Legal Recommendation when leaving the UK
Maintain recognition and enforcement of judgments with EU member states – The UK Government should negotiate continued participation in the Brussels I framework as there is a need to maintain the reciprocal framework between the UK and EU member states. It will help to keep English and Welsh law, and English and Welsh courts, attractive to businesses.
Recognition and enforcement in Timeshare consumer issues (Brussels I) also cover several areas which are significant for individual Timeshare consumers and business to consumer disputes.
Brussels I allows the consumer to sue or defend themselves in the home court where they are likely to be familiar with the process. It also means that Timeshare consumers are able to enforce their judgments almost automatically across the EU.
The reversal of the normal jurisdiction rule helps to allow the Timeshare consumer – under certain circumstances – to have the case brought in their home system, which they are likely to be more familiar with.
Recommendation: Maintain protections for Timeshare consumers – The UK should maintain reciprocity with the EU alongside the Brussels I Regulation, so victims of mis-sold contracts overseas can use their home courts and have the court’s decision enforced near automatically.
If the UK is not a party to Brussels I or the Lugano Convention (a similar framework to Brussels I for EU and EFTA states), the UK will have to consider alternatives for recognition and enforcement of judgments for consumer contracts, as the Hague Conference Conventions do not provide for weaker party protection.
In Timeshare consumer transactions outside the EU, the consumer faces the challenge of choice of court clauses within standard terms and conditions, which means they might be unable to have their case heard in the court that is familiar to them. Alternatives to Brussels I Regulation Recommendation: Sign up to the Lugano Convention – There are some alternative options to the Brussels I Regulation, including joining the Lugano Convention. If this option was chosen, the UK should work with members of the Lugano Convention to adopt text which would align the Lugano Convention text with the newest version of the Brussels I Regulation recast.
A particular benefit of Brussels I over the Lugano Convention is that parties can no longer frustrate a case by racing to open proceedings in courts of member states known to be slow in making a determination of jurisdiction rather than the court chosen under the choice of court agreement.
It must be noted that the Lugano Convention will need to be ratified by all parties involved, which may result in a delay, in which case a transitional arrangement ensuring continued recognition and enforcement may be needed.
Recommendation: Join global recognition and enforcement mechanisms independently as soon as possible –
The UK should, as a minimum, make a public commitment as soon as possible to independently become a party to the Hague Convention on Choice of Court
Agreements. This covers recognition and enforcement of judgments where there is a choice of court agreement between the parties. Most commercial contracts do contain such a clause. Specifically, the UK should explore whether it could succeed to the Choice of Court Agreements Convention directly at the end of EU membership to avoid a gap in its application. However, it needs to be noted that this Convention does not apply where there is a hybrid choice of court agreement, which is often used in financial services.
Posted on: 12th December 2018