Impact of Brexit on the Lugano Convention

The text below provides a summary of the impact of Brexit on the Lugano Convention. It explains the Federal Office of Justice’s understanding of the impact Brexit will have on pending civil cases and on the recognition and enforceability of legal decisions. Courts and other authorities are not obliged to consider the FOJ’s legal assessment.

Transition period until 31 December 2020

According to Article 126 of the EU-UK withdrawal agreement, the withdrawal of the United Kingdom is subject to a Transition Period ending on 31 December 2020. As follows from Article 129 of the Convention, the Lugano Convention will continue to apply to the UK during the transition period, and the UK will continue to be treated as a state bound by the Convention until the end of this period.

For parties in Switzerland this means that during the transition period, the Lugano Convention will continue to regulate jurisdiction and the recognition and enforceability of decisions.

Situation as of 1 January 2021

From 1 January 2021, the Lugano Convention will no longer apply to the United Kingdom for the time being. From this point onwards, the jurisdiction, recognition and enforceability of decisions in relations between Switzerland and the United Kingdom will again be governed by national law, with the exception of any treaties in force in both states, such as the 1973 Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations.

The legal situation under national law in Switzerland and in the UK can be summarised as follows:

  • In Switzerland, jurisdiction is governed by the Federal Act on Private International Law (PILA), and in the United Kingdom by common law rules.
     
  • For proceedings initiated under the Lugano Convention which are still ongoing on 1 January 2021, the courts and authorities involved shall remain competent, even if they would no longer have jurisdiction under national law. This results from the general principles of international and civil procedural law1 (droits acquis, prohibition of retrospective legislation and legal certainty requirement), which have inspired art. 63 of the Lugano Convention and art. 197 PILA. For the United Kingdom, this results from the implementing legislation on Brexit.2
     
  • The recognition and declaration of enforceability of judgments made before the withdrawal date shall continue to be governed by the Lugano Convention even after the date of withdrawal. This follows from the aforementioned general principles of international and civil procedural law.3

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1 See e.g. decision of the Swiss Supreme Court 119 II 69

2 Sec. 92 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019. See also the Guidance "Cross-border civil and commercial legal cases: guidance for legal professionals from 1 January 2021" of the British Ministry of Justice.

3 Under Article 67(2) of the withdrawal agreement, the largely parallel Brussels Ia Regulation No 1215/2012 applies to all decisions taken before the end of the transitional period. Therefore, for decisions from the United Kingdom taken before 1 January 2021, the EU will apply the same regime as described here for Switzerland, according to the view of the -FOJ. In the FOJ's original view, the Lugano Convention should also apply to decisions issued after 31 December 2020, provided that the underlying proceedings became pending before that date. For the United Kingdom, this derives from national law (see footnote 2 above). For Switzerland, however, this view has been criticised in the doctrine as too far-reaching. It also does not correspond to the view of the European Commission. See the European Commission's Communication "The United Kingdom's withdrawal and EU rules on civil justice and private international law" of 18 January 2019. According to this Communication, the existing law applies only to the recognition of decisions for which a declaration of enforceability has already been issued before the end of the transitional period. The above-mentioned Communication was adapted to the withdrawal agreement on 27 August 2020.

Future relationship: possibility of rejoining the Lugano Convention

On 8 April 2020, the United Kingdom submitted a request for accession to the Lugano Convention. Accession is subject to the agreement of all contracting parties (Denmark, EU, Iceland, Norway, Switzerland). Switzerland approved the accession by Federal Council decision of 19 June 2020. As soon as the other parties have given their consent, the Depositary will invite the United Kingdom to accede. The Convention will enter into force on the first day of the third month following ratification.

Last modification 09.12.2020

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