Since our detailed jurisdiction update in May 2021 (https://www.harbottle.com/jurisdiction-post-brexit/) in which we highlighted the potential importance of the Lugano Convention in settling the position on jurisdiction following Brexit, the European Commission has confirmed, in a communication to the parties to the Lugano Convention, that the European Union is not “in a position to give its consent to invite the United Kingdom to accede to the Lugano Convention”.
The European Commission’s stance is based on the fact that the UK is not a member of the European Economic Area or European Free Trade Association and the premise that the Lugano Convention is intended only for states with close regulatory integration with the European Union. There is little indication that this stance will change.
It therefore remains the case that, as regards issues of jurisdiction in England & Wales, if the 2005 Hague Convention does not assist, jurisdiction is governed by the common law. The good news is that, notwithstanding the position regarding the Lugano Convention, exclusive jurisdiction agreements are enforceable under the 2005 Hague Convention and arbitrations are unaffected.
Lizzie Williams is a Senior Associate at Harbottle & Lewis. She is a member of the Firm’s Dispute Resolution Group. You can find out more about our Dispute Resolution offering here.
