The exit of the UK from the EU will have many implications for Irish businesses and one which is not receiving huge media coverage is the area of cross-border litigation. We currently benefit from harmonised rules in cross-border disputes and proceedings within the EU. Bi-Lateral agreements will now have to be negotiated to retain those benefits. The benefits include agreement in respect of priority of jurisdiction, enforceability of judgements, referring questions of law to the CJEU and precedence of the ECJ. Without a bi-lateral agreement we may have parallel litigation in two or more jurisdictions, expensive, difficult or no cross border enforcement mechanisms and lack of co-operation in criminal matters.
The Recast Brussels Regulations provide for reciprocal enforcement of judgements within EU states. If the UK is no longer a party to the Regulations, it will become more difficult to enforce judgements in the UK and vice versa. If you currently hold a judgement against a UK defendant we would advise you to immediately seek to enforce the judgement before the UK leaves the EU. Completing litigation currently in place within the two year exit period is critical. It may be worthwhile exploring ADR at this point in order to bring a quicker conclusion to your litigation.
Standard form contracts with cross border suppliers and purchasers should be reviewed to determine the dispute resolution mechanisms. It may be worthwhile considering providing transitional arrangements.
It will become more expensive and more time-consuming to initiate proceedings against UK defendants due to the requirement for additional court processes. However, both Ireland and the UK are signatories to the New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards which will continue to be enforceable. The New York Convention deals with awards following arbitration. We would expect the ADR and arbitration clauses will not become a focus of commercial contracts between UK and Irish businesses. Pending agreement on another bi-lateral agreement, the Convention will provide some certainty to dispute resolution.
Ireland’s position in respect of Brexit is unique due to the range of interests shared by the UK and Ireland which is why “common ground” and flexibility in the negotiations are so fundamental to Irish interests.
Caroline Meaney is a commercial, client-focused, results-driven, plain-speaking solicitor at Keating Connolly Sellors. She has over 15 years’ experience in commercial property. For further information, contact Caroline at [email protected] or call 061 414 355 or 061 432 345.
The material contained in this article is for general information purposes only and does not constitute legal or other professional advice. We advise people to always seek specific expert advice for their individual circumstances.