Recognition of civil judgments after Brexit

The end of the Transition Period looms, the hopes of a Brexit deal remain as uncertain as ever and we are all left trying our best to prepare. Last week, we published an update on continuing cross-border disputes and now we turn to further consider the status of civil judgments come January 2021. 

Lugano Convention 2007

The Lugano Convention 2007 (the 2007 Convention) is an international treaty negotiated by the EU’s member states together with Iceland, Norway and Switzerland. The Convention aims to provide clarification on which courts have jurisdiction in cross-border civil and commercial disputes and also to ensure that such judgements may be enforced across borders.

The UK was previously party to this 2007 Convention as a result of its membership to the EU. Following Brexit, however, on 8 April 2020, the UK applied again to accede to the Lugano Convention 2007. This would mean that if an agreement on cross border disputes was not reached by the end of the Transition Period, the 2007 Convention would apply and there would be little deviation from the current regime.

Accession to the Lugano Convention requires 4 steps: (1) application; (2) approval of the application by the parties to the Convention itself; (3) depositing the instrument of accession; and (4) a 3 month period in which any party to the Convention may object to the accession (and, thereby, accession would not be granted). Consequently, to join in time for the New Year, step 3 would have had to be completed by 1st October 2020. This did not occur and, as such, the UK will have to turn to both the common law and the Hague Convention as the default position until a deal is reached or its accession to the Lugano Convention 2007 is finalised.

Hague Convention 2005

Under the Hague Convention on Choice of Court Agreements 2005 (the Hague Convention), exclusive jurisdiction clauses are given effect and judgments by courts in those jurisdictions are then to be recognised and enforced in other states party to the Convention.

Currently, the UK is a party to the Hague Convention, again, by virtue of its membership to the EU. The UK Government has confirmed that the Hague Convention will continue to apply without interruption from its original entry into force on 1st October 2015. It is expected to be given the force of law in UK law from 1st January 2021 by the Private International Law (Implementation of Agreements) Bill. The position of the EU differs, however, with the EU Commission’s August Notice to Stakeholders making clear that the Hague Convention will only apply exclusive jurisdiction clauses concluded from 1st January 2021 (upon the UK’s re-entry to the Hague Convention). The UK’s position, however, remains clear and firm – the Hague Convention will continue to apply uninterrupted.

How can we help?

If you have any queries in relation to jurisdiction rules and enforcement of judgments, please contact our Commercial Dispute Resolution team.

This article was co-written by Anita Dhesi, Trainee Solicitor.

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