Brexit and the Government White Paper: Are the Civil Judicial Cooperation plans Realistic?

In this blog, which follows on from Philip Mead’s recent post explaining the legal implications the Government’s recent White Paper (Cm 9593), Patrick Vincent suggests that the Lugano Convention has been wrongly worded and wrongly translated – but that even if corrected it will not help the UK achieve post-Brexit civil judicial cooperation with the EU.

Currently civil judicial cooperation between Member States is achieved by their being subject to Regulation (EU) No 1215/2012 (“Brussels Recast”). Pursuant to section 3(1) of the European Union (Withdrawal) Act 2018, Brussels Recast will be assimilated into UK law on Exit Day.

That move will provide the UK courts with some basis upon which to resolve issues of jurisdiction and enforcement that come before them. It will not, however, provide UK citizens or corporations with any apparatus enabling them to enforce judgments or establish jurisdiction in EU member states. It is clearly imperative that such an apparatus is in place on Exit Day to avoid the UK being left in jurisdictional limbo.

The Government’s plans in relation to this potential problem are set out in section 1.7.7 of the White Paper. They are, in summary:-

• Sign up to the Lugano Convention, and
• Negotiate a new bilateral agreement that goes further than Lugano encompassing, for example, applicable law, insolvency and family matters. A sort of Super Lugano.

With 8 months to go until Exit Day, it is worth looking at what must be achieved in that timescale.

Acceding to the Lugano Convention

Articles 69 to 79 of the Lugano Convention provide a range of mechanisms for accession by three classifications of State; States joining EFTA, States acting on behalf of non-European Territories and other States. On the assumption that the UK is not going to be joining EFTA, it is in the third category. By Article 73.2, such a State becomes a Contracting Party to the Convention on the first day of the third month following the deposit of an instrument of accession with the Convention Depository.

So, working backwards, in order for the UK to be a Contracting Party on the day after Exit Day (30^th March 2019) it must have that status by the 1^st March 2019. In order to achieve that, it must have deposited its instrument of accession in December 2018. This all assumes that the difficulties of the UK being a member state of the EU and an individual signatory to the Lugano Convention for the period 1^st – 29^th March 2019 can be overcome.

Working still further back, the deposit of an instrument of accession by an acceding State must be preceded by an invitation from the Depositary to accede. Article 72.3 provides that the invitation can only be issued if the Depository obtains the unanimous agreement of the existing signatories (“the Contracting Parties”). Further, the invitation must be preceded by the acceding State providing the Depository with the material and information set out in Article 72, and the Depository circulating that information to the Contracting Parties (Article 72.2).

Article 72.3 is curiously worded in that the first sentence appears to make the unanimous agreement of the Contracting Parties a precondition of an invitation to accede being issued, but the second sentence provides that the Contracting Parties should “endeavour to give their consent at the latest within one year after the invitation by the Despositary” thus implying that a Contracting Party’s consent can follow rather than precede the issue of an invitation to accede.

Article 72.4 appears to provide that Contracting Parties can object to a proposed accession, and thereby not have their relations with the acceding State governed by the Convention, after the deposit of that acceding State’s instrument of accession.

At this point one begins to suspect that the original French version of the Convention contains an error, and that the English translation is flawed. The author’s hypothesis is that:-

• Article 72.3, second sentence incorporates an error in the original French. It was intended to provide that Contracting Parties would give their consent within a year of the information – not “invitation” sent by the Depository. That is likely because, firstly, correcting the error deals with the frank inconsistency between the first and second sentences and, secondly, because the original French (but not the English translation) qualifies the (wrong) word “invitation” with the word “addressée” (sent) – a concept that chimes with the preceding Article 72.2 which speaks of “information” being “transmitted” to the Contracting Parties before inviting a State to accede. In other words, what was intended was that a state wishing to accede should send its information to the Depository, the Depository would send that information to the Contracting Parties, and the Contracting Parties would provide consent within one year of being sent that information (not “invitation”).
• The second sentence has been mistranslated in that the words “…endeavour to…” imply that it is optional for the Contracting Parties to give their consent within a year (or at all). This is not an accurate translation of the phrase “font en sorte” in the original French version. The correct translation would be that existing signatories “shall” or “must make sure” that that they give their consent within a year of receiving the Article 72.2 information from the Despository.
• How does Article 72.4, without prejudice to which Article 72.3 is expressed to be drafted, fit in with this construction? Article 72.4 only really makes sense if its effect is that consent to the issuance of an invitation to accede is assumed if not forthcoming from a Contracting Party within a year of its receipt of the Article 72.2 information from the Depositary, but that it if a Contracting Party nevertheless does raise an objection to accession (despite having remained silent for a year as to whether an invitation to accede should be issued) before the first day of the third month following the deposit of the accession instrument, the Convention will be of no effect as between that Contracting Party and the acceding State.

