Enforceability of UK judgments in Spain following the EU-UK Trade and Cooperation Agreement

As of 31 December 2020, the United Kingdom ceased to form part of the European Union, an event that has consequences for the recognition of court decisions from that country in Spain (also the other way around, but this paper essentially deals with the former situation and only in respect of cases falling within the scope of Regulation 1215/2012 - Brussels I bis -).

As provided in the Withdrawal Agreement (Art. 67) and clarified by the European Commission's Directorate-General for Justice and Consumers in its document on the withdrawal of the United Kingdom and EU rules in the field of civil justice and private international law (https://ec.europa.eu/info/sites/info/files/brexit_files/info_site/civil_justice_en.pdf), EU instruments on the recognition and enforcement of judgments will continue to apply if the judgment to be recognised is the result of legal proceedings instituted before the end of the transition period, even if the judgment is delivered after the end of the transition period, with certain additional requirements in relation to some specific regulations (for example, Regulation 805/2004 creating a European Enforcement Order (EEO) for uncontested claims, which also requires that an EEO certificate has been applied for before the end of the transition period). However, for judgments given in proceedings commenced after 31 December 2020, these rules will no longer apply.

Consequently, if the proceedings which gave rise to the judgment were initiated after the aforementioned date, the Brussels I bis Regulation can no longer be applied and each State will determine the enforceability of the United Kingdom's judgments in its own territory in accordance with its own rules, which in Spain, in the absence of a convention binding it to the the United Kingdom in this matter, leads to the application of Arts. 41 et seq. of the International Legal Cooperation in Civil Matters Act (LCJI).

The Brussels I bis Regulation has the advantage of establishing a flexible system in which recognition can be automatic, and, more importantly, the foreign judgment can be enforced without the need for a prior declaration of enforceability (exequatur). This does not mean, however, that an examination of the grounds for opposition to the enforceability of a judgment provided for in Art. 45 cannot be carried out. This is the case with the LCJI, which, although it provides for the possibility of incidental recognition, requires exequatur in all cases in order to proceed with the enforcement of the judgment from another State (although the possibility of the application for exequatur and the application for enforcement being joined in the same document, provided in Art. 54, mitigates this inconvenience), in addition to being more restrictive in regulating the type of foreign judgments that can produce effects in Spain (only final and conclusive judgments in contentious proceedings, final judgments in non-contentious [in re] proceedings and interim relief that satisfies certain conditions) and providing for some grounds for refusal of enforceability that are not provided for in the Brussels I bis Regulation.

In this situation, various alternatives were considered which would allow for a unified and flexible system to continue to be applied after Brexit to the enforceability of judicial decisions from the United Kingdom in the European Union and to that of the Member States of the European Union in the United Kingdom, none of which has been adopted to date. These included the application of the Lugano Convention, which is more rigid than the Brussels I bis Regulation since it maintains the prior exequatur for the enforcement of judgments, but which would have the advantage of applying the same instrument to regulate not only recognition and enforcement, but also international jurisdiction, in the United Kingdom, the European Union, Switzerland, Norway and Iceland.

In this situation, the ratification by both the United Kingdom and the European Union of the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, which has so far only been signed by Ukraine and Uruguay, has also been considered as a possible alternative. This option has drawbacks compared with the previous one, since the Hague Convention leaves it to each Contracting State to regulate the procedure for obtaining recognition and, where appropriate, enforcement of the foreign decision, which is also subject to more demanding conditions and requirements than those laid down in the Lugano Convention.

Finally, and for those cases where the jurisdiction of the court giving the judgment whose recognition is sought is based on a choice of court (forum selection) clause, the 2005 Hague Convention on Choice of Court Agreements may apply, but with the drawback that only judgments on which the court based its jurisdiction on an exclusive agreement, which, moreover, has to be subsequent to the United Kingdom's accession to the Convention on an individual basis, will be recognised.