Where do we go from here? The development of private international law in the UK and the post Brexit environment.

Lead Research Organisation: University of Stirling
Department Name: Law

Abstract

On 2 March 2018 Prime Minister May said: "We will want our agreement [on the future relationship between the UK and the EU] to cover civil judicial cooperation, where the EU has already shown that it can reach agreement with non-member states, such as through the Lugano Convention, although we would want a broader agreement that reflects our unique starting point." Whether such a broader agreement that would encompass more areas of private international law (PIL) than the civil and commercial issues covered by the Lugano Convention is possible or even desirable if the UK is not a Member State of the EU and does not accept the jurisdiction of the CJEU will be one of the central issues analysed by the AHRC Network on PIL.
PIL arises when a case comes before a court with a foreign connection. PIL is concerned with three issues; does the court have jurisdiction, which law applies and can a foreign judgment be recognised and enforced. A major part of UK PIL is EU law. The rationale behind EU civil judicial co-operation is to "facilitate the free circulation of judgments and to [...] enhance access to justice" in cross-border cases. The EU model for jurisdiction and recognition and enforcement of judgments created by the Brussels Ia Regulation often provides claimants with a choice of jurisdiction. The Rome I&II Regulations ensure that the same set of applicable law rules apply within the EU in contractual and non-contractual obligation cases. The EU has developed Regulations on family law (Brussels IIa and Maintenance). The high quality of the UK judiciary and legal professions with a particular expertise in resolving cross-border disputes makes England and Wales one of the leading jurisdictions in the world, attracting high value claims and facilitating litigants' access to effective legal remedies.
The EUPILLAR project, funded by the EU Commission, conducted by several EU Universities and led by the current PI, considered how the EU PIL framework was functioning in the EU before the Brexit vote, exposing the problems with EU PIL. A major weakness of the EU framework is that some deficiencies in the functioning of national judicial systems are exported through recognition and enforcement of judgments under Brussels Ia and IIa based on the principle of mutual trust. A substantial international regime in PIL is provided by Hague Conventions which for external purposes are part of the EU acquis (Choice of Court, Child Abduction, Children and Maintenance) shortly to be added to by a new Recognition and Enforcement Convention which will hopefully become part of that acquis. Furthermore there is a Commonwealth model law regime for recognition and enforcement of judgments in civil and commercial matters and in maintenance. Finally, there is an EFTA regime for jurisdiction and recognition and enforcement of judgments in civil and commercial matters (Lugano Convention). The post-Brexit PIL landscape therefore presents opportunities to diverge from the EU internal regime in our relationship with other EU Member States and to utilise a reinvigorated external competence to develop a new PIL strategy for relations with other States.
The research questions are: How could Brexit impact on the cross-border litigation pattern in the UK? How might different PIL regimes affect the number of PIL cases litigated in the UK? What is the appropriate mix of international, Commonwealth, EU/EFTA and intra-UK harmonisation of PIL post Brexit? Pre-EU data and recent data, both gathered as part of a pilot study, will be compared. The new datasets will clarify the PIL legal landscape in the UK and begin to gain insights into litigants' current strategies in cross-border cases. This will help to identify the challenges faced by UK policy-makers to create the best post-Brexit PIL regime. UK policy makers will take a lead in progressively unifying global PIL at the Hague Conference and in the development of judicial cooperation in the Commonwealth.

Planned Impact

The direct beneficiaries of the pilot study are: UK policy makers, influential parties (those who support the UK policy makers in the decision making process), academics (PIL, EU, EEA, Commonwealth law specialists, public international law specialists interested in treaty making and international institutions, and UK constitutional lawyers).

