Newington’s Joe Knight and Sarah Mann summarise the UK’s future partnership paper on providing a cross-border civil judicial cooperation framework.

The Department for Exiting the European Union (DExEU) published a further position paper outlining its negotiating stance on cross-border civil judicial cooperation (22 August).

• Civil judicial cooperation is the legal framework that governs the interaction between different legal systems in cross-border disputes, including business disputes and issues such as child custody, divorce.
• Currently, civil judicial cooperation between the UK and EU Member States is covered by existing European Union law that will cease to apply in the UK after Brexit.

Key provisions

The key proposals of the paper are that:

• “Leaving the EU will bring an end to the direct jurisdiction of the CJEU (Court of Justice of the European Union) in the UK”.
• “The UK will seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework”.
• “As the UK legislates for withdrawal from the EU, it will incorporate into domestic law the EU instruments on choice of law and applicable law in contractual and non-contractual matters”.

The UK suggests that an interim period that allowed for a smooth and orderly move from its current relationship to a future partnership would be beneficial. As such, the paper includes an Annex that documents the principles that should govern the “winding down” of its existing relationship with the EU in the event that no agreement on a future relationship can be reached.

This Annex outlines that should no future agreement be reached:

• Existing EU rules governing the applicable law for contractual and non-contractual obligations should continue to apply to contracts concluded before the withdrawal date.
• Existing EU rules governing jurisdiction to determine disputes should continue to apply to all legal proceedings introduced before the withdrawal date.
• Courts chosen to deliver judicial decisions before the withdrawal date should continue with their rulings.
• Enforcement of judicial decisions given before the withdrawal date using EU rules should be recognised.
• Pending judicial cooperation procedures and requests from the European Judicial Network on the date of withdrawal should continue.

Analysis

Practically speaking, the paper suggests that a judgement obtained in one country can be recognised and enforced in another. The paper proposes a deal which near enough replicates the current arrangement. Ministers have defended the move that the paper is not a back down from British judicial independence outlining that civil judicial cooperation is a separate matter to disputes involved the European Court of Justice.

The Institute of Directors praised the paper for laying out principles for agreements between governments, ensuring that businesses will have certainty over the process for future cross-border disputes.

Next steps

If you would like to speak to Newington about how your business could best outline its position to the Government please get in touch with our dedicated Brexit team at [email protected] or call Lizzy Roberts on 020 7234 3332.