Doubting both the wording of the original French version, and its translation into English, is a radical position. However, without the approach contended for above, it is difficult to see how the relevant Articles make sense, or offer a practical route to accession.

Furthermore, this approach finds some support in the European Council’s Explanatory Report on the Lugano Convention authored by Professor Fausto Pocar (2009/C 319/01). In section 187 of the Report, dealing with Accession, he analyses the routes by which accession can be achieved by the three categories of state identified above. Professor Pocar’s description of the route to accession by the third category, as set out in Article 72 of the Convention:

• Appears to support the view that the one year period for Contracting Parties to consent is related to the transmission to them of relevant information by the Depositary; he says “…other States wishing to accede must provide the Despositary with information…The Depositary transmits this information to the other Contracting Parties, whose consent to the accession is needed; they undertake to endeavour to give it at the latest within one year.” Within one year of what? He must mean, and the Convention must have intended, that the consent would be due within one year of the transmission of the information not the (or any) invitation.
• Preserves, however, the concept of the Contracting Parties endeavouring rather than ensuring the delivery of their consent within a year. It is respectfully submitted that this is an error. The one-year period must in fact be a longstop after which silence is to be taken as the consent necessary for unanimity to be present, and an invitation issued. Otherwise a Contracting Party could “endeavour” to give consent for many years without actually doing so, thus delaying the process of accession indefinitely.
• Accepts that the intention was for Contracting Parties which fail to give consent to nevertheless not be bound by the Convention in relations with the acceding State, as long as an objection is raised to that State’s accession before the date on which accession takes effect.

The point for the UK is that the Contracting States have (or will have if the Convention needs and receives revision to reflect the wording/translation errors identified above) a year to object to the UK joining even if the Depository was to disseminate information about the UK legal system tomorrow. No invitation to join will be forthcoming before that year has expired.

In those circumstances the words at Paragraph 147 of the White Paper “…the UK will therefore seek to participate in the Lugano Convention after exit.” ring rather hollow to those of us advising clients as to the value of any judgments they may obtain against foreign defendants in the meantime. There is not enough time. As matters stand, Civil and Judicial Cooperation is one of the legal benefits currently enjoyed by UK corporations and individuals which is destined to go over the cliff on Exit Day.

It may well be possible for the Contracting Parties, if unanimously inclined to do so, to revise the Convention to grant the UK “Direct Entry” into Lugano on Exit Day – but evidence of the UK proposing any such step, or drumming up sufficient goodwill to make such a course attractive to the Contracting Parties, is thin on the ground.

As for Super Lugano – the new bilateral agreement with the EU proposed in paragraph 48 of the White Paper – it would be a good idea for a post-Exit Day UK to be a party to such an agreement. The Lugano Convention is not an ideal means of achieving civil judicial cooperation between the UK and the EU after Brexit for the reasons clearly set out in the paper by Professor Burkhard Hess “The Unsuitability of the Lugano Convention (2007) to Serve as a Bridge between the UK and the EU after Brexit” (2018) MPILux Research Paper Series 2018(2) [www.mpi.lu].  How and when a new agreement might be achieved before Exit Day is not clear, particularly when it would have to address the concerns of the UK and the EU in relation to the role of the CJEU, and when the UK Government appears to think that it can park the problem of negotiating such a new agreement by taking the interim step of signing up to Lugano.