By Kirsty Nelson, Trainee Solicitor

The UK Government published the second in its series of ‘future partnership’ papers, “Providing a cross-border civil judicial cooperation framework” on 22nd August 2017, in advance of Brexit negotiations recommencing a few days later.

The Government engaged with the Devolved Administrations in Scotland and Northern Ireland as well as the Law Society of England and Wales and the Bar Council in preparation of the publication.

The European Union’s civil judicial framework refers to the laws and regulations in place to ensure that civil, commercial or family law cases determined within the EU can be dealt with effectively between Member States. Under the UK’s current arrangement as a Member State, various instruments exist to determine both the jurisdiction in which an international dispute should be litigated and the applicable law relative to it. Once a decision has been made, there are rules to ensure that such decisions will be recognised and enforceable in other Member States. In addition to legislation regarding the appropriate jurisdiction and choice of law of cross-border disputes, the instruments cover various topics such as inter-EU trading relationships; the recovery of family maintenance; and international child abduction.

The paper sets out the following points:-

  1. The UK Government seeks a “deep and special” partnership with the EU, which should mirror the arrangements currently in place. Accordingly, certain instruments (such as the Rome I and Rome II Regulations, relating to choice of law and applicable law in contractual and non-contractual matters) will be incorporated into domestic UK law. Furthermore, the UK will remain an active member of several other international instruments.

  2. The paper states that the UK’s withdrawal from the EU will end the direct jurisdiction of the Court of Justice of the European Union, as this derives from treaties that the UK will no longer be bound by.

  3. The publication emphasises the importance of reciprocal cooperation and the mutual benefit in a smooth transition that will be gleaned by both EU and UK citizens. It explains that approximately one million British citizens live abroad in EU member states and approximately three million EU citizens live in the UK. Furthermore, thousands of businesses from EU Member States operate their businesses in the UK. It is therefore essential that such individuals and companies have clarity if disputes arise, and that unnecessary bureaucracy is avoided.

  4. The UK Government has indicated that, ideally, a comprehensive framework agreement should be instated. However, failing this, certain principles are provided for in Annex A of the paper which should govern the transitional arrangements.

  5. Finally, by way of clarity, the paper states that the current system will continue to apply to all proceedings initiated before the UK’s withdrawal date from the EU.

This paper explicitly sets out that the UK Government is hoping to agree a partnership that mirrors the status quo, whilst removing itself from the direct jurisdiction of the Court of Justice of the European Union. Some argue that it may be very difficult to reach such a deal, and there is already some resistance and criticism of the Government’s paper.