A Hard Brexit for Civil International Judicial Assistance?
Posted on December 28, 2020
Friend of Letters Blogatory Peter Bert has observed that the draft Brexit treaty does not seem to make any provision for judicial cooperation in civil cases. As Peter noted almost a year ago, a “hard Brexit” in the field of international judicial assistance would mean that the Hague Service, Evidence, and Choice of Court Agreements Conventions (and maybe the Apostille Convention, though Peter doesn’t mention it specifically) would spring into effect as between the UK and the EU, and that except in cases governed by COCA, there would be no multilateral agreement in place on recognition and enforcement of judgments in civil cases. With respect to COCA, the Convention will be in force between the UK and all EU member states, because the EU approved the Convention as a Regional Economic Integration Organization. With respect to the other conventions, one would have to check (I haven’t) to see whether all EU member states are parties to each convention.
Obviously this is a step backward for international civil judicial cooperation in Europe. If I may offer an outsider’s perspective, though, it’s not the end of the world. The Conventions work! (Mostly). And even in the area of recognition and enforcement of judgments, UK courts recognize and enforce ordinary American commercial judgments without too much fuss, even in the absence of an agreement. My guess is that UK courts will continue to be a welcoming forum for the recognition of European judgments when COCA doesn’t apply, except, perhaps, in the kind of politically salient cases that contributed to the sentiment behind Brexit anyway, and that European courts will continue to be welcoming forums for UK judgments when COCA doesn’t apply, except, perhaps for cases where the UK is an outlier (e.g., libel judgments).
With the end of the Trump Administration at last in sight, perhaps there is also an opportunity for increased cooperation in civil cases between the US and the UK, the two leading common-law jurisdictions. I don’t know that there is any movement in this direction, but could we not contemplate a US/UK judgments convention, with carve-outs for libel cases or other particular problematic types of judgments? From the UK side, I would think that this would be desirable as the country seeks to strengthen trans-Atlantic ties and renew the special relationship post-Brexit. From the American side, it might be a way to dip our does in the water, since so far it has proved too difficult to ratify COCA or even to sign the Judgments Convention. American courts almost treat UK judgments as sister-state judgments anyway, so why not? Perhaps this is just wishful end-of-the-year thinking.