Podcast: English law and the English courts five years after the Brexit referendum – are they still an attractive choice?
22 June 2021
We are now five years on from the UK’s Brexit referendum, and a question remains as to whether English law and the English courts are still an attractive option for commercial parties.
Although a lot has changed in the last five years, many of the issues identified at the time of the referendum remain unresolved. One of the key issues that our clients have been grappling with is whether EU Member State courts will continue to respect English jurisdiction clauses and enforce English judgments. With the Recast Brussels Regulation and Lugano Convention no longer applying where English courts have been selected in a commercial contract, parties must now navigate a new legal landscape in this area, looking to national law rules, historic treaties and the 2005 Hague Convention to determine whether their English jurisdiction clauses and judgments will continue to be respected and enforced.
In this podcast we provide an update on the legal position, including when the Hague Convention might not apply, whether the UK is likely to rejoin the Lugano Convention, and how the markets have reacted to the change of regime. We also discuss the key issues parties should be thinking about when negotiating governing law and dispute resolution clauses in their commercial contracts.
Since our podcast was recorded, the European Commission has submitted a note verbale to the Lugano Convention depositary stating that the EU is “not in a position to give its consent” to the UK rejoining the Convention. As we understand it, this is essentially a statement that a decision has not yet been made by the EU and not a refusal of consent. As such, it does not change the position we discuss in our podcast, namely that we understand a number of Member States are in favour of the UK acceding to the Lugano Convention but a final decision is yet to be made (and may be kicked into the long grass if the Commission does not table a vote).