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After Brexit: Jurisdiction, recognition and enforcement of judgments

In a previous post I described the legal position in respect of enforcement of judgments in case of a no-deal Brexit, from a Netherlands/UK perspective.

On 20 December 2019 the British Parliament has approved the Withdrawal Agreement (“WA”). It is to be expected that the House of Lords will also approve the WA, and subsequently the European Parliament, which would mean that the UK and Northern Ireland will leave the EU latest 31 January 2020.

However, until 31 December 2020 much will remain as it is as there is a transition or implementation period (the “Transition Period”) which extends the validity of EU legislation until that date (Article 126 of the WA). This period could be extended with a maximum period of two years, but the Brexit Bill passed in Parliament on 20 December 2019 rules out that possibility. Thus, when the House of Lords and the EU Parliament agree, by 31 December 2020 the Transition Period will end, whether by that date the future relationship between the UK and the EU has been agreed or not, meaning that, at least in certain respects, there may be a no deal Brexit after all: the EU has already stated that one year is insufficient to come to an agreement on all relevant matters.

As for recognition and enforcement of judgments Article 67 of the WA states that the provisions regarding jurisdiction and enforceability in various EU Regulations and Directives remain applicable until the end of the Transition Period as described therein. For the most important Regulation with respect to civil and commercial matters, Regulation EU 1215/2012 (the “EEX Regulation”), paragraphs 1 and 2 of Article 67 state that (1) the provisions of jurisdiction of the EEX Regulation shall apply in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions that are related to such legal proceedings pursuant to Articles 29, 30 and 31 (i.e. the provisions in respect of lis pendens – connexity and the first proceedings initiated-rule). The issue therefore is the time of instituting of proceedings; and (2) the EEX Regulation shall apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period, and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period. The issue therefore here also is the time of instituting of proceedings and the time of drawing up, registering, approving or concluding of deeds and instruments as mentioned.

Given the magnitude of things to be done before the end of the Transition Period, one can seriously wonder whether agreements/conventions in respect of jurisdiction, recognition and enforcement between the UK and the EU will have priority and will been concluded and implemented before then. Thus, the chance of a ‘no deal’ in respect thereof is certainly not imaginative.

Then, the earlier blog will describe the position as between the Netherlands and the UK. In that blog I stated that the bilateral convention between the UK and the Netherlands of 17 November 1967 on Recognition and Enforcement of Judgments in Civil Matters will “resurface”, thus maintaining a possibility for enforcement of judgments. As described in the blog, this however is more limited than the EEX Convention as for instance it does not deal with jurisdiction, does not cover “authentic instruments”, and requires an exequatur for recognition and enforcement. But in its limited form it will seamlessly be applicable after a ‘no deal’ Brexit.

And there is another instrument with respect to jurisdiction, recognition and enforcement of judgments in civil and commercial matters which may help: the Hague Convention on choice of court agreements dated 30 June 2005 between the EU and Mexico, Montenegro and Singapore (the “Convention”). Under the Convention judgments given by courts in one contracting state must be recognized and enforced in another contracting state when the jurisdiction was based on an exclusive jurisdiction clause. There are limitations: the Convention only applies to jurisdiction clauses entered into after 1 October 2015, the matter must have an international character, and the judgment must be enforceable in the state of origin. There are only limited grounds of refusal.

I understand that the UK has already announced that it will automatically accede to the Convention upon leaving the EU, and that the date of 1 October 2015 will apply. However, there may be a gap in effectiveness: Article 31 of the Convention states that the Convention will enter into force in respect of a signatory/acceeding party on the first day of the month three months after depositing the deed of signing/accession. As the UK leave the EU latest on 31 January 2020 (the Convention is not included in the WA), this “automatic accession” can only be made on or soon after the withdrawal date. Thus, the Convention would only come into force at the earliest three months and some days later.

Also, Article 16 of the Convention states that, when a party accedes to it, the Convention will only apply to jurisdiction clauses made after it applied to the state of jurisdiction. This would mean that only jurisdiction clauses with a choice for English courts made after the date of accession fall under the Convention. The UK may argue that it was already a party to the Convention, in capacity of EU Member State, from 1 October 2015 until the withdrawal date. But whether that will hold is, given the text of the Convention, at least questionable.

Thus, several instruments may help after a no deal Brexit, but, arguably as in many other respects, it will not be as “good” as it was before leaving…

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