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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).

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…

In the 2021 edition of IFLR’s M&A Report, Latham & Watkins considers key developments likely to impact M&A in 2021, and how dealmaking is likely to progress in light of these developments.

By Nick Cline, Robbie McLaren, Douglas Abernethy, Richard Butterwick, and Catherine Campbell

If 2020 was the year that COVID-19 precipitated extraordinary government intervention and regulation of our lives, 2021 looks set to be the year that regulatory interventions in M&A precipitate changes to…

Landmark decision holds that the SFO does not have the power to procure documents from foreign companies outside the jurisdiction.

By Stuart Alford QC and Callum Rodgers

On 5 February 2021, the UK Supreme Court handed down a highly significant judgment in R (on the application of KBR, Inc) v Director of the Serious Fraud Office [2021] UKSC 2. The Court unanimously ruled in favour of KBR, Inc in its appeal of a 2018 High Court judgment, which had permitted the Serious Fraud Office (SFO) to use its section 2(3) powers under the Criminal Justice Act 1987 (the 1987 Act) to require foreign companies that were sufficiently connected to the UK to provide documents and other information for the purposes of an SFO investigation.

This is the first case in which the UK courts have ruled on the extraterritorial reach of the SFO’s section 2 powers, which are its primary means of gathering evidence and factual information in support of its criminal investigations into bribery and corruption. 

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.

The CMA’s efforts to make dynamic, forward-looking assessments of parties’ overlaps will only increase post-Brexit.

By John Colahan, Tom Evans, David Little, Jonathan Parker, David Walker, Greg Bonné, Anuj Ghai, and Catherine Campbell

Dealmakers must be alert to the increasingly interventionist approach of the UK’s Competition and Markets Authority (CMA), including on transactions with a limited nexus to the UK. Until now, the European Commission has acted as a “one-stop shop” for large-cap transactions. But the end of the Brexit transition period means that from the start of 2021, acquirers may face parallel EU and UK investigations — with the effect that the CMA will play a more prominent role in reviewing global deals.

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.

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.