Abstract
The UK decision to leave the European Union could directly impact on the application of the EU private international law (‘PIL’) instruments in the UK. Any fresh legal uncertainty driven by such a change in the legal landscape in relation to PIL could have significant impact on private parties’ access to remedies. This article proposes a socio-legal model for measuring the Brexit impact on litigants’ access to legal remedies. In order to systematically identify the important issues (which need to be considered by policy-makers as priority in this context), the proposed theoretical model is developed around the litigants’ strategies. The advanced model has two major features. First, it is set to analyse the triangular relationship between: 1) jurisdiction (procedural rules); 2) choice of law (applicable substantive laws); 3) outcome of a cross-border case. Secondly, the relevant claimants’ and defendants’ strategies in cross-border cases are thoroughly considered by taking a game theoretic perspective.
Highlights
The disputes arising out of different cross-border activities seem to be increasingly complicated
This paper aims to demonstrate that there is a strong case that the UK decision to leave the EU calls for a new theoretical paradigm which is necessary to inform policy choices in respect to judicial co-operation in the post-Brexit era
The problems are exacerbated by the fact that the EU negotiating directives (Annexed to the Council of the European Union’s Decision of 25 February 2020, authorising the opening of Brexit negotiations) do not appear to explicitly include a mandate for the European Commission to negotiate on various policy options in relation to judicial co-operation in civil and commercial matters.[27]
Summary
The disputes arising out of different cross-border activities seem to be increasingly complicated. The PIL issues are important because - if some of the currently applicable EU Regulations were to no longer apply in the UK post-Brexit - the UK policy-makers might need to re-design the framework for judicial co-operation This may be a major task, not least because the English and Welsh courts and law firms have traditionally been attracting claims involving parties from across the globe.[4] This enabled English and Welsh judges to specialise in dispensing justice in complex cross-border family, civil and commercial cases.[5] the UK decision to leave the EU may have significant implications for the private parties’ access to legal remedies. Measuring the Brexit impact on private parties’ access to legal remedies in cross-border disputes is important for the UK policy-makers to decide on the various policy choices As part of this process, the following questions need to be addressed: Will a post-Brexit change in the legal landscape in relation to PIL affect (negatively or positively) the attractiveness/appropriateness of the English courts? The author will demonstrate how the proposed theoretical model using a game theoretic approach could be used to analyse litigants’ strategies with a view to systematically ascertaining priorities in redesigning rules for cross-border litigation
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