101 UK Brexit Notes

Connemara Programme October 16 2018 pg. 111 Businesses, individuals and legal practitioners would need to consider how these rules interact with the domestic rules of relevant EU countries to determine how jurisdiction in cross-border disputes should be established and whether any judgments should be recognised and enforced. In certain cases, the interaction between these rules may not be clear and certain countries may not recognise judgments from UK courts. Businesses and individuals may wish to take legal advice about how these changes may affect your individual circumstances. All parts of the UK would retain the Rome I and Rome II rules on applicable law in contractual and non-contractual matters, which generally do not rely on reciprocity to operate. This would ensure that businesses and individuals could generally continue to use the same rules as at present to determine which law would apply in cross-border disputes. In the event of no deal, we would take the necessary steps to formally re-join the 2005 Hague Convention on Choice of Court Agreements in our own right (we currently participate because of our EU membership). It is anticipated that the convention would come in to force across the UK by 1 April 2019. Where appropriate, individuals and businesses would need to consider what this would mean for any existing choice of court agreements made under either the Brussels regime or the 2005 Hague Convention, including the implications of any gap in coverage by the 2005 Hague Convention between 29 March and 1 April 2019. Cross-border insolvency cooperation The majority of the Insolvency Regulation, which covers the jurisdictional rules, applicable law and recognition of cross-border insolvency proceedings, would be repealed in all parts of the UK. We would retain the EU rules that provide for the UK courts to have jurisdiction where a company or individual is based in the UK, and the law will ensure that insolvency proceedings can continue to be opened in those circumstances. But after exit, the EU Insolvency Regulation tests would no longer restrict the opening of proceedings, and so it would also be possible to open insolvency proceedings under any of the tests set out in our domestic UK law, regardless of whether (or where) the debtor is based elsewhere in Europe. UK insolvency practitioners would need to make applications under an EU country’s domestic law in order to have UK orders recognised there. In certain circumstances, some EU countries may not recognise UK insolvency proceedings, for example if that would prevent creditors from taking action against the assets held in that country. Where appropriate, insolvency practitioners may wish to take professional advice on the prospects of successfully obtaining recognition for a UK insolvency order in an EU country. EU insolvency proceedings and judgments would no longer be recognisable in the UK under the EU Insolvency Regulation, but may be recognised under the UNCITRAL Model Law on Cross-Border Insolvency, which already forms part of the UK’s domestic rules on recognising foreign insolvencies. Family law cooperation In family law cooperation, the key EU regulations are Brussels IIa (which covers jurisdictional rules in matrimonial and parental responsibility matters, the recognition and enforcement of related judgments and supplementary rules on child abduction) and the Maintenance Regulation (which covers jurisdictional rules for maintenance decisions and the recognition and enforcement of related judgments). We are a contracting state in our own right to a number of Hague Conventions on family law, which cover many of the same areas as the Brussels IIa and Maintenance Regulations. Where this is the case, we would repeal the existing EU rules and switch to the relevant Hague Conventions. The relevant rules covered by the Hague Conventions are:  parental responsibility matters, including jurisdiction, recognition and enforcement  rules for the return of abducted or wrongfully retained children  maintenance recognition and enforcement  central authority cooperation There is also a Hague Convention on divorce recognition, which has been implemented by provisions in the Family Law Act 1986. We would continue to use these wide recognition rules in the UK to recognise overseas divorces. In child abduction cases, our participation in the 1980 Hague Convention means that most of the measures we currently operate with EU countries would not change. We will however repeal the child abduction override provisions contained within Brussels IIa. These rules (which, in certain circumstances, allow an order from a court of an EU Member State to override an order made by another court not to return a child) are based on reciprocity and would no longer operate effectively if the UK leaves the EU with ‘no deal’. We would take the necessary steps to formally re-join the 2007 Hague Maintenance Convention (in which we currently participate because of our EU membership). It is anticipated that it would come into force by 1 April 2019. Parties would need to consider the implications for any new maintenance applications made during the gap in coverage between 29 March and 1 April 2019.