Brexit: What will happen to continuing cross-border disputes?

With the end of the Brexit transition period fast approaching, a key question in respect of ongoing proceedings is what laws will apply after 1 January 2021. This question is especially important in the case of civil and commercial UK/EU cross-border disputes and, for clarification, we can turn to Article 67 of the Withdrawal Agreement. This Article confirms that in such disputes, the EU rules on jurisdiction, recognition and enforcement of judgments continue to apply where these proceedings (including insolvency and family law proceedings) have been instituted before 31 December 2020.

The Court of Justice of the European Union has consistently held that it is for the national law of the member states to determine when proceedings are considered to have been instituted. Looking at the national law of Scotland, when proceedings are instituted is dependent on whether the claim is being heard in the Sheriff Court or Court of Session. In order to begin proceedings in the context of the Sheriff Court, the pursuer must lodge an initial writ using a Form G1 with the sheriff clerk. The clerk will then issue a warrant for citation which will then allow the writ to be served on the defender, and thereby instituting proceedings. Where a claim is being brought in the Court of Session, proceedings are initiated when a summons is signeted and registered with the Court and then served on the defender (usually using a Form 13.2-A). It should be noted that the process in respect of initiation of winding up petitions is a little different and commences when these are presented (lodged) to the Court.

As we understand it, the position in England and Wales in the context of the commencement of civil proceedings can be confirmed by looking at Rule 7.2 of the Civil Procedure Rules. This Rule states that proceedings begin when the court issues a claim form at the request of the claimant.

Of course, the issue that practitioners dealing with cross-border disputes may face is working out the applicable national law in the member state where the proceedings have begun in order to determine if the proceedings began before or after the transition period. While the position in Scotland is clear, the national law of a relevant member state will require to be checked.

This article was co-written by Anita Dhesi, Trainee Solicitor.

How can we help?

If you have any questions in relation to the above, please contact a member of our Commercial Dispute Resolution team.

Latest updates from @MacRoberts