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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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