CYIL vol. 11 (2020)

CYIL 11 (2020) THE WITHDRAWAL ACT OF 2018 AND THE EUROPEAN JUDICIAL AREA … (Withdrawal) Act of 2018 also provides that, if some of the nationalized rules, defined as “retained EU law” 5 , are no longer suitable to operate or operate in an inadequate manner or are pleonastic due to the withdrawal of the United Kingdom from the EU, the members of the government may issue specific Regulations to remove the rules in question or adopt other provisions that make their proper functioning possible 6 .The powers thus attributed have already been effectively exercised in many sectors; in particular, during 2018 and 2019 the Ministry of Justice issued some regulations concerning the different aspects of private international law and judicial cooperation in civil matters. The rules adopted so far respond to two needs: First, that of establishing transitional provisions that ensure an orderly dismissal of European rules, as indeed also desired by the Union institutions 7 ; in addition, the need to create a regime of European private international law and cross-border cooperation and assistance that can function effectively when the United Kingdom is no longer a member of the Union. It is, of course, quite possible that the negotiations which are to open in Brussels on future relations between the Union and the United Kingdom will allow specific agreements to be concluded on the matter. However, it seems reasonable to assume that for the most part the Regulations adopted so far correspond to what the post Brexit structure will actually be in this sector; in any case, they will necessarily constitute at least the starting point of any discussion and the reference basis for evaluating the mutual benefits of the two parties. The current framework, although perhaps not entirely defined, is therefore certainly now much clearer: It may therefore be interesting to examine these measures and attempt to outline the future scenario of relations between the United Kingdom and the European Union states on the matter. 2. The EU (Withrawal) Act of 2018 and the regulations adopted so far regarding civil judicial cooperation Despite the fact that the EU (Withdrawal) Act of 2018 establishes the general principle of maintaining the Union acquis as an EU-retained law, it seems instead that, as regards the acts adopted in the context of civil judicial cooperation, the situation is it is rather reversed: Most of the European legislation and related instruments have in fact been expunged (revoked in the expression used by the regulations), while the retained standards are the exceptions. The reason for this removal lies in the fact that reciprocity of application, which naturally cannot survive Brexit, constitutes the prerequisite for the functioning of the majority of the provisions in question. It is not, or at least not only, the United Kingdom’s lack of willingness to continue cooperating with former European partners, but sometimes also the existence The rule that attributes these powers to the so-called ministers. Henry VIII clause-and art. 8 (Dealing with deficiencies arising from withdrawal), whose detailed provisions specify the conditions, conditions and limits for the exercise of the powers themselves, while Schedule 7 attached to the Act indicates the cases in which the measures adopted, in order to become effective, they must also be submitted for approval to the two branches of parliament, in application of the so-called “Affirmative resolution procedure (…)”. 7 See the Position paper on Judicial Cooperation in Civil and Commercial matters of the Commission, op. cit., For further analysis see also: BRYANT, J., DREWS, C. ‘The Brexit’s repercussions on international arbitration’, (2019), 37, YIA , 44ss. FITCHEN, J. ‘The PIL consequences of Brexit’, (2017), NIP , 413ss. On the other hand, the adoption of post-Brexit rules also tends to alleviate the immediate consequences that the situation of legal uncertainty can provoke, and indeed has already caused, on the structure of economic relations involving the United Kingdom in the transitional phase current. In this case we could speak for a “pre-effects”. 5 E. LEIN, Uncharted territory? A few thoughts on private international law post Brexit , op. cit. 6

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