Ed began by outlining the current framework for jurisdiction and enforcement of judgements under the Brussels Recast Regulation and English common law. He highlighted the uncertainty of these regimes regarding the outcome of Brexit, before describing the various possible post-Brexit outcomes and their effects. The outcomes which he considered were the UK:
- signing up to the Brussels Recast Regulation (the Denmark model)
- signing up to the Lugano II Convention, and
- ratifying the Hague Convention (a hard Brexit scenario).
The outcome of these political decisions will clearly have an impact on the status of a jurisdiction clause in favour of the English courts, and the enforcement of English court judgments in Europe and elsewhere.
Elizabeth discussed the practical impact of these considerations for clients. She highlighted the need for clients to consider their post-Brexit strategy, which would require them to: (i) identify their existing and future contract populations in order to; (ii) assess the potential impact risk they are facing as a result of Brexit.; and (iii) determine what, if any, measures should be taken to mitigate those risks (one of which included repapering clients in certain circumstances on the basis of an EU27 or EFT state governing law and jurisdiction clause). She gave a brief demonstration of the Simmons & Simmons product, "Disputes Aviator", which enables subscribers to identify key areas of governing law, jurisdiction and enforcement risk in their contracts.
Minesh gave an overview of the status of arbitration agreements with England as their seat in light of Brexit. It is expected that Brexit will have little change on the status of English-seated arbitration clauses, due to the fact that the New York Convention (NYC) is an international convention unconnected to EU membership. In particular, NYC contracting states (of which there are currently 159) are prima facie obliged to recognise and give effect to written arbitration agreements, and to enforce arbitration awards. Brexit will not affect these obligations. Minesh also discussed why English arbitration may therefore seem relatively more attractive, both now and post-Brexit, and he concluded with some points to note when drafting arbitration clauses.
For further information regarding any of the topics discussed today or our Aviator product, please contact Elizabeth Williams.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.