Available in other languages: français
Mind the gap? Enforcing transition-period UK judgments in Switzerland revisited
Shortly after our update on “Enforcing judgments in England and Switzerland post-Brexit”, on 24 February 2021 the Zurich District Court handed down a decision on an application to enforce a judgment of the English High Court made in September 2020. This was a request to apply the Lugano Convention after the end of the UK’s transition period with respect to its withdrawal from the EU to a UK judgment rendered during the transition period.
During the transition period, by Articles 127(1) and 129 of the EU/UK Withdrawal Agreement, the UK and the EU agreed that “Union Law” and international agreements concluded by the EU would remain binding and in effect. On this basis, given the EU (and not the UK directly) is a signatory to the Lugano Convention, it seemed tolerably clear that during the transition period itself the Swiss courts should (as the federal Direction des affaires européennes advised) treat the UK as remaining a party to the convention.
As we set out in our 11 February update, the Office fédéral de la justice (OFJ) considers that following the end of the transition period Swiss courts will continue to enforce UK judgments given before the end of the transition period under the Lugano Convention rather than under Swiss domestic law (ie PILA – see Impact of Brexit on the Lugano Convention). The OFJ consider this to be so on the basis of “general principles of international and civil procedural law (droits acquis, prohibition of retrospective legislation and legal certainty requirement), which have inspired art. 63 of the Lugano Convention and art. 197 PILA.”
However, the Zurich District court has disagreed with the OFJ’s view, holding simply that from 1 January 2021 the Lugano Convention ceased to be applicable to the UK and so enforcement of UK judgments from that date is a matter of Swiss domestic law alone. The Zurich court noted that article 63 of the Lugano Convention provides for transitional measures for acceding states, not seceding states, but did not analyse the wider principles cited by the OFJ.
Whilst the position regarding the enforcement of UK judgments made during the transition period in EU countries is clear as a result of Article 67 of the Withdrawal Agreement, which provides that the Brussels Regulation will continue to be given effect in Member States and the United Kingdom in respect to “the enforcement of judgments given in legal proceedings instituted before the end of the transition period,” there now appears to be uncertainty with respect to the position in Switzerland given there is no equivalent provision to Article 67 of the Withdrawal Agreement expressly for the Lugano Convention.
As we continue to monitor developments in the Swiss courts that might resolve this uncertainty, clients wishing to enforce judgments in Switzerland may rest assured that notwithstanding this case the Swiss courts will continue to enforce English judgments under either procedure without significant difference in time or cost. Once the position has been clarified we will provide a further update and, in the meantime, will be happy to discuss with you enforcement issues in general.
LIDW21: A view from London and India - How dispute avoidance can keep construction and infrastructure plans on track
Join us as we discuss the challenges of the possible rise in disputes in the construction and infrastructure sector in India
The Lawyer, New Law Journal, International Adviser, CDR Magazine and eprivateclient report on the firm's partner promotions
Charles Russell Speechlys promoted five lawyers to partner, effective 1 May 2021.
Recent Trends In Firewall Legislation: BVI, Bermuda And Gibraltar
Charles Russell Speechlys promotes five to Partner
The promotions are effective 1 May 2021 and are accompanied by one Legal Director and 15 Senior Associate promotions.
ICC 2021 Rules
The ICC has recently updated its rules for arbitration: the new rules entered into force on 1 January 2021 (the “2021 Rules”).
The Lugano convention – the journey continues
The UK’s departure from the European Union has had the effect of leaving the UK outside of the Lugano Convention of 2007.
Adding claimants pre-service and amending outside the limitation period: pitfalls for the unwary
Sonia looks at a recent High Court judgment and its important guidance on the ability of claimants to be added to a claim before service
Joe Edwards, Simon Heatley and Lauren Kelly write for Practical Law on damages-based agreements
Law firms entering damages-based agreements face a catch-22.
Damages-based agreements: an island of clarity in changing seas
Simon, Joe and Lauren look at a recent judgment which is a welcome island of clarity in the damages-based agreement sea of uncertainty.
Patrick Gearon FCIArb
Insolvency Legislation in the GCC
The interesting times of the last 14 months were preceded by the interesting times of the financial crisis of 2008/2009.
Guidance where Domestic Abuse alleged
Rhys Novak quoted by Citywealth on the ways companies can combat potential issues of fraud
Is fraud on the rise and should investors be wary?
Bribery & Corruption team successfully act in Italian bribery prosecution
Helen Coward, Hugh Gunson and Guy Bud write for Tax Journal on remuneration arrangements in partnerships with mixed membership
Odey Asset Management LLP and HFFX LLP consider the law relating to remuneration arrangements in partnerships with mixed membership.
The rise of cost sanctions in family law proceedings (even against successful parties!)
CIS General Insurance Limited v IBM United Kingdom Limited - An analysis
Slow and chaotic – lessons from a digital transformation disaster in CIS General Insurance Limited v IBM United Kingdom Limited.
eprivateclient and Wealth Briefing cover the news of the hire of tax specialist Annika Fünfschilling in Zurich
Annika joined as a Senior Associate in the firm's Zurich office on 15 March 2021.
Charles Russell Speechlys develops Zurich offering with the hire of Annika Fünfschilling
Annika is an attorney-at-law and Swiss certified tax expert, and becomes the first Swiss-qualified lawyer working from the Zurich office.
Stewart Hey featured in The Lawyer's reporting on the post-Brexit disputes landscape in the UK
Post-Brexit, the importance of making sure contracts have certainty with regards to jurisdiction and enforcement has never been greater.
Ghassan El Daye
Ghassan El Daye quoted by The National on the Dubai courts rejection of Dh1.3m rent refund claim
A convenience shop in Dubai lost its claim to a rent refund of Dh1.3 million from its landlord on grounds of lost revenue during lockdown.