Starting 1 January 2021, following the completion of the ‘Brexit transition period’, the United Kingdom has ceased to be a party to the various EU instruments in the field of judicial cooperation. In particular, the Brussels I (recast) Regulation (Regulation (EU) no. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)) no longer applies in relation to the UK. This makes the question relevant to how British judgments (in civil and commercial matters) rendered after 31 December 2020 can be enforced in the EU and, in particular, in the Netherlands.
Proceedings commenced before 1 January 2021
Not all judgments rendered this year will come with enforcement issues. In relation to proceedings initiated before 1 January 2021, nothing changes: such proceedings remain within the scope of the Brussels I (recast) Regulation and judgments rendered by British courts will be immediately enforceable in the EU, including in the Netherlands.
Proceedings commenced on or after 1 January 2021
For proceedings commenced before the UK courts on or after 1 January 2021, the Brussel I (recast) enforcement mechanism will no longer apply to the judgment.
In this case, one of three regimes applies.
I. The Hague Convention on Choice of Court Agreements
If the relevant UK court had jurisdiction pursuant to an exclusive jurisdiction agreement, the Hague Convention on Choice of Court Agreements could apply to the enforcement. This would be the case
if the jurisdiction agreement has been entered into by the parties after the entry into force of the Convention for the UK. If so, Dutch procedural law permits a simplified procedure for recognition and enforcement. The EU, then including the UK, adopted the Convention on 1 October 2015. On 1 January 2021, the UK became a State party in its own right. The UK considers itself bound by the Convention from 2015, but it remains to be seen whether courts in the EU will adopt the same approach. The European Commission suggested last year that only exclusive forum choices made after the Convention entered into force for the UK in its own right, being 1 January 2021, will be recognized in EU courts.
II. The 1967 UK-Netherlands bilateral treaty on recognition and enforcement
If the Hague Convention does not apply, but the judgment contains an order for monetary payment, the judgment can be enforced on the basis of the 1967 UK-Netherlands bilateral treaty on recognition and enforcement. If so, again, the judgment can be recognized and enforced through a simplified procedure.
III. Other
In cases where neither of the two conventions applies, there is no simplified procedure for recognition and enforcement. In principle, the relevant case should be brought to the Dutch courts and reheard in full. However, in practice, a full substantive assessment is unlikely to be required for a British judgment. Provided the judgment meets certain criteria – e.g. in respect of due process – the Dutch court will substantially give effect to the British judgment.
Possible future developments
Recognition and enforcement of UK judgments in the EU could be facilitated if the UK accedes to the Lugano Convention, which aims to achieve “free movement of decisions” between the EU on the one hand, and Switzerland, Norway, and Iceland on the other hand (i.e. within the territory of the European Free Trade Association). While the UK has applied to accede to the Lugano Convention, as matters stand, it is unclear if the other parties to the Convention will allow the UK to join.
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