BREXIT AND PRIVATE INTERNATIONAL LAW: LOOKING FORWARD FROM THE UK BUT ACTUALLY GOING BACKWARD

Abstract

International judicial cooperation for civil matters between Member States of the EU and the United Kingdom can be severely curtailed as a consequence of Brexit if upon the end of the transitory period, 31 December 2020, no new partnership between the UK and the UE has been approved including agreements on civil judicial cooperation. Other multilateral solutions are possible within the framework of The Hague Conference on Private International Law, such as the accession by the UK in its own right to The Hague Convention 2005 on choice of court agreements or the ratification of The Hague Convention 2007 on child support, or via the UK’s accession to the Lugano II Convention 2007. A unilateral approach (modified unilateral transposition) is also possible with regard to EU legislation retained by the European Union (Withdrawal) Act 2018 determining in each case what piece of the EU legislation is effectively retained, modified or dismissed (pick and choose). In any case, the future outlook of civil judicial cooperation with the UK seems more like a leap back into the past than a step forward into the future. The situation for Gibraltar could be different if a new partnership agreement between the EU and UK includes a separate agreement in relation to Gibraltar where a sufficient repertory of EU cooperation instruments is bilaterally kept in force in order to safeguard the application of EU Private International Law applicable in Gibraltar to date.