Enforcement of United Kingdom judgements in Romania after Brexit

A question that is now only being discussed and clarified in Romania is the question of the enforcement of United Kingdom judgements in Romania.

Currently, the enforcement of judgments within the European Union is regulated by the Brussels I Regulation (1215/2012). The Regulation provides that subject to some amendments a judgment in a Member State will automatically be recognised in another European Union Member States without any ‘special procedure’ being required. The Withdrawal Agreement signed by the United Kingdom and the European Union contains a provision that a judgement or decision obtained in a case that was commenced before the 31st December 2020 will be enforceable under the Brussel 1 Regulation. However, the position for cases issued after that date will be different and their enforcement will revert to the pre European Union position.

For non-European Union countries the 2007 Lugano Convention represents a solution to the enforcement issues created by Brexit. The Lugano Convention is a treaty between the Member States and some members of the European Free Trade Association. The Convention is similar to the position between Member States prior to the implementation of Brussels 1 Regulation referred to above whereby an application must be made to have the foreign judgment declared enforceable before it can be enforced. This can sometimes cause considerable delay and problems in Romania. The United Kingdom has applied to join the Lugano Convention as a non-European Union country, although to date the application has not yet been approved.

The United Kingdom was a party to the 2005 Hague Convention on Choice of Court Agreements with effect from 1 January 2021. The Hague Convention is, limited in scope because it applies only to disputes between parties to contracts in civil or commercial matters that contain exclusive choice of court clauses. Therefore, enforcement of judgments under the Hague Convention will only be allowed in cases where the parties agreed on a choice of court before any dispute arose. It should also be noted that the Hague Convention does not provide for the enforcement of protective measures such as interim injunctions or freezing orders.

Furthermore, the Hague Convention provides that it shall only apply to agreements concluded after its entry into force in the relevant State and specifically does not apply to proceedings instituted prior to the Hague Convention’s entry into force in that State. Most practitioners take the view that it came into force on 1st October 2015 when it became binding on European Member States.

Where enforcement in Romania of a United Kingdom judgment is required under the Hague Convention, an application to the Romanian court must be made. That application is broadly similar to the procedure under the Lugano Convention whereby an application may be made without notice to the other party and there are limited grounds upon which the recognition of the United Kingdom judgment can be refused.