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Will the UK join the Lugano Convention 2007?

By Oliver Browne and Tom Watret

Introduction

Conflicting reports have emerged in recent days as to whether the EU will approve the UK’s application to join the Lugano Convention 2007, the UK’s preferred regime for governing jurisdiction and the enforcement of judgments with EU Member States after Brexit. This post briefly describes what the Lugano Convention 2007 is and why the UK wants to join it, and provides an update on the accession process.

Previous posts in this series consider the Lugano Convention 2007 in more detail (Part 1: here) and explain the rules that now apply to jurisdiction and enforcement of judgments in the UK following the end of the Brexit transition period on 31 December 2020 (Parts 2-4: here, here, and here).

This recent CJEU decision raises a number of considerations for content rights holders and for those seeking to link to content online, across both the EU and the UK

By Deborah Kirk, Luke Vaz, and Amy Smyth

Under UK and European laws, the rights of copyright holders include the right to restrict or prohibit reproduction or communication of their original work. Broadly, this means that any such reproduction or communication of the content requires consent from the copyright holder.

In the digital age, it has become increasingly difficult to regulate for this right in practice, with internet users able to replicate and communicate works using a plethora of channels (for instance, re-posting social media content, framing and inline linking of visual and media content). The Court of Justice of the European Union (CJEU) and UK and EU member state national courts have grappled for a number of years with the particular question of whether hyperlinking constitutes communication of the underlying content that it links to (principally in the CJEU cases of Svensson (2014), GS Media (2016), and Filmspeler (2017), and the English courts TuneIn (2021) case) and whether therefore it could constitute an act of copyright infringement if the hyperlinking does not have the consent of the copyright owner.

In VG Bild-Kunst, the latest CJEU case on this topic, the court held that hyperlinking may constitute communication of the underlying content if the rights holder has implemented technical measures to restrict such linking and the linking circumvents those restrictions. The court also held that, for the purposes of restricting linking, a rights holder may impose contractual obligations on a licensee to implement technical measures to prevent such linking. The CJEU’s emphasis in this decision was on the need for effective technical measures to be implemented (or contractually required) to restrict linking, as evidence of the rights holder’s intention to limit its consent to the communication of its content.

By Rob Moulton, Nicola Higgs, Anne Mainwaring, Becky Critchley, and Anna Lewis-Martinez

The latest edition of our Private Bank Briefing provides a roundup of legal and compliance issues impacting private banks and their clients from Q1 2021.

In this edition, we cover some of the key regulatory announcements relating to MiFID II and the impact of COVID-19, the latest on Brexit, the FCA’s announcement on the dates for cessation of LIBOR benchmark settings, and the FCA’s…

The EU-UK Trade and Cooperation Agreement has now been agreed. So what rules will apply to jurisdiction and foreign judgments in the UK from 1 January 2021?

By Oliver Browne and Tom Watret

Introduction

It has been a long time in the making, but the UK and EU have finally reached an agreement (the EU-UK Trade and Cooperation Agreement) on their future relationship after the end of the Brexit transition period, which expires today, 31 December 2020.[i]

It has been known since the referendum result on 23 June 2016 that the rules applicable to jurisdiction and enforcement of judgments would change after Brexit, since the regime that currently applies — the Brussels Recast Regulation 1215/2012 (Brussels Recast) — is only available to EU Member States.

In previous posts in this series, we explained the different rules which could apply to jurisdiction and enforcement of foreign judgments in the UK from 1 January 2021, covering the Lugano Convention 2007 (here), the Hague Convention 2005 (here), and the UK’s common law rules (here), in both “deal” and “no deal” situations.

Now that we have a deal, this post provides an overview of the applicable rules.

Owners of registered IP rights and pending IP applications in the EU‎ should carefully consider the complexities of the incoming regime.

By Deborah J. Kirk and Terese Saplys

On 28 September 2020, the UK government made the Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020 (IP Regulations 2020), which amend the intellectual property (IP) regime in the UK to reflect Brexit-related changes once the transition period ends. The IP Regulations 2020 overlap somewhat complexly with existing UK and EU IP rights. In particular, exhaustion of rights principles seem to have fallen into a lacuna and as a result parallel importation from the UK into the EU may be significantly impacted. Owners of existing registered IP rights and pending IP applications under EU law should carefully consider the incoming legislation to inform their ongoing business operations.

