In case of a no-deal Brexit on 31 October next, all EU Regulations will stop to have effect between the UK and the remaining EU countries as from that moment. Thus also Regulation 1215/2012 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters (the “Regulation”). This means that, failing other instruments, as from 31 October 2019 judgments of UK courts are no longer recognised and can no longer be enforced in EU countries and vice versa. Also, the rules for jurisdiction set out in the Regulation no longer apply.
As concerns recognition and enforcement however, the UK and the Netherlands still have a bilateral convention in force: the Convention of 17 November 1967 on Recognition and Enforcement of Judgments in Civil Matters (the “Convention”). This has never been withdrawn, but has been asleep since the 29 September 1968 Brussels Regulation came into force for the UK.
This Convention will “resurface” in case of a no-deal Brexit. And this is a good thing, because under Dutch law a convention it is an absolute requirement for recognition and enforcement. Failing a convention, new proceedings would have to be started before Dutch courts – presuming there would be jurisdiction under Dutch law (which might e.g. be the residence of the defendant, or an arrest or attachment of property). The courts would then anew look at the matter. They could, if requested, apply a “fast track” in which the judgment and grounds are taken over – but new Dutch proceedings and a new Dutch judgment would be required anyway.
With the Convention resurfaced, that is not the case. UK judgments will still be recognized and enforceable in the Netherlands and vice versa. There are differences between the Convention and the Regulation, though, the main ones of which are:
- the Convention does not cover the former Netherlands Antilles, whereas the Regulation also covered Aruba; we are not sure what applies for the UK;
- the Convention does not set rules for jurisdiction: for recognition and enforcement only;
- the Convention does not cover “Authentic Instruments” such as notarial deeds of indebtedness or mortgage deeds;
- the Convention specifically mentions “claims in rem”, described as a judgment which also binds third parties;
- the procedure for obtaining recognition is not automatic but requires applying for court approval.
If worst comes to the worst, there will thus still be a relatively easy system in place for the traffic of judgments between the UK and the Netherlands!