Angharad Parry

This Practice Note has been archived and is not maintained. This Practice Note considers the effect of the UK leaving the EU without a deal when dealing with the enforcement of judgments for civil and commercial claims under the Brussels Convention, Regulation (EC) 44/2001, Brussels I, Regulation (EU) 1215/2012, Brussels I (recast), the Lugano Convention 2007 and the EC-Denmark Agreement. This Practice Note considers the application of the changes made by the two UK regulations and the EU guidance to the enforcement of UK judgments in EU Member States as well as contracting states of the European Free Trade Association (EFTA) that are signatories to the Lugano Convention 2007 ie Iceland, Norway and Switzerland.) and vice versa. There are two key UK regulations dealing with the implications of a no deal Brexit on enforcement. The first is The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019/479. The second is The Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, SI 2019/521 and, specifically, the amendments it makes to the Civil Procedure Rules at Part 74—enforcement of judgments in different jurisdictions. Both of these regulations come into force on exit day. In addition, provisions relating to the UK’s participation in the Hague Convention on Choice of Court Agreements 2005 after exit day are set out in The Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018, SI 2018/1124. The relevant documents setting out the position of the EU in relation to matters of enforcement is the EU notice to stakeholders titled: ‘Withdrawal of the United Kingdom and EU rules in the field of Civil Justice and Private International Law’ dated 18 January 2019, as well as a clarifying question and answer document titled: ‘Questions and Answers related to the United Kingdom’s withdrawal from the European Union in the field of Civil Justice and Private International Law’ dated 11 April 2019.

This Practice Note considers the provisions in Regulation (EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) and explains the ability of the parties to choose the applicable law under Rome I. It looks at whether the law must be that of a State, the freedom of the parties to chose the applicable law—such choice can be express or implied—and changing the chosen applicable law. It also considers choice of law and non-derogation as well as consent, validity and capacity.

This Practice Note considers the provisions in Article 5 of Regulation (EC) 593/2008, Rome I which provides for the determination of choice of law in relation to contracts of carriage. Article 5 addresses both the carriage of goods and carriage of passengers, but this Practice Note considers only the carriage of goods. The provisions applicable in the absence of an agreed applicable law are explained, as is the escape clause.

This Practice Note considers the general provisions in Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I). It covers the following: Overriding mandatory provisions (Article 9), Consent and material validity (Article 10), Formal Validity (Article 11), Scope of Law Applicable (Article 12), Incapacity (Article 13), Voluntary Assignment/Contractual Subrogations (Article 14), Legal Subrogation (Article 15), Multiple Liabilities (Article 16), Set-off (Article 17), Burden of proof (Article 18), Habitual Residence (Article 19), Exclusion of Renvoi (Article 20) and Public Policy (Article 21).

This Practice Note considers the application of Regulation (EC) 593/2008 on the law applicable to contractual obligations, commonly known as Rome I, to circumstances in which the parties have not chosen the applicable law. It considers the law governing specific forms of contract such as sale of goods, provision of services and distribution contracts. It also considers the situation where contracts do not fall with the specific categories, the so called ‘escape clause’. In such cases, the following terms are of importance: ‘characteristic performance’, ‘habitual residence’ and ‘more closely connected’. This Practice Note considers each of these terms as well as how the escape clause differs under Rome I compared to its predecessor, the Rome Convention—an issue which was considered in Molton Street Capital v Shooters Hill Capital Partners.

This Practice Note explains how Regulation (EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) applies in practice. It considers the universal application provision (art 2) and the scope of the applicable law (art 12). The general rules which apply as well as rules applicable to specific types of contracts are set out. The types of disputes excluded from Regulation (EC) 593/2008, Rome I are identified such as arbitration and the status and legal capacity of companies.

ARCHIVED: This Checklist has been archived and is not maintained. This Checklist considers the position the EU courts are expected to adopt in relation to the application of Regulation (EU) 1215/2012, Brussels I (recast) if the UK leaves the EU on exit day without a deal, the so called ‘no deal Brexit’ scenario. It reviews the regulation’s articles dealing with jurisdiction and the impact of a no deal Brexit on their application in EU Member State court proceedings with a UK element (whether involving a defendant domiciled in the UK, a jurisdiction agreement in favour of a UK court, or parallel or related proceedings brought in the UK). The position differs depending on whether the proceedings were commenced prior to exit day (with the jurisdictional dispute being determined after that date) or whether the proceedings were commenced after exit day. The position the EU Commission expects EU Member States to take is set out in the EU noticed to stakeholders titled ‘Withdrawal of the United Kingdom and EU rules in the field of Civil Justice and Private International Law’ dated 18 January 2019, as well as a clarifying questions and answer document titled ‘Questions and Answers related to the United Kingdom’s withdrawal from the European Union in the field of Civil Justice and Private International Law’ dated 11 April 2019.

ARCHIVED: This Checklist has been archived and is not maintained. This Checklist considers how the UK courts will apply Regulation (EU) 1215/2012 Brussels I (recast) if the UK leaves the EU on exit day with no deal, the so called ‘no deal Brexit’ scenario. It reviews the regulation’s articles dealing with jurisdiction and considers whether the UK courts will apply them and, if so, how. The application of those articles differs depending on whether the proceedings are commenced prior to exit day (with the jurisdictional dispute being determined after that date) or after exit day. The key UK regulation is The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019/479. This comes into force on exit day and contains various savings provisions and modifications to Regulation (EU) 1215/2012, Brussels I (recast).