In order to promote knowledge exchange (KE) and engagement activities, the project aims to involve a range of potential beneficiaries (policy-makers, judges, solicitors, barristers and academics). This will allow us to benefit from the participation of a range of expert legal practitioners from outside academia to identify the real issues concerning the access of private parties to justice in cross-border cases. It will also enhance our awareness of the challenges posed by changes in the behaviour of litigants which may be driven by actual or potential differences in the legal landscape in relation to PIL post- Brexit. Through previous projects and other work the research team already has strong ties with many research users in the field of PIL but this network will widen those contacts and bring together a formidable array of those who work in PIL in the UK and in the key international bodies that the UK participates in. The AHRC network has a very significant chance of impacting on PIL policy making, litigants' strategies as advised by leading practitioners and on the understanding of the international and regional options open for UK PIL post-Brexit.

The Advisory Board will meet both virtually and at the workshops and will be made up of the following people: Lord Mance, the Chair of the UK Private International Law Advisory Committee and Deputy President of the Supreme Court, Alex Layton QC (20 Essex Street), Adam Johnson QC (Herbert Smith Freehills), Oliver Parker, now retired but for many years the lead lawyer for PIL matters in the UK Ministry of Justice, Professor David McClean QC (Sheffield), Professor Loukas Mistelis (Queen Mary, University of London), Dr Lara Walker (Sussex), an early career scholar educated in Scotland but working in England, Craig Pollack (Covington & Burling LLP), Sarah Lee (Slaughter and May), Iain Mackie (Macfarlanes LLP).

In order to create a very stimulating research environment and promote debate across boundaries, the workshop programmes for the series of events will be discussed/finalised with the help of the Advisory Board. This should clearly reflect the fact that the research users' engagement is at the heart of the project's strategy for impact.

Prominent legal practitioners from different legal sectors and from across the UK will be involved in KE and engagement activities amongst legal practitioners at a series of four workshops. Such research-user-led activities will set the scene for us to receive useful feedback and evaluation concerning our current findings, which should indicate to us whether or not adjustments to the project are necessary.

Appropriate representatives from the EU Commission, the Commonwealth, from the Swiss Government (as the depositary of the Lugano Convention), the UK Government and Scottish Government, as well as from the Hague Conference on Private International Law will be engaged with the workshops either as Speakers or Panel Chairs. This should further strengthen our ability to promote debate and to generate impact outside of academia. Litigation funders will be involved by taking part in our workshops.

In the short term, the impact objectives are to inform legal practitioners' lobbying activities and the UK policy-makers' decisions concerning the re-design of the PIL legal landscape. In the long term, this should provide a solid foundation for legal practitioners and academics working together with policy-makers in designing a UK legal landscape in relation to PIL which facilitates private parties' access to justice in cross-border cases post-Brexit.
 
Description Broad geographic and subject matter scope of analysis of private international law in the UK after Brexit

The four AHRC research network workshops enabled a number of leading academics, judges, legal practitioners and leaders from the main international organisation in the field of private international law (HCCH) to reflect on the way forward for the UK after Brexit. The way forward was viewed from four perspectives: International (Global), Commonwealth, EU/EFTA and intra-UK.

Private International Law is the area of law which regulates private law matters which have a cross-border element.

Some of the research crossed over the four geographical areas.

Holliday's Working Paper (2019) 'The urgent need for the UK to accept the accessions of EU and Non-EU Contracting Parties to the 1970 Hague Convention on Recognition of Divorces and Legal Separations' exposed the non-acceptance of accession of four States by the UK which was corrected by the UK on 29th October 2020 with effect from 28th December 2020. (The part of the UK's external competence in private international law that had been transferred to the EU through its Membership of the EU was restored to the UK on the date of Brexit, 23.00hrs 31st January 2020. However, the UK continued to abide by EU private international law until the end of the implementation period for leaving the EU, 23.00hrs 31st December 2020.)

Holliday and Tang's Conference paper 'An empirical study of private international law cases in the UK in 1972 and 2017' highlighted the distribution of private international law cases in the UK (international, Commonwealth, EU/EEA and intra-UK) in the year immediately prior to joining the EU and the year immediately after the UK referendum to leave the EU. One particularly interesting finding was that although the proportion of UK trade with the EU/EEA had gone up slightly in those years, the proportion of (non-family) civil and commercial litigation in the UK involving a party from the EU/EEA had gone down by 7%. Although these were preliminary findings, it would suggest that there is no direct correlation between volume of trade with a particular geographical area and the volume of civil and commercial litigation involving parties from the same geographical area. The findings from this preliminary study were requested by the European Commission to inform them on their preferred future relationship with the UK in relation to private international law.

