Read our Q&A on the impact of Brexit on cross-border litigation. Visit our Brexit & Dispute Resolution page for further information or to contact a member of our team: http://bit.ly/2iMgEEX

1. 1. What is the immediate impact of
Brexit on cross-border litigation?
Some cases which are in existence when the UK exits the
EU are likely to suffer an immediate impact that must be
considered.
In particular, the projected hard Brexit will affect the
Courts in the UK referring questions of EU law to the CJEU,
which can be a key aspect of litigation in EU Member
States.
To the extent that litigation relates to rights or obligations
which arise under EU law, and, the relevant EU laws are
repealed, any decision obtained may have limited practical
application in the UK in the future.
2. I am suing a UK company – what
impact does Brexit have on this
litigation?
Of significant importance is that post Brexit the UK may no
longer be a party to the Recast Brussels Regulation, which
relates to jurisdiction and the reciprocal enforcement
of judgments in EU Member States. If the UK is no
longer a party to the Recast Brussels Regulation, or is
not a signatory to similar conventions like the Lugano
Convention, then it will be more difficult for a judgment
in Ireland to be enforced in the UK and vice versa. There
is also potential for conflict in relation to which court
will have jurisdiction in relation to a cross-border UK-EU
dispute.
If a claimant has been successful in obtaining a judgment
against a UK company and needs to enforce it in the UK
then they should do so before the UK formally leaves the
EU.
Unless changes are made to the Irish Court Rules, Brexit
will mean that there is an additional court process required
to be undertaken before suing defendants who reside
in the UK as leave of the Irish High Court will have to be
obtained. There is an exception to the requirement for
leave of the High Court in relation to foreign defendants
resident in EU member states, but as the UK would no
longer qualify for this exemption post Brexit, the initiation
of proceedings against UK defendants will be more time
consuming and expensive.
Ultimately the answer to this question really does depend
on the agreements that are negotiated between the UK
and the EU following Brexit.
3. What happens to EU law following
Brexit?
EU law itself will continue to exist and will continue to
govern the remaining Member States of the EU.
Whilst EU law itself will no longer be directly applicable in
the UK, the UK has implemented EU Directives stretching
back throughout its membership of the EU so, unless it
immediately repeals them all, the UK will continue to apply
some laws created by the EU.
In the future however the UK will not be bound to
implement EU law, or to implement its laws in line with
the overarching obligations of EU law, so we will likely see
some divergence in the laws implemented and interpreted
in the UK when compared to the remaining EU Member
States.
4. Are there specific types of
litigation that will be more affected
by Brexit?
Yes – in short it will be those types of litigation that
are more heavily influenced by EU law, or involve a UK
company, or cross-border litigation that is commenced in
the UK. For example areas such as Intellectual Property,
Data Protection, Competition law, Employment and other
regulated sectors which are subject to EU-wide legislation,
are much more likely to be impacted by Brexit.
5. What does Brexit mean for ADR in
Ireland?
Brexit will have no material impact on alternative dispute
resolution in Ireland.
For example, awards made following arbitration – unlike
awards obtained following a court hearing – will continue
to be enforceable in the UK and Ireland in the same way
as they are currently. The UK and Ireland are signatories
to the New York Convention on the enforcement of arbitral
awards and the UK will continue to be a signatory post
Brexit.
Depending on the agreement the UK negotiates with the
EU relating to the mutual recognition and enforcement of
court judgments, we could see a real growth in arbitration
clauses in contractual agreements as parties may prefer
the certainty of knowing that they can get their English
arbitration award enforced in Ireland and vice versa.
Brexit Litigation Q&A

2. 6. What is the long term impact of
Brexit on cross-border litigation?
The answer to this question really does depend on the
agreements that are negotiated between the UK and the
EU following Brexit, particularly any agreement relating
to the mutual recognition and enforcement of court
judgments and any agreement relating to the jurisdiction
of national courts.
The ideal arrangement, as far as promoters of cross-border
litigation are concerned, would be for the UK to enter
into an agreement with the EU analogous to the Recast
Brussels Regulation. This would allow UK and EU litigants
to continue to be able to enforce awards in the manner
that they are currently able to and provides litigants with at
least some degree of certainty in relation to which courts
will have jurisdiction over any dispute.
Another alternative would be for the UK to become a
signatory to the Lugano Convention, which also deals with
the mutual recognition and enforcement of judgments, or
the Hague Convention on Choice of Court Agreements,
which deals with which courts have jurisdiction over
a dispute. However, these agreements are not as
comprehensive or as preferable as the changes that were
contained within the Recast Brussels Regulation.
There will more than likely be a greater degree of
uncertainty for future potential litigants involved in cross-
border proceedings against a UK company or involved
in cross-border proceedings in the UK. The failure to be
able to ‘passport’ judgments as you can under the Recast
Brussels Regulation will also likely result in a more time
consuming and expensive system for the recognition of
judgments between the UK and the EU.
Finally, as set out in response to question one above, to
the extent that rights and obligations emanate from EU
legislation contracting parties will need to ensure that the
governing law clause in their contract is fit for purpose.
7. When will Brexit impact on new
proceedings?
Even though the law itself will not change until the UK
formally leaves the EU, Brexit is having an impact on
proceedings that are currently being considered or
initiated.
For example, if the litigation is so large or so complicated
that it may take more than two years to reach judgment,
the parties should be considering where the judgment will
be obtained and where it will be enforced as the Recast
Brussels Regulation will likely no longer be applicable.
Similarly, if the proceedings involve an element of EU
law or an area that is impacted by EU law, initiating
proceedings in the UK would have to be considered
carefully as, by the time of adjudication or any referral to
the CJEU is made, the UK may have formally left the EU.
Although UK Judges will, in theory, have to adjudicate
cases in line with EU law until Brexit has taken place, it will
inevitably become a grey area of just how influential EU
law will be as the UK approaches the deadline for leaving
the EU.
8. Why choose Ireland to litigate?
Ireland will continue to be an attractive destination for
commercial disputes.
Ireland has an established adversarial common law
jurisdiction, rooted in due process. Particularly following
the introduction of the Commercial Court, the Court of
Appeal and the High Court regime, Ireland has been able
to offer a judicially managed and efficient platform for the
determination of substantial commercial disputes. Irish
courts will be able to adjudicate upon issues of EU law that
have been implemented in Ireland and to make references
to the CJEU.
Matheson’s guide to litigating commercial disputes in
Ireland can be found here
Brexit Litigation Q&A