FOREIGN JUDGMENTS TAKING EFFECT UNDER THE BRUSSELS AND LUGANO RULES

General

From 1 January 1987 judgments from courts in certain European states were able to take effect in England under legislation designed to produce the free circulation of judgments in civil and commercial matters across Europe. To begin with this was done by Conventions' given effect in English law by Civil Jurisdiction and Judgments Act 1982; more recently these were superseded by Regulations^[1] and a Convention taking effect in England under European law. At their most expansive these interlocking schemes covered 31 national jurisdictions: the 27 Member States of the European Union plus the United Kingdom, as well as Iceland, Norway and Switzerland. The fundamental assumption upon which they were built was that if the states in question had common rules for original adjudication, and could be trusted to apply them properly, the main objection to the recognition and enforcement of foreign judgments would dissolve. Objections to the jurisdiction of the adjudicating court could be dealt with by the court before it adjudicated, rather than being allowed to be raised after the adjudicating court had finished its work. The substance of the judgment would be immune to review or re investigation, and the mechanism for the transposition of the judgment from the legal order of one state to another would be made as uncomplicated as possible.

Brexit

On the departure of the United Kingdom from the European Union, regulations made under European Union (Withdrawal) Act 2018, Section 8, revoked the Brussels I Regulation (original and recast), along with a collection of minor European legislative acts. The Lugano Convention also ceased to apply. The immediate result is that where proceedings are instituted before courts of Member States of the European Union, or of the Lugano States, after Completion Day, the effect in England of a judgment resulting from those proceedings will be governed by the rules examined Chapters 34 and 35. However, where the foreign proceedings were instituted before Completion Day, a judgment resulting from them will take effect in England as if the Brussels

1 Regulation (original and recast) and the Lugano Convention remained in force.^[2] It follows that the foreign judgment provisions of the Brussels and Lugano schemes will apply in England for much longer than the chapters of those instruments which regulate the jurisdiction of English and European courts; and this will be true even if the United Kingdom is not allowed to rejoin the Lugano Convention. This is the reason why a statement of English law on the effect of foreign judgments must, if it is to be reasonably comprehensive, continue to deal with these European rules, for this edition at least.

The stated aim of the United Kingdom Government is to adhere to the Lugano Convention, as soon as possible after Completion Day. If that happens, judgments from the courts of Lugano States in proceedings instituted on or after the date on which the Lugano Convention enters into force for the United Kingdom will be liable to be recognised under that Convention.

Which European instrument applies?

If a judgment in a civil or commercial matter is given in proceedings from the courts of a Member State, these being instituted on or after 10 January 2015 and before Completion Day, its effect in England will be governed by the recast Brussels 1 Regulation, 1215/2012. The date on which the judgment was given is irrelevant. If the proceedings were instituted before 10 January 2015, the effect of the judgment in England will be governed by the original Brussels I Regulation, 44/2001, the date on which the judgment was given being again irrelevant.

For the purpose of judgments from Iceland, Norway and Switzerland, given in proceedings instituted before Completion Day, their effect in England will be governed by the Lugano Convention, which will be the relevant instrument.

However, if the United Kingdom adheres in its own right as an independent State to the Lugano Convention, a judgment given in proceedings which were instituted in a Lugano State after the entry into force of that Convention in the State of origin will take its effect in England under that Convention.

As the substantive rules for the recognition of foreign judgments are so similar, in the paragraphs which follow we will deal with the Brussels and Lugano rules alongside each other as though they were a single set of rules. It will be necessary to diverge when it comes to enforcement.

• [1] 1968 Brussels Convention; 1988 Lugano Convention. 2 Brussels I Regulation: Regulation 44/2001 and Regulation 1215/2012. 3 2007 Lugano II Convention, to which the European Union, as distinct front the Member States, was the relevant contracting party. 4 Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019 No 479, Pt 5. 5 Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019 No 479, Pt 4.
• [2] Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, SI 2019 No 479, Part 6. 2 There is no practical need to deal with the recognition of judgments under the Brussels Convention which prior to Completion Day still applied to some forgotten territories in the middle of the sea, such as New Caledonia, French Polynesia including Tahiti, Mayotte, St Pierre & Miquelon, and Aruba and the Dutch Antilles.