The Draft Withdrawal Agreement – headlines for cross-border practitioners

It will not have escaped our readers’ notice that last week the UK and the EU released the draft text of a withdrawal agreement covering the UK’s exit from the EU. In a nutshell, the key provisions governing applicable law and jurisdiction are as follow.

Article 66 covers applicable law. It provides:

  • The Rome I Regulation (Regulation (EC) No. 593/2008) will apply in respect of contracts concluded before the end of the transition period.
  • The Rome II Regulation (Regulation (EC) No. 864/2007) will apply in respect of events giving rise to damage, where the events occur before the end of the transition period.

Article 67 covers jurisdiction. It provides (inter alia):

  • The Recast Judgments Regulation (Regulation (EU) No. 1215/2012) will apply in respect of legal proceedings “instituted” (presumably this means “issued”) before the end of the transition period.
  • The Recast Judgments Regulation will apply to the recognition and enforcement of judgments given in legal proceedings “instituted” before the end of the transition period and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period.
  • These provisions also apply to the special agreement between the EC and Denmark (by article 69(3)).

Does the claimant need to plead and prove an applicable foreign law in cross-border claims?

This blog post is by Max Archer of 12 King’s Bench Walk.

In Iranian Offshore Engineering and Construction Co v Dean Investment Holdings SA & Ors [2018] EWHC 2759 (Comm), Baker J held that where a claim was governed by foreign law but the claimant had not pleaded or proved the content of that law, the court would apply English Law as per rule 25(2) of Dicey, Morris & Collins on the Conflict of Laws. Where a claimant has pleaded a viable cause of action and the defendants had not argued that it would be inappropriate to apply English law, it must apply as per rule 25(2). Continue reading Does the claimant need to plead and prove an applicable foreign law in cross-border claims?