A Brexit re-set? How will the UK's accession to the 2019 Hague Convention impact English legal opinions?

Introduction

This post highlights the significance of the UK's accession to the 2019 Hague Convention and considers the relevance to English legal opinions.  The article was published in the July 2025 edition of LexisNexis’ Journal of International Banking & Financial Law.

Why is the UK acceding to the 2019 Hague Convention?

Since the UK formally left the EU and the subsequent transition period ended at 11pm on 31 January 2020, lenders hoping to have their English judgments recognised in EU member states have faced a potentially costly and time-consuming process. 

With the loss of mutual recognition of judgments under the Recast Brussels Regulation, recognition has depended on the relevant member state's interpretation of Rome I and rules of private international law. Being outside the EEA, the UK also did not qualify for membership of the 2007 Lugano Convention to facilitate the recognition of judgments, but the 2005 Hague Convention offered a partial solution for certain civil and commercial judgments. 

The 2005 Hague Convention does not provide rules for choice of law or forum, but it does offer an expediated process for the recognition of judgments between the EU and other jurisdictions which have acceded to the convention, provided the contract giving rise to the judgment contains a qualifying exclusive jurisdiction clause. This was familiar territory for the UK, as it had previously been a signatory to the 2005 Hague Convention by virtue of its EU membership. It was also an easy solution, as while the 2005 Hague Convention provides for mutual recognition, (unlike Lugano) there is no requirement for signatories to obtain approval from existing contracting states. Therefore, post-Brexit, the UK quickly acceded to the 2005 Hague Convention. 

The difficulty for finance transactions post-Brexit has been that they commonly contain non-exclusive and asymmetric jurisdiction clauses to the benefit of lenders (ie the contractual party most likely to seek enforcement of the contract). This meant that the 2005 Hague Convention did not assist. 

On 12 January 2024, the UK signed the 2019 Hague Convention, which affords recognition where the parties have chosen non-exclusive jurisdiction clauses. 

Following ratification, the UK formally acceded on 1 July 2025. While initially only England and Wales were included, on 26 March 2025 the UK government officially declared that the 2019 Hague Convention will extend to Scotland and Northern Ireland. For the whole UK, therefore, the 2019 Hague Convention fills the gaps and provides a reciprocal recognition framework to facilitate and enforce certain judgments handed down by courts of contracting states, including in the EU. 

The Recognition and Enforcement of Judgments (2019 Hague Convention etc.) Regulations 2024, SI 2024/713 (Regulations) also took effect from 1 July 2025, amending the Civil Jurisdiction and Judgments Act 1982. The Regulations make provision relating to the registration of judgments from other contracting states. 

The UK's accession will assist and simplify the process by which lenders can enforce English judgments against obligors in other contracting states, including EU member states, Ukraine, and Uruguay. Subject to certain carve outs and safeguards, judgments can be recognised without the foreign court being able to reopen the judgment on its merits. 

Which judgments will be capable of recognition? 

For a judgment to be eligible for recognition and enforcement, one of the “bases” listed in the 2019 Hague Convention must be met. These include, amongst other things: 

i. the person against whom recognition or enforcement is sought being habitually resident in the state of origin (the contracting state whose court issued the judgment) at the time that person became a party to the proceedings in the court of origin; 

ii. the defendant expressly consenting to the jurisdiction of the court of origin; 

iii. the defendant having argued on the merits before the court of origin, without contesting jurisdiction, within the timeframe provided in the law of the state of origin; and 

iv. where recognition or enforcement would be manifestly incompatible with public policy. 

The second base (ie choice of jurisdiction) will be most relevant for finance parties. 

Which judgments will not be recognised?  

While being broader in scope than the 2005 Hague Convention, certain matters remain excluded from the 2019 Hague Convention. 

Excluded judgments include those obtained relating to insolvency proceedings. For example, it is unclear whether English restructuring plans under Pt 26A of the Companies Act 2006 will qualify for recognition. This will depend on whether the courts of the relevant contracting states consider the plan to be excluded by the insolvency carve-out, which includes composition, resolution of financial institutions, and analogous matters (Art 2(1)(e)). 

Recognition between acceding states, while procedurally easier, will not be automatic. 

Article 7 lists specific grounds for refusal of recognition and enforcement of foreign judgments, which includes circumstances where the judgment was obtained by fraud, where there is an inconsistent judgment in a dispute between the same parties on the same subject-matter, and where there has been a failure to notify the defendant of the claim in sufficient time or in a suitably appropriate way. 

Recognition or enforcement of a judgment also may be refused if the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered. The immovables rule also is preserved, such that a judgment concerning rights in rem in relation to immovable property will be recognised and enforced only if the land or property is situated in the jurisdiction where the judgment was made. 

To date, the list of states who have acceded to the 2019 Hague Convention is relatively short and predominantly comprises EU member states. However, several countries are signatories to the 2019 Hague Convention but are yet to ratify it. These include the US and the Russian Federation. To address potential concerns over procedural fairness and the rule of law of certain acceding states, Art 29 allows states to make a notification preventing 2019 Hague Convention from establishing relations with another state, even where that other state has ratified the 2019 Hague Convention. 

It is also important to note that the 2005 Hague Convention and the 2019 Hague Convention are intended to dovetail. Therefore, where there is an exclusive jurisdiction clause, recognition should be sought under the 2005 Hague Convention, rather than the 2019 Hague Convention. As states acceding to either the 2005 Hague Convention or 2019 Hague Convention are not required to accede to both conventions, the jurisdictions in which recognition will be available will vary depending on whether the finance document grants the country's courts exclusive or non-exclusive jurisdiction to determine disputes. 

Relevance to legal opinions 

English law legal opinions relating to foreign law financing documents will typically address the recognition of the choice of law under the relevant contract and the recognition of judgments obtained under the dispute resolution method adopted under that contract. In the case of non-exclusive jurisdiction clauses where the 2019 Hague Convention applies, the opinion will typically address the criteria for recognition. 

Foreign legal opinions obtained in financing transactions, for example relating to the law of the jurisdiction of incorporation of the borrower, will similarly address the 2019 Hague Convention where applicable, in particular in the circumstances described in this article of recognition of non-exclusive jurisdiction clauses in English law finance documents. The wording of such opinions is likely to reflect the greater certainty that an English court will recognise and give effect to a judgment handed down by that foreign court. 

Legal opinions may address the grounds for refusal set out in Art 7, possibly in the form of qualifications to the opinion. These grounds will be familiar to lenders and reflect typical grounds on which judgments may not benefit from recognition. 

Timing also will be relevant, as reciprocal recognition under the 2019 Hague Convention will be limited to proceedings commenced from 1 July 2025 (when the UK acceded). To the extent that additional states accede to the 2019 Hague Convention in the future, English courts will recognise judgments handed down by courts of those states only where the relevant contract post-dates that state's accession to the 2019 Hague Convention