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Brexit: We Hate to See You Leave – Just Stay Around for a While

Today, 31 January 2020, at midnight (11 PM GMT), the United Kingdom will leave the European Union. This is a historic event with innumerable implications, amongst others, for private international law.

However, during the transition period – which expires earliest at the end of 2020 – most things will stay the same. This is thanks to the Withdrawal Agreement, which governs the UK’s divorce from the Union.

The UK will apply EU law, and the EU will, in principle, treat the UK as if it were a Member State (Article 127(1) and (6) of the Withdrawal Agreement). The main exceptions are some institutional provisions, e.g. the participation of the UK in EU bodies, where it will no longer have voting rights (see Article 7(1) and 128(1) of the Withdrawal Agreement).

What will happen after the end of transition period, nobody knows for sure, as the EU and the UK have just started negotiating their future relationship. However, the Withdrawal Agreement makes some provision for the post-transitional period.

Basically, the Regulations on Judicial Cooperation (Brussels I bis, II bis, Rome I, II, the Insolvency Regulation, the Maintenance Regulation, amongst others) will continue to apply to proceedings that have been “instituted” before the end of the transition period, i.e. before 31 December 2020 (Article 66-69 of the Withdrawal Agreement).

Naturally, those EU texts to which the UK was never subject will also not apply after 2020, such as the Succession Regulation.

These transitory provisions seem rather straightforward. However, as always, the devil is in the detail. For starters, it is not easy to determine when proceedings are ‘instituted’ (see this study for the European Parliament, p. 15-16). Moreover, Article 66-69 of the Withdrawal Agreement originally referred only to provisions on ‘jurisdiction’ and ‘recognition and enforcement’. The provisions regarding lis pendens have been later included at the beginning of Article 67 of the Withdrawal Agreement. This is not a model for clear drafting!

One must also not forget that Brexit will change the UK’s relation to non-EU Member States, such as Switzerland, Norway and Iceland. With the withdrawal from the EU, the Lugano Convention will no longer apply to the UK. As a consequence, British judgments will be subject to the recognition procedure under national law in the three Lugano States Switzerland, Norway and Iceland, and vice versa. This effect already applies as of tomorrow (1 February 2020)!

The Withdrawal Agreement between the EU and the UK has no impact on this, as it only concerns the relationship between those two parties. Article 129(1) of the Withdrawal Agreement binds the UK to “the obligations stemming from the international agreements concluded by the Union”, but cannot impose obligations on third parties.

The UK has, however, received assurances by Switzerland, Norway and Iceland that they support the UK’s accession to the Lugano Convention before the end of the transition period. What is missing so far is the EU’s consent.

One can only hope that the relevant political actors will come to their senses and reestablish the network of binding texts as soon and as comprehensively as possible. Judicial Cooperation is about much more than trade deals. It directly affects every day life of ordinary people.

1 comment on “Brexit: We Hate to See You Leave – Just Stay Around for a While

  1. Burkhard Hess

    I share the view that it is necessary to expressly address the future judicial cooperation between the European Union and the United Kingdom after the transition period of Brexit.

    However, the Lugano Convention is not suitable for future judicial cooperation after Brexit. From the perspective of the European Union, there is a great danger that the case law of UK courts will more and more deviate from the case law of the Court of Justice within the Lugano Convnetion. The mechanism of the Protocol no 2 to the Lugano Convention, which provides for an obligation to ‘pay due account’ of the case law of other Contracting Parties (including the CJEU), is an insufficient tool to keep the different procedural cultures of Civil and Common Law together. The Lugano Convention was never meant to bridge this divide. Furthermore, the case law of the UK might heavily impact on the interpretation of the Brussels regime as most cases (i.e. regarding choice of court agreements) are decided by the courts in London. Eventually, the ECJ might lose control over the development of the core instrument of European procedural law. In 2018, I published a paper where I express my doubts in more detail:

    Hess, The Unsuitability of the Lugano Convention (2007) to Serve as a Bridge between the UK and the EU after Brexit (January 17, 2018). MPILux Research Paper 2018 (2).

    Available at SSRN: or

    The European Union should very carefully consider the risks of extending the Lugano Convention to the United Kingdom. Maybe the (new) Hague instruments provide for transitorial solutions and a bilateral agreement will finally be much more preferrable.

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