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 has on pending civil law cases and on the recognition and enforceability of legal decisions. Courts and other authorities are not obliged to consider the FOJ’s legal assessment.

1 January 2021 as the relevant date

According to Article 126 of the EU-UK withdrawal agreement, there was a transition period until 31 December 2020. Based on Article 129 of the withdrawal agreement, the United Kingdom was to continue to be treated as a state bound by the Lugano Convention until the end of this period. Brexit therefore only has an impact on the Lugano Convention since 1 January 2021.

Continued application of the Lugano Convention to judgments given before 1 January 2021

The recognition and declaration of enforceability of judgments made before 1 January 2021 will continue to be governed by the Lugano Convention. This follows from the general principles of international and civil procedural law (droits acquis, prohibition of retrospective legislation, requirement of legal certainty), which are partly incorporated in art. 1 Final title of the Civil code and art. 196 PILA and which have also inspired art. 63 of the Lugano Convention. This corresponds to that which applies in the relationship between the EU and the United Kingdom in relation to the largely parallel Brussels Ia Regulation (Art. 67 of the Withdrawal Agreement).

Continued application of the Lugano Convention to main proceedings initiated before 1 January 2021

For main proceedings initiated under the Lugano Convention which are still ongoing on 1 January 2021, the courts and authorities involved remain competent, even if they would no longer have jurisdiction under national law. This results from the aforementioned general principles of international and civil procedural law. For the United Kingdom, this follows from the implementing legislation on Brexit (Sec. 92 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019).

Article 67(2) of the Withdrawal Agreement and the UK implementing legislation go even further and allow the previous law to apply also to the recognition of judgments rendered after 2020, provided that the proceedings in question were initiated before 1 January 2021. For Switzerland, however, which does not have express provisions on this, the question is debated. Different opinions are expressed in academic writings.

National law for main proceedings initiated after 2020

For main proceedings initiated after 2020, jurisdiction in relations between Switzerland and the United Kingdom will again be governed by national law.

The recognition and enforceability of decisions issued on the basis of proceedings initiated after 2020 are also 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.

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). As soon as all 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 22.04.2021

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