These current imperfections cannot be compared with the future post-Brexit arrangements because, of course, those arrangements have yet to be determined. Nevertheless, the parameters of negotiations to agree those arrangements are foreseeable. In particular, they will likely involve a triangulation between three possibilities.
- The UK remaining in the current Brussels Regulation regime (or subject to the closely related Lugano Convention).
- A fallback to the Brussels Convention (which would probably apply in the absence of any agreement) possibly supplemented by signing up to the Hague Choice of Courts Convention.
- Opting out of all international agreements so that the UK applies its previous common law rules and other countries apply their existing rules, treating the UK as a non- Member State or equivalent nonsignatory country.
Wherever the UK ends up within this triangle, in general, English courts will in all probability continue to respect an exclusive choice of the courts of another country and courts within the EU will continue to respect the choice of English courts.
If the UK seeks an arrangement that is close to the status quo, it may request a special status as a non-Member State within the Brussels Regulation regime. If this is not politically feasible, perhaps because it would require accepting the continued primacy of the CJEU, the Lugano Convention would be a near alternative. But the EU may not be willing to allow the UK to remain within the existing regime, or something close to it. In that case, the UK could unilaterally decide to sign the Hague Choice of Courts Convention and to rely on its prior membership of the Brussels Convention. This gives a regime that includes a fair degree of reciprocity, especially for exclusive jurisdiction agreements.
The Brussels Convention remains in effect for territories excluded from the Brussels Regulation, but otherwise the Brussels Convention was ‘superseded’ by the Brussels Regulation (see Article 69 of the Brussels Regulation). As a result, it is not entirely clear that the UK would automatically fall back to the Brussels Convention if it is no longer bound by the Brussels Regulation. But, in a sense, it is irrelevant whether there is some doubt over this fallback position: it still gives the UK leverage in any negotiation, in that it would argue that there is a viable network of international agreements that could apply and so any agreement with the EU should be pitched somewhere between the existing regime and what could replace it.
The UK may prefer a solution that allows it to retain its freedom of manoeuvre, at the cost of a looser relationship with the existing international regime. This is the third option, where the UK opts out of international agreements and relies on its domestic rules of conflicts of law and the corresponding rules of other countries. It replaces the deficiencies of the Brussels regime with the limitations of a unilateral position that avoids reciprocity. It is not only an alternative fallback position for the UK in any negotiation – it may be a favoured option if the UK wishes to prioritise control over co-operation.
These three positions represent the likely outer limits of what might be agreed. We consider how exclusive jurisdiction agreements will work for regimes falling within these limits.