WHEN the Government’s priorities for next year’s session of Parliament were outlined in the Queen's Speech earlier this month, they included the Retained EU Law Bill. Also known as the Brexit Freedoms Bill, its purpose is to fulfil the commitment to end the supremacy of European law and ensure that regulations continue to fit the needs of the UK.
This serves as a reminder of the difficulties businesses and individuals still face litigating in a post Brexit world, since the EU continues to refuse to give its consent to the UK's accession to the Lugano Convention.
Before Brexit, lawyers were familiar with the key pieces of legislation in this area, and the resulting process that enabled us to litigate and enforce Northern Irish judgments in the EU with ease. Now that the UK is no longer a member of the EU, lawyers and their clients will face new challenges in what is a rather complex area of law to navigate.
The Lugano Convention 2007 is an international treaty between the EU, Iceland, Norway and Switzerland which permits judgments obtained in those jurisdictions to be enforced in other countries party to the Convention. This effectively meant that if, for example, a Northern Ireland-based company obtained a judgment in Northern Ireland against a Spanish company then that judgment could be enforced in Spain as if it were a judgment of that country.
The Civil Jurisdiction and Judgments Act 1982 (along with other EU Regulations and the Convention), has formed the basis upon which UK courts have exercised authority to hear and decide legal cases over European defendants and also been able to assist with the enforcement of European judgments.
Since the UK's departure from the EU the main legal instruments concerning jurisdiction (the geographical area of a court's legal authority) and the enforcement of judgments no longer apply to civil and commercial cases commenced in the UK.
Broadly speaking, issues relating to jurisdiction and the enforcement of judgments will be determined under common law rules i.e. the rules of individual countries, which will need to be checked and followed on a case by case basis, and where it applies, the 2005 Hague Convention on Choice of Court Agreements ('the 2005 Hague Convention').
The 2005 Hague Convention offers some protection to exclusive jurisdiction clauses, ie clauses where a particular country is specifically stated in an agreement, although not to any other kind of jurisdiction clause.
However, there is some uncertainty about whether the 2005 Hague Convention applies to contracts entered into before January 1 2021, when the UK re-joined independently of the EU. Generally, the 2005 Hague Convention demands that the courts of contracting states give effect to the exclusive jurisdiction clauses in favour of the courts of other contracting states.
The exit from Lugano means that for non-Hague Convention cases, cross-border enforcement of judgments becomes very complicated, subject to conflicts of laws between the UK courts and the country of enforcement and parties will have to carefully navigate the requirements of different national regimes.
:: Carley Shields (carley.shields@dwf.law) is senior associate at DWF Belfast (www.dwf.law)
