Today, the United Kingdom has triggered Article 50 of the Lisbon Treaty, thus making the UK’s withdrawal from the European Union official nine months after the referendum and starting the maximum two-year countdown of the exit process.
These two years of negotiations will aim at ensuring the smoothest transition and exit possible. While UK-EU trade relations will have to be redefined and some legislation ought to be reviewed, the consequences that the Brexit has for our very integrated jurisdiction and enforcement framework remain uncertain.
We summarize below the potential effects that the Brexit could have on these subject matters of private international law.
The UK will cease to be a party to the Brussels I Recast Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters when it is officially no longer part of the EU, i.e., from the effective date of the withdrawal agreement that would have been concluded with the EU under Article 50 of the Lisbon Treaty (or Treaty on European Union).
Ever since the referendum and again recently in Theresa May’s so-called Brexit Speech of 17 January 2017, the UK governing authorities suggest that they will, through the so-called “Great Repeal Bill”, convert the body of existing EU law into British law once they repeal the European Communities Act. However, even if the UK were to incorporate the Brussels I Recast Regulation into its national law and thus ensure the continued application of this regime to EU-related jurisdiction and enforcement issues, nothing would require the EU Member States to return this so-called favor. The Member States’ courts would no longer apply the jurisdiction rules contained in the Brussels I Recast Regulation to disputes involving a defendant domiciled in the UK, and the enforcement of judgments rendered in the UK will no longer be governed by this Regulation. Only a couple of the Regulation’s provisions on jurisdiction (see below) apply regardless of whether the defendant’s domicile is located in a Member State.
Ever since the referendum on 24 June 2016, commentators are making various assumptions on what potential alternative solutions could be implemented post-Brexit. These include:
- The UK could join the European Free Trade Association (EFTA), allowing it to accede to the 2007 Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (which is very similar to the 44/2001 Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, but did not benefit from the Recast );
- The UK could join the 2005 Hague Convention on choice-of-court agreements, which was entered into by the EU on behalf of the Member States (other than Denmark), which only covers jurisdiction and enforcement related issues in cases in which parties have agreed on an exclusive jurisdiction clause conferring jurisdiction on the courts of a Contracting State;
- The UK could enter into a bilateral treaty with the EU which could provide for a clear legal framework regarding matters of jurisdiction and cross-border enforcement of judgments. This could be a faithful copy of the Brussels I Recast Regulation or a copy of the tailored-version applicable to Denmark or just a new or adapted agreement. The latter alternative would allow the UK to put forward their wish to stop conferring jurisdiction on the Court of Justice.
On this first day of the two year exit process, a significant amount of uncertainty remains regarding the contents and schedule of the upcoming discussions and also the priorities of the EU and the UK. Hence, only prospections can be made on what kind of alternative agreement could be reached on issues such as jurisdiction, parallel proceedings, and cross-border enforcement of judgments in civil and commercial matters.
Since the above scenarios can be nothing more than hypotheses, it can be important to clarify what would be the most probable scenario in absence of an immediate reciprocal agreement on the aforementioned issues.
Applicability of the 1968 Brussels Convention?
Unlike what has sometimes been implied in post-referendum literature, the risk that the UK would be attributed a full third-state statute, i.e., letting key issues such as the effect of choice-of-court agreements, the obligation to stay proceedings in favor of the court first seized, or free movement of judgments, be purely subject to national laws appears to be limited from the perspective of some EU Members States, including Belgium. In fact, there are valid reasons to argue that, in absence of a more integrated agreement between the EU and the UK on the issues at stake, the 1968 Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial matters (the “1968 Brussels Convention”) could emerge again as the governing instrument on these subject matters.
Article 68 of the Brussels I Recast Regulation specifies that the Regulation “supersedes” the 1968 Brussels Convention except for some territories of Member States that do not fall under the Regulation’s scope. Furthermore, Article 71 of the same Regulation states that it shall not affect any conventions to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. The wording of these two provisions seems to be aligned with a continued application of the 1968 Brussels Convention.
As a matter of fact, the 1968 Brussels Convention was never abrogated or formally denunciated by any of its Contracting States. The 1968 Brussels Convention is an international instrument that cannot be qualified as EU legislation. This implies that a Member State does not automatically join this Convention when it becomes part of the EU. Conversely, it also means that a Member State can leave the EU and remain a party to this Convention. The UK became a contracting party to the 1968 Brussels Convention in 1978 and remains, until further development, one of them.
