Withdrawal Agreement Enforcement

If no international convention applies, judgments of the United Kingdom may be enforced in Germany under German autonomous law. In practice, this is done by filing an enforcement action under §§ 328 and 722 ZPO, which is granted if there are no grounds for enforcement. The enforcement judgment thus obtained is enforced in Germany as a German judgment. Under the Withdrawal Agreement, the recast Brussels I Regulation on competence between the UNITED KINGDOM and EU Member States and Denmark`s agreement to apply it will continue to apply to procedures that started before the end of the transposition period. As a result, companies with existing disputes involving EU counterparties may wish to seek early legal advice, e.B. whether it would be desirable to initiate proceedings before the end of the transposition period in order to benefit from the continued application of the existing rules of jurisdiction. Parties should seek legal advice in all disputes at an early stage so that a litigation strategy can be formulated. The strategy can be defined by local laws, taking into account possible risks, e.B. in the application and advice obtained if necessary. Taking into account the provision of the Withdrawal Agreement on the continued application of the Brussels I recast regime, where the procedure has been initiated at the end of the implementation period, it may be examined whether it is appropriate to initiate a procedure before the end of the transposition period in order to benefit from the continued application of the existing rules.

The recast of the Brussels I rules continues to apply to the enforcement of judgments given in proceedings brought before the 1st. January 2021, although the position on the application of the implementing provisions of the Lugano Convention to decisions rendered in such proceedings is unclear. As with jurisdiction, there may be international disputes that are currently at an early stage where it would be advantageous to initiate legal proceedings before 1 January 2021 to benefit from the relative predictability and ease of the existing rules on the enforcement of decisions. Therefore, legal advice should be sought at an early stage in all disputes. The Withdrawal Agreement provides (in Article 127) that Union law applies to and on the United Kingdom during the transition period, unless otherwise provided for in the Withdrawal Agreement, and any reference to EU Member States in Union law shall be understood as including the United Kingdom. EU law includes the various EU treaties, the general principles of EU law, EU legislation such as regulations and directives and (significantly) international agreements to which the EU is a party. There is a specific provision (in Article 129) that the UK is bound by the obligations arising from these international agreements during the transition period and that the EU notifies the other parties to these agreements that the UK is to be treated as an EU Member State for the purposes of those agreements during the transition period. The UK is currently party to The Hague due to its EU membership, but this will cease when the UK leaves the EU on 31 January 2020.

However, as mentioned earlier, the UK and the EU have agreed that the UK will be treated as an EU member state during the transition period for the purposes of international agreements, which will include The Hague. The UK would have joined The Hague itself in the event of a no-deal withdrawal immediately after the day of withdrawal, but given the Withdrawal Agreement, the intention now is for the UK to withdraw its instrument of accession and (presumably) accede at the end of the transition period. The English courts will retain many of their current attractions. However, in a no-deal scenario at the end of the implementation period, it is likely that there will be an increased risk of jurisdictional conflicts and a less straightforward procedure for enforcing UK judgments in EU Member States and Lugano Convention States, with enforcement being the main concern. For the duration of the Brexit transition period, the withdrawal agreement between the UK and the EU provided that EU law would continue to apply to the UK. The transition period ended on 31 December 2020 and, as might be expected, despite the successful conclusion of the Withdrawal Agreement between the UK and the EU, the UK and the EU did not agree on a continuous regime of cross-border cooperation on choice of law, courts and enforcement of court decisions. However, the United Kingdom has taken unilateral measures to limit the impact of the end of the transition period on conflict-of-law issues. The UK will continue to comply with obligations under international agreements on jurisdiction and enforcement of decisions (among others) to which the EU is a party, such as the 2007 Lugano Convention (which applies between EU Member States and EFTA countries Iceland, Norway and Switzerland) and the 2005 Hague Convention on Jurisdiction Agreements (which is between EU Member States). and Mexico). Singapore and Montenegro). By the end of December 2020, the English court must therefore stay the proceedings or refuse jurisdiction if required by these Conventions – for example, in The Hague, if since 1. In October 2015 (when The Hague entered into force for Mexico), a Mexican exclusive jurisdiction clause was agreed, or in Lugano, when parallel proceedings were first initiated before a Swiss court.

Where the transitional provisions of the Withdrawal Agreement are not applicable, things are more complicated and, to some extent, uncertain. The exact position will depend on whether further arrangements will be made between the UK and the EU (and/or the EFTA countries) by the end of the transition – for example, for the UK`s accession to the Lugano Convention, in which case little will change in terms of competence and application between the UK and the EU and EFTA countries. In the following, it is assumed that nothing else is agreed in the relevant areas. The situation will also depend on the content of any other UK legislation introduced before the end of the transition, such as. B.dem Private International Law (Implementation of Conventions) Act indicated in the Queen`s Speech, which appears to clarify the transposition of the 2005 Hague Convention into national law, although few details are available. With the UK`s withdrawal from the EU, the EU`s main instruments on jurisdiction and enforcement – namely the recast of the Brussels Regulation4 and the Lugano Convention5 – will no longer apply to civil and commercial matters initiated in the UK from 1 January 2021.6 Our previous news on the enforcement of UK decisions in the event of a no-deal Brexit is available here. The recast regulation deals with the problem of the „Italian torpedo“, a tactical maneuver in which a party to an exclusivity agreement could cause delays and inconvenience to its adversary by initiating proceedings before a court other than the one referred to in the agreement, which would then prevail under the old rules as the „first“ court of the dispute. According to the recast Regulation, the unelected court must stay the proceedings unless the court chosen declares that it has no jurisdiction. The English courts have held that for this purpose, an exclusive jurisdiction clause contains a common „asymmetrical“ clause in financial agreements that requires one party to bring an action in a particular court, while the other party can choose. While the UK and the EU out of 30. concluded a trade and cooperation agreement in December 2020, this agreement leaves out the area of European civil procedure law, which in this area amounts to a „hard Brexit“. The United Kingdom`s accession to the Lugano Convention of 30 October 2007 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (hereinafter referred to as the „Lugano Convention“) also appears to have failed.

As the United Kingdom is ready to accede to the Lugano Convention on 8 April 2020, the necessary consent of all Contracting Parties has not been obtained, even after the expiry of the one-year period provided for in Article 72(3) of the Lugano Convention. For example, the Hague Convention on Jurisdiction Conventions of 30. June 2005 („Hague Convention on Jurisdiction Conventions“), bilateral agreements between the United Kingdom and individual Member States and applicable national law as options for the enforcement of UK DECISIONS in EU Member States or for the enforcement of judgments of EU Member States in the UNITED KINGDOM. . . .