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The current edition of the module guide was published in 2018.

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The students can bring the following new publication in the
examination:
Maganaris, E. Core statutes on conflict of laws. (Macmillan
International, 2018) first edition [ISBN 9781352003413].
THE IMPACT OF BREXIT ON CONFLICT OF LAWS: THE POSITION SO
FAR
The withdrawal of the United Kingdom from the European Union will
have a significant impact on aspects of English conflict of laws, such as
choice of applicable law and recognition and enforcement of foreign
judgments. As secondary EU law will no longer be binding, important
instruments like the Brussels Regulation (recast) and the Rome I and II
Regulations will become inapplicable. There are also questions as
regards the situation following Brexit when it comes to multilateral
treaties, such as the Lugano Convention, which extends the Brussels I
Regulation’s regime on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters within the
EU to cross-border litigation with Iceland, Norway and Switzerland
and the 2005 Hague Convention (on exclusive choice of court
agreements in civil and commercial matters).
An initial insight on the intentions of the United Kingdom (and relative
clarification of its position) in respect of the future EU–UK cross-border
litigation regime was provided in August 2017 in the form a position
paper published by the UK government (text at
https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/639271/Providing_a_cross-
border_civil_judicial_cooperation_framework.pdf). In it the UK
government stated that:
 it intends to ‘seek an agreement with the EU that allows for
close and comprehensive cross-border civil judicial cooperation
on a reciprocal basis, which reflects closely the substantive
principles of cooperation under the current EU framework’;
 it intends to ‘incorporate into domestic law the Rome I and II
instruments on choice of law and applicable law in contractual
and non-contractual matters’;

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 it is committed to ‘increasing international civil judicial

cooperation with third parties through [its] active participation
in the Hague Conference on Private International Law and the
United Nations Commission on International Trade Law
(UNCITRAL)’;
 it is willing ‘to continue to participate in the Lugano
Convention that, by virtue of its membership of the EU, forms
the basis for UK’s civil judicial cooperation with Norway,
Iceland and Switzerland’.
On December 2018, as a result of the publication by the Ministry of
Justice of a draft statutory instrument with the title of ‘The Law
Applicable to Contractual Obligations and Non-Contractual Obligations
(Amendment etc.) (EU Exit) Regulations 2018’, (text at
https://assets.publishing.service.gov.uk/media/5c0eb0daed915d0c221
e4717/The_Law_Applicable_to_Contractual_Obligations_and_Non-
_Contractual_Obligations__Amendment_etc.___EU_Exit__Regulations_
2018_-_SI.pdf), further clarification was provided as regards the
instruments of EU private international law that the UK was intending
to retain.
The regulations in question, which will come into force on the day of
the departure of the UK from the EU, are enacted on the basis of s.8(1)
of, and paragraph 21(b) of Schedule 7 to, the European Union
(Withdrawal) Act 2018 for the purpose of addressing ‘failures of
retained EU law to operate effectively and other deficiencies… arising
from the withdrawal of the UK from the European Union’. The
following are noteworthy:
 Amendments are introduced to existing primary legislation in
the UK, which include amendments to the Contracts
(Applicable Law) Act 1990 (implementing the 1980 Rome
Convention on the law applicable to contractual obligations).
The Explanatory Memorandum states ‘the United Kingdom will
no longer be a contracting party after exit day’. Amendments
are also made to the Prescription and Limitation (Scotland)
Act 1973 and the Private International (Miscellaneous
Provisions) Act 1995.
 Amendments are introduced to secondary legislation enacted
to deal with the entry into force of the Rome I and II
Regulations.
 Part 4 (entitled ‘Amendment of retained EU Law) deals with
the proposed substantive amendments to the enacted text of
the Rome I and II Regulations which are considered necessary
or appropriate to take account of the UK exiting the EU. It will
ensure that EU law is transposed into domestic law.
 Textual changes are made to reflect the change in
circumstances. In Article 2 (Rome I) and Article 3 (Rome II),
for instance, where it is stated that ‘any law specified by this
Regulation shall be applied whether or not it is the law of a
Member State’, the reference to ‘a Member State’ is replaced
with ‘the United Kingdom or a part of the United Kingdom’.
In a further development, on 28 December 2018, the UK signed and
ratified the 2005 Hague Convention on Choice of Court Agreements

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and the 2007 Hague Convention on the International Recovery of Child

Support and other Forms of Family Maintenance (full text of the
notification at
https://treatydatabase.overheid.nl/en/Verdrag/Details/011343/01134
3_Notificaties_13.pdf). Both instruments currently apply to the UK by
virtue of its EU membership. It should be noted that the conventions
were ratified to deal with a ‘no deal’ Brexit scenario and, as such, will
be withdrawn if an agreement is reached. The following declarations
are made:
In accordance with Article 29 of the 2005 Hague
Convention/Article 59 of the 2007 Hague Convention, the
United Kingdom is bound by the Convention by virtue of its
membership of the European Union, which approved the
Convention on behalf of its Member States. The United
Kingdom intends to continue to participate in the 2005/2007
Hague Convention after it withdraws from the European
Union.
The Government of the United Kingdom and the European
Council have reached political agreement on the text of a
treaty (the ‘Withdrawal Agreement’) on the withdrawal of the
United Kingdom from the European Union and the European
Atomic Energy Community. Subject to signature, ratification
and approval by the parties, the Withdrawal Agreement will
enter into force on 30 March 2019.
The Withdrawal Agreement includes provisions for a
transition period to start on 30 March 2019 and end on 31
December 2020 or such later date as is agreed by the United
Kingdom and the European Union (the ‘transition period’). In
accordance with the Withdrawal Agreement, during the
transition period, European Union law, including the
2005/2007 Hague Convention, would continue to be
applicable to and in the United Kingdom. The European
Union and the United Kingdom have agreed that the
European Union will notify other parties to international
agreements that during the transition period the United
Kingdom is treated as a Member State for the purposes of
international agreements concluded by the European Union,
including the 2005/2007 Hague Convention.
In the event that the Withdrawal Agreement is not ratified
and approved by the United Kingdom and the European
Union, however, the United Kingdom wishes to ensure
continuity of application of the 2005/2007 Hague Convention
from the point at which it ceases to be a Member State of the
European Union. The United Kingdom has therefore
submitted the Instrument of Accession in accordance with
Article 27(4) of the 2005 Hague Convention/Article 58(2) of
the 2007 Hague Convention only in preparation for this
situation. The Instrument of Accession declares that the
United Kingdom accedes to the 2005 Hague Convention in its
own right with effect from 1 April 2019.
In the event that the Withdrawal Agreement is signed, ratified
and approved by the United Kingdom and the European

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Union and enters into force on 30 March 2019, the United

Kingdom will withdraw the Instrument of Accession which it
has today deposited. In that case, for the duration of the
transition period as provided for in the Withdrawal
Agreement as stated above, the United Kingdom will be
treated as a Member State of the European Union and the
2005 Hague Convention will continue to have effect
accordingly.