The Impact of Brexit on Litigation, Update No. 3

Nino Sievi
Nino Sievi

Time is running out, and the UK still has not reached an agreement with the EU on their future relationship after the transition period. The end of the transition period will also have consequences for litigation between Swiss and British parties.

Ruling of Zurich High Court on applicability of Lugano Convention to judgments rendered during transition period

Recently, the Zurich High Court has ruled that the Lugano Convention applies to the enforcement of an English judgment rendered during the transition period (the judgment is available here). The reasons given for this ruling are, however, rather superficial. As expanded on in an earlier post, there are various arguments to be put forth against such position. It remains to be seen which position the Swiss Federal Tribunal will favour.

Application of national law after end of transition period becomes inevitable

As reported in an earlier post, the UK has applied to reaccede to the Lugano Convention. However, such reaccession requires the consent of all existing contracting States (in particular, the EU). So far, the EU has not given its consent for the UK to rejoining the Lugano Convention. It is now too late for the UK to rejoin the Lugano Convention before the end of the transition period on 31 December 2020, as a three-month delay applies between reaccession and entry into force of the convention.

In anticipation of this, the UK and Norway have agreed that their pre-existing convention on the reciprocal enforcement of judgments should revive for as long as the Lugano Convention no longer applies (the agreement is available here, Switzerland has so far not publicly expressed its intention to enter into a similar bilateral treaty with the UK. Further, Switzerland is, contrary to the UK, not a party to the Hague Convention on Choice of Court Agreements.

Accordingly, there will be at least a period of time after the end of the transition period when the enforcement of judgments as between the UK and Switzerland will be governed by national laws (notably, the Swiss Federal Act on International Private Law). The consequences of this have already been discussed in an earlier article.

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