The future of the Union—Scottish independence and dispute resolution

What are the potential implications of the Scottish referendum? Matthew Weiniger QC, a partner in the dispute resolution group of Herbert Smith Freehills LLP (London), says dispute resolution is one of the simpler questions to arise out of the possibility of an independent Scotland.

How would the creation of an independent Scotland affect jurisdictional issues in dispute resolution?

In practice, it should not have too much effect. England and Scotland already have different legal systems and the jurisdictional rules between the two systems follow the structure of the Brussels Regulation (EC) 44/2001. Upon independence it is overwhelmingly likely that Scotland will join the EU and thus, jurisdictional issues between an independent Scotland and the rest of the UK (rUK) will be managed in the same way, albeit via the Brussels Regulation.

Would it be expected that an independent Scotland would automatically be covered by the same regulations as member states?

While it is overwhelmingly likely that Scotland will be accepted as an EU member state, it is not presently clear as to how this will come about. Scotland could not unilaterally sign up—it would have to be accepted as a member by the other member states, each of whom would potentially have a veto. New member states are expected to sign up to the Euro and to the Schengen Agreement abolishing border controls. At present, the stated policy of an independent Scotland would not be to accept these parts of the EU package. On the other hand, it would be a very surprising act of negative politics for the EU to deny membership to a state who not only wanted to join, but was already applying the entirety of EU law in full. The question as to whether an independent Scotland would automatically be covered by the jurisdiction regulations as between member states would be tied up in this debate. As between rUK and Scotland, however, the matter could be sorted out on a bilateral basis—even if Scotland’s entry to the EU was delayed.

How might the service of documents be affected in the event of independence?

There is no reason for this to cause any difficulties. Scotland and rUK could enter a bilateral treaty incorporating the present practise into what would be a cross-border arrangement.

Are there other issues that dispute resolution lawyers should be considering in relation to the independence vote?

I cannot think of anything major. Dispute resolution is one of the simpler questions to arise out of the possibility of an independent Scotland as Scotland already has an independent legal system which works well, when required, with the legal systems in rUK. Thus the issue rather pales into insignificance as compared with the really thorny subjects such as borders, passports, EU membership, currency and so on.

Interviewed by Nicola Laver. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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