effect of Brexit on judicial cooperation between the United Kingdom and the European Union | McDermott Will & Emery
When the Brexit transition period ended on December 31, 2020, several questions remained as to the nature and extent of future judicial cooperation between the UK and the EU.
One of the main uncertainties was whether EU member states would continue to recognize and enforce English court judgments when the UK was no longer a member of the European Union and, therefore, would not be. plus party to various legal instruments governing questions of jurisdiction, recognition and enforcement of judgments. .
One of these instruments is the 2007 Lugano Convention, which extends EU rules on judicial cooperation to four third states, namely Denmark, Norway, Iceland and Switzerland. The United Kingdom applied in April 2020 to accede to the Lugano Convention (in its own right rather than in its previous capacity as a member state of the EU). However, its application requires the consent of the existing contracting parties. On June 23, 2021, the European Commission confirmed that the European Union is “not in a position to consent” to the United Kingdom’s membership.
It is not known whether the position of the European Union is final. If the UK’s request is unsuccessful, the default position is the Hague Convention, to which the UK re-acceded as of January 1, 2021 (whereas it was previously a member in its capacity of ‘EU Member State).
The effect of the UK’s re-accession to the Hague Convention is that commercial parties who have granted English courts exclusive jurisdiction to hear their disputes can expect their choice to be upheld by UK courts. and European, and that the resulting court judgments be recognized and in force throughout the European Union.
The Hague Convention, however, is not as comprehensive as the Lugano Convention. For example, non-exclusive jurisdiction clauses (allowing recourse to more than one jurisdiction) or asymmetric jurisdiction clauses (allowing a party to recourse in more than one jurisdiction) are excluded under the Convention. The Hague. Moreover, it is not clear whether an exclusive jurisdiction clause agreed before January 1, 2021 will be considered by EU member states as falling within the scope of the Hague Convention. Where the Hague Convention does not apply, courts will apply local law to determine questions of jurisdiction and enforcement.
Given the narrower scope of the Hague Convention and the uncertainty as to its application in certain situations, parties are increasingly likely to adopt exclusive jurisdiction clauses or to resolve disputes through arbitration rather than state courts (the recognition and enforcement of arbitral awards not affected by Brexit).