to agree a specific future arrangement with the EU on a bilateral basis going beyond this. Questions were raised on how this issue will be dealt in practical terms and on what would be the effects on rights or obligations of businesses, consumers and families and on effective judicial protection.