The Lugano II Convention

Three non-Member States were party, with the European Union, to the revised Lugano Convention of 30 October 2007, here and elsewhere referred to, when it is necessary to distinguish it from the original version, as ‘Lugano II’.

The original Lugano Convention, concluded in 1988, had closely reflected the terms of the Brussels Convention as it then was. It was nothing to do with the European Union as such: it was an agreement between the states alone. It was revised and remade in 2007 to bring it closely into line with the Brussels I Regulation 44/2001. The parties to the Lugano II Convention are, on the one hand, the European Union (which took over from the Member States in this respect) and on the other, Iceland, Norway and Switzerland. Liechtenstein became a member of the European Free Trade Association in 1991, but for reasons peculiar to the manner in which it processes money for those who need a suitable laundry and shelter, did not accede to the Lugano Convention, and therefore remains a non-Contracting State.

When the Lugano II Convention"* came into effect, the result was that the rules for the determination of jurisdiction and the effect of foreign judgments were functionally identical to those of the Brussels I Regulation 44/2001, with the result that separate treatment of the Lugano II Convention would have been redundant. When the Brussels I Regulation was recast as Regulation 1215/2012, there was no overt attempt to adjust the terms of the Lugano II Convention. Soon after, relations between Switzerland and the European Union became rather difficult, and this meant that discussion about upgrading the Lugano II Convention was not high on the to do list in Brussels or in Bern. For these reasons, the Lugano II Convention remains, in effect, as a copy of Regulation 44/2001.

The Lugano II Convention took effect in the United Kingdom under the general framework of the European Communities Act 1972. For the sake of good order, but also to reflect the fact that the Lugano II Convention was intended to supersede the original version, the original enactment of the Lugano Convention in the United Kingdom was repealed." Supplementary and consequential legislation was adopted^[1] in terms closely resembling that which had been made to accompany the original Brussels I Regulation 44/2001.

The United Kingdom made its application to accede to the Lugano II Convention on 8 April 2020. If this leads to accession, the relevant jurisdictional rules applying in a court in the United Kingdom will be those of the Lugano II Convention; and from this point on, and as the original Lugano Convention has been revoked in the United Kingdom, we will refer to the 2007 version of the Lugano Convention as the Lugano Convention.

Lugano and Brussels: interpretation and relationship

An important threshold question concerns the extent to which the interpretation of the Lugano Convention is guided or governed by the principles of interpretation developed as a matter of European law for the Brussels Convention and Brussels Regulation. Bearing in mind that there are states to which the Lugano Convention applies which are not Member States of the European Union, it is instructive to see what was agreed. The Preamble to the 2007 Lugano Convention reads as follows:

THE HIGH CONTRACTING PARTIES.

HAVING REGARD to Article 75 of this Convention.

CONSIDERING the substantial link between this Convention, the 1988 Lugano Convention, and the instruments referred to in Article 64( 1 ) of this Convention,

CONSIDERING that the Court of Justice of the European Communities has jurisdiction to give ridings on the interpretation of the provisions of the instruments referred to in Article 64(1) of this Convention,

CONSIDERING that this Convention becomes part of Community rules and that therefore the Court of Justice of the European Communities has jurisdiction to give rulings on the interpretation of the provisions of this Convention as regards the application by the courts of the Member States of the European Community,

BEING AWARE of the rulings delivered by the Court of Justice of the European Communities on the interpretation of the instruments referred to in Article 64(1) of this Convention up to the time of signature of this Convention, and of the rulings delivered by the courts of the Contracting Parties to the 1988 Lugano Convention on the latter Convention up to the time of signature of this Convention,

CONSIDERING that the parallel revision of both the 1988 Lugano and Brussels Conventions, which led to the conclusion of a revised text for these Conventions, was substantially based on the above mentioned rulings on the 1968 Brussels and the 1988 Lugano Conventions,

CONSIDERING that the revised text of the Brussels Convention has been incorporated, after the entry into force of the Amsterdam Treaty, into Regulation (EC) No 441200I,

CONSIDERING that this revised text also constituted the basis for the text of this Convention.

DESIRING to prevent, in full deference to the independence of the courts, divergent interpretations and to arrive at an interpretation as uniform as possible of the provisions of this Convention and of those of the Regulation (EC) No 4412001 which are substantially reproduced in this Convention and of other instruments referred to in Article 64(1) of this Convention.

HA VE AGREED AS FOLLOWS:

In other words, it was agreed that the Lugano Convention was very closely linked to the Brussels Regulation 44/2001. Indeed, it is believed that there is no English or European Court case in which a court has held that the principles of general interpretation which were developed in relation to the Brussels Convention or Brussels 1 Regulation were inapplicable to the Lugano Convention, or applied only with modification.

It follows that the general jurisprudence which was developed and which formed the instruction manual for the interpretation of the provisions of the Brussels Convention and Regulation applies in equal measure to the Lugano Convention. In the light of the Preamble set out above, one should assume that, save where attention is drawn to a specific point of difficulty, the general principles of interpretation of the Lugano Convention and of the Brussels Regulation are the same. One is tempted to say that if the Swiss Confederation, the epitome of a sceptical and pragmatic non-Member State, was content to sign up to such a statement in 2007, there is no reason to question its applicability to, or compatibility with the law of, the United Kingdom in 2021.

As to whether decisions of the European Court on the interpretation of the recast Brussels I Regulation 1215/2012 are reliable guides to the interpretation of the Lugano Convention, the answer is that they are where the text of the recast Regulation is substantially identical with the corresponding provision of Regulation 44/2001: this is the logical interpretation of what the Preamble confirms the parties to have desired. Certainly, the European Court considers that consistency in interpretation is conducive to legal certainty, and it follows that notwithstanding anything said in the 2018 Act and 2020 Act, the consequence of adopting the Lugano Convention is that the United Kingdom will follow the Swiss, Icelandic and Norwegian courts in paying close attention to the decisions of the European Court on the recast Regulation, in order to interpret the Lugano Convention.

If one needs authority for this conclusion, it is found in the Second Protocol to the Convention, and in Article 64(1) of the Convention. Article 1(1) of the First Protocol states:

Any court applying and interpreting this Convention shall pay due account to the principles laid down by any relevant decision concerning the provision(s) concerned or any similar provision(s) of the 1988 Lugano Convention and the instruments referred to in Article 64( 1 ) of the Convention rendered by the courts of the States bound by this Convention and by the Court of Justice of the European Communities.

Article 64( 1 ) is in the following terms:

This Convention shall not prejudice the application by the Member States of the European Community of the Council Regulation (EC) No 4412001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as well as any amendmentsthereof, of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968, and of the Protocol on interpretation of that Convention by the Court of Justice of the European Communities, signed at Luxembourg on 3 June 1971, as amended by the Conventions of Accession to the said Convention and the said Protocol by the States acceding to the European Communities, as well as of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Brussels on 19 October 2005.

The underlined words mean, in particular, that decisions of the European Court on the recast Brussels Regulation 1215/2012 are included in the jurisprudence to which the courts of the Lugano States agree to pay due account. Quite apart from any confirmatory legislation which may be made in the United Kingdom in 2021, this serves to justify and to require reference to decisions of the European Court given on the interpretation of Regulation 1215/2012.

• [1] SI 2009 No 3131, Regs 4 and 25. 2 SI 2009 No 3131.