28th July 2021
I am currently putting together a piece on the United Kingdom’s exclusion from the Lugano Convention, following Brexit.
The convention provides for the enforcement of judgments in European Union and (all but one) EFTA states – in essence, a judgment of a court in the United Kingdom can be enforced in Italy or Denmark and so on.
Without the convention, enforcement of a domestic judgment is less easy – and far more expensive and time-consuming.
The United Kingdom is seeking to re-join the convention from outside the European Union – but the European Union is effectively vetoing the application.
See this CNN thread here:
There's a post-Brexit spat no one's talking about that could have severe consequences for the economy and devastating personal consequences for vulnerable individuals.
Uncomfortably for Boris Johnson, on this one he's entirely at the mercy of the EU https://t.co/A3tCD2zNGj
— Luke McGee (@lukemcgee) July 28, 2021
One thread in this sequence struck me – and my upcoming piece will be an assessment as to whether such a serious charge is valid:
There is no sign of the EU budging any time soon, especially given Brussels' objection largely pins on the UK's trustworthiness (Northern Ireland, attacks on judges etc). Some worry that this is the first concrete example of our new global status https://t.co/A3tCD2zNGj
— Luke McGee (@lukemcgee) July 28, 2021
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If there is validity in this charge then this is indeed a concrete – and consequential – example of the ‘moral hazard’ of which this blog has previously warned.
Such infantile politics must have seemed very clever at the time – with claps and cheers from political and media supporters – but now the effects could be manifesting.
What is less clear is whether this is a serious legal problem as well as a political failure – will it make much difference in legal practice?
Or is its legal significance overblown – event if it is a political embarrassment?
I will post a link to my piece in a day or two when it is published.
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Legano convention?
Some Danish influence at play?
Unfortunately the email went out with that typo – although it was immediately corrected on the blogpost, but irksome…
It appears that the exclusion from this Convention was a natural and logical outcome of a hard Brexit – and maybe any Brexit ?. Wanting to rejoin this, whilst staying away from the jurisdiction of the ECJ, looks to the non-expert (me) like classic cakeism.
Is that what it is?
But if the mutual interests of both the EU and the UK would be served, despite Brexit, by the UK’s continuing membership of the convention, then it would be wise for both parties to continue with it. But if the EU, after clear thought and some negotiation, doesn’t see the value, then this will be another Brexit disbenefit that we learn of rather late in the day.
that is maybe one of the misunderstandings on the UK side
“But if the mutual interests of both the EU and the UK would be served, ”
it could be in the mutual interest of 26 country +1 other country or
if one country dosent like it there is no mutual interest from the EU.
The EU is a damm Fightclub with out the punching and kicking, at least most of the Time
Agree with your comment. The current disregard for Parliamentary convention, corrupt practices when tendering out contracts, unilateral treaty action when suits not to mention being a proven liar must weigh heavily against membership at this moment in time whilst the current government is in power.
Looking forward to reading David’s views on the Lugano withdrawal.
On a related theme of Nora hazard and withdrawal from past obligations, the pending Nationality and Borders Bill challenges two prior commitments. The text appears to threaten mariners with criminal conviction or imprisonment for saving lives at sea, if those lives happen to be those of individuals intending to claim sanctuary in the U.K.
The Merchant Shipping Act 1995 will require amendment to reflect new legislation. Internationally, IMO agreements start with the obligation to save lives, which will present another challenge to the U.K.; a maritime nation that used to have the moral high ground.
As Mr Salvini is discovering in Italy, where legal action is being taken in Sicily for his efforts as Interior Minister to prevent the landing of refugees saved by vessels in closest proximity to Italy, the law eventually catches up. The process will be slow, and he may even evade prosecution. Let us hope that Ms Patel can one day appear in the dock for her callous indifference to humanity.
Boris Johnson will spin it as the EU bullying us. He himself won’t be affected – if he needs to go to law, a moneyed chum will stump up the costs for him.