Dr Danov's paper in the 2020 Maastricht Journal of European and Comparative Law devised a socio-legal model for measuring the Brexit impact on litigants' access to legal remedies. It analyses the triangular relationship between: 1) jurisdiction (procedural rules); 2) applicable law (which substantive law applies to the case); 3) outcome of a cross-border case. Secondly, the relevant claimants' and defendants' strategies in cross-border cases are thoroughly considered by taking a game theoretic perspective.

Dr Danov's paper in the Yearbook of Private International Law published in 2020 offers, on the basis of data gathered as part of a pilot study in the period from May to September 2018, an initial evaluation of the Brexit impact on litigants' access to legal remedies in cross-border cases before the English courts. It shows that a decision on the long-term policy options for judicial cooperation in cross-border cases is a complex one which requires some wider economic interests to be factored in and appropriate policy choices to be made.

International/Global

From an international perspective the UK is committed to "the progressive unification of private international law" through its membership of the Hague Conference on Private International Law (HCCH) which has that objective as its sole aim (see Article 1 of the HCCH Statute). This project discovered that the UK is not fulfilling that commitment to the extent that might reasonably be expected. Its ability to fulfil this commitment is in its own hands after Brexit, whereas prior to leaving the European Union it could only fulfil this commitment through the EU in many areas of private international law.

In the global context, Beaumont's paper 'Some Reflections on the Way Ahead for UK Private International Law after Brexit' (2021) 17(1) Journal of Private International Law sets out some key findings as to how the UK should move forward now that the implementation period for leaving the EU is over and the UK is completely free to determine its international policy in relation to private international law. Beaumont's paper argues that in order to better fulfil the UK's commitment to the progressive unification of private international law globally, the UK should ratify the Hague Judgments Convention 2019 (to improve the recognition and enforcement of civil and commercial judgments given in one country in other countries), accept the accessions of a large number of States to the Hague Taking of Evidence Convention (to help parties in civil litigation obtain evidence relevant to their dispute from over 20 States) and the Hague Child Abduction Convention (to secure the swift return of children to their habitual residence when they have been abducted between the UK and over 20 States), withdraw the declaration on insurance contracts from the Hague Choice of Court Convention 2005 (this declaration narrows the scope of the Convention and is harmful to party autonomy in business to business insurance contracts), and extend the ratification of the Hague Adults Convention beyond Scotland to the rest of the UK (the law of England and Wales and of Northern Ireland gives effect to the Convention but vulnerable adults from those countries do not get the benefit of the help of Central Authorities in other Contracting States to the Convention or the benefit of decisions in those countries for their welfare being recognised and enforced in other Contracting States). The UK Government should make full use of private international law experts in its delegations to the HCCH taking account of the different systems of law in the UK as it used to do in the past. In recent years it has relied too much on civil servants.

Commonwealth

The UK's influence on the development of private international law in the Commonwealth is beautifully explained in two papers given in the Workshops by Professors David McClean and Reid Mortensen (the former is published on the project website and the latter is published in the first issue of the Journal of Private International Law 2021). This influence was shown to persist during the UK's membership of the EU (eg in the development of common rules for declining to exercise jurisdiction in cross-border cases through the adoption of the Scottish doctrine of forum non conveniens) although it was diluted in certain areas where the UK adopted EU private international law rules and the UK could no longer develop the common law (eg on the applicable law for tort). Both Professors advocate a key way forward is that the UK and other Commonwealth countries become parties to the Hague Judgments Convention 2019. Beaumont's paper, 'Some Reflections on the Way Ahead for UK Private International Law after Brexit' (2021) 17(1) Journal of Private International Law, goes one step further and asks the UK Government and Parliament (and the devolved administrations in the UK) to consider seriously implementing at least some of the Commonwealth Model Law on Recognition and Enforcement of Civil and Commercial Judgments 2017 when implementing the Hague Judgments Convention 2019.

