In civil and commercial matters, the UK courts currently apply the Recast Brussels Regulation (Regulation (EU) No 1215/2012) to issues of jurisdiction in claims against defendants domiciled in EU Member States, and to issues of the enforcement of judgments given in other EU Member States. The UK courts follow the Recast Brussels Regulation because it is part of EU law and the European Communities Act 1972 obliges them to do so. When the UK leaves the EU, that obligation will fall away. Parliament may choose to enact new rules post-Brexit but, if not, what rules will take the place of the Regulation by default?
Section 2(1) of the Civil Jurisdiction and Judgments Act 1982 provides at least part of the answer. It states:
The Brussels Conventions shall have the force of law in the United Kingdom, and judicial notice shall be taken of them.
The “Brussels Conventions” are defined as the Brussels Convention 1968, the 1971 Protocol to that Convention, and certain related Accession Conventions. These were the rules on jurisdiction that were almost entirely superseded by the predecessor to the Recast Brussels Regulation (Regulation (EC) No 44/2001) when it came into force on 1 March 2002. Almost entirely, because they still apply in respect of a few dependent territories of EU Member States.
Section 1(4) of the Civil Jurisdiction and Judgments Act 1982 does purport to provide for a hierarchy of rules as between the Recast Brussels Regulation, the Brussels Conventions, the Lugano Convention and the 2005 Hague Convention. However, the UK is only bound by the Recast Brussels Regulation, the Lugano Convention and the 2005 Hague Convention to the extent that it remains a Member State of the EU. The Lugano and Hague Conventions were signed by the EU, not the UK.
What could this mean in practice?
- If Parliament were to do nothing in this area, then upon Brexit the old rules in the Brussels Convention of 1968 would re-emerge to the fore. There are substantial differences between the Brussels Convention and the Recast Brussels Regulation. Notably, states which joined the EU in 2004 and since have not acceded to the 1968 Convention.
- The 1971 Protocol to the Brussels Convention would also re-emerge to the fore. This Protocol gives the CJEU jurisdiction to rule on questions referred to it by courts of the UK on matters concerning the Brussels Convention. It operates in much the same way as Article 267 TFEU, which gives the CJEU jurisdiction to rule more generally on preliminary references.