This article briefly describes if and how Brexit has impacted the recognition and enforcement of UK judgements in Cyprus. It also concerns the legal framework which will be in force post-Brexit, considering that the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Withdrawal Agreement) only refers to the recognition and enforcement of the judgements, which have been registered before the end of the transition period.
Legal framework for recognition and enforcement of EU judgements in Cyprus
The recognition and enforcement of a judgment issued by a foreign court, in another country's jurisdiction, is one of the main pillars of worldwide legal cooperation and ensures that justice is served.
The Republic of Cyprus, as one of the European Union’s member states, has adopted, inter alia, the EC Regulation No. 44/2001 as replaced by EU Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which constitute an important mechanism facilitating the judicial collaboration between the EU member states.
The Recast Brussels Regulation 2012 (Regulation (EU) 1215/2012) applies to judgements given in proceedings commenced on or after 10 January 2015, while the Brussels I Regulation (Regulation (EC) No. 44/2001) continues to apply to, inter alia, judgements given in civil and commercial matters, issued by the Courts of Member States (except Denmark), before 10 January 2015. As mentioned above, the Regulation 1215/2012 aims to facilitate the recognition process providing that a judgement given in a Member State, which is enforceable in that Member State, shall be automatically recognized and enforceable in the other Member State without any special procedure or declaration of enforceability being required.[1]
Recognition and enforcement of UK judgements in Cyprus and Brexit
By virtue of its membership in the EU, the United Kingdom was also part of the EU mutual recognition and enforcement system under the Brussels Regulations, until the end of the Brexit transition period on 31 December 2020.
On 24 January 2020 the European Union and the United Kingdom signed the Withdrawal Agreement, setting the terms of the withdrawal of the UK from the EU and Euratom. Article 67(2)(a) of the Withdrawal Agreement indicates the transitional requirements for the recognition and enforcement of judgements between the UK and the EU member states and it specifically mentions that “Regulation (EU) No 1215/2012 shall apply to the recognition and enforcement of judgments given in legal proceedings instituted before the end of the transition period, and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period”.
Therefore, according to the Withdrawal Agreement, after the end of the transition period, EU law on the recognition and enforcement of judgements continues to apply only to the recognition and enforcement of judgements issued in legal proceedings filed before 30 December 2020. On this basis, the mutual recognition and enforcement system under the Recast Brussels Regulation 2012 is not going to be applicable for judgements given in legal proceedings commencing from 1 January 2021 onwards (date on which the transition period expires).
Recognition and enforcement after the transition period: Potential arrangements
Member States’ cooperation as regards the recognition and enforcement of judgments would be mainly unaffected if the UK joined the Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters, concluded at Lugano in 2007, to which Cyprus is also a party, as one of the EU member states. The Lugano Convention 2007 governs the recognition and enforcement of judgements as between the EU and certain EFTA member states (Iceland, Norway, and Switzerland, but not Lichtenstein) and is a powerful international legal tool as it provides certainty with respect to procedural issues on civil or commercial cross-border disputes.
On 8 April 2020 the UK has applied to accede to the Lugano Convention, which requires the unanimous approval of the contracting parties for the admission of any other country as a contracting party. Iceland, Switzerland and Norway have already expressed their support in relation to UK’s intention to join the Lugano Convention. In case of successful accession, Cyprus will benefit from the effectiveness of a legal scheme, which secures global legal cooperation in the post-Brexit period, in relation to the recognition and enforcement of judgements issued in UK.
UK judgments can still be recognised and enforced in Cyprus, even if for any reason accession in the Lugano Convention is not effected. The recognition and enforcement will still be possible through domestic legislation that is already in place, by virtue of the Foreign Judgments (Reciprocal Enforcement) Law of 1935, Cap. 10, supplemented by the Foreign Judgments (Reciprocal Enforcement) Rules 1062/1935. It will certainly cause inconvenience as the previous automatic procedure for the recognition and enforcement of judgements will no longer be applicable, however, the procedure of the domestic legislation is straightforward and provides that any party interested in registering an English judgment in Cyprus shall file, within 6 years from the date issued and under the provisions of Cap. 10, an ex-parte application supported by an affidavit setting the background facts and supporting evidence. In the event the Court issues an order, it must be served to the judgement debtor who has the right to dispute the recognition by applying to the Court to set-aside the registration.
Cyprus may also pursue to conclude a bilateral agreement with the UK, facilitating the mutual recognition and enforcement of court judgments, case in which the Judgments of Foreign Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121(I)/2000) will also be applicable.
It is also debated that the Brussels Convention 1968, Brussels Regulation’s predecessor, would continue to apply as it had not been fully replaced by the Regulation and it constitutes an international treaty and not an instrument of EU law.[2] The British government posted an unofficial document stating that the Convention has ceased to apply in the UK and Gibraltar on 1 January 2021 (expiry of the transition period), however, according to the Vienna Convention on the Law of Treaties a unilateral denunciation is not among the cases in which an international convention could be terminated. Therefore, absent an impossibility of performance, a fundamental change of circumstances or a breach by one party, the operation of the treaty could only be suspended through an agreement by the parties, something that requires some time and effort.[3]
Conclusion
As it emanates from the above, the recognition and enforcement of UK judgements in Cyprus post-Brexit remains a hotly-contested matter and any developments in relation to this matter are expected to occur in the next short period of time.
[1] Article 36 of the Regulation and Article 39 of the Regulation.
[2] link.
[3] Ibid.
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