EU/EFTA

A lively debate took place at the first AHRC workshop in February 2020 as to whether or not the UK should seek to remain governed by the Lugano Convention 2007 (which applies between the EU and EFTA States other than Liechtenstein) after the end of the implementation period for leaving the EU. The UK Government in April 2020 decided to ask to accede to that Convention. The workshops in November 2020 no longer debated the merits of this decision. Whether or not the UK is allowed to accede to the Convention depends on the response of the existing Contracting Parties to the Lugano Convention in particular to that of the EU. At the time of writing these responses were still awaited (see Beaumont's paper 'Some Reflections on the Way Ahead for UK Private International Law after Brexit' (2021) 17(1) Journal of Private International Law). After the end of the implementation period the UK has abandoned all EU private international law (largely because it relied on reciprocity with other EU Member States that was no longer possible) apart from the applicable law instruments on contractual and non-contractual obligations (the Rome I and II Regulations) which do not require reciprocity.

Intra-UK

In relation to another key area of the AHRC project - future rules on intra-UK private international law an excellent foundation was laid by one of the leading experts in the field, Dr Kirsty Hood QC, in the first workshop (see her powerpoint presentation on the project website). Beaumont's paper in the first issue of the 2021 Journal of Private International Law builds on the consensus that emerged in the workshops that the UK should create a constitutionally appropriate process (ie involving civil servants from the UK Government and each of the devolved administrations and leading experts in private international law from each of the systems of law in the UK - England, Scotland, Northern Ireland, and Wales) to review intra-UK private international law. This review should place particular emphasis on maintenance and the financial implications of divorce in the light of the UK Supreme Court's 3-2 decision in Villiers in 2020.
Exploitation Route The UK Government can make use of the findings to make the changes suggested above and in more detail in the paper by Paul Beaumont, 'Some Reflections on the Way Ahead for UK Private International Law After Brexit' (2021) 17(1) Journal of Private International Law. Commonwealth countries can follow the findings of Beaumont's paper and those by Professor David McClean and Professor Reid Mortensen to become parties to the Hague Judgments Convention 2019 and in doing so implement at least some of the Commonwealth Model Law on the Recognition and Enforcement of Civil and Commercial Judgments 2017. The UK Government and the devolved administrations in the UK could collaborate together with experts in private international law in each of the four systems of law in the UK to develop and improve intra-UK private international law particularly in areas like maintenance which previously relied on the EU system learning some lessons from the problems exposed by the UK Supreme Court's split decision in Villiers v Villiers [2020] UKSC 30. The UK could improve its standing even further in the HCCH by accepting the accessions of States to the Hague Conventions on Taking of Evidence and Child Abduction, by extending the ratification of the Hague Adults Convention to England and Wales and Northern Ireland, by ratifying the Hague Judgments Convention 2019, and by removing the declaration on insurance contracts under the Hague Choice of Court Convention 2005. It could also ensure that in future the UK delegations at the HCCH contain leading experts in private international law and wherever possible with expertise in the different systems of law in the UK.

The EU has been given ideas for reforming EU private international law to fit better with non-EU Member States (now including the UK) in the areas of maintenance and divorce in Beaumont's chapter in 2020 on 'Interaction of the Brussels IIa and Maintenance Regulations with (possible) litigation in non-EU States: Including Brexit implications' in I Viarengo and F Villata (eds) Planning the Future of Cross Border Families (Hart, 2020) 331-343. The same chapter gives ideas for reform of the Lugano Convention 2007 in relation to maintenance which could be taken up by Contracting Parties to that Convention (EU, Denmark, Iceland, Norway and Switzerland) whether or not the UK becomes a party to that Convention again.
Sectors Financial Services

