On 31 March 2022, the EU Commission disclosed that it has been working on a proposal for a bilateral treaty to be concluded with the UK focused on recognition and enforcement of foreign judgments.
The purpose of the treaty would be to facilitate the circulation of judgments between the EU and the UK. It would not be a double convention and thus would not include rules governing the (direct) jurisdiction of the courts of the Contracting States.
Scope
At the present time, the material scope of the treaty would be limited to civil and commercial matters. It would not, therefore, extend to family law.
Jurisdiction of the Foreign Court
The (indirect) jurisdiction of the foreign court would be assessed by a single flexible text. Foreign courts would be considered to have jurisdiction if there was a meaningful connection between the foreign court and the dispute. The French presidency might have pushed for adopting this test, which is currently applied in the French common law of foreign judgments.
In addition, a provision of the treaty would clarify that the test would not be satisfied if the foreign court had retained jurisdiction on the basis of a number of exorbitant rules of jurisdiction that would be identified. This list seems to be clearly inspired for the red list of the Brussels instruments.
Public Policy Exception
The public policy clause is probably the most innovative provision of the treaty. It would be applicable in principle, unless “actual mutual trust” could be found to exist between the relevant EU Member State and the UK.
A provision would then identify cases where such “actual mutual trust” would be presumed.
This would be the case for all judgments circulating between France and the UK, because France participates in the 6 Nations Rugby Championship (so-called “scrum proviso”).
The scrum proviso would apply between Italy and the UK for judgments rendered 32 days after Italy would win its first Championship or would win in Twickenham by more than 20 points.
More details on the draft treaty are available here.
That’s kind of a crunchy piece of news.
Mutual trust with Germany will be established only after England has won a penalty shoot-out at least once.
I understand that this first draft was very much influenced by the French presidency, so it is indeed time for other Member States to step in and propose amendments.