Keen observers of the present state of EU/UK “negotiations” will have spotted some developments in recent weeks and, indeed, in the last few days. While the media have been preoccupied with fishing rights and State-aid rules, the anxious attention of travel lawyers has been on the EU conflicts rules. Our Odenbreit claims and defences have been conveniently parked in an implementation period lorry park (somewhere in Kent) since last year, but they cannot stay there forever: the implementation periods ends (as we are constantly told) at the end of this calendar year and, at the time of writing, the negotiations on what happens next are continuing (but, perhaps at risk of understatement, not at the pace required for a successful, in-time outcome). By way of background, in early April the UK requested accession to the Lugano Convention (which would provide many, if not all, of the current jurisdictional advantages of recast Brussels I (No 1215/2012). The subsequent history of this request has been the subject of comment in an earlier 1 Chancery Lane Briefing Note and is not repeated here. Suffice to say, this request has not yet been met with a positive response.
In late August 2020, the EU Commission updated its Notice to Stakeholders on the (“no-deal”) post-implementation period settlement as to jurisdiction, enforcement and applicable law. A link to the full Notice is here:
On 30 September 2020 the UK Government published its own guidance which can be found here (in full):
A comprehensive treatment of the content of these two documents would require a monograph (perhaps someone is already writing one), but (absent any deal) – by way of headline (and in the area of jurisdiction) only – there is a saving provision for “legal proceedings instituted” before 31 December 2020 when the implementation period (absent extension) ends. The phrase “legal proceedings instituted” has been borrowed from Article 66.1 of recast Brussels I (and can be found in Article 67 of the Withdrawal Agreement), but might – one thinks – give rise to argument(!). For legal proceedings instituted after 31 December 2020, we have CPR Part 6 (and the old common law rules embedded in the Practice Direction) to look forward to. The Guidance Notes give rise to myriad further complexities in respect of settlements, authenticated Court judgments and enforcement. If we do crash out of the implementation period sans deal and sans Lugano then we will all have to grapple with what follows (and 1 Chancery Lane’s Travel Team will write on this and related matters when a clearer picture has emerged). For the moment, however, we wanted to alert you to where we presently stand and to encourage you to hope (with us) for a clearer, more straightforward outcome to the negotiations.