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arbitration of EU competition law through EU Member with ease - and a resounding “No!” is the response we
State court decisions, ECJ decisions, European have gathered from several of the firms we reviewed in
Commission and through Parliament regulations”. response to the question. The United Kingdom is a party
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to the New York Convention 1958. and this status is
The big question is whether we shall continue to maintain independent to its member status within the EU, which
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the momentum built-up in dealing with EU competition shall remain “unaffected” by its departure from the
cases through arbitration in the UK, or whether we are Union. Therefore, any “awards issued by a tribunal seated
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facing some form of post-Brexit precipice. This is difficult in any of these states will still be enforceable in the UK”,
to answer with any certainty, because at present Brexit and vice-versa given the obligations under the
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negotiations are ongoing, and even in the wake of Brexit, convention.
there shall still be reforms in UK laws that once gave It is “expected that the UK will seek to adopt legislation
effect to EU law – these laws may no longer coincide with that upholds the Brussels Regulation (the EU’s legislation
the objectives of the EU. In this case, the free-trade on jurisdiction and the reciprocal enforcement of
market benefits which we currently enjoy will be subject judgments). Without the Brussels Regulation, the
to the outcome of negotiations and the enactment of enforcement of English judgments in the EU, or of EU
reforms, including the benefit of London-seated judgments in the UK, could become more cumbersome,
arbitration. The issue may also work in reverse, for although the UK may seek to reach some other
example if our pre-existing competition laws - which agreement with the EU or to join existing conventions on
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presently coincide with EU competition laws under CLA such matters (such as the Lugano Convention)”.
1998 - suddenly become incompatible because of some
fundamental change in the TFEU which we are not Jurisdiction Allocation in Contracts
prepared to adopt. Bird & Bird lawyers Richard Eccles and
Peter Willis agree, stating that “in the medium or longer Parties to contracts frequently grant exclusive jurisdiction
term, there is an appreciable prospect of a degree of to the English courts in relation to disputes arising out of
divergence between UK and EU rules”. If there is such a multi-jurisdictional contracts. This is because the judiciary
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divergence as cannot be reconciled, the question will in the UK is renowned for providing unparalleled
then arise as to whether competition law arbitrators experience and skill in dealing with complex matters,
based in the UK “would be able to arbitrate on disputes along with its “independence and impartiality”. 100
involving EU competition laws in an independent third- Jurisdiction allocation for arbitral resolutions will remain
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party state”. The answer to this is clearly impossible to largely unaffected due to the New York Convention 1958,
foresee at this stage. whilst the allocation of jurisdiction for court settlements
What also needs to be considered is whether the UK may - such as those often held in the UK’s High Court or
be discriminated against through post-Brexit pro-EU Chancery Division - may be impeded if the UK fail to make
campaigns. It’s not entirely unthinkable to foresee the arrangements with the EU which would give effect to the
fortress of the EU closing ranks and encouraging EU Recast Brussels Regulation (where proceedings are
member-state businesses to “keep it in the union”, so to commenced after 10 January 2015), the 2001 Brussels
speak. Regulation (for proceedings commenced prior to that
date), and the Lugano Convention 2007 (for enforcement
Enforcing arbitral awards in EU member states post Brexit of judgments as between the EU and EFTA states - except
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Liechtenstein, that is, Iceland, Norway and Switzerland.
Will the enforcement of London-seated arbitral awards in If such arrangements are not put in place, “UK legal
EU member states post-Brexit change? - This is a question advisers face the prospect of getting to grips with the
that many London based firms appear to be answering domestic enforcement rules of each of the 27 member-

93 https://www.twobirds.com/en/news/articles/2016/uk/competition-law- 97 “Brexit – Implications for the Enforcement of Judgments”, paragraph 3. See,
implications-of-a-brexit conclusion paragraph 17 https://www.herbertsmithfreehills.com/latest-thinking/brexit-–-implications-
94 David Mwoni Ndolo and Dr Margaret Liu, “Is this the end? The effect of for-the-enforcement-of-judgments
Brexit on the arbitration of EU competition laws in the UK”, European 98 Paul Thwaite, “Enforcing Judgments After Brexit”, paragraph 3. See
Competition Law Review, 2017, *E.C.L.R. 325, paragraph 10 http://www.shlegal.com/news-insights/enforcing-judgments-after-brexit
95 New York Convention 1958. See, 99 “Brexit – Implications for the Enforcement of Judgments”, paragraph 3. See,
http://www.newyorkconvention.org/countries https://www.herbertsmithfreehills.com/latest-thinking/brexit-–-implications-
96 “Brexit and Dispute Resolution - Intellectual Property Disputes”, paragraph for-the-enforcement-of-judgments
15. See, https://www.addleshawgoddard.com/en/insights/insights- 100 Paul Thwaite, “Enforcing Judgments After Brexit”, paragraph 1. See
briefings/brexit-insights/brexit-and-dispute-resolution-intellectual-property- http://www.shlegal.com/news-insights/enforcing-judgments-after-brexit
disputes/ 101 Paul Thwaite, “Enforcing Judgments After Brexit”, paragraph 6. See
http://www.shlegal.com/news-insights/enforcing-judgments-after-brexit