The most realistic option from the present choices however is that the UK will opt to adopt an already established regime in this area as it would provide for an easier transition into the new legal position outwith the Union, yet closely connected to it, which would allow for the utilisation of an already established regime which provides legal clarity and reliability. The recommendation here to continue applying the Brussels regime would provide for a maintained recognition and cooperation in recognition and enforcement of judgements with EU Member States as the existing regime provides for an easier way of consumers to sue defendants themselves, and it would provide for that judgement to be enforceable across the EU.
Alternatively, if the UK opts for a complete departure from the established Brussels regime, there is a real risk that judgements reached in UK courts may not be enforceable in the EU. This would consequently have a negative impact on the UK with respect to parallel proceedings occurring and future developments in EU international law bypassing the UK courts, and therefore perhaps resulting in stagnation of the development of UK law in relation to international litigation.
Conclusively, the Brussels regime has gone through a process of major change most significantly in the areas of choice-of-court agreements and lis pendens, expanding on the exclusion of arbitration, establishing a clearer relationship with Third-state litigation and the abolition of exequatur with the introduction of the Brussels I (recast) Regulation. From the adoption of the Brussels Convention in 1968 up until the 2012 regulation, the established regime of judicial recognition and enforcement of judgements has facilitated and improved judicial cooperation across the European Union. The most recent legislation has provided substantial changes in international civil and commercial litigation, however some areas of uncertainty remain, in relation to non-Member state litigation, safety guards towards Human Rights protection and the ambiguities towards arbitration. With that in mind, the changes that have been made to the international judicial framework that spans across the EU, the new system should provide for an easier access to justice, as the changes made by the new regulation set out to facilitate the free movement of judgements and the objectives of the changes made can be seen to attain that goal.
Ahmed, Mukarrum, Brexit and English Jurisdiction Agreements: The Post-Referendum Legal Landscape (September 15, 2016). M Ahmed, ‘BREXIT and English Jurisdiction Agreements: The Post-Referendum Legal Landscape’ (2016) 27 European Business Law Review 989. Available at SSRN: https://ssrn.com/abstract=2839342
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