The United Kingdom’s exit from the European Union

The United Kingdom’s exit from the European Union has presented significant issues in a  variety of areas of law, none more so than private international law. Before Brexit, the Brussels  I Recast Regulation (Regulation (EU) 1215/2012) controlled the recognition and enforcement  of judgments throughout the EU, ensuring mutual recognition, simplifying jurisdictional  requirements, and providing companies with commercial certainty. That framework expired  for the UK on December 31, 2020, and in its stead is a hodgepodge of common law, selective  conventions, and domestic regulations. This article examines the post-Brexit system for the  recognition and enforcement of foreign judgments in the UK. It begins by outlining the pre Brexit legal situation before delving into the transition phase and subsequent dependence on  the Hague-Convention 2005. It then looks at the constraints of common law recognition, the  UK’s failed effort to rejoin the Lugano Convention, and the significance of the Hague  Judgements Convention 2019. A comparison with EU Member States’ domestic laws reveals  the fragmented reality of enforcement. The essay then assesses the emergence of arbitration as  a substitute for court judgements, examines the policy trade-offs between sovereignty and  business certainty, and investigates potential hybrid reform options. Enforcement between the  United Kingdom and the European Union. Unless the UK takes a more aggressive approach to  multilateral mechanisms and bilateral treaties, London risks losing its status as the main  location for cross-border dispute settlement. 

The Brussels I Recast Regulation (1215/2012) served as the foundation for judicial cooperation  in civil and commercial proceedings across the EU. It abolished exequatur processes,  simplified jurisdictional norms, and enabled the automatic recognition of judgments among  Member States. The regime was based on confidence among courts, with few grounds for  denial, such as public policy or procedural irregularity.1 For the United Kingdom, Brussels I  Recast proved especially useful. London courts drew litigants from all over the world, who  were sure that judgments would be easily transmitted throughout the EU. This strengthened the  UK’s position as a worldwide legal hub and provided business actors with stability. Following  Brexit, the UK acceded to the Hague-Choice of Court Agreements Convention 2005, which  assures the execution of judgments based on exclusive jurisdiction agreements.2

This instrument, however, has a more limited reach than Brussels I Recast. It applies only where an  exclusive jurisdiction provision is clearly accepted and excludes major subject areas such as  insolvency, consumer contracts, and employment disputes.3 While beneficial for some business  transactions, the Hague Convention cannot replace the full framework lost with Brussels I  Recast. Many transactions are not covered by exclusive jurisdiction agreements, and even when  they are, interpretation problems exist about what “exclusive” means in practice. 

In April 2020, the UK sought to join the Lugano Convention 2007, which provides Brussels style recognition to EFTA nations (Switzerland, Norway, Iceland) and, if granted, other  countries such as the UK. However, the EU rejected the proposal in May 2021.4 The European  Commission said that Lugano membership is designated for countries with tight regulatory  convergence with the EU internal market. The United Kingdom, which chose regulatory  divergence, was judged ineligible. This refusal was a big setback. Without Lugano, the UK has  no complete regional framework with either the EU or EFTA. The ruling emphasises the  political character of post-Brexit legal relations, since technological remedies are limited by  larger sovereignty issues. In the absence of international frameworks, the UK today relies on  common law standards to accept and enforce foreign judgments. According to these guidelines,  a foreign judgment is enforceable if the foreign court had jurisdiction under English conflict 

of-law standards. The decision is final and decisive. The judgment is for a certain amount of  money. Fraud, a violation of natural justice, and public policy are all possible defences.5 While  adaptable, this approach is slower, more expensive, and less predictable than Brussels I Recast.  Parties must frequently launch new processes, resulting in redundancy and ambiguity.  Furthermore, common law reciprocity is not guaranteed; while English courts can enforce  foreign judgments, other countries may not do the same. The post-Brexit framework generates  commercial uncertainty. A London court judgement may no longer be automatically enforced  in Paris, Frankfurt, or Madrid. This reduces the appeal of using English courts in cross-border  contracts. Businesses may respond by transferring jurisdiction terms to EU courts, such as Paris  or Amsterdam, or by opting for arbitration. The long-term danger is that English law will play a smaller role in international trade, hurting the legal services sector, which contributes billions  of pounds to the UK economy each year.6 

A crucial post-Brexit development is the revival of arbitration. The New York Convention of  1958 protects the enforcement of arbitral rulings in over 170 jurisdictions, including the United  Kingdom and EU member states.7 This gives assurance that judicial judgments lack. Strong  institutions in London include the London Court of International Arbitration (LCIA) and the  London Maritime Arbitrators Association (LMAA). Their caseloads remain strong, demonstrating faith in arbitration as a conflict resolution process. However, arbitration isn’t  always the best option. It may be more expensive, slower, and inappropriate for cases involving  insolvency, consumer protection, or regulatory difficulties. Furthermore, arbitration limits the  quantity of court decisions, thereby undermining the development of English business  jurisprudence—a long-term competitive advantage of the common law system. Without  Brussels I Recast, each EU Member State applies its own local law to UK judgments. The  consequence is a disjointed patchwork. France and Germany need exequatur processes, which  may include substantive review. The Netherlands has more open standards, generally  respecting foreign judgments unless they contradict governmental policy. Spain and Italy have  extensive procedural restrictions, which can cause delays in enforcement. This discrepancy  drives up legal expenses and uncertainty. A claimant enforcing the same English judgment in  three different Member States may confront three distinct legal processes, reducing efficiency. 