Measuring its significance on a collective scale is difficult. But for each successful litigant for whom enforcement was eased by Lugano, the loss of Lugano is an additional barrier to obtaining what a court in the UK has awarded. As many of these are claims resulting from divorce, the suffering can be hard for individuals. More broadly than that, it is another example of a thread in the once thickly woven blanket of UK relationships with European states that has been pulled out without any prior recognition of the damage it would do.
The three UK Law Societies and Bars have been going on about the dangers to consumers, small businesses and families for at least three years. We have produced briefings and papers, we held webinars and conferences, lawyers from all over Europe have clearly indicated their preference of the UK re-joining Lugano. I am very glad finally somebody is taking notice! All our material is at your disposal, just ask the UK Law Societies Brussels Office, we have a website. We can also put you in contact with UK and European lawyers to talk to.
‘finally’ – this is how not to gain media attention! Telling those in the media off for their (if not immediate) interest is one reason why the media then lose interest.
My frustration is not with the media but with politicians who put scoring points before the interests of citizens, especially the ones who have neither money nor power. And I am married to one!
Alas the list of issues caused by Brexit is long and the attention of the media post 31/12/20 is short. Note that this was raised by CNN! But it is a specialist issue and not readily understood even by people who have a passing knowledge of the context. This is no excuse, of course, for the political action that led to it.
I must declare my interest, but is exclusion from the Lugano Convention a strong argument for private arbitration/adjudication to be included in Contacts? The New York Convention 1958 applies to the enforcement of arbitral Awards and the United Kindom is a signatory in its own right.
Has the EU said anything on the record about the “trustworthiness” of civil courts in the UK, as distinguished from concerns about the behavior of the UK government? One might harbour concerns about courts in other EU states, such as Hungary or Poland, for example.
I doubt they would say so openly, but I can see that the EU might want to put obstacles in the way of enforcing UK court judgments in other European states, if that makes the UK less attractive as a jurisdiction of choice for launching cross-border civil litigation, compared to other European countries.
The UK chose to throw sand in the gears, and this is just an example of what that means in practice.
On the web there is quite a lot of hinting that the EU’s refusal to let the UK back in the Lugano Convention be a sort of retaliation for Brexit. That would be childish and the EU is proven not to be, contrarily to the Johnson’s (et al) Brexit.
Rather, I tend to believe that the EU Commission is being strongly lobbied by several EU nations who are naturally wishing to be given the chance of competing in what was once a London monopoly. What’s so strange in that? The UK actually started a commercial/economic war, so she’d rather reconcile with the idea that “on va à la guerre comme à la guerre.”
The most informed response I’ve seen is on the EU observer website, viz;
“The UK’s legal system is renowned worldwide for its integrity, efficiency, case law, and language, historically making it the preferred setting for resolution of EU cross-borders disputes. If the authority of the British courts is no longer automatically recognised in EU commercial matters, EU businesses will inevitably be impeded in their ability to seek relief as efficiently as they were with the UK a Lugano signatory”
Maybe it’s just another case of EU cutting off its nose to spite its face.
It leads more grist to the view that EU wishes to act in bad faith and try and give UK another punishment beating – hey ho.
Putting forward the notion that this is the EU cutting off their nose to spite their face seems to me to be sour grapes from a Brexiter.
I see the old exceptionalist canard being rolled out as well ‘don’t they realise that England has the finest …’ It’s a variant of the ‘they need us more than we need them’ argument that’s worked so well so far.
As to legal system, anyone who has worked with the Dutch legal system will know that particularly for commercial matters its highly efficient and transparent and now that the UK has left the EU the largest English speaking nation in the EU is not Ireland but the Netherlands. There is a reason that Amsterdam is winning in the relocation of financial institutions from London to an EU center.
It maybe a shock to Brexiters that Micheál Barnier was right – Brexit means Brexit.