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As the Brexit negotiations continue into 2018, one thing is clear: arbitration has an

important role to play.

On 29 March 2017 the UK gave notice to leave the

EU under Article 50 of the Lisbon Treaty, giving

effect to the June 2016 referendum vote and

triggering a two-year period of intense negotiation

with the EU leading up to the UK's withdrawal.

Brexit will have no impact at all on the robust legal

framework for arbitration in London under the

Arbitration Act 1996 or the other key features that

commend London as an arbitral seat, including

language and legal culture, skilled counsel and

experienced arbitrators, and a supportive and

non-interventionist judiciary. Brexit will also have

no impact on the enforcement of arbitral awards:

UK awards will continue to be enforceable in all

remaining EU member states, and vice versa, under

the New York Convention.

The enforcement of court judgments in a post-Brexit

world is less certain. If the enforcement regime in

the Recast Brussels Regulation is to continue, there

will need to be a deal between the UK and the EU.

If there is no deal, the UK can take the following

steps: accede to the Lugano Convention, which has

been ratified by the EU, Switzerland, Iceland and

Norway; and/or accede to the Hague Choice of Court

Convention, which has been ratified by the EU,

Mexico and Singapore (China has signed but

not yet ratified).

Both instruments provide a framework for the

enforcement of court judgments, but neither

course would be plain sailing:

• the UK would need the agreement of all EU

member states to accede to the Lugano

Convention. If there are political issues that

prevent a deal to maintain the Recast Brussels

regime, those same issues could be a roadblock

to obtaining the consents required for

accession to Lugano; and

• the UK could accede unilaterally to the Hague

Convention, but that is limited in scope: it is

directed at disputes under commercial contracts

containing exclusive jurisdiction clauses

(non-exclusive jurisdiction clauses and sole option

clauses are not protected), and it is prospective:

it applies only to clauses concluded after its entry

into force 'for the State of the chosen court'.

Arbitration in the

age of Brexit

Nigel Rawding QC

Partner

T +44 20 7832 7322

E nigel.rawding@freshfields.com

Oliver Marsden

Senior Associate

T +44 20 7785 2219

E oliver.marsden@freshfields.com

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