and Management Consultancy

Government

Democracy and Justice

Security and Diplomacy
URL https://privateinternationallaw.stir.ac.uk/projects/
 
Description Holliday's Working Paper (2019) 'The urgent need for the UK to accept the accessions of EU and Non-EU Contracting Parties to the 1970 Hague Convention on Recognition of Divorces and Legal Separations' exposed the non-acceptance of accession of four States (Albania, Estonia, Moldova and Poland) by the UK which was corrected by the UK on 29th October 2020 with effect from 28th December 2020. Holliday and Tang's Conference paper 'An empirical study of private international law cases in the UK in 1972 and 2017' highlighted the distribution of private international law cases in the UK (international, Commonwealth, EU/EEA and intra-UK) in the year immediately prior to joining the EU and the year immediately after the UK referendum to leave the EU. One particularly interesting finding was that although the proportion of UK trade with the EU/EEA had gone up slightly in those years, the proportion of (non-family) civil and commercial litigation in the UK involving a party from the EU/EEA had gone down by 7%. Although these were preliminary findings, it would suggest that there is no direct correlation between volume of trade with a particular geographical area and the volume of civil and commercial litigation involving parties from the same geographical area. The findings from this preliminary study were requested by the EU Commission to inform them on their preferred future relationship with the UK in relation to private international law. The Head of the Private International Law Unit in the EU Commission found the study interesting and helpful in considering whether to accept the UK's request for accession to the Lugano Convention. Ultimately the EU Commission decided against recommending to the Council of the EU the UK's Accession to the Lugano Convention. The UK did decide to remain a Party to the Hague Conventions on Choice of Court (2005) and Maintenance (2007) without a break after Brexit. The UK were parties to these Conventions through their approval by the EU but after Brexit the UK ratified these Conventions in time to apply to the UK with no break after Brexit. This was the course of action recommended in the AHRC Workshops. On 12 January 2024 the UK signed the Hague Judgments Convention 2019. It will ratify the Convention once the implementing legislation is in place. The UK becoming a Party to the Hague Judgments Convention 2019 was advocated by the AHRC Workshops and in particular by Paul Beaumont's article, 'Some Reflections on the way ahead for UK private international law after Brexit' (2021) 17 Journal of Private International Law 1-17 at 4-5. This advice was reiterated in Paul Beaumont, 'Series Editor's Preface' in M Weller et al (eds) The HCCH 2019 Judgments Convention (Hart, 2023) v-viii.
First Year Of Impact 2020
Sector Government, Democracy and Justice,Security and Diplomacy
Impact Types Cultural

Societal

Economic

Policy & public services
 
Description Cited by Legal Advisers to the Ministry of Justice on Private International Law of Family law matters post Brexit.
Geographic Reach Multiple continents/international 
Policy Influence Type Implementation circular/rapid advice/letter to e.g. Ministry of Health
Impact In October 2019 the working paper by Holliday was published online recommending that the UK Ministry of Justice (MOJ) accept the accessions by Albania, Estonia, Poland and the Republic of Moldova to the 1970 Hague Convention on Recognition of Divorces and Legal Separation. The working paper was used by legal practitioners advising the MOJ on Brexit matters who asked the MOJ whether they intended to amend this oversight. The MOJ subsequently arranged to accept the accessions on 28th October 2020. The Secretary General of the Hague Conference on Private International Law, Dr Christophe Bernasconi, kindly noted the impact of Holliday's paper, during an AHRC Research Network Workshop in November 2020, on the UK Government to accept the accession of the four States. Evidence of the acceptance of the accessions by the UK is visible within the Status Table for the 1970 Convention. If you click on the 'A*' for Albania, Estonia, Poland or Republic of Moldova you will see that the UK accepted the accessions on 29th October 2020 with it coming into force 28th December 2020 - https://www.hcch.net/en...ns/status-table/?cid=80 Prior to leaving the European Union (EU), EU law governed the recognition of a UK divorce in another EU Member State. Recognition of divorce is very important as it has consequences for maintenance claims and succession matters as well as preventing limping marriages, which is where a person is considered divorced in one State but married in another. On 1st January 2021 the UK left the EU and now relies on the 1970 Hague Convention for recognition of UK divorces and legal separations abroad. The working paper had impact in that the UK extended the number of countries where a divorce that takes place within the UK will be now be recognised, ie Albania, Estonia, Poland and Republic of Moldova.
URL https://www.hcch.net/en/instruments/conventions/status-table/?cid=80
 
