Cross-border litigation in England and Wales

Published date01 April 2018
Date01 April 2018
Cross-border litigation
in England and Wales:
Pre-Brexit data and
post-Brexit implications
Mihail Danov*
In the pre-Brexit era, England has established itself as one of the dominant jurisdictions for the
resolution of cross-border disputes in the European Union (and the world). The legal regime in
relation to private international law (PIL) in England and Wales has been significantly influenced
by the EU PIL framework that was adopted at EU level. The United Kingdom decision to leave
the EU might have significant implications for the parties’ access to justice in cross-border cases.
This paper aims to devise a theoretical framework that is necessary to evaluate the potential
impact of the UK’s decision to leave the EU on the private parties’ access to legal remedies. To
this end, the author relies on empirical (qualitative) data that was gathered in 2015 and early
2016 in the context of the EU Private International Law: Legal Application in Reality (‘EUPILLAR’)
project, indicating how the current EU PIL framework is functioning in England and Wales. An
analysis of the way the parties’ strategies are devised under the current EU PIL regime helps in
identifying the aspects which need to be considered, in order to set the research agenda and
ascertain how the l egal landscape in re lation to PIL shoul d be revised in the pos t-Brexit era.
Brexit, private international law, cross-border litigation, EU civil justice, legal remedies
* Associate Professor, School of Law, University of Exeter
Corresponding author:
Mihail Danov, School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4QJ, UK.
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(2) 139–167
ªThe Author(s) 2018
Article reuse guidelines:
DOI: 10.1177/1023263X18760544
1. Introduction
Traditionally, private international law (PIL)
forms an important part within each national legal
system – England and Wales would normally have its own PIL rules, and so too would Scotland
and France. The existence of multiple sets of national PIL rules that apply in different jurisdictions
could generate a level of legal uncertainty that in turn would increase the parties’ exposure to
litigation risks in dispute s with an international ele ment. This would inflate the c ross-border
litigation costs, reflecting the level of variation with regard to the connecting factors chosen by
national policy-makers to ascertain the applicable law and/or allocate jurisdiction. Addressing
these issues, in terms of providing private parties with access to remedies, at European Union
level was important in view of the fact that the EU has promoted cross-border trade and services
within the single market that inter alia contributed to the higher mobility of people across different
To facilitate private parties’ access to justice in disputes with an international element, the EU
has ‘develop[ed] judicial cooperation in civil matters having cross-border implications’
by har-
monising PIL rules.
A number of EU PIL Regulations
adopted at EU level created the foundation
of the EU Civil Justice framework that was set to facilitate private parties’ effective access to legal
remedies in disputes with an international element.
The objective has been to minimise the cross-
border litigation risks, removing (or, at least, minimising) the barriers to justice (that is, higher
legal uncertainty and higher litigation costs) in disputes with an international element. As a result,
the current UK legal landscape in relation to PIL in civil and commercial matters has been largely
designed at EU level.
The EU PIL legislative developments have significantly affected the English common law and
the legal practice in cross-border disputes before the English courts.
It is now well established
that, in civil and commercial disputes, ‘the decision in Owusu v Jackson prevents any consideration
of the forum non conveniens principle when the defendant, or one of the defendants, is domiciled
1. Private International Law (‘PIL’) for the purposes of this article is broadly defined to cover any set of national PIL rules.
Respectively, EU PIL (referring to the EU harmonized PIL instruments) and/or English PIL (referring to the English
common law rules) and/or Global PIL (referring to the Hague conventions).
2. See Article 81 TFEU.
3. P. Beaumont and M. Danov, ‘The EU Civil Justice Framework and Private Law: ‘‘Integration through [Private Inter-
national] Law’’’, 22 Maastricht Journal of European and Comparative Law (2015), p. 706.
4. E.g. Regulation No. 1215/2012/EU of the European Parliament and of the Council of 12 December 2012 on jurisdiction
and the recognition and enforcement of judgments in civil and commercial matters, [2012] OJ L 351/1 (Brussels I
Recast); Regulation No. 593/2008/EC of the European Parliament and of the Council of 17 June 2008 on the law
applicable to contractual obligations (Rome I), [2008] OJ L 177/6 (Rome I Regulation); Regulation No. 864/2007/EC of
the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome
II), [2007] OJ L 199/40 (Rome II Regulation); Council Regulation No. 2201/2003/EC of 27 November 2003 concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental
responsibility, repealing Regulation (EC) No. 1347/2000, [2003] OJ L 338/1 (Brussels IIa Regulation) and Council
Regulation No. 4/2009/EC of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of
decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L 7/1 (Maintenance Regulation).
5. M. Danov and P. Beaumont, ‘Measuring the Effectiveness of the EU Civil Justice Framework: Theoretical and
Methodological Challenges’, 17 Yearbook of Private International Law (2015–2016), p. 151–180.
6. A. Dickinson, ‘Back to the future: the UK’s EU exit and the conflict of laws’, 12 Journal of Private International Law
(2016), p. 195, 196. A. Briggs, ‘Secession from the European Union and private international law: the cloud witha silver
lining’, COMBAR Association (2017),
European_Union_and_private_international_law.pdf, p. 4.
140 Maastricht Journal of European and Comparative Law 25(2)

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