A Joint Statement from the UK and EU negotiators on the draft Withdrawal Agreement was published on 19 June 2018. A copy can be found here. This has been published in advance of the summit of EU leaders next week (28-29 June 2018), where further negotiations on the draft Withdrawal Agreement will take place, and it provides an update on negotiations since the 19 March 2018 draft of the Withdrawal Agreement was published.
The headline points are that:
- the UK and EU negotiators have now agreed the text of Article 63 of the Withdrawal Agreement, but
- the provisions as to CJEU jurisdiction and legal representation in CJEU cases (Articles 82, 83, 85 and 87) are still not agreed.
The agreed text of Article 63 is summarised below:
- Jurisdiction: the March 2018 text has been amended further: RBR provisions on jurisdiction shall apply in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to those aforementioned legal proceedings pursuant to Articles 29, 30 and 31 of RBR [ie lis pendens and related actions].
- Recognition and enforcement of judgments: the proposed amendment in the March 2018 text has been accepted: ie relevant RBR provisions shall apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period.
- Choice of court agreements: this was included in the March 2018 text, but has now been deleted: RBR Article 25 on choice of court agreements will apply in respect of agreements concluded before the end of the transition period.
It is notable that the text on choice of court agreements has been deleted; the rationale for removing it is not explained. Our sense is that Article 25 is understood to fall within the “RBR provisions on jurisdiction”, and therefore it is unnecessary to include it as a separate paragraph. However, if this is not the case, and it is intended that a party’s choice of court agreement concluded during the transition period should not be recognised, this is a significant departure from the previously understood position. We will continue to watch for updates and hope that there is some further clarity on this following next week’s EU summit.
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