Cross-border litigation in England and Wales

Abstract

In the pre-Brexit era, England has established itself as one of the dominant jurisdictions for the resolution of cross-border disputes in the European Union (and the world). The legal regime in relation to private international law (PIL) in England and Wales has been significantly influenced by the EU PIL framework that was adopted at EU level. The United Kingdom decision to leave the EU might have significant implications for the parties’ access to justice in cross-border cases. This paper aims to devise a theoretical framework that is necessary to evaluate the potential impact of the UK’s decision to leave the EU on the private parties’ access to legal remedies. To this end, the author relies on empirical (qualitative) data that was gathered in 2015 and early 2016 in the context of the EU Private International Law: Legal Application in Reality (‘EUPILLAR’) project, indicating how the current EU PIL framework is functioning in England and Wales. An analysis of the way the parties’ strategies are devised under the current EU PIL regime helps in identifying the aspects which need to be considered, in order to set the research agenda and ascertain how the legal landscape in relation to PIL should be revised in the post-Brexit era.

Cross-border litigation: Evaluating the Brexit impact – a socio-legal model for data analysis

“…Since the opposing parties will seek to attain dissimilar legal remedies (whilst holding clashing views as to what their entitlement/ liability is), it is highly likely for them to adopt different strategies to direct the litigation outcomes they seek to achieve. 66 For example, if a claimant's goal is to swiftly obtain a declaratory and/or compensatory and/or injunctive relief in a cross-border case by issuing proceedings in England and Wales, then a defendant (with access to finance -deep pockets) may challenge the jurisdiction (and/or issue proceedings elsewhere), inflating the litigation costs and making it difficult for his opponent to achieve the desired legal remedies. 67 Another important challenge which the advanced socio-legal model is set to address concerns the fact that the relevant policy and practical considerations to litigants' strategies in various types of cross-border (family, civil and commercial) disputes are different.…”

“…For example, if the pattern of trade changes (with some major companies leaving the UK or setting up their subsidiaries in the EU Member States), then England and Wales might become a less attractive place for litigation. 91 Similarly, if the UK migration rules change, this might have an impact on cross-border family law disputes involving couples and children. The collected data strongly indicates that the broader public-policy choices (concerning cross-border trade, services and migration) made by the UK government must be factored in as a separate attribute related to the claim which would impact on the litigants' strategies.…”