With the United Kingdom (UK) potentially set to leave the European Union (EU) on 31 October 2019, or at a later date should a further extension be granted, a different set of rules governing jurisdiction as well as the recognition and enforcement of UK judgments in Switzerland may apply. This Briefing provides an overview of the main effects that Brexit will have on civil and commercial litigation in Switzerland in connection to the UK.
Applicable Laws in Switzerland following Brexit
As an EU Member State, the UK is currently bound by the 2007 Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Lugano Convention). However, withdrawal from the EU strips the UK of its membership of the Lugano Convention regime.
Whether the latest withdrawal agreement reached with the EU (Withdrawal Agreement) is duly ratified or a No-Deal Brexit (or so-called 'hard Brexit') occurs will determine the applicable transition period, if any. On the one hand, the ratification of the Withdrawal Agreement by the UK (in its current version as of the day of this Briefing) would extend the applicability, vis-à-vis the UK, of international agreements concluded by or on behalf of the EU at least until 31 December 2020. As a result, the EU would notify Switzerland, as a Member State of the Lugano Convention, that during the above transition period, the UK is to be treated as a Member State. On the other hand, a No-Deal Brexit would in principle spell an immediate end to the applicability of the Lugano Convention in relation to the UK.
Given the uncertainties surrounding the ratification of the Withdrawal Agreement, both the UK and the EU have issued guidance on the possible legal repercussions in the event of a No-Deal Brexit. In its Notice to Stakeholders dated 18 January 2019, the European Commission stated that the EU rules on international jurisdiction will continue to apply only to proceedings that have been commenced pre-Brexit. Likewise, the EU rules on enforcement will no longer apply to UK judgments - even where the exequatur proceedings have been commenced prior to the withdrawal date - unless the UK judgment in question has already been duly recognized and declared enforceable (i.e. 'exequatured') prior to Brexit. For its part, the UK has opted unilaterally to continue applying the Lugano Convention regime in matters of jurisdiction, recognition and enforcement of EU and Lugano Member States' judgments...