Cross-border litigation: Evaluating the Brexit impact – a socio-legal model for data analysis
| DOI | 10.1177/1023263X20904314 |
| Date | 01 April 2020 |
| Author | Mihail Danov |
| Published date | 01 April 2020 |
| Subject Matter | Articles |
Article
Cross-border litigation:
Evaluating the Brexit
impact – a socio-legal
model for data analysis
Mihail Danov*
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.
Keywords
Access to justice in cross-border disputes, Brexit, cross-border litigation, judicial co-operation,
private international law
I. Introduction
The disputes arising out of different cross-border activities seem to be increasingly complicated.
The high level of complexity echoes the transnational character of the various commercial
* Associate Professor, School of Law, University of Exeter, Exeter, UK
Corresponding author:
Mihail Danov, Associate Professor, School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ, UK.
E-mail: M.Danov@exeter.ac.uk
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(2) 199–229
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20904314
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transactions as well as the corporate structure of the business undertakings
1
which are reflecting
the global nature of trade and services. In order to provide private parties with access to legal
remedies in cross-border disputes arising out of their transnational economic activities, a level of
judicial cooperation between the national courts is much needed.
2
To this end, the various national,
regional and international policy-makers strive to set a global arena for judicial co-operation in
cross-border disputes.
3
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.
It is well established that the EU has incentivised a high level of economic integration, with
different national economies developing a level of specialisation in certain sectors (for example,
manufacturing; pharmaceutical industry; financial and/or legal services). As acknowledged by the
New EU/UK Political Declaration of October 2019 (pa ra. 16), long supply chains have been
formed across the EU. The EU Civil Justice framework is set to facilitate private parties’ access
to appropriate legal remedies in cross-border cases arising out of the various pan-European supply
chains. The problem is that the effective resolution of such cross-border disputes is not an easy
task.
It is not only that the existing EU chains of distribution would include multi-national
companies, large national companies, SMEs and consumers from the EU and UK, but also the
cross-border disputes arising out of such chains (fostered by the EU regulative framework for
cross-border trade and services) may raise a mixture of issues. Various disputes with an interna-
tional element may pose complex questions raising contractual, tortious, IP, competition and other
regulatory aspects which all may be subject to heated discussions before national courts.
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
Thus, the UK decision to leave the EU may have
significant implications for the private parties’ access to legal remedies. A central question is: how
1. For example, (UK) Vedanta Resources PLC and another (Appellants) v. Lungowe and others (Respondents) [2019]
UKSC 20; Okpabi & Ors v. Royal Dutch Shell Plc & Anor (Rev 1) [2018] EWCA Civ 191; The LCD Appeals [2018]
EWCA Civ 220.
2. See Hague Conference on Private International Law (HCCH), ‘22nd Diplomatic Session, Adoption of the 2019 HCCH
Convention on Recognition and Foreign Judgments in Civil and Commercial matters’, HCCH (2019), https://www.hcch.
net/en/projects/legislative-projects/judgments/22nd-diplomatic-session.
3. See the work undertaken by the Hague Conference on Private International Law (HCCH), https://www.hcch.net/en/
home.
4. P. Beaumont et al., ‘Great Britain’, in P. Beaumont et al. (eds.), Cross-Border Litigation in Europe (Hart Publishing,
2017), p. 79-124. See also: E. Lein et al., ‘Factors Influencing International Litigants’ Decisions to Bring Commercial
Claims to the London Based Courts’, UK Government, https://www.gov.uk/government/uploads/system/uploads/
attachment_data/file/396343/factors-influencing-international-litigants-with-commercial-claims.pdf (BIICL Report);
Judiciary of England and Wales, ‘The Lord Chief Justice’s Report 2017’, Judiciary of England and Wales (2018),
https://www.judiciary.gov.uk/wp-content/uploads/2017/09/lcj-report-2017-final.pdf.
5. TheCityUK, ‘The Impact of Brexit on the UK-Based Legal Sector – December 2016’, TheCityUK (2016), https://www.
thecityuk.com/assets/2016/ Reports-PDF/The-impact-of -Brexit-on-the-UK-based- legal-services-sector.pdf, Appendix
3; TheCityUK, ‘Legal Excellence, internationally renowned: UK legal services 2017’, TheCityUK (2017), https://www.
thecityuk.com/assets/2017/Reports-PDF/Legal-excellence-internationally-renowned-Legal-services-2017.pdf.
200 Maastricht Journal of European and Comparative Law 27(2)
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