ANTWERP-BRUSSELS , 1 JANUARY 2021
THE IMPACT OF THE BREXIT DEAL ON THE ENFORCEMENT IN BELGIUM OF UK JUDGEMENTS AND AWARDS
AS A RESULT OF THE BREXIT, THE BRUSSELS I RECAST REGULATION WHICH PROVIDES FOR A SWIFT ENFORCEMENT OF A JUDGEMENT OF ONE EU MEMBER STATE IN ANOTHER NO LONGER APPLIES TO UK JUDGEMENTS. THE CHRISTMAS BREXIT DEAL DOES NOT PROVIDE FOR A LUGANO-LIKE AGREEMENT NOR ANY OTHER ARRANGEMENT PROVIDING FOR AN UNCOMPLICATED ENFORCEMENT OF UK JUDGEMENTS IN THE EU.
HOW DOES THAT IMPACT ON THE ENFORCEMENT OF UK JUDGEMENTS IN THE EU?
THE SHORT ANSWER IS THAT THE BREXIT WILL NOT SIGNIFICANTLY AFFECT THE ENFORCEMENT IN BELGIUM OF UK COURT DECISIONS: THE POST BREXIT SITUATION IS NOT EQUAL BUT COMPARABLE TO THE REGIME UNDER THE ORIGINAL BRUSSELS I REGULATION OF 2000.
THE BREXIT DOES NOT AT ALL AFFECT THE ENFORCEMENT IN BELGIUM OF UK ARBITRATION AWARDS.
EXIT BRUSSELS I RECAST
The Brexit causes the Brussels I Recast Regulation of 2012 (i) to become ineffective for the enforcement of UK judgements in the EU.
2005 THE HAGUE CONVENTION
The Convention on Choice of Court Agreements, done at The Hague on 30 June 2005 provides for the recognition and the swift enforcement, without review of the substance, of judgements given by a court of a Contracting State designated in an exclusive choice of court agreement in the Contracting States. Recognition or enforcement may be refused only on the grounds specified in this Convention. (Art. 8) The European Union approved and thus all the EU Member States are bound by this convention. The UK was bound as a Member State of the European Union. On 28 September 2020 the UK acceded on an individual basis.
Belgian courts will therefore apply this convention to judgements of UK courts if within the scope of the convention (exclusive jurisdiction clause).
1934 BILATERAL CONVENTION
Whether the 1934 bilateral Convention for the Reciprocal Enforcement of Judgements between Belgium and the UK (ii) will apply again is a disputed point of law. This convention provides, under conditions, for recognition and for a swift enforcement without review of the substance.
CODE OF INTERNATIONAL PRIVATE LAW (CIPL)
But, it matters little the matter at stake is within the scope of the 2005 The Hague Convention or whether that 1934 Convention will revive or not. Indeed, if not governed by such 1934 Convention, the Belgian Code of International Private Law (CIPL) (iii) will rule the enforcement.
Ex parte application
According to article 22§1 CIPL a foreign judgement, which is enforceable in the country where it was rendered, shall be rendered enforceable by the Court of First Instance judging upon an ex parte application to that end. (art. 1025 – 1034 Jud. Code referred to by art 23 CIPL)
Documents to file
The applicant shall, along with his application, only submit
– the judgement enforcement of which is sought;
– if the judgement is a default judgement, then the proof of service to the non- appearing party;
– a document showing the judgement is enforceable and notified or served.
No review on the substance
Grounds for refusal are limitative
The court shall not review the merits of the case (art. 25§2 CIPL). Art. 25§1 CIPL enumerates the nine grounds for refusing the enforcement in Belgium. In a nutshell, the enforcement will be refused if the judgement:
1. is manifestly contrary to Belgian public policy;
2. violates the rights of defence;
3. violates Belgian mandatory conflict of law rules;
4. can be appealed or otherwise challenged, (however the Belgian judge may nonetheless grant the provisional enforcement, and may thereby submit the provisional enforcement to the condition of posting security) (art. 23§4 CIPL);
5. is incompatible with a Belgian judgement or an earlier other foreign judgement;
6. rules on a dispute submitted earlier to a Belgian court and still pending;
7. is rendered on a dispute for which Belgian Courts had exclusive jurisdiction;
8. is rendered by a foreign court whose jurisdiction is solely based on the presence of defendant or its assets in country of such court but in a matter unrelated to such country;
9. is rendered in connection with a number of very specific provisions in respect of name of persons, divorce, adoption, intellectual property, existence, functioning, dissolution and liquidation of Belgian entities and insolvency.
The EU has not amended the provisions on the enforcement of foreign arbitration awards, so that the Brexit leaves unaffected the present system governed by the 1958 New York Convention. (vii)
Benoît Goemans, advocaat – avocat
Ph: +32 3 231 54 36
Goemans, De Scheemaecker & De Wit
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ENDNOTES, SOURCES OF LAW
(i) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; a recast of the Brussels I Regulation of 2000 (see endnote v).
(ii) Convention for the Reciprocal Enforcement of Judgements done at Brussels on 2 May 1934, superseded by Brussels I Regulation (Recast), by virtue of its article 69.
(iii) By virtue of its article 2, both EU law and international conventions overrule the CIPL. By virtue of article 25§2 CIPL the court shall not review the merits of the case. Article 25§1 CIPL restricts the basis for refusal to make the foreign judgement enforceable to nine grounds.
(iv) If the judgement is rendered by a court within a EU Member State, then, the enforcement thereof in Belgium will be governed by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, known as Brussels I Recast Regulation.
(v) If the judgement is rendered by a court in Switzerland, Norway or Iceland, then, the enforcement thereof, will be governed by the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Lugano on 30 October 2007. Its effects are materially the same as the Brussels I Regulation of 2000 and it governs the matters discussed here between the EU Member States, Iceland, Switzerland and Norway.
(vi) Convention on Choice of Court Agreements, done at The Hague on 30 June 2005 ratified by the EU, Denmark, Mexico, Montenegro and Singapore. This convention was also signed, but not (yet) ratified, by China, Ukraine and the USA.
(vii) Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958.