Relationship with the Lugano Convention

The relationship between the Hague Convention and other Conventions to which a Hague State may be party is at first sight straightforward, but at second sight more complicated. However, as it is unclear whether or how the United Kingdom will be party to the Lugano Convention after Completion Day, it has been decided to deal only lightly with this issue.

If the United Kingdom does not rejoin the Lugano Convention, then as far as the United Kingdom is concerned (and leaving aside the transitory provisions by which the Brussels I Regulation 1215/2012 and the Lugano Convention will continue to apply after Completion Day to proceedings which were instituted, in the United Kingdom or in the other Member States, prior to Completion Day), the United Kingdom will be a Hague State, standing in relation to the other Hague States rather as Singapore does. It will apply the Hague Convention according to its terms; how the Member States of the European Union will apply it in relation to the United Kingdom is a matter for them, but in principle they will treat the United Kingdom as they treat Singapore: as a Hague State which is not party to any other relevant agreement.

If the United Kingdom finds itself as party to the Hague and Lugano Conventions, Article 26 of the Hague Convention will apply. The relevant^[1] provisions of Article 26 provide as follows:

(1) This Convention shall be interpreted so far as possible to be compatible with other treaties in force for Contracting States, whether concluded before or after this Convention.
(2) This Convention shall not affect the application by a Contracting State of a treaty, whether concluded before or after this Convention, in cases where none of the parties is resident in a Contracting State that is not a Party to the treaty.
(3) This Convention shall not affect the application by a Contracting State of a treaty that was concluded before this Convention entered into force for that Contracting State, if applying this Convention would be inconsistent with the obligations of that Contracting State to any non-Contracting State. This paragraph shall also apply to treaties that revise or replace a treaty concluded before this Convention entered into force for that Contracting State.67 except to the extent that the revision or replacement creates new inconsistencies with this Convention.
(5) This Convention shall not affect the application by a Contracting State of a treaty which, in relation to a specific matter, governs jurisdiction or the recognition or enforcement of judgments, even if concluded after this Convention and even if all States concerned are Parties to this Convention. This paragraph shall apply only if the Contracting State has made a declaration in respect of the treaty under this paragraph. In the case of such a declaration, other Contracting States shall not be obliged to apply this Convention to that specific matter to the extent of any inconsistency, where an exclusive choice of court agreement designates the courts, or one or more specific courts, of the Contracting State that made the declaration.

The corresponding provisions of the Lugano Convention were set out in Chapter 6, but may be summarised here as stating that the Lugano Convention shall not affect any conventions by which the Lugano States are bound and which in relation to particular matters, govern jurisdiction.

Each convention therefore makes provision for States Party to it or bound by it to conclude other Conventions which deal with jurisdiction. If the Lugano Convention comes into force for the United Kingdom it will, as between the United Kingdom and the other Lugano States, effectively supersede the Hague Convention where a choice of made for the courts of a Lugano State. This is because it will be rare for there to be a case in which there was a choice of court for a Lugano State which would be ineffective under the Lugano Convention but binding under the Hague Convention. If there is a choice of court agreement for the courts of Singapore, which satisfies the requirements of the Hague Convention, the English court will apply the Hague Convention and will not apply the Lugano Convention. If the choice of court agreement does not come within the Hague Convention, say because the parties are resident in the same Lugano State and the elements relevant to the dispute point only to that State, the Hague Convention will not apply to the choice of court agreement, and the jurisdiction of the English court will be governed by the Lugano Convention (including any recourse to national law which this may entail). If the Hague Convention could apply, because the parties are resident in different Lugano States, but no party is resident in a nonLugano, Hague State, Article 26(2) provides that the Lugano Convention displaces the Hague Convention, even if the choice of court agreement was for Singapore: the consequential question is what the Lugano Convention then provides. It may be tricky, but the answers can usually be found (if not always guessed at).

[1] Article 26(4) is concerned with the recognition and enforcement of judgments; Art. 26(6) with the operation of instruments such as the Brussels Regulation. 2 This statement will apply to the Lugano Convention, which was originally made in 1988 and revised and remade in 2007. 3 But not impossible: a choice for Germany made between parties domiciled only in non-Lugano States, so that Art. 23 of the Lugano Convention is not satisfied.