‘Empirical Study of Reported Private International Law Cases in the UK in the years 1972 and 2017’
Professor Sophia Tang (University of Wuhan, China, and University of Newcastle, England) and Dr Jayne Holliday (University of Stirling)
Summary
| 1972 | 2017• | |
| Total number of reported cases | 31 | 266 |
| Total number of cases involving Family matters | 6 (19%) | 104 (39%) |
| Total number of cases involving Civil or Commercial matters | 25(81%) | 162 (61%) |
| Number of Intra-UK cases | 3 (9%) | 6 (2%) |
| Number of cases with an EU/EEA connection | 12 (35%) | 108 (38%) |
| Number of cases with a Commonwealth connection | 8 (24%) | 46 (16%) |
| Number of cases with an International connection | 11 (32%) | 128 (44%) |
| Number of Intra-UK cases involving Family matters | 1 (14%) | 4 (4%) |
| Number of EU/EEA cases involving Family matters | 1 (14%) | 45 (43%) |
| Number of Commonwealth cases involving Family matters | 2 (29%) | 19 (18%) |
| Number of International cases involving Family matters | 3 (43%) | 36 (35%) |
| Number of Intra-UK cases involving Civil or Commercial matters | 2 (7%) | 2 (1%) |
| Number of EU/EEA cases involving Civil or Commercial matters | 11 (41%) | 63 (34%) |
| Number of Commonwealth cases involving Civil or Commercial matters | 6 (22%) | 27 (15%) |
| Number of International cases involving Civil or Commercial matters | 8 (30%) | 92 (50%) |
Introduction
This empirical study was undertaken as part of a project managed by Professor Paul Beaumont on ‘The Development of the Private International Law Framework in the UK post Brexit’ in order to get an insight into the UK’s litigation market immediately before the UK joined the EEC in 1972 and immediately prior to the UK deciding to leave the EU in 2017.[1]
The study had three aims. The first was to identify the volume of reported private international law cases for 1972 and 2017. The second was to identify the geographical distribution of the private international law litigation; to identify which cases were intra/UK, or had EU/EEA,[2] Commonwealth[3] or International connections.[4] The third aim was to identify the type of dispute. For this purpose, the cases were categorised as either falling under family law matters or civil or commercial law matters.[5]
Methodology
The researchers used the legal database Westlaw to search for reported private international law cases in 1972 and 2017. It is acknowledged that the findings will have their limitations as not all cases are reported or accessible through Westlaw and therefore further research is recommended for additional years.
When using Westlaw, both researchers narrowed their search by date and by jurisdiction. The search terms used for identifying reported cases in both 1972 and 2017 included the phrases “private international law” and “conflict of laws”. However, as these exact phrases may not appear in the reported case other private international law search terms were used for example; “jurisdiction”, “applicable law” and “recognition and enforcement”. In addition, Appendix A below contains the list of legislation and search terms that were used to identify private international law cases in the UK in 2017.
Findings
Volume of reported private international law cases in the UK in 1972 and 2017.
In 1972 there was a total of thirty-one reported private international law cases. In 2017 this number had increased to two hundred and sixty-six reported private international law cases. One simple explanation for the rise in the number of cases could be that more cases are now reported and therefore available online.
Of the thirty-one reported cases in 1972, 19% or 6 cases concerned family law matters and 81% or 25 cases concerned civil and commercial law matters.
By 2017, the number of family law cases had increased to 104 cases and the civil and commercial cases accounted for 162 cases. The increase in the proportion of family law cases may be a consequence of the UK joining the EEC/EU and the right to free movement leading to an increase in cross-border relationships which have subsequently broken down leading to litigation in areas such as; cross-border parental child abduction, child custody arrangements, article 15 Brussels IIa Regulation transfers, divorce matters and maintenance. The Hague Conventions that focus on family law, such as the 1980 Hague Child Abduction Convention and the 1996 Hague Convention on Protection of the Child and the 2007 Hague Convention on Maintenance which are all post 1972 Conventions, not to mention the increase in EU legislation on family law may also explain the increase of litigation in family law.
The civil and commercial law cases in 1972 dominated the type of private international law litigation, accounting for 81% of the market. Whereas in 2017, this figure had dropped to 61%.
