Recognition and enforcement of english courts' judgments in European Union after Brexit
The Trade and Cooperation Agreement executed on 24 December 2020 by the United Kingdom and the European Union has not addressed judicial co-operation as between them. This has created a great degree of uncertainty on how and whether an English Court judgment can be recognized by and enforced in any EU Member State, in particular as it relates to those financial and loan agreements which were (and still are) usually governed by English Law and made subject to English Courts’ jurisdiction in the event of any dispute.
Before 31 December 2020 (on which date “Brexit” actually occurred), any such dispute could be settled according to the Brussels I Regulation (No. 1215/2012 recast), which stipulates which court has jurisdiction in a matter linked to more than one EU Member State. Such Regulation provides a precise legal regime for the recognition and enforcement of judgments issued by the Court of an EU Member State in any other Member State.
After Brexit, however, such Regulation is no longer applicable in terms of the UK since 1 January 2021.
Judgments issued by English Courts can be now, therefore, recognized and enforced in EU Member States only based either on their respective national law – which vary from one Member State to another - or the Hague Convention on the Choice of Court Agreements (2005) (the “Hague Convention”).
Both the UK and the EU are, indeed, parties to the Hague Convention, which is an international convention on exclusive jurisdiction clauses and the recognition and enforcement of judgments in other Contracting States. The UK was a party to the Hague Convention only in its capacity as an EU Member State, but, in anticipation of the very final Brexit, it duly re-acceded to the Hague Convention on its own right on 28 September 2020.
Such convention will apply between the UK and the EU Member States in commercial matters where an exclusive jurisdiction agreement (or an exclusive jurisdiction clause included in an agreement) is duly and expressly entered after 1 January 2021. The EU, on its side, does not consider as applicable those exclusive jurisdiction agreements which were executed and already in force before such date.
For the Hague Convention to apply, however, besides being the choice of jurisdiction exclusive (i.e., no option in the agreement for either party to bring an action also before the Court of an alternative jurisdiction), the matter of the dispute must have an international connection beyond the choice of a foreign Court in order to fall within the scope of the Hague Convention.
Another convention which can in general apply is the Lugano Convention of 2007, which is an international treaty aimed at clarifying which national Courts have jurisdiction in civil and commercial cross-border disputes, with also the purpose to ensure that judgments issued with regard to such disputes can be enforced across borders. The Lugano Convention currently applies between the EU, Denmark (which has opted out of the Brussels I Regulation), Iceland, Norway and Switzerland, but not the UK.
The UK has applied to re-accede to the Lugano Convention as an independent member with effects from 1 January 2021, but the EU has not so far supported such application, and this prevents the UK’s re-accession to the Lugano Convention, which requires the unanimous consent of all its relevant signatories.
Unless the UK finally re-accedes the Lugano Convention, any party willing to enforce in any EU Member State an English Court judgments shall exclusively rely on the Hague Convention or on local laws to such purpose.
If the Hague Convention does not apply, the enforcing party must then make an application for recognition. In case of needed enforcement in Italy, the enforcement process shall require an application to the Italian Court of Appeal in the district where such enforcement is sought.
The Court of Appeal, in such event, can refuse recognition of the English Court judgment if any of the following occurs:
The English judgment is incompatible with Italian public policy or any mandatory provision of Italian Law;
There are pending proceedings already commenced by the same parties before any Italian Court; or,
There has been in the English proceedings any violation of due process (i.e., failure to duly serve notice of process upon the Italian party).
In order to enforce an English court judgment in Italy, the enforcing party must comply with the Italian International Private Law (Law 218/1995), which also provides for recognition of foreign judgments in Italian Courts, requiring in particular that:
the defendant was properly and duly served with notice of process; and
the foreign judgment is final and binding, it is not in breach of public policy and/or mandatory provisions of Italian Law, or in conflict with any Italian judgment, and is validly legalized by an international Apostille.
If such requirements are met, the case will be reviewed by the Italian Court of Appeal and a declaration of enforceability may be eventually granted, so that the English judgment can be then enforced in Italy, subject to the enforcing party to issue and deliver to the debtor a final payment notice, prior to commencing any relevant enforcement proceedings (which will then proceed same as for any Italian judgment).
Similar kind of procedure shall apply if, on the contrary, an Italian party attempts to enforce an Italian Court judgment in England, which recognition and enforcement shall be based on Common Law principles and rules as per any relevant domestic English proceedings.
Prof. Avv. Salvatore Vitale
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