1. Introduction
More than two years have passed since the end of the so-called Transition Period, when EU Regulation No. 1215/2012 ceased to apply between the United Kingdom and European countries and a new regime of private international law began to take shape in the post-Brexit reality.
Indeed, following the vote of the European Union against the request of accession of the United Kingdom to the Lugano Convention, each Member State has taken into consideration its own domestic private international laws and dusted off bilateral agreements that, over time, had been replaced by European legislation in that process of harmonisation from which the United Kingdom decided to deviate.
This fragmentation of the legal framework has certainly complicated the discussions on jurisdiction clauses and enforcement at the negotiating tables of the major market players, which, meanwhile, do not consider the UK jurisdiction any less and, on the contrary, continue to prefer the English Courts.
In this context, the signing on January 12 2024, followed by the ratification on June 27 2024, by the United Kingdom of the Hague Convention of July 2 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Convention 2019 or the Convention) is a novelty that is welcomed with great benevolence and which marks a concrete step towards restoring a certain uniformity in the circulation of English judicial decisions.
Although not yet brought into force (this will be as of July 1 2025) and that the United Kingdom declared that the Convention shall extend to England and Wales only, the same already has a potential impact on the negotiation of jurisdiction clauses and on considerations of the recognition of English judgments in the contracting states. In particular, pursuant to Article 16 of the Hague Convention 2019, once in force, the applicability of the Convention will be determined on the basis of the date of commencement of the dispute before the foreign judicial authorities and not at the time of the execution of the contract that gave rise to the same.
Example: the Convention will apply to the recognition of a judgment rendered by an English court by virtue of a jurisdiction clause (even asymmetric) contained in a contract concluded in 2022, if, at the beginning of the English proceedings (e.g. 2026), the Convention is in force and has effect between the UK and the Contracting State where such judgment is to be recognized.
Therefore, decisions relating to disputes that may arise from contracts that have already been negotiated and signed or are currently being finalised will be able to circulate under the Hague Convention 2019.
Given the relevance of the Convention, which seems destined to simplify the circulation of English judgments, in the following sections we will tackle the key points of the Hague Convention 2019.
We will also recall the legal sources, which continue to refer to pending the entry into force of the Convention when it comes to English jurisdiction and recognition in Italy of civil and commercial judgments pronounced by English courts.
2. Hague Convention 2019
2.1 The Hague Convention 2019 provides for the general obligation of the contracting States to recognize and enforce judgments issued by the Courts of the said States. The Convention is structured typically, generally identifying a scope of application and providing criteria for the eligibility of a judgment for its recognition and for denying it. Its main characteristics can be identified as follows:
(a) Scope: The Hague Convention 2019 applies to the recognition and enforcement of judgments in civil and commercial matters. Pursuant to Article 2, the scope does not include, inter alia, decisions on bankruptcy, intellectual property or family law. The Convention applies, on the other hand, to consumer contracts and individual employment contracts.
(b) Positive requirements for recognition: In line with similar conventions, the Hague Convention 2019 sets out a set of criteria on the basis of which a foreign judgment may be recognized in another Contracting State. The foreign judgment will be eligible for recognition if it complies with one of the minimum requirements listed in Article 5 of the Hague Convention 2019.
(c) Conditions that may justify the denial of recognition: The recognition of the foreign judgment may be refused on the basis of the grounds provided for in Article 7 of the Hague Convention 2019, including the lack of compliance with public policy, the failure to respect the procedural guarantees of the parties and the existence of previous judgments.
(d) Severability: Article 9 expressly provides for the possibility of recognising individual sections of the foreign judgment when this is the specific subject of the claim or when only certain parts of the judgment are recognizable under the Convention.
(e) Principle of reinstatement: Article 10 expressly provides for the possibility of not recognizing so-called punitive damages, i.e. those damages that are not aimed at reintegrating the injured party into the situation prior to the damage. Article 10 lays the basis for that refusal without the need to have recourse – at least under Italian law – to public policy.
2.2 In line with similar conventions on this subject matter, the Hague Convention 2019 excludes a review of the merits and requires the courts that receive requests for recognition to proceed in a timely fashion.