The Hague Judgements Convention 2019 has the potential to re-establish reciprocity. It allows  for the recognition and enforcement of judgments among contracting nations, with some  exceptions (such as defamation, intellectual property, and antitrust).8 The UK has shown an  interest in joining, and the EU has signed but not yet approved. If both ratify, predictability  may return. However, the Convention lacks the automaticity and scope of the Brussels I Recast.  It’s a useful but imperfect solution. Brexit represents a yearning for sovereignty, but sovereignty under private international law might jeopardise business stability. The Brussels I Recast  requires the UK to adopt EU laws in return for mutual recognition. Following Brexit, the UK  enjoys regulatory independence, but at the expense of fragmented enforcement. This trade-off  creates a policy quandary: should the UK give up some autonomy by signing new accords, or  should it emphasise sovereignty regardless of the economic costs? The government’s choice  not to seek alignment mechanisms prioritises politics over trade. Predictability, on the other  hand, is more important to businesses than sovereignty. A simple comparison illustrates the  various models: In the United States, state law governs the recognition of foreign judgments,  which is frequently based on the Uniform Foreign-Country Money Judgement Recognition  Act. Despite differences, the reciprocity and comity principles give predictability. Singapore  uses both common law and statutory recognition systems, with bilateral treaties augmenting  them. Its adaptable yet pragmatic approach strengthens its attractiveness as a conflict resolution  centre. EU: Continues to enjoy Brussels I Recast internally to ensure the seamless flow of  judgments. Compared to these systems, the UK stands out for its regulatory isolation following  Brexit. 

The Hague Judgements Convention 2019 was created to bridge the worldwide gap by  establishing a multilateral mechanism for the recognition and execution of court judgements,  similar to what the New York Convention accomplishes for arbitration awards. The United  Kingdom has indicated interest in acceding, although progress is slow. The EU has previously  signed the Convention but has yet to finish the ratification procedure. If both the UK and the  EU ratify, the Convention might restore some kind of reciprocity in judgment enforcement.  However, the Convention is narrower than the Brussels I Recast. It excludes certain topics,  such as defamation, intellectual property, and parts of competition law. Furthermore, it lacks  the automated enforcement tools and advanced jurisdictional norms that made the Brussels I  Recast so effective. The political dimension cannot be overlooked. The EU may be hesitant to  grant the UK the benefits of easier enforcement without matching commitments, especially  given the UK’s opposition to wider integration mechanisms after Brexit. Until these  impediments are overcome, the Hague Judgements Convention will remain a squandered  opportunity rather than a viable solution. A promising path ahead is a mixed  approach: Selective bilateral accords with key EU countries (France, Germany, and the  Netherlands). Multilateral participation is achieved through institutions such as the Hague Convention. Domestic improvements to make English courts more appealing (e.g., digital processes, fast-track enforcement). Such a policy strikes a compromise between sovereignty  and practicality, preserving London’s status as a global dispute settlement hub. 

Brexit was primarily motivated by a political desire for regulatory autonomy and sovereignty.  However, in the context of private international law, sovereignty frequently clashes with  commercial certainty. Under Brussels I Recast, the UK gave up some choice over jurisdictional  norms and recognition requirements in return for consistent enforcement across the EU.  Following Brexit, the UK recovered complete control of its conflict-of-laws framework, albeit  at the expense of fragmenting cross-border enforcement. This trade-off presents an important  policy question: should the UK pursue bilateral and multilateral agreements to restore  predictability, even if it means giving up some autonomy, or should it prioritise sovereignty  regardless of economic costs? The government’s reluctance to rejoin the Lugano Convention  exemplifies this conundrum. Membership in Lugano would have re-established a solid  enforcement framework with the EU and EFTA nations; however, political reasons prompted  the EU to reject the UK’s application. Critics claim that the UK has allowed political pride to  trump actual economic needs. For companies, legal certainty is more important than abstract  sovereignty. A bank lending across borders, or a supplier engaging into long-term contracts,  wants confidence that a judgement will be enforced without undue delay or cost. The current  situation falls short of this, implying that the UK’s policy calculus may need to tilt towards  pragmatism. 

In the end, Brexit has profoundly changed the environment for recognition and execution of  foreign judgments in the United Kingdom. The loss of Brussels I Recast and the inability to  win Lugano membership have left firms negotiating a fragmented system of common law, the  Hague Convention 2005, and inconsistencies in EU domestic legislation. Arbitration provides  predictability, but at the expense of limiting judicial evolution. The UK must make a strategic  decision: continue to prioritise sovereignty above predictability or embrace a hybrid form of  bilateral and multilateral accords to restore economic trust. This option will determine London’s  future as a major global legal hub.

Reference(S):

1 Council Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and  enforcement of judgments in civil and commercial matters (Brussels I Recast) [2012] OJ L351/1. 

2 Hague Convention on Choice of Court Agreements (concluded 30 June 2005, entered into force 1  October 2015).

3 T C Hartley and M Dogauchi, Explanatory Report on the 2005 Hague Choice of Court Agreements  Convention (Hague Conference on Private International Law 2007). 

4 European Commission, ‘Statement on the Lugano Convention’ (2021). 

5 Dicey, Morris and Collins, The Conflict of Laws (16th edn, Sweet & Maxwell 2022).

6 TheCityUK, ‘Legal Services 2023: Contribution to the UK Economy’ (Report, 2023).

7 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958). 

8 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial  Matters (concluded 2 July 2019).