Even after the UK has left the EU, the commercial, cultural and social ties between them will still be there, and the continuation of a deep and meaningful relationship is of reciprocal interest, as recognised by both parties.
The question of enforcement of judgments in civil and commercial matters must also be a key part of the future relationship: agreed rules on jurisdiction and recognition and enforcement of judgments in civil commercial matters ensure that those involved in cross-border trade and transactions are protected and have access to justice regardless of their financial resources.
The Lugano Convention, like Brussels I Regulation for the EU countries, provides for the recognition and enforcement of a wide range of civil and commercial judgments between the EU and EFTA states. It is an international agreement and other states may join subject to approval of the present parties to the agreement.
On 8 April 2020, the UK government asked that it would be able to ratify the Lugano Convention and continue its participation after the end of the transitional period following its withdrawal from the EU. The request followed an invitation from Norway and Switzerland to start negotiations on the Convention, demonstrating again its wider European reach.
The EU and UK could alternatively agree to proceed on basis of the 2019 Hague Judgments’ Convention. This Convention does provide a possible platform for enforcement of judgments, which will have a global reach.
The Lugano Convention has though been in operation since 1992, which means that practitioners are aware on how it operates.
The Lugano Convention also crucially has a wider reach than the 2019 Hague Judgments Convention. It applies to all civil and commercial judgments and as to maintenance obligations. Furthermore, it includes also jurisdiction rules, which protect the weaker parties, such as consumers, insured or employees.
And, time is of essence here. It is not certain that the 2019 Hague Convention can be ratified in time. This has a consequence in that if at the end of the transition period the UK and EU do not have a solution, the rules on enforcement of judgments could be changing three times: from the EU Brussels I system to national law and once the participation of the UK to the Lugano Convention, 2019 Hague Convention, is agreed, from national law to those rules. And, for the next few years there would be cases on-going in judicial systems which would need to be worked under various different rules, depending on when the cases have arisen.
This makes the Lugano Convention the obvious model for continued cooperation in enforcement of judgments: it is a stand-alone Convention, which does not give access to a wider range of EU instruments on private international law nor it is linked with the EEA or Swiss arrangements with the EU. Furthermore, as it is already in operation between the EU and the EFTA, it provides an existing and known solution on how to enforce judgments.