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.

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