Brexit: Choosing the English courts in a jurisdiction clause

(Please read Brexit Implications: Introduction & General before this section)

There are a number of considerations. The first is whether the core adjudicative attractions of the English courts would be affected by the UK's transition out of the EU. In this area, there is likely to be no impact, matters of pure civil procedure remains largely unaffected by EU legislation, and the judiciary and England’s common law tradition would be unaffected. For more on this point click here (see page 5 onwards).

However, the largest potential impact lies in the fact that the majority of the UK’s private international law statutes applicable to jurisdiction and the recognition and enforcement of judgments in civil and commercial matters are set out by EU law. In particular these, and the States party to them are as follows:

In any proceedings within their scope (the Hague Convention’s scope being considerably more limited) brought in the States party to them, these instruments, from the perspective of a jurisdiction clause in favour of the English courts, have two important functions. First, they contain provisions which aim to ensure, subject to certain limited exceptions, that such a clause would generally be given effect before the courts of the States party to those instruments (both by the chosen courts and, to the extent that the clause is exclusive, a non-chosen court). Second, they establish mutual recognition and enforcement regimes for court judgments as between the States party to them, which a judgment given by the English court can benefit from.

Therefore, what falls to be considered in this area is how these issues stand to be affected before the courts of States party to the above instruments. Click on the links to the relevant sections in the menu on the left.

As a general matter, in this sphere it should be appreciated that, due to the reciprocal nature of many of the instruments, this is not an area where wholesale, unilateral, adoption of the current regime by the UK (beyond the Hague Convention) is possible. Indeed the UK Government has recently confirmed that, in relation to the Brussels I Recast and Lugano Convention, it would not generally seek to retain them on a unilateral basis (subject to certain transitional provisions): see its September 2018 paper on "Handling civil cases that involve EU countries if there's no Brexit deal (click here for more), and the UK SI Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019.

(Although the UK does not plan to retain the Brussels I Recast or Lugano Convention unilaterally, it has expressed interest in re-joining their regimes in future (see here at paragraphs 146-148). Agreement from the other parties to those instruments would, however, of course be required and can in no-way be assumed (for example, in January 2020, although the Lugano States issued an expression of support for the UK re-joining the Lugano Convention at the end of the Transition Period any future accession by the UK to that instrument would also require the consent of the EU Member States). Therefore, as set out earlier, this analysis proceeds on the assumption that no such agreement is reached).