We were delighted to welcome Andrew Moran QC from Serle Court to our London offices this morning to discuss jurisdiction in civil and commercial matters in the UK and Europe post-Brexit.
Since the referendum result was announced in June 2016, MoJ chiefs have been beset with questions as to future plans for British justice. It is a area ripe for discussion, with crucial international conventions due to cease to apply once we are no longer an EU member state.
Currently all 28 EU member states are bound by the same rules. As yet it has not been confirmed whether similar reciprocal arrangements will be put in place or whether we will be subject to that rules that govern non-EU defendants.
In his talk Andrew Moran QC outlined the key pieces of legislation guiding jurisdiction and the general rules for litigants depending on where they are domiciled.
He outlined some interesting disparities in European countries including whether or not the country’s courts have the discretion to decline jurisdiction if another is more appropriate, and whether courts can pursue claims originating abroad.
As a general rule, you sue people where they are domiciled, but courts can assume jurisdiction beyond these limitations. In Germany the defendant having assets in the country is enough to assume jurisdiction. Moran noted that the French civil code makes provision for ‘privileged jurisdiction’ rules where “absent another basis for jurisdiction” French nationals can insist on having their claims heard, or be sued by, a French court.
These jurisdiction claims become more problematic to defendants if they cannot insist on another, more appropriate jurisdiction for proceedings to be heard.
Unlike the law of England and Wales, French, German and Dutch law does not have a doctrine of forum non conveniens wherein they will stay proceedings if they know that another jurisdiction is more appropriate.
Jurisdiction for family matters is different and has its own rules but the implications of Brexit will also concern family lawyers. In a divorce, jurisdiction might be the difference between being awarded half of the marital pot or none at all. There might be more than one appropriate forum, in which case it’s down to who files for divorce first. However in the absence of a replicated agreement, courts might face the prospect of total asymmetry .”A British woman could be forced to stop her divorce case in the English courts if her husband had filed first in Germany, but the reverse would not be true”, warned Baroness Sherlock in the European Union (Withdrawal) Bill debate in the House of Lords this week.
What will happen to our legal industry?
Moran was optimistic about the future of litigation in the UK, explaining that the significance of the English courts is such that Brexit would not deter litigants.
He told his audience not to underestimate the importance of the English language and of the quality of the legal profession and judiciary. The speed of proceedings also pulls litigants in from the international marketplace.
Moran noted that expert Oxford professor Adrian Briggs QC foresees Brexit having a very limited effect on legal landscape.
If there were a decline in a business it would happen slowly, Moran explained, whilst predicting that international businesses would be unlikely to ignore a UK court order and risk their credit rating.
Giving as an example a Kuwaiti bank and a Ugandan company who have to have their claims heard somewhere but don’t trust the other’s jurisdiction, they would arbitrate, Moran explained, or litigate in London, where there is expertise “on-tap”. “The sheer number of arbitration centers in London is testament to that.”