Brexit: our English solicitor Amy Cotter outlines the judicial consequences

On Thursday, June 23, 2016, the United Kingdom held a referendum whether to remain a member state of the European Union or not. The British people were given the following option: Brexit (leave the European Union) or Bremain (remain part of the European Union). Arguably, this referendum marks one of the most important moments of recent history of the UK. After an intense battle between proponents and opponents of the Brexit, the results of the referendum were revealed on Friday, 24 June: 52 percent of the Brits voted in favour of the Brexit. This means that the UK will leave the European Unio, it is the first nation ever to do so. At this moment, the exact consequences of Brexit remain unclear. Our British lawyer Amy Cotter shines her light on possible judicial consequences.

Possible scenarios
Although the British government was not bound to act upon the results of the referendum, the government explained they would act conform the will of the people. With 52 percent of the votes going to Brexit, the British government has to present an official request to the European Union, conform Article 50 of the Lisbon Treaty. As soon as this official request has been submitted in Brussels, there is no way back for the UK. From that moment on, there will be a two year period of negotiation in which the Brexit will be formalized. David Cameron (Conservative Party) has stated that he will withdrawal from his position as Prime Minister. As a result, the Conservative Party has to select a new Prime Minister. In Cameron’s view, his successor should be the person to formalize and negotiate with the EU regarding the British departure. This point of view is not shared by the largest opposition party: the Labour Party. They claim that the concerns of the British people have to be addressed without delay. What could of course occur is some kind of stalemate; the UK cannot force the EU to start negotiations until it has given notice, and the EU cannot force the UK to tender its notice.

Judicial Consequences

  • Applicable law and choice of court
    In almost every “General Terms and Conditions”, you will find an article which explains what happens in the event of an international dispute. Next to that, there is a section which explains in which country a court claim can be started. Sometimes, however, there is no contract or there are no general terms, and the contracting parties have not agreed what will happen if there is a dispute. If this happens, EU law exists to help fill in the gaps. Since the UK will leave the European Union, it is uncertain which trading model the Brits are going to adopt. They could, for instance, choose between the Norwegian model or the WTO model.
  • Service
    “Service” is the act of officially sending a court claim to the counterparty. At present, this process is simplified for cross-border disputes under the EU rules. If the UK will not follow the Lugano Convention, a party commencing legal proceedings in England would have to ask the English courts for permission to serve their claim on someone abroad.
  • Recognition and enforcement
    Again, if the UK does not adopt the Lugano convention, there is a question mark about whether courts in the EU will accept court judgments from England for enforcement in their countries. At present, court judgments are accepted by all European Union member states. The possibility exists, however, that British court judgments will no longer be recognized by the EU member states in the future. At the moment, these judgments are still recognized by European Union member states.

Conclusion
In this blog post, I have predominantly focused on the legal impact of Brexit. As mentioned above, the exact consequences still remain unclear.
On a personal note, I am genuinely sad to be writing this blog post. I am proud to be a citizen of the United Kingdom, with English, Irish and French heritage.

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