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Enforcement of judgments across the EU after Brexit

Andrew Sheftel

Enforcement of judgments from civil and commercial claims, a key plank of international trade, is governed by the recast Brussels Regulation. One of its principal aims is that judgments made by Member State courts should be easily recognisable and enforceable in other Member States.

Currently under Articles 36 and 39 of the Brussels Regulation, a judgment given in a Member State is recognised and enforceable in all other Member States without any special procedure or declaration of enforceability being required. There are few defences available which could impede enforcement - essentially limited to issues including public policy; failure of service of the claim; or where the judgment is irreconcilable with an earlier judgment.

In contrast, enforcement of a non-EU judgment in an EU Member State is a matter for the local law in the enforcing state. This is not to say, however, that enforcement of such judgments would be unduly burdensome, although the procedure may not be as straightforward. Indeed, despite the uncertainty as to what post-Brexit arrangements will look like, there appears to be enthusiasm on both sides for continued close trade. To this end, it would be counter-productive to impose obstacles to the enforcement of judgments.

Even opting out of all international agreements so that the UK applies its previous common law rules and other EU countries apply their existing rules, treating the UK as a non-Member State or equivalent non-signatory country, should not result in significant difficulties in enforcing judgments in EU Member States. 

As a matter of English common law, enforcement of foreign judgments in England (where there is no reciprocal enforcement treaty) requires the judgment creditor to commence a fresh cause of action against the judgment debtor in the English courts with the foreign judgment being the cause of action. This will generally be slower than the enforcement of judgments from EU Member State courts, but not so much as to make enforcement of such judgments unattractive. For example, judgments from US courts are regularly enforced in England without undue difficulty, despite the fact that the UK and the US have no reciprocal enforcement agreement. 

Similarly, Germany and France have procedures under their own domestic law for the recognition and enforcement of judgments from third countries. Although it may take longer than enforcement under the Brussels Regulation, enforcement should not be unduly difficult. In both jurisdictions, the concepts underpinning the principal bars to enforcement are not dissimilar to those under the Brussels Regulation: failure or service; where the judgment is incompatible with public policy/essential principles of domestic law – in addition, recognition will also be refused where the original court did not have jurisdiction. 

If the above represents a more than workable baseline, there are various other post-Brexit possibilities which could improve on the above, depending on whether the UK was to be able to become party to some other regime. These include:

  • the UK remaining in the current Brussels Regulation regime;
  • the UK entering into the closely related Lugano Convention, which currently applies as between the EU and Norway, Switzerland and Iceland;
  • the UK ratifying the Hague Choice of Courts Convention: at present this has been ratified by the EU, Mexico and Singapore; it has also been signed by the USA.
  • reverting to the Brussels Convention on Jurisdiction and Enforcement of Judgments 1968: the Brussels Convention was signed by individual states, including the UK in 1978.

Accordingly, whether the UK ends up within the range of options above, or even if there is no formal arrangement, there is a strong argument for saying that recognition and enforcement of English judgments in Member State courts should not present undue difficulties for parties post-Brexit.

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