Description Conference paper requested by the European Commission to inform their decision on the future Private International Law relationship between EU and UK.
Geographic Reach Europe 
Policy Influence Type Implementation circular/rapid advice/letter to e.g. Ministry of Health
URL https://privateinternationallaw.stir.ac.uk/projects/ahrc-research-network/workshop-i/empirical-resea...
 
Title M Danov (2020), Cross-border litigation in England and Wales: Initial Brexit implications 2016-2018. [Data Collection]. Colchester, Essex: UK Data Service. 10.5255/UKDA-SN-853743 
Description The purpose of the dataset was to capture the expected initial impact of Brexit on parties' strategies which would in turn have a bearing on the litigants' access to legal remedies (as well as on settlement dynamics) in cross-border disputes. The newly generated data enabled Dr Danov to consider the correlation between a possible change in the legal landscape and the parties' alternative strategies as well as to analyse the relationship between the litigants' tactics and private parties' access to justice in cross-border cases before the English and Welsh courts. A socio-legal model was constructed which is central to identifying the main issues which would need to be addressed by the UK policy-makers as priority with a view to setting up a well-functioning private international law regime in a post-Brexit context. The data was gathered in the summer of 2018 through: 1) Self-completion survey questionnaires (which were sent to the Heads of litigation departments and family law firms from there relevant sampling frames drawn from the legal directories). The primary quantitative data (from the self-completion survey) should provide information about the statics of the cross-border litigation pattern (e.g. volume; type of cases). 2) Semi-structured interviews which were conducted with legal practitioners in England and Wales. The primary qualitative data (from the semi-structured Interviews) should provide information about the parties' strategies (i.e. the dynamics of the cross-border litigation pattern). 
Type Of Material Database/Collection of data 
Year Produced 2020 
Provided To Others? Yes  
Impact The dataset enabled Dr Danov to set out a socio-legal model for the relevant Brexit impact analyses in England and Wales (see M. Danov, 'Cross-Border Litigation: Evaluating the Brexit impact - A Socio-Legal Model for Data Analysis' (2020) 27 Maastricht Journal of European and Comparative Law 199 - 229.) The collection of this interim data (i.e. after the Brexit vote, but before Brexit had actually happened) should enable Dr Danov to do some appropriate comparisons with the subsequently collected data which should capture the actual Brexit impact. It is expected for such data to be collected in a follow-on project (see the funding application). More importantly, the interim data and the actual Brexit data could be also compared with the existing data which was gathered in the pre-Brexit era as part of the EUPILLAR project 2014-2016 (which was co-ordinated by Prof. Beaumont and involved Dr Danov) 
URL https://reshare.ukdataservice.ac.uk/853743/
 
Description Working with Centre for Commercial Law, Queen Mary University London 
Organisation Queen Mary University of London
Country United Kingdom 
Sector Academic/University 
PI Contribution We came to London to the Centre for Commercial Law Studies near Holborn to make the first workshop in February 2020 accessible to as many people as possible.
Collaborator Contribution They gave us a conference room and the use of IT facilities for free for the day. They would have done so for two other workshops as well but this was prevented by Covid 19.
Impact None.
Start Year 2020
 
Description Diverse attendance at the online AHRC funded workshops 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact The three online workshops in the autumn of 2020 were attended by a significant number of students at all levels from a variety of Universities (in particular the workshop on international family law was attended by a group of University of Stirling Honours students taking a course in private international law of family law and succession). Other notable participants included government officials working in private international law, legal practitioners and legal publishers.
Year(s) Of Engagement Activity 2020