It has been reported that on 28th December 2018 the UK submitted its notice to ratify the 2005 Hague Convention on Choice of Court Agreements with effect from 1st April 2019 (this leaves a one day gap when neither Brussels nor Hague would apply, but it’s over the weekend of 30-31st March). Readers know that the Hague convention provides an alternative structure for mutual recognition of choices of court to replace the Brussels Recast Regulation if we have a hard Brexit, especially when the parties have selected a particular court (choosing arbitration is another way but probably less preferable) because the EU is a party to it. The Hague Convention only covers simple exclusive jurisdiction clauses, not non-exclusive ones, so ensure yours is exclusive, or that the client understands the implications if it is not: see the LMA’s 30th November 2018 paper “Turning off the liquidity tap” and ISDA’s Brexit FAQs for more. In the past, it had been questioned if the UK would be able to ratify these conventions before having left the EU, which would leave a period of at least three months in which neither Brussels nor Hague would apply. The UK has presumably determined that it can do this, and by going ahead now, it has almost eliminated this gap.
Head of Knowledge Management (Finance and Projects)
Mark Daley joined DLA Piper in 2015 after over thirty years’ experience as a debt finance lawyer in private practice in London and Hong Kong.