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Draft Brexit/EU Withdrawal Agreement: private international law provisions on Jurisdiction, Applicable Law & Enforcement etc

The Draft EU Withdrawal Agreement has finally been published (14 November 2018). Title VI of the Draft Agreement contains provisions relating to civil and commercial litigation, covering the likes of jurisdiction (Article 67(1)), applicable/governing law (Article 66), recognition & enforcement of judgments (Article 67(2)), service of documents (Article 68(a)) and taking of evidence (Article 68(b)).

These provisions concern the applicability of EU private international law instruments once the transition period begins, i.e., after the anticipated exit from the EU on 30 March 2019 – with the transition expected to last until 31 December 2020, the date currently provided for in Article 126 (subject to extension per Article 132). Of course, the Draft Agreement does not provide for the post-transition period landscape; that is intended to be the subject of future negotiations after March 2019.

In a nutshell:

Jurisdiction (generally): The Brussels I Regulation (recast) 1215/2012, also known as the Judgments Regulation, will continue to apply in the UK to “proceedings instituted before the end of the transition period“. EU Member State courts will continue to reciprocally apply the Regulation to “situations involving the United Kingdom“.
Jurisdiction – Lis Pendens: The lis pendens provisions of the Brussels Recast Regulation will have continuing relevance to English proceedings issued even after the end of the transition period because those provisions will be engaged by proceedings in other EU Member States which are instituted before the end of the transition period.
Applicable Law – Contract claims: The Rome I Regulation 593/2008 will continue to apply in respect of contracts “concluded before the end of the transition period“.
Applicable Law – non-contractual claims (Tort, Unjust Enrichment etc.): The Rome II Regulation 864/2007 will continue to apply to non-contractual liability where the “event giving rise to damage occurred before the end of the transition period“. It is notable that this reliance on the timing of the event of giving rise to the damage (rather than on the timing of the occurrence of damage) contrasts with the substance of the Rome II Regulation itself which, by Article 4(1), has as a starting point that the applicable law be the law of the place of the damage (irrespective of where the event giving rise to the damage took place). As such, the ‘event limb’ line of caselaw (beginning with Case 21/76 Bier), currently relevant to jurisdiction under the Brussels Recast Regulation, will now also become relevant to the issue of applicable law.
Recognition and Enforcement of Judgments: The relevant provisions of the Brussels Recast Regulation will continue to apply to judgments given in proceedings instituted before the end of the transition period. So, the continuing applicability of the existing recognition and enforcement regime to a particular judgment after March 2019 does not turn upon when that judgment is given; rather it is when the underlying proceedings were begun that will be decisive.
Service of Documents: The Service Regulation 1393/2007 will continue to apply in respect of documents “received for the purposes of service before the end of the transition period“. As such, service can actually be affected after the end of the transition period. However, as applicability of the Regulation depends on receipt of a request for service by the relevant authorities and not the making of the request, timing may be tight for claims issued close to end of the transition period.
Taking of Evidence: The Taking of Evidence Regulation 1206/2001 will continue to apply to “requests received before the end of the transition period“. As such, the actual taking of evidence could be done well after the end of the transition period.