Brexit and EU Mediation
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In the aftermath of the Brexit vote and the appointment of Theresa May as England’s Prime Minister, there are many things to think about and there will be much to negotiate. While some commentators anticipate a U-turn on Brexit, Theresa May has made it clear that “Brexit means Brexit” – whatever that means.
In this post, I want to pay attention to cross-border mediation within the EU and, in particular, the impact Brexit may have on how London is perceived as a venue for cross-border mediation within the EU.
Currently within the EU, there are a number of mechanisms available to support cross-border mediation and the recognition and enforcement of cross-border mediated settlement agreements. These include mechanisms related to the EU Directive on Mediation in Civil and Commercial Matters , the Rome I Regulation and the Brussels 1 Regulation.
Like other member states, England has complied with the EU Directive (see the The Cross-Border Mediation (EU Directive) Regulations 2011, SI 2011/1133). It is unlikely that it would repeal these Regulations in the event of a Brexit. This is good thing in terms of certainty and clarity in relation to English cross-border mediation law. However, the Regulations deal only with enforceability, protection of mediators from giving “mediation” evidence in court, and the impact of mediation on litigation limitation periods. Other aspects of cross-border mediation law such as parties’ rights and obligations in relation to confidentiality and privilege remain in the general principles of the common law. And, of course, common law principles can sometimes operate quite differently from civil law principles. This is where choice of court and choice of law become really important. Given the potentially significant difference among civil law codes and the common law, disputing parties want to be sure:
– that they have expressly identified the laws and jurisdictions applicable to any dispute between them; and that
– in the event that they have not been clear in relation to the above, that they know which rules will be used to determine the applicable law and jurisdiction for their case.
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