In the wake of Brexit and the end of the transition period, a number of issues have arisen in the area of international civil procedure law. In particular, questions of jurisdiction and enforceability of judgments are still uncertain.
In order to resolve some of these issues and ensure legal certainty, the United Kingdom has already applied for accession to the Lugano Convention in April 2020. This Convention regulates both international jurisdiction and the recognition and enforcement of foreign judgments in civil and commercial matters. The agreement applies between the EU, Denmark and three of the four members of the European Free Trade Association (EFTA), namely Switzerland, Norway and Iceland. The Lugano Convention largely corresponds to internal EU regulations (which cover much of the same ground between EU member states) and is field tested.
However, the European Commission has now rejected the UK’s request. He is of the opinion that the EU should not give its consent to the accession of Great Britain to the convention. In accordance with the Commission’s argument, the advantages established by the Lugano Convention should be reserved for EFTA countries and members of the European Economic Area (EEA). With regard to all other third countries, including the UK, the EU sticks to its approach to regulating judicial cooperation through the Hague Conventions.
“Thus, the Lugano Convention supports the EU’s relations with third countries which particularly close regulatory integration with the EU, including by aligning with (parts of) the EU acquis. Although the Convention is, in principle, open to accession by “any other State” upon invitation by the Depositary upon unanimous agreement of the Contracting Parties (see above), it does not constitute the appropriate general framework for judicial cooperation with a given third country. ” https://ec.europa.eu/info/sites/default/files/1_en_act_en.pdf
According to the European Commission, the aim is to regulate judicial cooperation between EU member states and third countries through the 2005 Choice of Court Convention and the Hague Judgments Convention. 2019.
However, the 2005 Hague Choice of Court Convention, to which the European Union and the United Kingdom are signatories, does not put the ax in the bar. This Convention does not regulate all the questions raised in matters of jurisdiction, but only the cases of exclusive choice of court agreements which have been agreed. The Hague Convention does not apply if the parties have not expressly agreed on a choice of court clause or have not opted for an asymmetric jurisdiction clause. In addition, it is not applicable for certain matters, such as tort or tort claims for damages to tangible property that do not arise from a contractual relationship. The 2019 Hague Judgments Convention does not appear to be the indispensable problem solver either. Neither the EU nor the UK are parties to this convention, although the European Commission intends to propose the conclusion that the EU will join in the near future.
Brexit does not affect the enforceability of arbitral awards, as this is governed by the New York Convention, which has been signed by both the EU and the UK. So, in the meantime, certainty could be sought through the use of arbitration clauses (see our previous article: https://viewpoints.reedsmith.com/post/102gqw0/hard-feelings-regarding-brexit-international- civil-procedure -droit).