Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Miscellaneous) (No. 2) 2020

EXPLANATORY NOTE

(This note is not part of the Act of Sederunt)

This Act of Sederunt amends the Rules of the Court of Session 1994 (the “RCS”), the Act of Sederunt (Sheriff Court Company Insolvency Rules) 1986 (the “1986 Rules”) and the Act of Sederunt (Fatal Accident Inquiry Rules) 2017 (the “2017 Rules”). It comes into force on IP completion day. The amendments made to Chapter 74 of the RCS, the 1986 Rules and the 2017 Rules are in consequence of the United Kingdom’s withdrawal from the European Union.

The amendments to the RCS concern two matters.

Firstly, paragraph 2(2) to (13) and (19) implement the Convention on Choice of Court Agreements (“the Convention”), which was concluded at The Hague on 30th June 2005. The Convention requires a court of a Contracting State, which has been designated by an agreement to deal with disputes arising under it, to hear a case (and other courts to decline to do so) and that any judgment given by a chosen court must be recognised and enforced in other Contracting States. Part V of Chapter 62 of the RCS makes provision in relation to the recognition and enforcement of judgments under the Civil Jurisdiction and Judgments Act 1982 (“the 1982 Act”), Council Regulation (EC) No. 44/2001 of 30th June 2005 and the Lugano Convention of 30th October 2007. Its application is extended by this Act of Sederunt to include the recognition and enforcement of judgments under the Convention.

The rules provide that applications under section 4B of the 1982 Act for the registration and enforcement of judgments under the Convention are made by petition, and set out the information which must be provided with such applications. Judgments are registered, and enforced, in the same way as other foreign judgments under private international law agreements. New rule 62.34A makes provision for appeals made under section 6B of the 1982 Act in relation to the registration of judgments under the Convention. Provision is made by the Act of Sederunt concerning the procedure relating to the recognition and enforcement in another Contracting State of judgments given by the Court of Session.

Secondly, paragraph 2(14) to (18) amends Chapter 74 (companies) of the RCS to address deficiencies arising in relation to court procedure in cross-border insolvency proceedings following the withdrawal of the United Kingdom from the European Union. The amendments are consequential to legislative changes made by the Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146) and the Insolvency (EU Exit) (Scotland) (Amendment) Regulations 2019 (S.S.I. 2019/94).

Paragraph 3 amends rules 10 and 18 of the 1986 Rules to make equivalent amendments as those set out above in relation to Chapter 74 of the RCS.

Paragraph 4 makes minor amendments to schedule 2 of the 2017 Rules to address deficiencies in relation to the service of documents under the Convention of 15th November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (commonly referred to as the “Hague Service Convention”) arising from EU exit and the application of the Hague Service Convention post-exit.

Under paragraph 5 of this Act of Sederunt the amendments made to Chapter 74 of the RCS, the 1986 Rules and the 2017 Rules are subject to saving provision in those circumstances which are provided by Articles 67(3)(c) and 68(a) of the Withdrawal Agreement between the United Kingdom and the European Union.