2nd June 2021
The EU-UK Trade and Cooperation Agreement  is silent on the topic of judicial cooperation in civil and commercial matters. The UK has applied to join the 2007 Lugano Convention  but, on 4 May 2021, the European Commission recommended to the Council of the EU that the UK’s accession application be refused. With the exception of ongoing proceedings, pre-Brexit arrangements regarding jurisdiction and the mutual recognition and enforcement of judgments between the UK and EU no longer apply, so where does that leave commercial parties wishing to pursue court proceedings and enforce judgments between the different jurisdictions?
In this briefing, Walker Morris’ Gwendoline Davies, Nick Lees and Nick McQueen, who specialise in the resolution of commercial and cross-border disputes, provide up-to-date practical advice.
As a partial solution, the UK has acceded in its own right to the Hague Convention on Choice of Court Agreements, which gives effect to exclusive jurisdiction clauses and provides for the recognition and enforcement of resulting judgments.
However, while the UK intends to apply the Hague Convention to exclusive jurisdiction clauses agreed from 1 October 2015 , the European Commission has indicated its belief that Hague will only apply to exclusive English jurisdiction clauses agreed from 1 January 2021.
Where Hague does not apply (for example, in some situations involving consumers or other non-corporate parties, or in cases involving ‘one-way’ or ‘asymmetric’ jurisdiction clauses ), or where parties are EU-domiciled, there is a risk that exclusive jurisdiction clauses in favour of the English courts may not be effective if proceedings are commenced in the EU first. For further information and advice on this issue (and the possible resulting ‘race’ to be the first to issue proceedings to gain a jurisdictional advantage), please see our earlier briefing.
When deciding whether to uphold a non-exclusive jurisdiction clause and enforce any resulting judgment, EU member state courts will apply the laws of that individual member state. In the majority of cases enforcement will still be possible, but will most likely involve additional time and cost.
In relation to asymmetric jurisdiction clauses, some EU member state courts have refused to uphold them at all. It is possible that there will be an increase in jurisdictional challenges as a result.
Commercial parties may wish to note the following practical advice:
Walker Morris’ Commercial Dispute Resolution specialists are experienced and expert in resolving cross-border disputes – whether that be in the context of international litigation, arbitration (two of our partners are Fellows of the Chartered Institute of Arbitrators) or commercial negotiation. Walker Morris also has excellent working relationships with firms in all key jurisdictions across the EU and globally.
If your business trades or operates internationally and if you would like any further information, assistance or advice in relation to your commercial contract arrangements and/or any dispute resolution options or strategy, please contact Gwendoline Davies, Nick Lees or Nick McQueen, all of whom will be very happy to help.
 which was applied provisionally as from 1 January 2021 and entered into force on 1 May 2021
 which broadly replicates the pre-Brexit regime for jurisdiction and enforcement of judgments between the UK and the EU
 the date on which the EU – then including the UK – acceded to the Hague Convention
 that is, clauses which require one party to litigate in a specific jurisdiction but allow the other party to bring claims wherever they wish
 service of proceedings on an EU-based party remains possible, but is now likely to be less efficient and more costly