News and developments
BREXIT. QUO VADIS?
Current Situation – UK as a member of the EU
The Brussels Regime - Brussels I and Brussels Recast Regulation
Whilst the UK is still a Member of the EU, the Brussels I convention and Brussels Recast Regulation apply to commercial and civil legal disputes. The general rule under this regime, subject to certain exceptions, is that in such disputes, jurisdiction lies with the Court in which the defendant is domiciled. In addition, recognition of intra-EU judgments and their enforcement is simple and affordable.
A major achievement of this regime is the eradication of the need for intermediate proceedings - the exequatur, which required a local Judge to ‘rubber stamp’ an existing judgment.
Lugano Convention
The Lugano Convention operates in tandem with the Brussels regime and, also provides for the recognition and enforcement of a wide range of judgments. The UK government intends to re-join the Lugano Convention as an independent party post-Brexit. However, this cannot be done unilaterally; the UK will need to be invited to join by one of the countries who already participates in the Convention.
Hague Convention on the Choice of Court Agreements
In an effort to protect English Jurisdiction clauses post-Brexit and to preserve as much of the status quo as possible, the UK acceded to the Convention as an independent party (as opposed to a Member of the EU). This accession will only be necessary in the event of a ‘No Deal’ Brexit.
The Convention, which is more limited than the Brussels regime, provides for recognition and enforcement of judgments only where the parties chose the exclusive jurisdiction in their agreement.
‘No Deal’ Brexit – The UK perspective
As discussed above, a possible scenario is that the UK will re-join the Lugano Convention as an independent party and accede to the Hague Convention. With regards to the Hague Convention this will only come into effect the day after the UK withdraws from the EU and only if another agreement has not been reached.
Another possibility is that a partially dormant Convention dating back to 1968, the Brussels Convention, is revived. This Convention regulates matters of jurisdiction and, recognition and enforcement of judgments. It has been rendered dormant by the Brussels I regulation and the Brussels Recast, but it still applies to certain dependent territories of EU Member States.
If no agreement is reached, enforcement and recognition of judgments after Brexit will be a matter of domestic law of the state in which recognition and enforcement are sought. The UK will be treated as a third country and the Exequatur will be a requirement for enforcement of a judgment.
The UK has declared that, in the event of a ‘No Deal’ Brexit, it will implement domestic legislation to continue to recognise and enforce judgments of EU27 Courts for proceedings commenced before Brexit day (i.e. the Brussels regime).
‘No Deal’ Brexit – The EU perspective
In its note on the impact of a ‘No Deal’ Brexit on jurisdiction and enforcement of UK judgments in EU27 countries, the European Commission states that the EU rules will no longer apply and it outlines the broad principles that will apply to the cross-border enforcement of judgments in a ‘No Deal’ Brexit.
‘No Deal’ Brexit – A Maltese Perspective
Malta applies the relevant EU statutes in matters of jurisdiction, and recognition and enforcement of judgments in Malta. Enforcement of UK judgments in Malta in a ‘No Deal’ Brexit scenario, will rely on 2 other pieces of legislation. Firstly, the Code of Civil Procedure (COCP) and secondly, the British Judgments (Reciprocal Enforcement) Act (BJREA).
- Code of Organisation and Civil Procedure
- The British Judgments (Reciprocal Enforcement) Act