No-deal Brexit: possible effects on regulation concerning insolvency, data protection and family law

21 December 2018

Due to the current situation of uncertainty, Institution and bodies tried to recreate the regulatory scenario that will occur in case of a no-deal Brexit, among them The Law Society and INSOL Europe dealt with civil and commercial cooperation, insolvency regulation, data protection, family law and the position of UK lawyers that intends to provide legal services in the EU.

Insolvency Rules

The European Insolvency Regulation 2015/848 will no longer apply to the relation between the United Kingdom and the EU Member States. From the perspective of the remaining Member States, the UK becomes a third country and the European legislative instruments dealing with community matters no longer include the United Kingdom.

INSOL Europe is of the opinion that it is desirable that in cases where the COMI of a company or person is located in the United Kingdom, insolvency proceedings which are opened in the UK are recognized and facilitated within the European Union and vice versa.

There are two possible instruments through which it could be carried out: (i) a bilateral treaty between the United Kingdom and the European Union, that could retain the same rules as the EIR, substantially re-including UK in the Regulation 848. This could raise issue concerning potential review of the EIR or intervention of directive regarding insolvency; and (ii) a legal instrument enacted by the European Union providing for recognition and facilitation of insolvency proceedings opened in third countries (including the United Kingdom), such as the UNCITRAL Model Law on Cross Border Insolvency.

Data Protection

In the event that the UK leave the EU under a no-deal scenario, it will become a designated third country under the General Data Protection Regulation (Reg. EU 2016/679).

Therefore any transfer of personal data from the EU to the UK will need to fulfil the requirements of EU data protection law. It is possible that the UK will not benefit from an adequacy decision of the European Commission as it is up to the Commission to decide about it. However the procedure for obtaining an adequacy decision may take a long time and this means that there may be restrictions on the free flow of data between the EU and the UK.

In the absence of an adequacy decision and in order to perform lawful transfers of EU personal data to the UK, organisations may rely on safeguards set out in the GDPR such as Binding Corporate Rules (BCRs), Standard Contractual Clauses (SCCs), certification and codes of conduct.


Family Law

The regulatory background is given by the Hague Conventions that will apply to UK in case of a no-deal Brexit:

  • Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance and the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, that regulates the law applicable to maintenance obligations, access to legal aid and some rules on recognition, declaration of enforceability and enforcement;
  • Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, that protects children from abduction and retention across international boundaries by providing a procedure to bring about their return;
  • Hague 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, that provides a structure for the resolution of issues of custody and contact which may arise when parents are separated and living in different countries.
  • Hague Convention of 1 June 1970 on Recognition of Divorce and Legal Separations, that deals with the recognition of divorces and legal separations, but not the enforcement proceeding, which is left to the state.

They will be applicable with one exception, as the UK will still need access to or to ratify the 2007 Child Support Convention and the Protocol on the Law Applicable to Maintenance Obligations.

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Copyright 2021 Corno – Centro Terziario Avanzato s.r.l.
P.IVA 00947490967 | Capitale sociale: 100.000€ | C.F. 09206750151 | REA 1285358