Civil and commercial jurisdiction after the Transition Period

BREXIT

Civil and commercial jurisdiction after the Transition Period

With the end of the Transition Period has come the end of the Brussels jurisdictional regime – at least for now, and at least to an extent. Certainly, the United Kingdom will no longer apply the most recent and detailed version of the Brussels regime, which was to be found in Regulation (EU) 1215/2012 (commonly known as the Brussels I (recast) Regulation). But on 8 April the United Kingdom did apply to accede to the Lugano Convention, which closely mirrors the Brussels Convention on which the Regulation was ultimately based.

That application has not yet borne fruit, however: though Iceland, Norway, and Switzerland have supported the United Kingdom’s accession, the European Union and Denmark have not yet indicated that they will agree; and accession requires unanimity among the Contracting Parties (by art 72(3) of the Convention). Even if they do, there is then a three-month grace period during which the Contracting Par-ties may object, and only after the expiry of that period would the United Kingdom accede to the Convention (by art 72(3)).

In the meantime, the rules of jurisdiction in civil and commercial matters will largely be the common-law rules found in Practice Direction 6B, supplemented notably by the 2005 Hague Choiceof-court Convention, which has ‘the force of law’ which by ss 1 and 4 of the Private International Law (Implementation of Agreements) Act 2020 throughout the United Kingdom. But that Convention is of limited scope and it may be wondered how much difference it will make to the position at common law: it applies only to exclusive jurisdiction agreements entered into after it came into force for the United Kingdom.

In substance, the position for now is that the common-law rules will continue to apply for non-Lugano States indefinitely and, for Lugano States, only till the unknown date when – if ever – the United Kingdom accedes to the Lugano Convention. Depending on the contours of their case, litigators weighing whether to serve proceedings against a defendant in a Lugano State may therefore wish to strike early or hold off in hope of the greater certainty that may be afforded if and when the United Kingdom does accede to that Convention. ■

Stephen Donnelly

Essex Court Chambers