The vanishingly few days left for the government and the EU negotiating team to reach a Brexit deal and avoid a no-deal situation is of concern to a number of UK businesses that are owed money or are involved in a dispute with their EU customers. On the evening of 31 December 2020 the EU (Withdrawal) Act 2018 will come into effect which rescinds all EU law currently effective in the UK. There will be a considerable amount of EU law drafted into UK law as "retained EU law."
However, it was foreseen that over time the retained EU law could not be maintained forever in the same manner and would need to deviate; the European Union (Withdrawal) Act 2018 made provision for the Supreme Court to overturn the EU retained law, as it does currently in the courts of England and Wales, with additional powers to off-set any long delays should the deviation from retained EU law prove to be protracted in certain circumstances.
Given the continued lack of clarity surrounding the UK's final Brexit deal it becomes imperative for alternative solutions to be sought to resolve disputes and prevent a situation where controversies remain unsettled for extremely lengthy periods of time resulting in an adverse impact on a business. Nick McEwen, an associate in Giambrone's corporate and commercial litigation team, commented "businesses need as swift a resolution as possible to any disputes in the current circumstances. Mediation offers a way of reaching a settlement as well as avoiding the legal costs of litigation." Nick further remarked, "it is all parties' best interests to deal with disputes as quickly as possible and there is very little to lose in trying to negotiate a settlement."
At the moment the route to cross-border dispute resolution is unclear; the UK government has set out plans to replace the Brussels Recast Regulation, which currently governs the recognition of contractual agreements relating to jurisdiction and the enforcement of judgments, and has formally requested permission to join the Lugano Convention. The Lugano Convention 2007 is an EU negotiated international treaty with Iceland, Norway and Switzerland and also Denmark separately (because it has an opt-out), aimed at clarifying jurisdiction in cross-border civil and commercial disputes, and enforcing cross-border judgments. For Britain to be accepted EU Member States would have to agree to the UK's membership and this may not be welcome to all EU Member States following Michel Barnier's rhetorical question "Do we really want the UK to remain a centre for commercial litigation for the EU, when we could attract these services here?" in his speech in June. The fall-back position for the UK if there is no bilateral arrangement with the UK and it is unable to join the Lugano Convention is to rely on the Hague Convention on Choice of Courts Agreements.
Giambrone's corporate and commercial litigation team frequently successfully employ mediation when resolving contentious disputes. Nick McEwen points out "it is often the case that the parties involved in a dispute become polarised and need to be assisted to reach a pragmatic solution that can be accepted by everyone which allows them to get back to business without the distraction of time and money being directed to the legal dispute. In the current coronavirus induced global economic climate every business needs to focus on generating income and keeping going." Regardless of whether a dispute relates to unpaid invoices or a breach of contractual terms and conditions, businesses need to know what the effect the dispute will have on the business function in terms of financial impact to enable them to be able to address the consequences and return to focusing on doing business without the distraction of a legal issue. Giambrone's corporate and commercial litigation team has enjoyed a considerable number of impressive successes when resolving contentious disputes by way of mediation due to their diligence, tenacity and determination to provide the best outcome for our clients.
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