Some authors take the view, however, that the Brussels Convention remains in force only to allow its application to some Member States’ territories overseas. Its post-Brexit resurgence would purportedly contradict the intent of the Contracting States, since the Convention was concluded with the view of “implement[ing] the provisions of Article 220 of that Treaty by virtue of which they undertook to secure the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals” (Brussels Convention’s preamble).
In our opinion, this point does not change the fact that the 1968 Brussels Convention (and the British Civil Jurisdiction and Judgements Act 1982, which implements this Convention into UK law) is in force nowadays in the UK and in some EU Member States and should thus apply as long as they keep it in force. However, it is true that there is a chance that some of the Contracting States could resolve to withdraw from the 1968 Brussels Convention on the ground of a “fundamental change of circumstances that constituted an essential basis of the parties’ consent to be bound” within the meaning of article 62 of the 1969 Vienna Convention on the law of treaties.
The Brussels I Recast Regulation regime on jurisdiction and enforcement versus that under the 1968 Brussels Convention: a step backwards
From the perspective of a contracting party to the 1968 Brussels Convention (i.e., from a Belgian, French, Italian, German, Luxembourgish, Dutch, Danish, Irish, Spanish, Portuguese, Greek, Austrian, Finish, or Swedish perspective), the Brussels I Recast Regulation’s functions could thus partly be guaranteed by the continued application of the 1968 Brussels Convention. This Convention is outdated, however, and its interaction with Brussels I Recast Regulations, which will remain in force in each EU Member State, could trigger issues.
Scope of application
As introduced above, the geographic scope of the 1968 Brussels Convention corresponds only partly to the scope of the Brussels I Recast Regulation since it does not include all the EU Member States. This means that for the 13 EU Member States that have never been contracting parties to the 1968 Brussels Convention1, no such partial replacement of the functions of the Brussels I Recast Regulation by the 1968 Brussels Convention can be expected.
The 1968 Brussels Convention, as predecessor of the Brussels I (recast) Regulations, contains very similar jurisdiction rules. However, a couple of differences or particularities should be outlined here.
Firstly, the 1968 Brussels Convention is in many ways less precise, and the wording of some provisions raises issues that had been revealed from its prior application and subsequently addressed either by the reviewing work that gave rise to the 44/2001 Regulation or by the recast process. For instance:
- General jurisdiction ground: The 1968 Brussels Convention also confers general jurisdiction on the courts of the defendant’s domicile. However, the notion of a legal person’s domicile will likely create more difficulties and inconsistencies under the 1968 Brussels Convention, since under the Convention, the seat of a company or other legal entity is determined according to the national rules of private international law of the court seized. On the contrary, Article 60 of the Brussels I Recast Regulation provides for an autonomous definition of the legal person’s domicile.
- Special jurisdiction rule for matters relating to contracts: The rule on contractual forum contained in the 1968 Brussels Convention raised many interpretation problems, notably regarding the notion of “contractual matters”, regarding which obligation should be considered as the “obligation in question”, and regarding how the place of performance of such an obligation should be determined. Without entirely solving these interpretation problems, the Brussels I Recast Regulation specifies what should be understood as the place of performance for contracts of sale of goods and provision of services (see Article 7(1) of the Regulation). Such clarification is not part of the 1968 Brussels Convention.
- Special jurisdiction rule for matters relating to tort: Like the Brussels I Recast Regulation, the 1968 Brussels Convention states that the courts of the place where the harmful event occurred have jurisdiction to rule on a tortious claim. The 1968 Brussels Convention does not, however, allow the plaintiff to sue at the place where the harmful event “may occur”, thereby rendering such preventive action potentially impossible under the 1968 Brussels Convention.
Secondly, the renewed application of the 1968 Brussels Convention would lead to an asymmetric regime for certain matters because the courts of the remaining EU Member States will apply some of the jurisdiction rules set out by the Brussels I Recast Regulation, while the UK will not be bound by the Regulation anymore and would thus apply the rules of the 1968 Brussels Convention. For instance, this would be true for:
- The rules regarding consumers (Article 18 of the Recast Regulation) and employees (Article 21 of the Recast Regulation), which also apply if traders or employers, respectively, are domiciled in a third-country.
- The exclusive jurisdiction grounds set out in Article 24 of the Brussels I Recast Regulation.
- The rule on choice-of-court agreement set out in Article 25 of the Brussels I Recast Regulation.
