Historically the UK has always been a popular country to litigate. Contract dispute clauses quite often refer to English law as the applicable law and the London courts as the go-to forum. Also claimants in non-contractual disputes – such as cartel damages cases – seem to easily find their way to the UK, attracted (amongst other reasons) by disclosure opportunities unknown to jurisdictions on the European continent. Quite often, these cases have limited or no connection with the UK jurisdiction. This means that after a case is finished and a positive judgment (or cost order) has been obtained, it is likely that such judgment will need to be enforced in another jurisdiction than the UK.

Brexit and status quo: nothing changed?

The UK formally left the EU on 31 January 2020. The relationship between the UK and the EU is governed by the Withdrawal Agreement during the transition period until 31 December 2020. Under the terms of the Withdrawal Agreement, all EU law continues to apply in the UK, unless otherwise provided in the agreement (article 127 of the Withdrawal Agreement). The period may be extended to 31st December 2021 or 31st December 2022 if the UK requests an extension before 30th June 2020. The UK government has already indicated that no further extension is desired. It is currently unclear whether the Covid-19 pandemic will change this.

During this transition period enforcement of UK judgments within the European Union is the same as pre-Brexit: through the Recast Brussels Regulation (No. 1215/2012). On the basis of the Recast Brussels Regulation a judgment given in a Member State (to be understood to include the UK) which is enforceable in that Member State shall be enforceable in the other Member State without any declaration of enforceability being required. This means that a judgment creditor can easily enforce a judgment rendered by a UK court in another Member State during the transition period.

The UK and the EU have started negotiations about a future free trade agreement. It is expected that the negotiations will be tough.

Enforcement of UK judgments in the Netherlands in case of no-deal

In the event that no new free trade agreement is agreed before 31 December 2020 and no extension of the transition period is agreed, Article 67(2)(a) of the Withdrawal Agreement provides that the Recast Brussels Regulation continues to apply in respect judgments given in legal proceedings instituted before the end of the transition period.

In the event of a no-deal Brexit at the end of the transition period, the Recast Brussels Regulation will no longer apply to judgments rendered in legal proceedings instituted after the end of the transition period in any of the 27 Member States that are left, including the Netherlands.

This begs the question: how to enforce a UK judgment (rendered in a civil or commercial matter) in the Netherlands in the event of a no-deal Brexit (after the expiration of the transition period)?

There are three possible solutions or scenarios that may come into play here. The first two are not Netherlands specific but (potentially) apply to all remaining Member States. The third option is a Dutch one only.

Solution 1 - Invitation needed: the Lugano Convention

Firstly, the UK could become a party to the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Lugano Convention contains a regime for the recognition and enforcement of judgments very similar to the predecessor of the Recast Brussels Regulation (Regulation (EU) No. 44/2001). UK's accession to the Lugano Convention would therefore ensure the continuation of the Brussels regime. The contracting parties of the Lugano Convention are currently not only the EU Member States but also Norway, Switzerland and Iceland and Denmark (which is a Member State but has a full opt-out from implementing regulations under the area of freedom, security and justice).

After Brexit, it will however not be a simple matter of signing the Lugano Convention in order for the UK to re-join. The UK will need an invitation from the contracting parties who need to unanimously agree to such invitation (article 72 Lugano Convention).

On 28 January 2020, the UK government announced it has received statements of support from Norway, Iceland and Switzerland for the UK's intent to accede to the Lugano Convention 2007.

Solution 2 - Limited in scope: the Hague Convention

A second option for the UK would be becoming a party to the Hague Convention on Choice of Court Agreements (the "Hague Convention", as signed on 30 June 2005). As part of a wider aim to ensure the effectiveness of choice of court agreements between parties to international commercial transactions, the Hague Convention also governs the recognition and enforcement of civil judgments.

On 28 December 2018 the UK signed and ratified the Hague Convention by submitting the Instrument of Accession. In accordance with the Withdrawal Agreement, the UK withdrew the Instrument of Accession on 31 January 2020. The UK intends to deposit a new Instrument of Accession "at the appropriate time" prior to the termination of the transition period.

The scope of the Hague Convention is however limited. First of all, the Hague Convention only applies to disputes in which the parties concluded an exclusive choice of court agreement (article 1). This excludes most non-contractual disputes. Second, the Hague Convention excludes a variety of matters from its scope, including anti-trust matters (article 2). Thirdly, also the temporal application is limited. The Hague Convention only applies to exclusive choice of court agreements concluded after its entry into force for the State of the chosen court (article 16 Hague Convention). This means that the Hague Convention shall only apply in cases in which parties agreed to the exclusive jurisdiction of a UK court, when such agreement was entered into after The Hague Convention was entered into by the UK (likely after 31 December 2020).

Solution 3 - A fallback for the Netherlands: the re-use of an old Bilateral Convention

In case of a no deal scenario, the Bilateral Convention of 17 November 1967 between the Netherlands and the UK regarding the recognition and enforcement of judgments in civil matters (the "Bilateral Convention") can be dusted off. On the basis of this Bilateral Convention, English court judgments will be recognised and enforced in the Netherlands without a full re-litigation. However, it will not be as simple as under the Recast Brussels Regulation, because on the basis of the Bilateral Convention an exequatur procedure will be necessary. In this exequatur procedure, leave to enforce will have to be granted by the Dutch Court. Although these proceedings will not be a full re-trial (as there are limited grounds for the Court to refuse granting the leave to enforce), such proceedings will take extra time and costs.

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