Brexit—applicable law [Archived]
Brexit—applicable law [Archived]

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Brexit—applicable law [Archived]
  • Current position
  • Position under EU(W)A 2018
  • No deal—no transition period
  • Examples
  • Transition period applies
  • Draft Withdrawal Agreement dated 14 November 2018
  • After any transition period
  • What the position would have been
  • Incorporation of Rome I and Rome II into UK law
  • More...

ARCHIVED: This Practice Note has been archived and is not maintained. The UK and EU’s specific proposals for transitional arrangements on applicable law will be a key issue for UK litigators. This Practice Note considers the impact that Brexit will have on determining the applicable law when the UK leaves the EU. This is currently determined under Regulation (EC) 593/2008, Rome I and Regulation (EC) 864/2007, Rome II. The Practice Note summarises the UK’s and EU’s respective positions and considers the likely potential outcomes as the UK leaves the EU. It also considers potential issues which may arise when the UK leaves the EU and potential regimes which may assist in determining the applicable law. Finally, the Practice Note considers the drafting of an applicable law clause. Applicable law may also be referred to as the governing law.

For guidance on the implications of a no deal Brexit when dealing with applicable law, see Practice Note: No deal Brexit—applicable law [Archived].

For an understanding of how a deal or no deal position may be reached, the House of Commons Exiting the EU Committee report: The progress of the UK’s negotiations on EU withdrawal (June to September 2018) at para [35] provides a useful flowchart.

Current position

When determining which law is applicable when resolving a dispute which involves EU Member States, consideration needs to be given to two

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