Close the door on your way out - Free movement of judgments in civil matters - A 'Brexit' case study

Journal article

On 29 March 2017, the United Kingdom gave formal notice under Art 50(2) of the Treaty on European Union (TEU) of its decision to leave the European Union, a decision taken following the referendum held on 23 June 2016. In that referendum, just over 17.4 million members of the qualified electorate in the United Kingdom and Gibraltar voted to “Leave” the European Union. They constituted 51.9% of those who chose to vote, outnumbering the minority “Remain” voters by around 1.27 million.

Absent an unexpected turn of political events, the negotiations contemplated by Art 50(2) between the UK and the Union/the remaining Member States ("EU27") will commence in the Autumn and will end either with a withdrawal agreement (whether or not accompanied by a more detailed relationship agreement) or by the automatic termination of the treaties on 29 March 2017 or on such later date as the parties may unanimously agree.

The negotiators will be in uncharted territory, and the scale of the task facing them should not be underestimated. Sir Ivan Rogers, who resigned ostentatiously at the UK’s ambassador to the EU shortly before the Prime Minister’s January speech, described the task of the negotiators as “humungous”, an “unprecedentedly large negotiation on the scale we haven’t experienced probably ever and certainly not since the Second World War”. Discussions concerning the parties' future relationship will need to address hundreds of topics, and a multitude of different issues within those topics. A comprehensive assessment of the state of play and likely outcomes at this stage would be fool’s errand. Instead, this article focusses on a single issue from the author's own area of expertise (private international law) and seeks both to examine the factors likely to influence the forthcoming negotiations and the possible direction and outcome of the process, recognising that similar factors will bear upon other issues to be negotiated.

There are, of course, too many variables to be able to predict how, even on a single issue, the negotiations will conclude or what shape the future relationship of the UK and the EU/EU27 will take. Nevertheless, as I have commented elsewhere “the events of 23 June 2016 have turned lawyers into end of the pier fortune tellers” and the following attempt at divination may serve to highlight some of the main incentives and obstacles to a viable agreement in many of the areas to be discussed.

Authors: Dickinson, A

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: C.H. Beck
• Journal: Zeitschrift fur Europaisches Privatrecht
• Volume: 3
• Pages: 539-568
• Publication date: 2017-08-05
• Acceptance date: 2017-05-02