The Brexit agreement holds a loophole that is of crucial importance in commercial practice.
It is now no longer possible to have recourse to European civil procedural law with cross-border reference between the EU and the UK. In particular, the question of which courts will rule on disputes arising from contracts, for example, remains unresolved by the Brexit. Thus, a cultural difference between the legal systems, which has never been eliminated, is openly revealed, since the common law knows special procedural rights. For example, forms of action such as “anti-suit injunctions” (which thus stop court proceedings by means of another court order) or jurisdiction by service of lawsuit thus become possible. In practice, it depends on where the action is filed first and the jurisdiction of the courts is established, which can lead to so-called torpedo lawsuits. Courts can also be called upon specifically depending on the prospects of success in the matter (so-called “forum shopping”), for example when it comes to actions for damages. The common law recognizes so-called “punitive damages,” which involve exorbitant amounts of compensation, because the punitive aspect is also taken into account in civil courts.
It has not yet been decided by a supreme court, but from the point of view of experts in European civil procedure law, it is clear that the individual member states of the EU and the UK are reverting to the predecessor models of European civil procedure law, so that there is at least a basis. The so-called Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters governs post-Brexit issues of jurisdiction and recognition and enforcement, at least between the then contracting states of the multilateral treaty, as is the Federal Republic of Germany. Specifically, the nationality or domicile of establishment of the contracting parties and the time of the facts are important in determining the specific procedural law, not least the applicable law itself. This makes explicit contractual choices of jurisdiction and applicable law all the more important.