Could the wait to find out if the UK's application to accede to the Lugano Convention soon be over? The truth is, that while there is some speculation that the question could be considered, or even concluded, at the European Council meeting due to take place on 21 and 22 October 2021, we still don’t really know what to expect.
Why does Lugano matter?
The Convention governs jurisdiction and the enforcement of judgments in civil and commercial matters between EU member states and Norway, Iceland and Switzerland. The UK applied to accede to the Lugano Convention in April 2020. So, a decision has been long awaited.
A final decision on the UK's application would be welcomed by the legal sector, and those involved in disputes with parties in the EU, particularly if the EU approves the application. In the absence of the Brussels (Recast) Regulation, which ceased to apply in the UK on 1 January 2021, Lugano would provide a framework for enforcing contractual choices of jurisdiction and the recognition and enforcement of judgments between the UK and EU member states.
What's happened so far?
The support of Norway, Iceland and Switzerland has been confirmed, and there have been positive indications from certain EU member states (although a small number have also stated their opposition). However, in spring this year, it was reported that the European Commission had issued a communication to the European Parliament expressing the view that the EU should not consent to the application.
In July, the Commission announced it had told the administrators of the convention, the Swiss Federal Council, that the EU was not in a position to consent to UK accession.
What's the current position?
The (recently replaced) Lord Chancellor and Secretary of State for Justice wrote to the Chair of the House of Lords Justice and Home Affairs Committee concerning the UK's application and the current impasse.
The letter confirms that the UK government expects that the European Commission will bring forward a formal proposal on which all member states can vote, in order to determine the EU's position on the application.
What happens in the meantime?
The letter states that the government is working with the legal sector to understand the impact of the UK not being a party to Lugano and future plans for international co-operation.
In the meantime, and absent applicable bilateral agreements, issues relating to jurisdiction and enforcement of judgments are determined under common law rules and, where applicable, the Hague Conventions.
This remains uncertain territory. There are reasons why conventions such as Lugano were entered into between member states, and a number of other countries. The conventions offer coherent and consistent frameworks for parties to work within. In contrast, without Lugano, it can be challenging to establish which rules apply to a particular case; common law rules differ from jurisdiction to jurisdiction and may not be straightforward or helpful.
It seems that, for the moment at least, the UK's application remains a case of "watch this space".
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