1. Brexit Seminar Wednesday 20 th July 2016 Collyer Bristow, London Patron: The Rt Hon Lord Woolf of Barnes

2. www.oeclaw.co.uk FREE MOVEMENT OF JUDGMENTS AFTER BREXIT? MICHAEL FEALY QC

3. www.oeclaw.co.uk THE PRESENT REGIME The Brussels I Recast Regulation (Regulation (EU) No. 1215/2012) – Automatic recognition and enforcement of judgments Enforcement not conditional on registration Equality of treatment between domestic judgment and Member State judgment Very limited grounds to resist enforcement – Detailed jurisdictional rule Member State of defendant’s domicile Rules of special jurisdiction Jurisdiction agreements – Has direct effect under the European Communities Act 1972

4. www.oeclaw.co.uk BACKGROUND TO RECAST REGULATION Brussels Convention 1968 (as amended) Civil Jurisdiction and Judgments Act 1982 – “The Brussels Conventions shall have the force of law in the UK….” Brussels I Regulation (Council Regulation (EC) 44/2001)

5. www.oeclaw.co.uk LUGANO CONVENTION 2010 treaty between the EU, Norway, Iceland and Switzerland Broadly similar to Brussels I Regulation

6. www.oeclaw.co.uk AFTER BREXIT? UK will cease to be an EU Member State European Communities Act 1972 likely to be repealed Recast Regulation will cease to have effect in the UK Lugano Convention will cease to have effect in the UK

7. www.oeclaw.co.uk BRUSSELS CONVENTION “This Regulation shall, as between Member States, supersede the 1968 Brussels Convention….” (article 68 of the Recast Regulation) After Brexit, will the Brussels Convention resume effect between the UK and remaining EU Member States?

8. www.oeclaw.co.uk AFTER BREXIT THE PRE-1987 POSITION Money judgments from Austria, Belgium, France, Germany, the Netherlands and Norway enforceable by registration under the Foreign Judgments (Reciprocal Enforcement) Act 1933 Foreign money judgments otherwise enforceable by action at common law if they are final and conclusive No review on the merits but court of origin must have jurisdiction in the international sense As regards English judgments in the EU or EFTA, enforcement is a matter for the domestic law of the state where enforcement is sought

9. www.oeclaw.co.uk JURISDICTION THE PRE-1987 POSITION Service of a claim form within the jurisdiction Service of a claim form outside of the jurisdiction with the permission of the Court Forum non conveniens Anti-suit injunctions no longer subject to restraints of the Recast Regulation or the Lugano Convention

10. www.oeclaw.co.uk OPTIONS AFTER BREXIT? Agree to be bound by the Recast Regulation Accede to the Lugano Convention Accede to the 2005 Hague Convention on Choice of Court Agreements Other bespoke agreement

11. www.oeclaw.co.uk IN THE MEANTIME… Seek to obtain and enforce judgment while UK remains a member of the EU Brexit will not affect the enforceability of an arbitration award under the New York Convention

12. Brexit Briefing: Implications for Commercial Litigation Competition Law 20 July 2016 Presented by Stephen Critchley Head of Competition Law

13. Competition Law The infringements  Anticompetitive collusion between undertakings Article 101 of the Treaty on the Function of the EU Chapter 1 of the Competition Act 1998  Abuse of dominance by a single undertaking Article 102 of the Treaty on the Function of the EU Chapter 2 of the Competition Act 1998

14. Competition Law Private enforcement  Enterprise Act 2002 introduced: Follow-on claims  Consumer Rights Act 2015 and European Directive 2014/104/EU introduce a raft of measures including: Collective actions New disclosure regime Clarifications re. joint and several liability / passing-on New limitation periods

15. Competition Law The effect of Brexit  Before Brexit: Little if any change  After Brexit: Effect depends on the new deal “Norway” model: Little change  Ch 1 CA’98 and Art. 101 TFEU ≈ Art. 53; and Ch 2 CA’98 and Art. 102 TFEU ≈ Art. 54 of the EEA Agreement  Brussels Regulation ≈ Lugano Convention 2007

16. Competition Law Full Brexit:  Would there be repeal of the provisions of the CA’98 that make Commission infringement decisions binding on UK Courts?  What agreement would be reached on jurisdiction and enforcement of judgments?

17. www.erskinechambers.com Brexit and Cross-border Insolvency Ceri Bryant QC

18. Sources of UK law on cross-border insolvency Council Regulation (EC) 1346/2000 (Insolvency Regulation) Recast Insolvency Regulation 848/2015 (from June 2017?) Cross Border Insolvency Regulations 2006 (UNCITRAL model law on insolvency) Insolvency Act 1986 section 426 (co-operation between officeholders) Foreign Judgments (Reciprocal Enforcement) Act 1933 Companies Act 2006 sections 895-899 (schemes of arrangement)

19. EU law directly affected by Brexit Treaty on European Union Treaty on the Functioning of the European Union EU Regulations (Insolvency Regulation, Recast Insolvency Regulation, Brussels/Judgments Regulation) EU Directives, implemented by statutory instruments

20. Insolvency Regulation Proper jurisdiction for debtor’s insolvency proceedings (COMI) Applicable law to be used in debtor’s insolvency proceedings Mandatory recognition of insolvency proceedings in other EU Member States

21. Impact of Insolvency Regulation ceasing to apply No automatic recognition in EU Member States Insolvency proceedings no longer restricted to COMI; based on assets instead No automatic recognition of in rem rights under Article 5

22. Section 426 Insolvency Act 1986 UK Court can assist courts in countries with corresponding insolvency jurisdiction Channel Islands, Isle of Man, Republic of Ireland, various commonwealth countries Requests must come from foreign courts, not foreign officeholders

23. Outside the Insolvency/Recast Insolvency Regulation Schemes of arrangement (s895-899 Companies Act 2006) Members’ voluntary liquidations receiverships

24. UK schemes of arrangement Outside the scope of the Insolvency Regulation and the Recast Insolvency Regulation Application of Brussels/Judgments Regulation not definitively decided Recognised under Lugano Convention? (mutual recognition between EU and EFTA countries including Switzerland, Norway and Iceland) UK Court’s practice at sanction is to require expert evidence the scheme will be recognised (private international law)

25. Credit institutions and insurers Expressly excluded from Insolvency Regulation but have their own EU directives Insurers (Reorganisations and Winding-up) Regulations 2004 (SI 2004/353) Credit Institutions (Reorganisations and Winding-up) Regulations 2004 (SI 2004/1045) Equivalent legislation in other EU Member States EU directives apply to the European Economic Area (EEA)

26. Other EU law relevant to insolvency Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE) Collective redundancy consultation Settlement Finality Directive (1998/26/EC) Financial Collateral Arrangements Directive (2002/47/EC) - see the Financial Collateral Arrangements (No 2) Regulations 2003 (SI 2003/3226)

27. Ceri Bryant QC Ceri is a well-respected silk with a broad practice spanning company law, corporate insolvency and financial services. Her clients include FTSE and AIM listed companies and non-corporate organisations, and she is regularly instructed on corporate reorganisations, takeovers and mergers and transfers of insurance business. Call: 020 7242 5532 E-mail: cbryant@erskinechambers.com Web:www.erskinechambers.com/barrister/ceri-bryant- qc/

28. Brexit Seminar Wednesday 20 th July 2016 Collyer Bristow, London Patron: The Rt Hon Lord Woolf of Barnes