That Brexit has enormous consequences for European-British trade relations and the free movement of goods and persons needs no further elucidation. The United Kingoms exit from the European Union has also meant that the United Kingdom is no longer bound by European regulations, such as the Brussels Ibis Regulation. This regulation regulates, among other things, the enforcement of judgments in civil and commercial matters. The advantage of Brussels Ibis is that a judgement from an EU Member State is automatically recognised throughout the European Union and can therefore be enforced without court intervention, provided the judgement was pronounced after 10 January 2015 (Art. 66 Brussels Ibis).
Now that the United Kingdom is no longer bound by Brussels Ibis, the enforcement of Dutch judgments in the United Kingdom gives rise to some complications. The main question is whether a Dutch judgment can still be (easily) enforced in the United Kingdom without intervention.
Proceedings before January 1, 2021
A transition period has been arranged for certain cases. Judgments rendered in proceedings initiated before January 1, 2021 still fall under the Brussels Ibis Regulation, as is apparent from article 67 of the Withdrawal Agreement. If a judgment is passed in such proceedings, it can still be enforced in the United Kingdom without any problems.
Proceedings after December 31, 2020
However, this changes for proceedings initiated after December 31, 2020. Brussels Ibis will then no longer apply to these cases, so there will be a return to an older treaty from 1969 between the United Kingdom and the Netherlands on the mutual recognition and enforcement of judgments in civil matters. Although this convention mutually recognises Dutch and British judgements, it also states that enforcement can only take place after the court has given its consent. Article VI of this Convention states that ‘before a judgment given in the territory of the Kingdom of the Netherlands can be enforced in the United Kingdom, the creditor must apply, in the manner prescribed by the court seised, for its registration’. This application must be accompanied, inter alia, by a certified copy of the complete judgment bearing the court’s stamp.
Conversely, Article VI states that, “before a judgment given in the territory of the United Kingdom can be enforced in the Kingdom of the Netherlands, the creditor must apply, in the manner prescribed by the court seised, for leave to enforce the judgment in the district where the debtor is domiciled or has assets.” This is a big step backwards, as the enforcement of judgments will no longer be automatic.
The Hague Convention on Jurisdiction and Enforcement is also important. The United Kingdom will be bound by this convention as of January 1, 2021. This convention only deals with the case where parties have agreed to an exclusive choice of forum. If the relevant court chosen by the parties delivers a judgment, this judgment will also be recognised in another country that is party to the Hague Choice of Court Convention. However, it does not follow from this Convention that a country is also obliged to accept a recognised judgement without court intervention. Thus, the Hague Choice of Court Agreement does not provide any guarantees.
The United Kingdom has also requested accession to the Lugano Convention. Accession to this convention would ensure that, among other things, the EU rules on jurisdiction and the recognition and enforcement of judgments continue to apply, albeit at a slightly lower level than that of the Brussels I bis Regulation (i.e. at the level of the old Brussels I Regulation. It also lacks the immediate enforcement of a judgement of the courts of another Member State. The requested permission for accession has not yet been granted by the European Union (itself a contracting party to this convention). At the moment it is also unknown when the European Union can be expected to take a position on this.
Judgments rendered in respect of proceedings instituted before 1 January, 2021 still fall under the Brussels Ibis Regulation. For judgments rendered after 30 December, 2020 however, parties will have to go to the English court to request permission for enforcement (and vice versa).
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