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Brexit: UK wants ‘close and comprehensive’ judicial cooperation with EU

Date:23 AUG 2017
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The government has published a new policy paper which considers a cross-border civil judicial cooperation framework with the EU post-Brexit. In 'Providing a crossborder civil judicial cooperation framework', the government says it is vital that both parties agree to ‘coherent’ common rules that govern interactions between legal systems. It says that while the UK will sit outside the direct jurisdiction of the Court of Justice (CJEU), the UK will seek to agree ‘close and comprehensive’ arrangements for civil judicial cooperation.
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‘Civil judicial cooperation’ is the legal framework that governs the interaction between different legal systems in cross-border situations.

The UK currently participates in the EU’s civil judicial cooperation system provided by a range of EU instruments. It provides predictability and certainty for individuals and businesses about the laws which apply to cross-border relationships, the courts that would be responsible, and their ability to rely on decisions from one country’s courts in another Member State.

When the UK leaves the EU it will leave this system and will need to negotiate and agree a new civil judicial cooperation framework with the EU.

A future framework with  the EU

The government recognises that UK/EU judicial cooperation is in the mutual interests of:

• consumers

• businesses

• families

• citizens

As the government legislates for the UK’s withdrawal, it intends to incorporate into domestic law Rome I (EC) 593/2008 and Rome II (EC) 864/2007 on choice of law and applicable law in contractual and non-contractual matters. It says this will provide a coherent legal framework for UK and EU businesses to trade and invest with confidence across borders and support the protection of individuals’ and family rights in cross-border situations.

Court of Justice

Leaving the EU will end the direct jurisdiction of the Court of Justice in the UK, because it derives its jurisdiction and authority from the EU treaties. However, the government maintains this will not weaken the rights of individuals or threaten the UK’s commitment to complying with its obligations under international agreements. It says, where appropriate, the UK and the EU will need to ensure future civil judicial cooperation takes into account regional legal arrangements, including the fact that the Court of Justice will remain the ultimate arbiter of EU law within the EU.

William Longrigg, Partner at Charles Russell Speechlys, said:

‘The Department for Exiting the EU has said that it wants to pursue “close cooperation” with the EU following Brexit in terms of dealing with family, business and consumer legal disputes that lie across Britain and other EU member states.

It is going to be very hard to negotiate with the EU on any sort of continuing reciprocity which we currently have in family law issues without continued agreement from the UK to be subject to the jurisdiction of the European Court of Justice. It seems unlikely that the EU would be in any way interested in negotiating with us in depth without that, leaving the UK potentially in a position of simply losing the reciprocal nature of these laws which have developed over decade – and indeed losing its place at the table as they evolve.’