3. Other relevant sources in the post-Brexit landscape
3.1 As said, the Hague Convention 2019 is not yet in force between the current States Parties and the United Kingdom. Until July 1 2025, Italian operators in the sector must keep referring to the legal tools currently available to them for the recognition and enforcement of judgments rendered by English Courts, and in particular (1) the Italian private international law, (2) the convention between the United Kingdom of Great Britain and Northern Ireland and the Republic of Italy for the reciprocal recognition and enforcement of judgment in the civil and commercial matter of February 7 1964 (the Bilateral Convention), and (3) the Hague Convention on choice of court agreements of June 30 2005 (the Hague Convention 2005).
(1) Private international law
3.2 In relation to foreign judgments rendered by courts of countries other than Member States, and in case of a lack of applicable international convention, the Italian private international law no. 218 of May 31, 1995 will apply (Law 218/1995). In summary, Law 218/1995:
(a) is of a residual nature and does not affect the application of other international conventions;
(b) lists a number of requirements for the recognition of foreign judgments in Italy, including that of the so-called “res judicata”, i.e. the foreign judgment can no longer be appealed in the State where it was rendered, and that of the lis pendens, i.e. the foreign court must have been seized before the possible commencement of the same proceedings before an Italian court; and
(c) provides for the automatic recognition of the foreign judgment, but in order to proceed with its enforcement, it is necessary to start proceedings for the recognition of such a judgment before the Court of Appeal of the place where it is to be enforced (so-called exequatur proceedings).
(2) The Bilateral Convention
3.3 The Bilateral Convention is among those bilateral conventions signed by the various European countries before the start of the harmonisation process that began only a few years later with the Brussels Convention of 1968. Its post-Brexit applicability is debated.
3.4 The Bilateral Convention deals exclusively with the recognition of judgments given by English courts and, similarly to Law. 218/1995, provides that the judgment will be recognized and enforced in Italy after an exequatur proceedings. It is not required that the foreign judgment becomes final, but an appeal in the country of origin may constitute grounds for refusal of recognition.
(3) Hague Convention 2005
3.5 The Hague Convention 2005 applies only if the following conditions are met:
(a) the contract to which it refers was concluded by the parties after the Transition Period (which for EU is as of January 1 2021);
(b) the contract provides for an exclusive jurisdiction clause in favour of the English courts; and
(c) the choice of court agreement does not cover any of the matters excluded from the scope of the Convention, including, for example, rights in rem in immovable property and antitrust matters.
3.6 The Hague Convention 2005 also provides for an exequatur proceedings for the enforcement of foreign judgments and, unlike Law 218/1995, does not provide for any rule relating to lis pendens.
4. The big excluded: Brussels 1968 and Lugano
4.1 As mentioned above, the attempt of the United Kingdom to join the Lugano Convention – which largely replicates the provisions of EU Regulation 1215/2012 – was blocked by the European Union, which challenged the request of the United Kingdom. Accordingly, the Lugano Convention does not apply with respect to English judgments.
4.2 The 1968 Brussels Convention was initially considered in relation to the circulation of English judgments. However, an interpretation of the 1968 Brussels Convention within the meaning of the 1969 Vienna Convention on the Law of Treaties leads to the exclusion of the application of that convention. Specifically, Article 62 of the Vienna Convention provides that a fundamental change of the circumstances which formed the “essential basis” for the consent of the parties to be bound by a treaty may be considered as a “ground for terminating the treaty or withdrawing from it.” Since the accession to the Brussels Convention of 1968 was the first step in the implementation of the European project, the spirit of such Convention is diametrically opposed to the exit of the United Kingdom from the European Union, with the consequent inapplicability of the same post-Brexit.
5. Conclusions
The execution and ratification of the Hague Convention 2019 by the United Kingdom could well be the instrument destined to bring back that uniformity and certainty in relation to the circulation of English judgments outside the United Kingdom that has been lost since January 1 2021. Further to such a great achievement, we cannot exclude that the execution and ratification of the United Kingdom could also constitute the trigger for an even greater success of the Convention: other States may indeed be induced to accede to and/or ratify the Convention, such as the United States, which signed the Hague Convention 2019 on March 2 2022 but has never followed up on ratification, to ensure an effective and extensive international application of the Convention.
