On 11 December 2020, EAPIL hosted its first (virtual) seminar, under the title “Brexit and Private International Law – What Now?” Some of the speakers decided to share their initial statements. The statements of Pietro Franzina and Michiel Poesen can be found here and here, respectively. Alexander Layton’s is reproduced below.
Brexit and Private International Law – English law after 1st January 2021
Four and a half years after the Brexit wagon was set on its runaway path by a narrow majority of the votes cast in the 2016 referendum, it is no clearer what the future relationship is to be between the UK and the remaining 27 Member States of the EU in relation to civil judicial co-operation. The history of the UK’s involvement with EU private international law stems from the conclusion of the Treaty of Accession to the EEC of 22 January 1972. By Article 3(2) of the Act of Accession annexed to that Treaty the UK undertook to accede to the Brussels Convention of 27 September 1968, which had at that date not yet entered into force. It took another 15 years, but that Convention came into effect for the UK on 1 January 1987 and since then the UK has been a full participant in the European instruments of private international law in the civil and commercial sphere. That will all come to an abrupt end on 31 December 2020 (subject to a transitional provision for pending proceedings).
So, where does that leave English private international law in civil and commercial matters as from 1 January 2021? (Equivalent questions arise in respect of the separate laws of Scotland and Northern Ireland but are not considered here). The following is a brief – and necessarily simplified – summary of the position which will apply in England.
The legislation which paved the way for the UK’s withdrawal from the EU provided for EU legislation having direct effect in English law to become part of English domestic law, but with Ministers having power to disapply any part of that law by delegated legislation if they considered that such legislation would not operate effectively or otherwise was deficient in post-Brexit conditions. Among the many regulations which were made pursuant to that power the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019/479(and other regulations) made substantial amendments to the legislation which we are considering.
Among these changes are the wholesale repeal (subject to two qualifications) of the Brussels Convention of 1968, the Lugano Conventions of 1988 and 2007, and Regulations 44/2001 (Brussels I) and 1215/2012 (Brussels I Recast) and the Agreements with Denmark implementing such instruments. The two qualifications are, first, in accordance with the Withdrawal Agreement of 2019, the Brussels instruments continue to have effect in respect of proceedings commenced before 1 January 2021, including judgments given after that date in such proceedings in other Member States (unless the recognition and/or enforcement has already been considered and determined before that date); and, secondly, the 2019 regulations introduce into domestic law jurisdiction provisions on consumer contracts and on individual contracts of employment which are materially identical to the provisions in the Brussels I Recast.
Jurisdiction
Subject to those two qualifications, on 1 January 2021 we revert to familiar English law so far as jurisdiction is concerned. Under English procedural law, personal jurisdiction is founded on service – actual or deemed – of the Claim Form on the defendant. There are kind of case. First, service within England and Wales may be effected as of right without the need for permission of the court. Secondly, in one class of case, service outside England and Wales could also be effected as of right without the court’s permission. In recent decades, this has included nearly all cases in which the court’s jurisdiction was founded on the Brussels-Lugano regime as well as most cases where service is to be effected in Scotland or Northern Ireland, and a small number of cases where jurisdiction was founded as of right, usually under the terms of an international convention. This class of case will be radically narrowed when the UK leaves the European Union, but will now extend to cases where jurisdiction is founded on the Hague Choice of Court Convention 2005.
Finally, in all other cases where service is to be effected outside England and Wales, the court’s permission is required. There are three hurdles, and the Claimant must surmount all three. First, the case must fall within one or more of the classes of case in which permission is required. These are extensive and are now set out in the 22 sub-paragraphs of Practice Direction 6B to the Civil Procedure Rules. They are commonly called “gateways”. They include cases which concern:
⁻ a contract made in England, or through an agent trading in England, or governed by English law, or in respect of a breach of contract in England – sub-paras (6) and (7);
⁻ a tort where the wrongful event or damage occurred in England – sub-para (9);
⁻ a claim for an injunction to do or refrain from doing an act in England – sub-para (2);
⁻ a defendant who is a necessary or proper party to a claim against another (“anchor”) defendant – sub-para (3);
⁻ a further claim arising out of the same or closely related facts – sub-para (4A);
⁻ a claim for an interim remedy in the absence of jurisdiction on the merits – sub-para (5).
It is worth noting a few points. The tort ground is probably wider than the test under Article 7(2) of the Brussels I Recast in that it can include cases based on indirect damage; the “necessary or proper party” test is wider than Article 8(2), in that it does not require that the anchor defendant should be domiciled in England; and the claim for an interim remedy in the absence of jurisdiction over the substance was introduced into English law to give substance to what is now Article 35, but has since been widened and is to be retained.
