Lugano: imperfect, but better than nothing

It may be obscured for now behind the wall-to-wall coverage of the Covid-19 pandemic, but in Brussels and London, Brexit negotiations are actually carrying on. 

With the end of the transition period barely six months away one of the key problems thrown up by the UK exiting the EU will be the cross-border recognition of courts’ jurisdiction and the enforcement of judgments.

What is perhaps different about this particular issue is that there exists a ready-made solution – tempting to call it oven ready. It is called the Lugano Convention and it already applies between EU and members of the European Free Trade Area (EFTA) states and it is also available for non-EU and non-EFTA countries.

The UK applied on 8 April to join the Convention in its own right after Brexit. The EFTA states have said they  would welcome our joining.

A decision to keep the UK out of  Lugano would not be in the best interests of the citizens and  businesses of the EU or the UK.

The Lugano Convention is not perfect and is not the fully bespoke agreement so many of us were hoping for at the outset. But it is better than nothing.

Losing the Lugano framework means reverting to the national laws of each individual country to decide which court has jurisdiction over a legal issue and whether a judgment will be means enforced.

It means parties in the UK or EU trying to take advantage of different legal systems to delay justice being done and judgments being given or even to try to thwart a judgment being enforced despite it having been handed down by a perfectly competent court in another country.

It means courts racing to reach judgment first and to courts competing rather than coordinating. And it means parties finding themselves subject to conflicting judgments.

Overall it means unwelcome cost and uncertainty for individuals and companies across the UL and the EU and much work for lawyers. But our job as lawyers should be to help the wheels of justice to turn, not to see them jammed up by undesirable bouts of forum shopping.

Although we read much about local politics, populism and protectionism the reality is that the peoples of the UK and the EU live in a global community, where e-commerce, human rights, data and consumer protections know no boundaries and cannot be defined by them. Even a small online business in Birmingham, Berlin or Barcelona is subject to laws and regulations outside its own borders.

We will continue to have a particularly close trading relationship with the citizens and corporates of the EU. We will all rely on laws and regulations to be designed by our political masters to facilitate that trade, to make supply chains work, to uphold rights and enforce obligations. 

The awful virus also knows no boundaries. And as we emerge nervously from its clutches and trade resumes between the UK and the EU, lawyers and judges and businesses and experts and clients should all be asking the question "What have we learned from this crisis which will make us better?"

We should be exchanging experiences about the use of data, about how our respective systems of justice have operated remotely, about what technology worked and did not, what rights have we risked compromising and what can the law and lawyers do to help build public confidence. We should be trying to find common ground not squabbling  over jurisdiction clauses.

Whatever shape the free trade agreement takes let us hope that the UK and the EU put the Lugano Convention in the AGREED WITH IMMEDIATE EFFECT column. There must be no wholly confusing gap between the end of the transition period and the UK rejoining the Convention.

Simon Davis, Law Society president