Corporations

This chapter discusses the private international law of insolvency and bankruptcy. Prior to Exit Day, the private international law of insolvency and bankruptcy was covered in part by two European Regulations: the Insolvency Regulation 1346/2000, and the recast Insolvency Regulation 2015/848. According to the Insolvency (Amendment) (EU Exit) Regulations 2019, SI 2019 No 146, a fragment of Regulation 2015/848 is retained as English law, but otherwise it is not retained as English law. The principal effect of this is that the court will continue to have jurisdiction to open insolvency proceedings when the debtor’s centre of main interests is in the United Kingdom. Otherwise Part 1 of the Schedule to SI 2019 No 146 provides that the recast Insolvency Regulation shall not have effect in the United Kingdom. Consequential amendment is made to secondary legislation. Transitional provisions are made to provide for the continued application of the Regulations after Exit Day in the case of insolvency proceedings opened before Exit Day.

Non-Contractual Obligations

This chapter discusses the law on non-contractual obligations. On Exit Day, and unless any further legislative provision is made, the provisions of EU law set out in the Rome II Regulation, Regulation 864/2007, will be retained as the law of the United Kingdom. The adjustments necessary to allow the Rome II Regulation to operate as English private international law are made by the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019, SI 2019 No 834: these adjustments are of no substantial importance. It follows that it is possible to refer in this chapter to the Rome II Regulation without needing to draw attention to its status as EU legislation (as it was prior to Exit Day) or as retained EU legislation (as it is on and after Exit Day).

The Lex Fori

This chapter examines of the role of the lex fori in English private international law before proceeding to examine the rules of the conflict of laws applicable in an English court. Issues for which the rules of the conflict of laws select the lex fori as the law to be applied include grounds for the dissolution (as distinct from nullity) of marriage, even if the marriage has little or nothing to do with the United Kingdom; or settlement of the distribution of assets in an insolvency even though there may be significant overseas elements. Where the rules of the conflict of laws select a foreign law, its application, even though it is proved to the satisfaction of the court, may be disrupted or derailed by a provision of the lex fori instead. The remainder of the chapter covers procedural issues; penal, revenue, and public laws; and public policy.

Introduction

This introductory chapter begins with a brief discussion of the effect of the unexecuted decision of the United Kingdom to leave the European Union. If the United Kingdom were to withdraw on the terms approved by Parliament, the resulting legal framework would, in principle, be that put in place by the European Union (Withdrawal) Act 2018. That is to say, on ‘Exit Day’, the European Communities Act 1972 will be repealed. This will, at a stroke, remove the legal basis upon which a substantial body of private international law takes effect in the legal order of the United Kingdom. The chapter then sets out the book’s focus, which is the conflict of laws, followed by discussions of the common law’s conception of private international law and legislation establishing private international law as European law.

Persons

This chapter discusses the law of persons. Prior to Exit Day, the private international law of matrimonial causes, parental responsibility, and maintenance was covered in part by two European Regulations: the Brussels II Regulation, Regulation (EC) 2201/2003, and the Maintenance Regulation, Regulation (EC) 4/2009. According to the Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019, SI 2019 No 519, regulations 3 and 4, these two European Regulations will be revoked. Until Exit Day they are in full force and effect, but unless further legislative arrangements are made they will not apply to proceedings commenced before a English (or, where recognition is concerned, other Member State) court on or after Exit Day. SI 2019 No 519 makes consequential alterations to English law, which will come into effect on Exit Day.

Property

This chapter discusses English private international law in terms of property. The private international law of property covers immovable and movable property, tangible and intangible property, as well as intellectual and family property. In the United Kingdom, most of the conflicts rules are established by the common law. Although the EU intervened to harmonize private international law in the fields of succession to property and matrimonial property, those Regulations did not extend to the United Kingdom. Where the conflicts rules are found in the common law, a court may be entitled to apply the law selected in its renvoi sense: that is to say, to apply the law (including any conflicts rules) as it would be applied by a judge sitting in the foreign country and hearing the case himself.

Foreign Judgments

This chapter discusses the items of private international law of foreign judgments covered in part by a number of European regulations and other instruments prior to Exit Day. These are the Brussels I Regulation 44/2001 and the recast Brussels I Regulation 1215/2012; the 1988 Lugano Convention and the 2007 Lugano II Convention; the 1968 Brussels Convention as amended from time to time; and a number of minor Regulations such as the European Enforcement Order Regulation 805/2004. According to the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019 No 479, on Exit Day these instruments are revoked or, in the case of the Conventions given effect by the Civil Jurisdiction and Judgments Act 1982, as amended, repealed. The gap will be filled by the rules of the common law, or by the provisions of a bilateral Convention made under the Foreign Judgements (Reciprocal Enforcement) Act 1933 (or in the case of Cyprus and Malta, presumably by registration under the Administration of Justice Act 1920).

Contractual Obligations

This chapter discusses the law on contractual obligations. On Exit Day, and unless any further legislative provision is made, the provisions of EU law set out in the Rome I Regulation, Regulation 593/2008, will be retained as the law of the United Kingdom. The adjustments necessary to allow the Rome I Regulation to operate as English private international law are made by the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019, SI 2019 No 834: these adjustments are of no substantial importance. It follows that it is possible to refer in this chapter to the Rome I Regulation without needing to draw attention to its status as EU legislation (as it was prior to Exit Day) or as retained EU legislation (as it is on and after Exit Day).

Jurisdiction

This chapter discusses the items of private international law of jurisdiction in civil and commercial matters, which were governed in part by a number of European Regulations and other instruments prior to Exit Day. These include the Brussels I Regulation 44/2001 and the recast Brussels I Regulation 1215/2012; the 1988 Lugano Convention and the 2007 Lugano II Convention; and the 1968 Brussels Convention as amended from time to time. According to the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019 No 479, on Exit Day these instruments are revoked or, in the case of the Conventions given effect by the Civil Jurisdiction and Judgments Act 1982, as amended, repealed.