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- ARTICLE: The (more) difficult circulation of English court decisions after Brexit
- IN-BRIEF : French civil procedure reformed!
The (more) difficult circulation of English court decisions after Brexit
Brexit has been in the headlines for more than two years and its deadline has been postponed many times in view of the many problems, particularly legal ones, that this departure has created.
Among these numerous problems and questions, the consequences of the United Kingdom’s withdrawal from European judicial cooperation are among the most important. This part of European law covers numerous provisions of private international law allowing the settlement of conflicts of laws and conflicts of jurisdictions. However, in addition to the conflict rules, European provisions also make it possible to facilitate the circulation of court decisions, i.e. their recognition and enforcement in the various countries.
This point is regulated by several regulations which are binding and directly applicable in the Member States. It is thus the case of Regulation 1215/2012 known as Brussels Ibis in civil and commercial matters which provides for a simplified mechanism of recognition and enforcement or Regulation 2201/2003 known as Brussels IIbis in family matters.
This article therefore modestly contemplates what will happen to British court decisions pronounced after the UK’s withdrawal from the EU in the absence of new provisions of private international law (Hard Brexit scenario).
I. European provisions (the current situation in the United Kingdom)
At present, judgments and other judicial decisions rendered by the United Kingdom courts enjoy the same flexibility with regard to their recognition and enforcement in the other Member States as those given by other European judges.
Thus, in civil and commercial matters, the circulation of judgments is governed by Articles 36 et seq. of the Brussels Ibis Regulation.
Thanks to a simplified mechanism, English judgments are now automatically recognised in the other Member States by means of a simple certificate drawn up by the judge who took the decision. The litigant can thus freely assert the content of his judgment before the authorities of the other European countries, such as in the case of a divorce, for example.
With regard to the enforcement of judgments, the Regulation provides that judgments enforceable in their country of origin are enforceable in the other Member States. It is therefore no longer necessary to bring an action before a court in the country of destination in order to have the judgment enforced in the latter country. A British company can thus enforce in France a judgment given in the United Kingdom under the same conditions as a French judgment.
Other regulations lay down rules to facilitate the circulation of decisions within the European Union, such as Brussels IIbis in family matters, or Regulation 4/2009 on maintenance obligations. There is also the possibility for judges to issue under certain conditions European Enforcement Orders for uncontested claims.
In concrete terms, these mechanisms greatly simplify the settlement of international disputes by exempting the parties from, or alleviating, previously applicable formalities and procedures such as exequatur.
In return, of course, there are safeguards which make it possible to oppose the recognition or enforcement of decisions which would involve irregularities (lack of jurisdiction of the court, violation of international public policy, etc.).
II. The post-Brexit situation
It would be wrong to assert that, as a result of Brexit, relations with the United Kingdom will be entirely subject to national rules of private international law and thus to the extreme variety of such rules and the legal uncertainty that they can imply.
The nuance stems from the fact that some of these instruments exist outside the framework of the European Union and, for example, through institutions such as the Hague Convention (which is very prolific in the field of private international law) or the United Nations (e.g. the Convention on the International Sale of Goods).
On the other hand, it has to be said that the British will inevitably be deprived of the benefits of European judicial cooperation and particularly of the mechanisms referred to above, which are not covered by other instruments (i.e. exemption of exequatur procedure).
Consequently, in the absence of substitute rules, recognition and enforcement of judgments will be a matter for national law.
III. In France, the need to engage an exequatur procedure
The consequence of the above is that Member States will treat British judgments as judgments from a third State and will apply their own national rules on the recognition and enforcement of foreign judgments.
For France, this will undoubtedly mark the return of the exequatur procedure whereby the litigant asks the French court to give the foreign judgment enforceability.
In practical terms, a litigant who has obtained a judgment in the United Kingdom condemning a French national will therefore be able to enforce the judgment in France only after having obtained the exequatur. This is a procedure which can sometimes be lengthy.
French private international law confers jurisdiction over this procedure on the Tribunal de Grande Instance, which has just become the Tribunal Judiciaire (Judiciary Tribunal).
According to well-established case law, the French judge, although not involved in the merits and appropriateness of the decision, must verify several points of conformity :
(1) The indirect jurisdiction of the foreign judge who handed down the decision. This point shall be valid provided that the jurisdiction of the said court does not contravene an exclusive jurisdiction. Thus, for example, the French court will not be able to pronounce the exequatur of an English judgment which would rule on the sale of an immovable property located in Spain (this jurisdiction belongs exclusively to the Spanish court according to European regulations).
(2) Compliance with French international public policy (ordre public international), which is mainly developed with regard to persons (e.g. prohibition of repudiation) but much less so with regard to business law.
(3) Absence of fraud against the law defined as the voluntary change of a legal situation for the sole purpose of evading the application of a law.
Ultimately, Brexit will have a definite impact on the circulation of judicial decisions between the United Kingdom and the European area.
Economic operators and individuals will therefore have to expect to have to go through additional formalities to enforce decisions obtained in the United Kingdom.
It will therefore be necessary to review procedural strategies and anticipate the need for an exequatur procedure.
In some cases, it will even be more judicious to have recourse directly to the French judge rather than to the English courts in order to save time and to ensure the effectiveness of the decision that will be rendered.
French civil procedure reformed!
On December 11, 2019, the government published a decree n°2019-1333 modifying certain important aspects of French civil procedure. This text was adopted pursuant to an enabling law passed by Parliament on 23 March 2019.
Concretely, the decree merges the “Tribunal d’instance” and the “Tribunal de Grande Instance”, which become the Judicial Court.
Another essential point is that, as a matter of principle, provisional enforcement is automatic, unless exceptions are provided for by law. In the majority of cases, therefore, the convicted party will have to comply before being able to appeal against the first decision.
Mandatory legal representation or the need to “set a date” (for a hearing) at the time of the subpoena are also extended. Thus, representation by a lawyer will become mandatory before the Commercial Court as of September 1, 2020.
The divorce procedure is also profoundly modified. Finally, only two modes of referral to the courts remain: subpoenas (“assignation”) and petition (“requête”). The voluntary presentation of the parties and the declaration to the Registry therefore disappear except in very special cases.
Particular attention must therefore be paid to the procedures that will be initiated at the beginning of this year!