Will the UK rely more on private international law in the future? by Michael Clancy

First of all a comment on terminology: this branch of law is sometimes known as “International Private Law” (which was the preferred style of Professor DM Walker of the University of Glasgow in the 1970s, 80s and 90s because it focussed on the “private law” element) or “conflict of laws” (how many American lawyers describe the topic) or even transnational litigation law (New Oxford Companion to Law page 1186). So, what’s in a name? 

The description of Private International Law as that body of law of any legal system which applies to decide questions involving foreign aspects might make it clearer.  

Private International Law is part of Civil or Private law includes the rules of jurisdiction, choice of law and recognition and enforcement of the decisions of foreign courts.  

Private International Law rules form the basis of civil judicial cooperation between courts and other public authorities in different countries involved in dealing with cross border issues, such as service of documents or taking of evidence abroad, or establishing efficient procedures to assist with the resolution of cross-border disputes, for example, in the family law area. 

The objectives of private international law include reciprocal treatment, seeking to avoid parallel court actions and conflicting decisions, and establish streamlined cross-border judicial co-operation. 

Several international bodies are involved in the formulation and promotion of private international law rules. These include: 

a. the Hague Conference on Private International Law which works “for the progressive unification of the rules of private international law”, in civil, administrative and family proceedings.  

b. the Council of Europe,  

c. the United Nations Commission on International Trade Law (UNCITRAL) and; 

d. the Institute for the Unification of Private Law (UNIDROIT).  

Courts and tribunals also have an important role in connection with the interpretation of Private International Law for example in connection with aspects of the law such as domicile see Henderson & Others v HMRC [2017] UKFTT 556 (TC), the First-tier Tribunal found that the appellants were UK-domiciled from birth: this was because their grandfather had not established a domicile of choice in Brazil with the consequence that the taxpayers (and their father) had a UK domicile of origin. 

Recent UK developments 

The UK Government has introduced the Private International Law (Implementation of Agreements) Bill into the House of Lords.  

Clause 1 of the Bill provides for the UK domestic implementation of three Hague Conventions at the end of the transition period (31 December 2020) by providing that they have the force of law through amending the Civil Jurisdiction and Judgements Act 1982.  

The Conventions are: 

A. The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996. This treaty provides a framework for choice of jurisdiction, law and enforcement of judgements on questions about residence and contact of children where parents have separated and live in different countries; and co- operation between national authorities which protect children. 

B. The Convention on Choice of Court Agreements 2005. This treaty concerns choice of court agreements between parties to international commercial transactions. Where a court (in a state party to the Convention) is referred to in a choice of court clause in a contract, the Convention requires that court to hear any such dispute (and ensures other courts decline to do so), and requires any judgment to be recognised and enforced in the courts of all States which have agreed the Convention; and 

C. The Convention on the International Recovery of Child Support and other Forms of Family Maintenance 2007. This treaty concerns the international recovery of child support and maintenance payments. It contains rules for recognition and enforcement of maintenance decisions in contracting states’ courts and for administrative cooperation between national authorities regarding maintenance claims. 

These treaties will apply to the UK until 31 December 2020, the end of the transition period specified in the Agreement between the UK and the EU for the Withdrawal of the UK from the EU. Before that date the Government needs to ensure the UK’s participation in them in its own right, and ensure they are implemented in domestic law. 

During the transition period, the UK participates in the EU’s framework of Private International Law rules. This includes those international agreements to which the EU is the contracting party.  

Before the transition period ends, the UK needs to take steps to ensure continued participation in the treaties. 

Clause 2 creates a delegated power which allows an appropriate national authority (e.g. the Secretary of State, Scottish Ministers or other devolved Administration to implement international agreements on PIL in domestic law by affirmative procedure secondary legislation. 

This provision is without prejudice to the procedure for Parliamentary Scrutiny under the Constitutional Reform and Governance Act 2010 (CRAGA). Incidentally the House of Lord’s Constitution Committee 20th Report of session 2017-2019 entitled Parliamentary Scrutiny of Treaties  highlighted shortcomings in Parliament’s scrutiny of treaties including the CRAGA process and made recommendations for a new treaty scrutiny select committee to be established and a general principle of transparency throughout the treaty process. 

Agreements which might be implemented by this route include: 

A. The Lugano Convention 2007 which deals with jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The treaty regulates where a relevant case involving a cross-border element should be heard and that the resulting judgment can be recognised and enforced across borders. This avoids multiple court cases taking place on the same subject matter and reduces the costs of the parties involved. 

The Lugano Convention regulates the UK’s PIL relationship with Norway, Iceland and Switzerland see: 

https://www.gov.uk/Government/publications/ms-no112018-convention-on-choice 

B. The Hague Judgements Convention 2019 is a treaty on recognition and enforcement of civil and commercial judgments. 

Clause 3 concerns application to the Crown. 

Scottish Private International Law 

In the Scottish context private international law is part of Scots private law under section 126(4)(a) of the Scotland Act 1998. It includes law relating to choice of law, choice of jurisdiction, recognition of judgements and enforcement of decisions. 

Frequently, matters which relate to Private International Law have their origin in international treaties. International relations (including the negotiation of treaties) is reserved to the UK Government under Schedule 5, paragraph 7 of the Scotland Act although the observation and implementation into law any treaties concluded is a devolved matter. 

There is a constitutional convention, declared in the Scotland Act 1998 Section 28(8) that the UK Parliament will not normally legislate with regard to matters that are within the legislative competence of the Scottish Parliament without the consent of the Parliament. 

The provisions to which clauses 1and 2 of the Bill relate are within the legislative competence of the Scottish Parliament and the Executive competence of Scottish Ministers. A legislative consent motion is being sought from the devolved legislatures. The Scottish Government has lodged a legislative consent memorandum in the Scottish Parliament which contains a draft motion inviting the Scottish Parliament to consent to the UK Parliament legislating in terms of the bill.

Michael P Clancy, Director Law Reform, Law Society of Scotland