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 (Federal Supreme Court Decision 145 III 109 para 5.6) 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).
The Federal Supreme Court seems to share this view. It expressly declared the Lugano Convention applicable to a case in which the entire cantonal proceedings and the filing of the appeal took place before 1 January 2021 (judgment 5A_697/2020 of 22 March 2021, para 6.1). According to a decision of the Supreme Court of the Canton of Bern (ZK 21 274 of November 4, 2021), the Lugano Convention remains applicable to the recognition and declaration of enforceability of judgments rendered in the United Kingdom before the end of the transitional period, even if the application was filed after January 1, 2021. See in this sense also Cantonal Court of Zug, decision of 2 February 2022.
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 based on the Lugano Convention (see Federal Supreme Court decisions 4A_133 and 4A_135/2021, para. 4.), 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 31 December 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: potential new accession to 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.
Switzerland, Iceland and Norway have given their consent to the accession of the United Kingdom to the Lugano Convention by notifications of 11 September 2020, 26 February 2021 and 30 March 2021 respectively. The European Union informed the Depositary by letter received on 28 June 2021 that it “is not in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention").
- Federal Act on Private International Law (PILA)
- Lugano Convention
- Notifications of the Depositary to the Lugano Convention
- Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations
- Withdrawal agreement
- UK Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019
- Publication regarding the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019
- Notice of the European Commission "withdrawal of the United Kingdom and EU Rules in the field of civil justice and private international law" of 18 January 2019
- Updated notice of the European Commission of 27 August 2020
Obergericht Bern, Urteil ZK 21 274 vom 4. November 2021
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Kantonsgericht Zug, Urteil vom 2. Februar 2022
(This document is not available in English)
Last modification 16.02.2022