22-Jun-2016
The United Kingdom is now facing the most important political decision of its history and one that will affect the future generations.
If the United Kingdom were to leave the EU, the effects would be felt throughout the legal profession. The foundation of the EU is the internal, single market.
Article 26(2) of the Treaty on the Functioning of the European Union (TFEU):
“The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties”.
Member states implement EU law into national law, which enables citizens and businesses to enjoy the fundamental EU rights.
If the United Kingdom were to leave the EU there will be great uncertainty over the consequences for the use of English law.
Parties to international commercial transactions are generally free to choose which law they wish to govern their contracts and agreements. Our national law has the reputation of being certain and clear. For this reason, the English jurisdiction is chosen by many businesses as the governing law in their international transactions.
The United Kingdom is party to the EU regime on jurisdiction and enforcement. This therefore means that litigation and agreements before the English court and Gibraltar court has the protection of the EU law. Subject to limited exceptions, such agreements have to be respected by the courts of other member states. The fact that judgments in the United Kingdom can be effectively enforced across the EU reduces costs and allows rapid and effective redress for business across the EU.
It is evident that a UK withdrawal from the EU will have an inevitable detrimental effect on our jurisdiction and the use of English law and Gibraltar law around the world.
As the United Kingdom is part of the EU, cross-border legal disputes in civil law can be resolved through the judicial system. The Brussels I Regulation aims to regulate the principal of mutual recognition of judgments from one member state to another, as well as judicial co-operation between courts on issues such as the service of claim forms and other legal documents. The growth in EU membership, the internal market and the impact of globalisation have led to an increase in cross-border relationships. The aim of civil justice co-operation at an EU level is to resolve disputes as efficiently as possible. The EU framework provides consistency, certainty and uniformity.
EU rules enable businesses to be set up anywhere in the EU. Gibraltar’s economy benefits from such businesses. The rules provide protection for shareholders and other parties with interest in companies and they make businesses more efficient and competitive.
The harmonisation of rules enables companies to expand internationally, without having to comply with an additional set of regulatory requirements each time they set up in a new country. EU company law is a cornerstone of the internal market.
If the United Kingdom were to leave the EU, we will no longer have access to the European Arrest Warrant, which allows us to fight crime and terrorism effectively. It is of utmost importance that countries within the EU cooperate and fight terrorism together.
National family law remains the sole competence of member states. The EU has however adopted a number of measures concerning civil judicial co-operation in cross-border family cases.
The measures adopted include rules on jurisdiction, recognition and enforcement of judgments, matters in respect of parental responsibility; the reciprocal enforcement of maintenance decisions and measures to support the return of children who have been abducted from their country of habitual residence.
Brussels IIa is a significant EU legislation that establishes the rules for determining jurisdiction in matrimonial proceedings as well as provides a range of child protection measures from recognition and enforcement of orders concerning parental responsibility and contact as well as to public measures of protection and care between member states. The Hague Convention provides the mechanism for the return of children abducted from their country of habitual residence.
There is no doubt that the EU measures adopted by the UK are generally regarded as providing greater certainty on family dispute matters.
Leaving the EU will have a significant negative impact on Gibraltar, and Britain as a whole. We will not be able to take advantage of the benefits that the EU offers and that we take for granted. Britain is considered a powerful country amongst Europe and the world. Leaving the EU will lead to Britain losing its world influence and say in global decisions.
Janieve Buhagiar, Associate.