Brexit - choice of law, jurisdiction and enforcement

Charlotte Winter, a Partner in our London office and Professor Harris QC, a barrister practising at Serle Court chambers and joint general editor of the leading work Dicey, Morris and Collins, The Conflict of Laws discuss the impact of Brexit on choice of law, jurisdiction and enforcement.

Transcript

Charlotte Winter: I am joined today by Professor Jonathan Harris QC to talk about Brexit and the impact on English commercial litigation and arbitration. So as a starting point just how extensive are the levels of EU harmonisation in relation to cross boarder litigation and arbitration?

Professor Harris QC: It is very extensive compared to the position in 1972 when just before the UK joined the European Union we now have perhaps the majority of the laws on cross border litigation being harmonised across the European Union.

Charlotte Winter: So if none of those apply post Brexit that is going to be a significant impact?

Professor Harris QC: Yes it is but I think that even if it was driven back to the English common law the results would be broadly similar in terms of respecting the freedom of parties to choose English courts and to choose English law.

Charlotte Winter: The Prime Minister has said that, at least initially, much of the EU legislation will be enacted into English law. Does that deal with many of the concerns in relation to cross border litigation?

Professor Harris QC: I think it certainly provides a measure of stability. I would say it is a little more complicated than that. Some legislation can be directly enacted into English law, for example, the legislation that allows parties to choose English law to govern a contract. Other legislation does require reciprocal treatment, for example, enforcement of each other’s judgments and that may require some further agreement with the member states.

Charlotte Winter: There has been much discussion about the relationship between the jurisdiction of the courts of EU Member States and arbitral proceedings. How might Brexit impact that relationship?

Professor Harris QC: Well, the current relationship is quite a complicated one. The European Court of Justice has made clear that English courts for example cannot restrain current breaches of English arbitration clauses by anti-suit injunctions. The English courts may actually gain more autonomy as a result of Brexit to use their own powers robustly to enforce English arbitration clauses.

Charlotte Winter: Overall do you think that Brexit will have a significant impact on the attractiveness of English court or arbitration as a choice of jurisdiction for parties?

Professor Harris QC: No, I don’t think it will actually. In part because the English courts will actually regain some additional power robustly to inforce English jurisdiction in arbitration clauses in ways which the Court of Justice somewhat curtailed and also for the rather obvious point that people choose the English courts and the English arbitration for the quality of the procedures and for the quality and dependability of the judiciary, the arbitrators and of English law itself and I think that is very unlikely to be affected by Brexit whatever else happens.

Charlotte Winter: Thank you.

Professor Harris QC: Thank you Charlotte.