A new chapter in post-Brexit discussions: will the UK be able to join the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?
In our blog 'Brexit Blog 6: Execution of Court Rulings', we wrote about the recognition and enforcement of judgments in civil and commercial matters rendered by courts in EU member states and the UK after Brexit.
The UK sought to join the Lugano Convention in April 2020 and hoped to be admitted by now. The Lugano Convention provides that the contracting parties "shall endeavor to give their consent" within a year.1 The UK's application for accession is however still pending as the European Commission is reportedly against UK's accession on the basis that it is not a member of the European Economic Area or the European Free Trade Association.
The UK re-joining the Lugano Convention would have several advantages for parties wishing to litigate in the UK. There would be little change for parties compared to the pre-Brexit situation under Brussels I Regulation (Recast), i.e. judgments rendered by a court in the UK would be enforceable in EU member states and EFTA-countries, without special procedure or declaration of enforceability being necessary.
The Council of the European Union has the final say on the UK's accession to the Lugano Convention. Its decision shall be made by qualified majority voting. For now, uncertainty thus continues as to whether the UK will be allowed to join Lugano.
Commercial parties (transacting across the border) may try to take the uncertainty away by:
- Reviewing and including or amending boiler plates dispute resolution clauses in existing or new commercial contracts. Parties could include an exclusive jurisdiction clause to allow judgments rendered with respect to those contracts to be enforced under the 2005 Hague Convention to which the UK and the EU are a party.
- Considering alternative dispute resolution, such as arbitration or mediation, or dispute resolution by one of the commercial courts such as the Netherlands Commercial Court in Amsterdam.
Should you have questions about the consequences of Brexit on the recognition and enforcement of judgments in civil and commercial matters, please feel free to contact Abdel Attaïbi or Michel Bosman.
1 Section 72 para. 3 Lugano Convention.
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