Making A UK Money Judgment Enforceable In Italy

• Published date: 09 March 2021
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law
• Law Firm: Hanover Bond Law
• Author: Mr Luca Salerno

The impact of "Brexit" on the legal framework

As of 31 December 2020, the United Kingdom is no longer an EU Member State. This means that the United Kingdom is a third country for the purpose of the Brussels Recast Regulation 1215/2012 (Brussels Recast).

The EU-UK Trade and Cooperation Agreement establishing the terms of UK's 'so called Brexit deal' does not include any provisions at all on jurisdiction and enforcement of judgments in civil cases.

It had generally been anticipated that the Brexit deal might provide for the UK's accession to the Lugano Convention 2007 to be completed in time for the end of the Brexit transition period. The Lugano Convention 2007 is very similar to Brussels Recast but the latter has the advantage of dispensing with formalities that are necessary to make the foreign judgment enforceable. The UK applied to join the Lugano Convention 2007 on 8 April 2020, but so far, the EU (which has a veto over the UK's accession) has not approved the application.

It is uncertain whether the UK is still a party to the Brussels Convention 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, the 1971 Protocol to that Convention, and certain related Accession Conventions. On 29 January 2021, the British government informed the European Council of its view that the Convention has ceased to apply to the UK and Gibraltar with the expiry of the transition period on 1 January 2021. The communication merely reflects an opinion by the British government, which as such is of no legal consequence. The Vienna Convention on the Law of Treaties enumerates the cases in which an international convention is terminated. A unilateral denunciation is not among them. Absent an impossibility of performance, a fundamental change of circumstances or a breach by one party, an agreement by the parties is required to suspend the operation of a treaty. It appears that, as is the case with the Lugano convention, the EU is ultimately the arbiter of whether the Brussels Convention 1968 ceases to apply to the UK. This may actually not be a bad thing pending the accession by the UK to the Lugano Convention, accession that the EU can block indefinitely.

The reason why the Lugano Convention 2007 is considered by the UK as the "lesser evil" compared with the Brussels Convention 1968 is that the European Court of Justice has jurisdiction on interpretative matters relating to the latter but not the former.

The Hague Convention 2005 has continued...