With regard to the effect of the choice-of-court clause, two points are of particular interest:
- First, even if the Member States’ courts apply Article 25 of the Brussels I Recast Regulation when confronted with a clause conferring jurisdiction on the English courts, the UK will not qualify as an EU Member State anymore. This means that the requirement, introduced by the Recast of Brussels I Regulation, that Member Sates’ courts must stay the proceedings where there is an exclusive jurisdiction clause in favour of another Member State’s court until the chosen court has ruled upon its jurisdiction—will not apply to clauses conferring jurisdiction on English courts. This reopens the door to the so-called “Torpedo” tactic, that is, where a party starts proceedings in a non-chosen forum with a view to delaying the judgment in the chosen forum, and the latter is obliged, under the 1968 Brussels Convention’s regime, to stay proceedings pending the decision of the court first seized.
- From the English courts’ perspective, it is worth noting that under the 1968 Brussels Convention, a choice-of-court clause always gives exclusive jurisdiction to the court conferred by that clause, without expressly allowing for the party to agree otherwise. Such express possibility to agree otherwise is well provided for in the Brussels I Recast Regulation. Furthermore, while the Brussels I Recast Regulation gives effect to jurisdiction clauses designating the courts of a Member State regardless of the parties’ domicile, the 1968 Brussels Convention requires that at least one party is domiciled in a Contracting State.
Under the 1968 Brussels Convention, enforcement of a judgment rendered in another contracting State is subject to an order for enforcement that must be issued in the enforcing State, which must be sought by any party with standing. The 1968 Brussels Convention lists the courts that have jurisdiction in each of the Contracting States. The procedure seeking enforcement, which is an ex parte procedure, is governed by the law of the State where enforcement is sought. The 1968 Brussels Convention provides for limited grounds for refusal, which are listed in its Articles 27 and 28.
While the 1968 Brussels Convention lays down a “simplified” enforcement procedure, which does not empower the enforcing courts to review the merits of the foreign judgment, this system is far behind the one set out in the Brussels I Recast Regulation, which provides for an immediate enforceability of a judgment across the EU without the need for intermediate proceedings in the enforcing State.
The Protocol of 3 June 1971, annexed to the 1968 Brussels Convention, tasks the Court of Justice of the (former) European Community with interpreting the 1968 Brussels Convention. Hence, the 1968 Brussels Convention offers the same advantages as Brussels I (recast) Regulation in terms of consistent interpretation. This interpretation is given by way of preliminary rulings (Article 2 of the Protocol of 3 June 1971) or by request for consultative interpretation (Article 4 of the Protocol of 3 June 1971). The preliminary ruling procedure is very similar to the one under Article 234 of the Lisbon Treaty and has been broadly used prior to the enactment of the Brussels I (recast) Regulation.
However, some authors consider that the Court of Justice and the EU courts may be reluctant in returning to the application of the old text and that proceedings before these courts might not be very welcoming for a UK citizen trying to benefit from the provisions of the 1968 Brussels Convention. Conversely, Theresa May outlined, during her “Brexit speech” of 17 January 2017, the UK’s strong intent to “bring an end to the jurisdiction of the European Court of Justice in Britain”. In the Report of the House of Lords EU Committee on Judicial Cooperation post-Brexit published on 20 March 2017, the committee similarly suggest including in the Lugano Convention a requirement for national courts to “pay due account” to each other’s decisions on the content of the Brussels I Regulation, without accepting the direct jurisdiction of the Court of Justice.
Should the Court of Justice retain jurisdiction post-Brexit, it is unclear whether the case-law of the Court of Justice that have been rendered on the interpretation of the Brussels I (recast) Regulation would apply to or even be taken into account for interpreting the 1968 Brussels Convention. Similarly, one could ask whether the clarifications and improvements subsequently implemented in the 44/2001 Regulation and in the Brussels I Recast Regulation will have an influence on the way the national courts will apply the 1968 Brussels Convention and whether any of these would be seen as legitimate.
One can speculate on the possible agreements that could be reached between the UK and the EU in order to guarantee that the Brussels I Recast Regulation’s functions will remain fulfilled after Brexit. The coming months will tell what can be expected in terms of an alternative agreement focusing on jurisdiction and enforcement. However, in the absence of such (immediate) alternative, the possible renewed application of the 1968 Brussels Convention could be reinsuring for parties based in the UK and in some of the Member States. We think that through the 1968 Brussels Convention, a framework of cooperation in jurisdiction and enforcement of judgments still exists despite the UK’s decision to leave the EU. However, this framework might not be fully satisfying, given its limited geographical scope of application and the fact that the 1968 Brussels Convention still differs from the Brussels I Recast Regulation in many ways. If this were to be the post-Brexit scenario, the improvements that have been made to the text of the 1968 Brussels Convention throughout the years would be missed.
- I.e.: Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, and Slovenia.