UK’s exit from Brussels I Regulation Recast and 2007 Lugano Convention

In our previous Brexit Blog 12 we discussed that the Brussels I Regulation Recast and 2007 Lugano Convention are no longer applicable to the UK.

Despite attempts by the UK to rejoin the 2007 Lugano Convention, the European Commission prevented it from doing so, arguing that the convention is an auxiliary measure for the EU’s economic relations with countries that are members of the European Free Trade Association. Fundamental freedoms and policies of the single market are not included in the Trade and Cooperation Agreement between the UK and the EU. The European Commission considers the multilateral 2005 Hague Choice of Court Convention (the 2005 Hague Convention) and the 2019 Hague Conference Convention on the Recognition and Enforcement of Judgments (2019 Judgments Convention) a suitable framework for judicial cooperation with the UK in civil and commercial matters.

The Dutch government has argued that in view of the intensive legal services and trade relationship between the UK and the EU (and the Netherlands in particular), the UK’s accession to the 2007 Lugano Convention would offer businesses and citizens legal certainty in cross-border disputes. For now, however, accession of the UK to the 2007 Lugano Convention seems unlikely. The Dutch government has indicated in its Answers that it will strive to ensure that further discussion on the UK’s request for accession to the 2007 Lugano Convention can take place at a later moment, taking into account all relevant considerations.

Recognition and enforcement of post-Brexit UK judgments in the Netherlands

Legal practitioners, scholars and one Dutch court (ECLI:NL:RBOVE:2018:4365) have assumed that the 1967 Convention would govern the recognition and enforcement of post-Brexit UK judgments in the Netherlands. The Dutch government has now made it clear that – following the UK’s accession to the 1968 Brussels Convention – the 1967 Convention was replaced and lost its relevance for the European part of the Kingdom of the Netherlands. To this day, the 1967 Convention only remains in force and effect in respect of (i) the Isle of Man, Guernsey and Jersey and (ii) the Caribbean part of the Kingdom of the Netherlands.

The question then remains which (international) rules govern the recognition and enforcement of UK judgments in the Netherlands. The Answers of the Dutch government provide for some guidance:

  • The 2005 Hague Convention: This Convention governs the recognition and enforcement of judgments rendered based on an exclusive jurisdiction clause in favour of the courts of one of the contracting states. Both the Netherlands (through the EU) and the UK are parties to this convention.

  • The 2019 Hague Judgment Convention: In the future, the 2019 Judgments Convention may become of relevance. Currently, this Convention is only signed by Costa Rica, Israel, the Russian Federation, Ukraine and Uruguay. Supported by the Dutch government, the EU is preparing a ratification decision. Similarly, the UK is considering to accede to this Convention.

  • Dutch Private International Law: For the time being, Dutch domestic law provides for the legal framework for recognition and enforcement in case the 2005 Hague Convention does not apply. Reference is made to article 431 of the Dutch Code of Civil Procedure (DCCP). Pursuant to article 431 DCC, the judgment creditor can re-submit the case to the relevant Dutch court to obtain a Dutch (binding and enforceable) judgment. The Dutch court can render a judgment that is in line with the UK Judgment without a review on its merits if all of the following conditions (the so-called Gazprom-criteria) are met: (a) the UK court must have assumed jurisdiction on internationally acceptable grounds; (b) the UK judgment must be the result of proceedings that meet generally accepted fair trial standards; (c) recognition of the UK judgment may not be contrary with public order; and (d) the UK judgment is compatible with a previous decision of a court between the same parties in a dispute on the same subject matter and cause of action. If these criteria are met, a Dutch court will effectively incorporate the UK judgment into a “new” Dutch judgment.

In other words, post-Brexit judgments obtained in the UK can still quite easily be recognized and enforced in the Netherlands pursuant to the 2005 Hague Convention (if applicable) and in any event based on article 431 DCCP, with the side note that a ‘Dutch’ judgment (in Dutch legal proceedings) needs to be obtained first if the latter route is followed.

Finally, the government states in its Answers state that the Dutch State Commission on Private International Law is expected to present its recommendations on a revision of article 431 DCCP by spring 2022. The aim will be to introduce a fully-fledged statutory regulation for the recognition and enforcement of judgments from countries with no enforcement treaty with the Netherlands.

For further assistance in cross-border recognition and enforcement matters or other issues revolving around private international law or cross-border disputes, please do not hesitate to contact Abdel Attaïbi or Michel Bosman.