Geographical Distribution of Private International Law Litigation
Intra UK
In 1972, there were 3 reported intra UK private international law cases. In 2017 there were 6 reported intra UK private international law cases. Proportionally the number of intra-UK cases appears to have dropped.
EU/EEA
In 1972, twelve cases out of the 31 reported cases had connections with the EU/EEA and in 2017 there were 108 cases with EU connections. What is of interest is that proportionally the number of cases connected with EU/EEA countries has only marginally increased since joining the EEC. In 1972 the proportion of cases with an EU/EEA connection stood at 35% and the proportion in 2017 is also at 38%. This is surprising given the UK’s membership of the EU and the development of the single market.
Commonwealth
In 1972, there were eight reported private international law cases with a Commonwealth connection. In 2017, the number of cases had risen to 46. However, the proportion of Commonwealth cases had fallen slightly from 24% to 16%.
International
In 1972, there were eleven reported private international law cases with an International connection. In 2017, the number of cases had risen to 128 suggesting that globalisation has had a significant impact on private international law litigation accounting for 44% of cases compared to 32% in 1972.
Geographical Distribution of Family Law Private International Law Litigation
Out of the 3 reported private international law of family law cases in 1972, 1 was an intra UK case, 1 case had an EU connection, 2 cases had a Commonwealth connection and 3 cases had an International connection.[6]
In contrast, in 2017, there were 45 family law cases with an EU/EEA connection, along with 5 intra-UK cases, 19 cases with a Commonwealth connection and 36 cases with an International connection.
Geographical Distribution of Civil and Commercial Private International Law Litigation
In 1972, eleven reported civil and commercial law private international law cases had an EU/EEA connection. This formed the largest part of the litigation market which may be explained by the fact that the EU/EEA countries are the UK’s nearest neighbours and therefore trade is more likely, and disputes are also likely to arise. In addition, there were 2 intra UK cases, 5 cases with a Commonwealth connection and 8 cases with an International connection. The International and Commonwealth litigation market had a 52% share.
It is interesting to note that the proportion of reported civil and commercial law private international law cases with an EU/EEA connection fell between 1972 and 2017. In contrast to the 11 cases in 1972 which accounts for 41% of the market, in 2017 there were 63 cases with an EU/EEA connection accounting for 34% of the market which is a fall of 7%.
One possible explanation for this fall in the proportion of reported civil and commercial private international law cases was put forward by a leading QC in the area during the first Research Network Workshop for this project held in London in February 2020. His theory was that the majority of cases involving the EU settled either before the case got to court or in the early stage of the proceedings. Partly because the EU/EEA law framework creates a simple system of recognition and enforcement of a UK judgment in the rest of the EU/EEA.
Another explanation provided by a leading academic in the field is that many International trade associations have standard terms and conditions applying English law and English dispute resolution and the increase in the proportion of International cases is due to increased trade due to globalisation whilst still relying on these standard terms.
One interesting comparator is the percentage of trade between the UK and the EU28 in the two years that we are studying. The percentage of total UK trade with the EU 28 in 1972 was 42%.[7] The percentage of total UK trade with the EU 28 in 2017 was 49%.[8] The proportion of UK trade with EU28 has gone up slightly in those years whereas the proportion of EU civil and commercial litigation has gone down significantly. Prima facie this would suggest that there is no direct correlation between volume of trade with a particular geographical area and the volume of litigation.
However, these explanations are merely speculative and further research is required to explain this raw data.