English law, courts and arbitral tribunals may become more relevant and popular after Brexit, not less.

By Oliver Browne, Sophie J. Lamb QC, Sanjev D. Warna-kula-suriya, and Tom Watret

Introduction

English law, courts, and arbitral tribunals may become more relevant and popular after Brexit, not less, and parties should continue to feel confident about including English governing law and jurisdiction clauses in their agreements.

In particular, the breadth of English common law jurisdiction and the powerful tools at the English courts’ disposal – notably, the anti-suit injunction and damages for breach of jurisdiction clauses – are likely to ensure that jurisdiction clauses in favour of English courts and tribunals are complied with.

The UK government signals a diversion from the onshored regime towards a more flexible financial services regulatory framework.

By Rob Moulton, Anne Mainwaring, and Anna Lewis-Martinez

HM Treasury has published a consultation paper marking the start of Phase II of its financial services review, which will focus on the broader regulatory framework for financial services regulation in the UK post-Brexit.

HM Treasury acknowledges the drawbacks of the EU approach to financial services regulation. Namely, this approach has complicated the operation of the regulatory model under the Financial Services and Markets Act 2000 (FSMA), which HM Treasury considers to be an appropriate framework for financial services regulation in the UK after the end of the transition period. HM Treasury therefore proposes an adaptation of the FSMA model as the most effective approach to the post-EU regulatory framework, acknowledging that the onshored regime of EU legislation will fail to provide an adequate long-term solution for the UK’s post-EU financial services regulatory framework.

Four recent developments highlight the benefit of arbitration clauses amidst uncertainty about choice of court clauses.

By Oliver Browne and Tom Watret

Introduction

With the end of the Brexit transition period on 31 December 2020 fast approaching, four new important and interrelated developments have highlighted uncertainty about which courts will have jurisdiction in cross-border disputes and the enforcement of judgments from 1 January 2021:

  1. On 27 August 2020, the EU Commission published a revised Notice setting out its view of how various conflict of laws issues will be determined post-Brexit, including jurisdiction and the enforcement of judgments (the EU Notice).[1]
  2. On 28 September 2020, the UK deposited its instrument of accession to the Hague Convention on Choice of Court Agreements 2005 (Hague Convention 2005), ensuring continuity in application of the Hague Convention 2005 after the end of the Brexit transition period.[2]
  3. On 30 September 2020, the UK Ministry of Justice published “Cross-border civil and commercial legal cases: guidance for legal professionals from 1 January 2021” (the MoJ Guidance),[3] which is the UK equivalent to the EU Notice.
  4. On 1 October 2020, the deadline passed for the UK’s accession to the Lugano Convention 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention 2007) to be approved in time for it to apply as of the end of the Brexit transition period, absent some work-around agreed at the time of any eventual Free Trade Agreement (FTA).

The regulation is part of the EU Digital Single Market strategy to harmonise digital rights.

By Deborah J. Kirk, Elva Cullen, and Grace E. Erskine

From 12 July 2020, the EU’s Platform-to-Business Regulation 2019/1150 (P2B Regulation) promoting fairness and transparency for business users of online intermediation services applies. The P2B Regulation, which entered into force in June 2019, came about in response to complaints from SMEs regarding unfair practices and lack of transparency by online platforms, and the European Commission’s review of the same.

The UK has taken steps to accede to the Lugano Convention 2007, as maintaining the status quo under the Brussels Recast Regulation 1215/2012 will no longer be an option once the transition period expires.

By Oliver Browne, Sebastian Seelmann-Eggebert, and Tom Watret

The UK has recently requested to join the Lugano Convention 2007, which is the UK’s preferred regime for governing questions of jurisdiction and the enforcement of judgments with EU countries post-Brexit. These rules will be critically important for all parties when they consider which jurisdiction clauses to include in their contracts.

This blog post explains what the Lugano Convention is, provides an update on recent developments in the accession process, and highlights some important differences between the Lugano Convention and the current regime.