The second hurdle is that the Claimant must demonstrate that the claim involves a “serious issue” to be tried – in effect an ant-abuse provision with a rather low threshold. The third hurdle is the most well-known, namely that the Claimant must show that England is the “proper place” to bring the claim. This is the forum conveniens test and is the counterpart of the power to stay proceedings on the grounds of forum non conveniens. Although this is called a discretionary test, it is now recognised that it is not so much an exercise of discretion as an exercise of evaluation of the evidence in order to decide whether England, or some competing alternative forum, is the more appropriate forum in all the circumstances.
Other points to note about English jurisdiction in this context are:
⁻ that a defendant who disputes the court’s jurisdiction or the validity of service may make an application challenging those matters, without thereby submitting to the English court’s jurisdiction over the substance;
⁻ that English courts will again be able to stay proceedings on grounds of forum non conveniens in favour of the courts of other Member States;
⁻ there is no separate priority rule giving precedence to the forum first seised, but prior seisin will be a factor, maybe a powerful factor, for a stay on grounds of forum non conveniens;
⁻ the courts will re-gain their power to grant an anti-suit injunction against a defendant who is subject to their personal jurisdiction, to restrain the commencement or continuation of proceedings in another Member State (a power most frequently used where England is a – or the – contractually chosen forum or to enforce an English-seated arbitration agreement); and
⁻ the UK will have given effect to the Hague Choice of Court Convention and will treat it as applying to forum selection clauses entered into since the EU acceded to that Convention in October 2015.
Recognition and Enforcement
Subject to the point made above about judgments in proceedings commenced before 1st January 2021, we will again revert to English law on that date. Here the law is rather simple, although different procedures apply to judgments from different countries. If the UK has a bilateral or multi-lateral convention with the state of origin, or reciprocal arrangements with certain Commonwealth or other countries, then a foreign judgment is enforced by a process of registration provided for by statues dating from 1920 and 1933. Otherwise, enforcement will involve an “action on the judgment” at common law, on the basis that the foreign judgment founds an obligation on the judgment debtor to make payment, which can be enforced by an ordinary action. Apart from multi-lateral conventions, such as the Hague Choice of Court Convention or conventions on specific subject-matters, all of which have their own grounds on which enforcement may be resisted, the law provides a three-pronged test for the enforceability of a foreign judgment, whether at common law or under the registration process.
First, the judgment must be a final judgment for a fixed sum of money. Other judgments, such as provisional judgments or non-money judgments, will not be enforced. They may, however, be recognised if the second and third criteria are satisfied and will (generally) give rise to an estoppel (a res judicata) binding the parties on any matter of fact or law which was a necessary part of the reasons for the foreign judgment.
Secondly, the judgment must have been given by what English law regards for these purposes as a court of competent jurisdiction. These indirect jurisdictional rules are quite narrow, in that the defendant must either have been present in the territory of the foreign court when the proceedings there were commenced, or must have submitted to the foreign court’s jurisdiction, either by prior agreement or by defending the case on the merits without challenging the jurisdiction (or after an unsuccessful challenge), or by counterclaiming in the proceedings. For corporate defendants, the test of presence requires something more than the transitory presence of a representative, usually a fixed place of business through which the activity in question had arisen.
Thirdly, the enforcement of the judgment must not be contrary to a number of defences, all of which are familiar in private international law – that the judgment was not obtained by fraud or in breach of principles of natural justice, its enforcement is not contrary to public policy. Inconsistency with a prior judgment entitled to recognition and, if appropriate, enforcement in England will also counteract a judgment’s enforceability.
Applicable law
Here, the story is far simpler. The UK has decided to retain the Rome I and Rome II Regulations as part of domestic private international law (subject to some minor and immaterial amendments). Where the subject-matter does not fall within either of those Regulations contract cases (such as maritime carriage or the other matters excluded from Rome I’s scope), will be subject to the English common law test of the “proper law”, which is the law expressly or impliedly chosen by the parties or, absent such a choice, the system of law with which the contract has the closest and most real connection. Tort cases outside Rome II will be governed by a 1995 statute which, generally, applies a lex loci delicti test, although defamation cases continue to apply the old common law “dual actionability” rules, which requires actionability both by the law of the loci delicti and by English law.
Other matters
The EU’s second generation regulations in the civil and commercial field – those concerned with European Enforcement Orders or European Payment Procedure Orders or the Small Claims regulation all cease to have effect on 31 December 2020. The same applies to the Service and Obtaining of Evidence Regulations, although those topics are very largely (if less efficiently) covered by the equivalent Hague Conventions of 1965 and 1970 respectively.
As for the Insolvency Regulation, most of it is also revoked – although that is a topic beyond the scope of this post.
Conclusion
In conclusion (and unless the ever-stretching negotiations between the UK and the EU produce an altogether unexpected outcome) the runaway Brexit wagon will sweep with it rules of private international law which have been integrated into the English legal system during a period of just under half a century. With some limited but notable exceptions, that integration has been far-reaching and highly successful. It is possible that in due course the UK will make its way back into the European system – whether by accession to the Lugano Convention or otherwise – but unless and until that happens, the UK’s participation in this European system will very soon be of historical interest only.