Appendix A
Private International Law Cases 01.01.2017 – 31.12.2017
Civil and Commercial (Comprehensive)
Regulation (EC) No 1206/2001 on cooperation between the courts of the EU countries in the taking of evidence in civil or commercial matters
Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000
Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters
Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims. Official Journal L 143 , 30/04/2004 P. 0015 – 0039
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure OJ L 399, 30.12.2006
Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure OJ L 199, 31.7.2007
Family Law
COUNCIL REGULATION (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations OJ L-7 (Maintenance Regulation)
COUNCIL REGULATION (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 OK L 388/1 (Brussels IIa Regulation)
Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions
Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations
“Overseas Divorce”
Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Non-EU Hague Child Abduction Cases
Non-Hague Child Abduction Cases
Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition
Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Convention of 13 January 2000 on the International Protection of Adults
Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance
Civil and Commercial Law (excluding family law)
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) OJ L 177, 4.7.2008
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) OJ L 199, 31.7.2007
Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings OJ L 160, 30.6.2000, (no longer in force)
Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings OJ L 141
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 12, 16.1.2001 (no longer in force)
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, (Brussels Ia Regulation)
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (The New York Convention)
Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents
1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters /* Consolidated version CF 498Y0126(01) */ OJ L 299, 31.12.1972
European Convention on Information on Foreign Law 1968
European Convention on State Immunity ETS No.074 1976
The Athens Convention Carriage of Passengers and their luggage by sea 1974 and Protocol of 2002. (Adoption: 13 December 1974; Entry into force: 28 April 1987; 2002 Protocol: Adoption: 1 November 2002; Entry into force: 23 April 2014)
UN Convention on Carriage of Goods by Sea ‘The Hamburg Rules’ 1978
Council of Europe Convention on Recognition and Enforcement of Custody Decisions 1980
Rome Convention on Contractual Obligations 1980
UNCITRAL Model law on arbitration 1987
Lugano Convention 1988
Lugano Convention 2007
International Convention on Salvage (Adoption: 28 April 1989; Entry into force: 14 July 1996)
UNCITRAL Model Law on Cross-Border Insolvency 1997
Convention of 30 June 2005 on Choice of Court Agreements
Plus common law terms –
“Applicable law”
“Recognition and enforcement of judgments”
“recognition of judgments”
“enforcement orders”
“Conflict of law” “Conflict of laws”
“Private international law”
“International private law”
•Professor Sophia Tang is Professor at Wuhan University Institute of International Law in China and Professor at Newcastle University in England. Professor Tang prepared the data for 1972.
• Dr Jayne Holliday is a Lecturer in Private International Law at the University of Stirling, Scotland. Dr Holliday prepared the data for 2017.
• Please note that the total number of cases allocated to the different geographical areas does not match the total number of cases that were gathered. It was decided to record each different geographical area pertinent to a case as a single incidence of that area in order to capture the geographical spread of private international law litigation. For example, if a case involves both Ireland and Nigeria it is recorded as having an EU connection and a Commonwealth connection. If a case involves France, Italy and Germany it is recorded as having a single EU connection so that the figures are not skewed by multiple litigants in one area.
[1] Professor Paul Beaumont is a Professor in Private International Law at the University of Stirling. He is the Principal Investigator of the Research Network on ‘The Development of the Private International Law Framework in the UK post Brexit’ which is funded by the Arts and Humanities Research Council. Dr Mihail Danov at the University of Exeter is the Co-Investigator of the project.
[2] EU/EEA Member States as at 2017. EU: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden. EEA: Iceland, Liechtenstein and Norway. Although not in the EU or EEA, Switzerland is a Lugano Convention Contracting State and is included for this study in the EU/EEA area.
[3] Commonwealth States as at 2017. Africa: Botswana, Cameroon, The Gambia, Ghana, Kenya, Kingdom of eSwatini, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Nigeria, Rwanda, Seychelles, Sierra Leone, South Africa, Uganda, United Republic of Tanzania, and Zambia. Asia: Bangladesh, Brunei Darussalam, India, Malaysia, Maldives, Pakistan, Singapore, and Sri Lanka. Caribbean and Americas: Antigua and Barbuda, The Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, Saint Lucia, St Kitts and Nevis, St Vincent and The Grenadines, Trinidad and Tobago. Europe: Cyprus, Malta, and United Kingdom. Pacific: Australia, Fiji, Kiribati Nauru, New Zealand, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu.
[4] For the purpose of this study, for the 1972 case law; the EU/EEA region was taken to include the countries that were members of the EU/EEA in 2017, the Commonwealth was taken to include the countries that were members of the Commonwealth in 2017, International constituted any other country outside of UK, EU/EEA or Commonwealth.
[5] For this purpose, civil and commercial matters include tax cases that fall within the scope of private international law.
[6] For the purpose of this study, Malta falls under both the Commonwealth and EU/EEA areas.
[7] See Anthony Reuben, ‘BBC News, Reality Check, 13th April 2016’, available at https://www.bbc.co.uk/news/uk-politics-eu-referendum-36039121 accessed on 5th June 2020.
[8] See Office of National Statistics ‘Balance of Payments July to September 2019’, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/868378/200227_UK_trade_in_Numbers_full_web_version_final.pdf accessed on 5th June 2020.