Following the U.K.’s decision to leave the E.U., the FMLC established a High Level Advisory Group to give direction to the Committee’s future work programme and to convene a standing forum of experts to contribute to research and publications. At the inaugural meeting, the HLAG recommended that the FMLC should establish a working group of experts to consider uncertainties relating specifically to English governing law and jurisdiction clauses in cross-border financial markets transactions and reliance on these clauses in international commercial litigation.
This report—entitled Issues of legal uncertainty arising in the context of the withdrawal of the U.K. From the E.U.—the application of English law, the jurisdiction of English courts and the enforcement of English judgments—addresses issues of legal uncertainty likely to arise in the context of cross-border commercial litigation in consequence of Brexit. It examines the situation with regard to choice of law clauses in financial markets contracts and concludes that contractual continuity would be enhanced by the preservation of the current rules following Brexit.
The paper also attempts to address the question of jurisdiction, especially regarding the jurisdiction of English courts under an English choice-of-court agreement, the application of English law and the enforcement of English judgments, which may pose greater problems of legal uncertainty arising from Brexit. By way of solution, the paper analyses the consequences of replacing existing E.U. instruments in the U.K. by a new conflict of laws agreement with the E.U. or a new accession to existing international conflict of laws instruments.
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