Brexit and EU private international law
| DOI | 10.1177/1023263X17722327 |
| Author | Mateusz Pilich |
| Published date | 01 June 2017 |
| Date | 01 June 2017 |
| Subject Matter | Articles |
Article
Brexit and EU private
international law:
May the UK stay in?
Mateusz Pilich*
Abstract
Procedure of the British withdrawal from the European Union, officially launched on the 29th of
March this year, opens not only questions of the general public-law governance but, first and
foremost, gives rise to concern about its overall impact on the cross-border private-law trans-
actions involving the UK and the rest-EU Member States. The article is focused on the regulatory
risk within the framework of the Judicial Cooperation in Civil Matters (JCCM), encompassing the
EU common private international law (PIL) provisions. Some misapprehensions about a possible
continuity of the cooperation based on the existing PIL international treaties (e.g. the Lugano
Conventions or the 1980 Rome Convention) on the one hand, and the deficiencies of the post-
Amsterdam JCCM legislative mechanisms on the other hand, have been considered. The current
European legislative policy dramatically lacks consistency even with regard to the EU countries
which have not been vested with a special status comparable to the UK, Ireland, or Denmark. Thus
the article suggests a possibility of restructuring the JCCM so as to encourage the UK to cooperate
with the EU in the form of a ‘Continental PIL Partnership.’
Keywords
private international law, European Union, Brexit, Article 50 TEU, EU Regulations, international
conventions
According to the teleological view of the past, the past extends itself towards the future as a linear time
(...). As a matter of fact, however, history does not show such a linear development, but a dialectically
converting unification in which development is construction, and becoming is action ( ...). History is
* PhD and Lecturer in Law, University of Warsaw, Poland; Member of the Office for Studies and Analyses, Supreme Court
of the Republic of Poland
Corresponding author:
Mateusz Pilich, University of Warsaw,Warsaw, Poland.
Email: m.pilich@wpia.uw.edu.pl
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(3) 382–398
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17722327
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not the content of contemplation ( ...) but, on the contrary, is based upon the dialectic of action by
which even the evil can be converted into the good.
M. Ozaki, Individuum, Society, Humankind (Brill, 2001), p. 34-35
1. Introductory Remarks
We tend to view the history of the European integration as a purposeful process. In legal terms, this
is indeed the case: in light of EU policies based on the logic of an ‘ever closer’ relationship
between the Member States;
1
this allegedly infinite development should ultimately conclude with
a true federal polity – not an easy objective to attain within a supranational organization of (still) 28
sovereign nations!On the 23 June 2016, the European thesis was dramatically confronted with its
antithesis, in the form of the Brexit – the latter being formally launched on the 29 March 2017 by
the British Prime Minister’s Article 50 notification letter addressed to the President of the Eur-
opean Council.
2
What comes next as an inevitable synthesis of this dialectical process? It is not the
author’s task to give his predictions. The subject matter of this article is less ambitious: to add some
remarks on the destiny of one of the EU’s common policies, namely the Judicial Cooperation in
Civil Matters (JCCM).
The latter mainly pertains to the discipline of law known as private international law (PIL).
Depending on the adopted assumptions, its borders comprise the rules on the choice of law
applicable to private law relationships (when construed narrowly), but they may also cover the
courts’ jurisdiction, and the recognition and enforcement of foreign judgments in civil and
commercial matters (when construed widely). In terms of PIL in EU law, it is the latter which
is indeed the case.
3
It is exactly due to the complexity and technicality of the matter that PIL – from a political
perspective – is present somewhere at the margin of the debate concerning the UK’s future
withdrawal from the European Union. For many lawyers in the UK, however, the perspective of
‘Brexit’ is much more serious in this regard. The City of London has become the true European
centre for foreign investment
4
and the majority of local legal firms have built up their reputation on
a simple, yet effective model of cooperation with their clients: agree to London as the arbitration
venue or the prorogated forum – and we will do the rest.
1. Compare, the preamble and the second indent of Article 1 TEU (‘ever closer union among the peoples of Europe’), the
second indent of Article 24(2) TEU (‘ever-increasing degree of convergence of Member States’ actions in the field of
CFSP’) (emphasis added), and Recital 1 of the Preamble to TEU Protocol No. 14 on the Euro Group, [2008] OJ C 115/
283 (‘ever-closer coordination of economic policies within the euro area’) (emphasis added).
2. See, European Council, ‘Article 50 Notification letter from the United Kingdom’, http://www.consilium.europa.eu/en/
press/press-releases/2017/03/pdf/070329_UK_letter_Tusk_Art50_pdf/; European Council, ‘Statement by the European
Council (Art. 50) on the UK notification, http://www.consilium.europa.eu/en/press/press-releases/2017/03/29-euco-50-
statement-uk-notification/.The procedure was undertaken upon the prior consent of the UK Parliament, see (UK) the
3. P. Stone, EU Private International Law (Elgar, 2010), p. 3.
4. Recent analyses have shown that at the moment of the ‘leave’ referendum in June 2016, England absorbed the volume of
more than £1 trillion of foreign direct investment, about half of which had been generated by the commerce with other
EU Member States; financial services have the largest stock of inward FDI in the UK (45%) and constitute 8%of GDP
and 12%of tax receipts. Compare, S. Dhingra et al., ‘The Impact of Brexit on Foreign Investment in the UK’, CEP
Brexit Analysis No. 3 (2016), http://cep.lse.ac.uk/pubs/download/brexit03v2.pdf, p. 2, 6.
Pilich 383
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