A European business holds a contract with a UK counterparty. The counterparty defaults. The dispute touches two legal systems that were, until recently, bound by a single procedural order – and are now separated by one of the most consequential legal ruptures in modern commercial history. Where the claim is filed, how jurisdiction is established. Additionally, whether a resulting judgment can actually be enforced now depends on a web of domestic rules. Common law principles. Additionally, ad hoc bilateral arrangements that did not exist before 2021.
Post-Brexit cross-border litigation between the United Kingdom and EU member states is governed by each jurisdiction's domestic civil procedure rules and common law principles. Because the mutual recognition regime of the Brussels Recast Regulation no longer applies to the UK. Establishing jurisdiction, serving process, and enforcing a foreign judgment now requires separate legal analysis in each involved country. The absence of a replacement treaty means that litigation strategy must be built around the specific enforcement destination from the outset.
This analysis examines the doctrinal shift in detail. It covers jurisdiction-founding rules in the English courts, the enforcement gap created by the loss of the Brussels regime. Competing approaches emerging from court practice on both sides, strategic responses available to cross-border parties. Additionally, the outlook for any future multilateral framework.
The doctrinal rupture: what Brussels gave and what common law replaced it with
Before the end of the transition period, the Brussels Recast Regulation provided a unified system for the EU and the UK. Under that regime, jurisdiction was allocated on clear rules – principally, the defendant's domicile – and judgments circulated across member states without separate enforcement proceedings. A creditor holding an English High Court judgment could register it in Portugal, Germany, or France with minimal procedural burden.
That architecture ceased to apply to the UK at the end of the transition period. The UK is no longer party to the Brussels Recast Regulation or its predecessor instruments. The Lugano Convention – which extends a similar regime to non-EU states including Norway, Iceland, and Switzerland – was the obvious successor. The UK applied to accede to Lugano. The EU declined to grant accession.
The result is a legal void at the multilateral level. English civil procedure rules now govern how the High Court (the principal forum for significant commercial disputes in England and Wales) establishes jurisdiction over foreign defendants. Common law rules govern whether English courts will recognise and enforce foreign judgments. EU member states apply their own domestic rules – now without any treaty obligation – when asked to enforce English judgments.
This matters because common law rules are significantly less predictable than treaty-based rules. The common law test for recognising a foreign judgment turns on whether the foreign court had jurisdiction in the international sense. Whether the judgment is final and conclusive. Additionally, whether enforcement would conflict with public policy. These criteria are assessed case by case. There is no automatic registration mechanism. The creditor must commence fresh proceedings – effectively suing on the judgment as a debt.
For a European business accustomed to Brussels-era enforcement, the shift is material. What was once a registration exercise has become a piece of litigation in its own right.
Jurisdiction in the English courts: the post-Brexit gateway rules
English civil procedure rules contain two distinct jurisdictional gateways. The first applies when the defendant is domiciled or present in England and Wales – service as of right. The second applies when the defendant is abroad – service out of the jurisdiction, subject to the court's permission.
Permission to serve out requires the claimant to satisfy three conditions. The claim must fall within one of the specified jurisdictional gateways. There must be a serious issue to be tried on the merits. England must be the proper place in which to bring the claim – the forum conveniens (most appropriate forum) analysis. This third condition involves weighing connecting factors: the location of witnesses and documents, the applicable law, the place of performance, and the interests of the parties in having a neutral or convenient forum.
The forum conveniens doctrine gives the English courts broad discretion. In practice, courts apply it purposively. Where a contract expressly selects English law and English jurisdiction, the court will almost always exercise jurisdiction. Where no such clause exists, the analysis becomes genuinely contested. A European defendant can challenge jurisdiction on the basis that the courts of the EU member state where it is domiciled are more appropriate. Under pre-Brexit law, such a challenge would have been resolved by the Brussels priority rules. Post-Brexit, it is resolved by the common law doctrine – which is more open-ended and more expensive to litigate.
A significant practical consequence follows from this. The statement of claim – the document that initiates proceedings in the High Court and defines the issues for determination – must now be drafted with jurisdictional exposure in mind. If the claimant anticipates a challenge to English jurisdiction, the statement of claim should articulate the connecting factors supporting England as the proper forum. Practitioners in the United Kingdom note that inadequately particularised claims are disproportionately vulnerable to jurisdictional objections at an early stage.
One further instrument deserves attention: the interim injunction. Before final judgment, a party may apply to the High Court for an interim injunction to freeze assets or restrain conduct. The Mareva jurisdiction – now codified in civil procedure legislation – allows the court to grant a worldwide freezing order against a defendant with assets in England. Post-Brexit, the enforceability of such orders in EU member states is no longer underpinned by Brussels. Enforcing a worldwide freezing order in, say, France or the Netherlands now requires an application to the courts of those jurisdictions applying their own rules on recognition of foreign interim relief.
The practical implication is stark. An interim injunction obtained in London may provide strong protection against UK-based assets. Its reach into continental Europe is now uncertain unless separately reinforced in each target jurisdiction.
For a detailed examination of how these jurisdictional mechanisms operate in specific dispute types, see the firm's resources on litigation and arbitration in the United Kingdom.
Enforcing English judgments in EU member states: the gap in detail
The enforcement gap is the most commercially significant consequence of the Brexit jurisdictional rupture. It affects every business that litigates in England with the expectation of enforcing the resulting judgment against assets held in EU jurisdictions.
Without a treaty framework, enforcement of an English judgment in an EU member state proceeds under that state's domestic private international law. The rules vary. Some member states – notably Germany and the Netherlands – have well-developed common law-adjacent recognition regimes that accept foreign judgments on relatively liberal terms. Others impose more demanding conditions, including reciprocity requirements or substantive review of the merits.
The general common law conditions that most EU states apply, in some form, are as follows. The foreign court must have had jurisdiction by the standards of the enforcing state. The judgment must be final and on the merits. The defendant must have been properly served. The judgment must not conflict with a prior local judgment. Enforcement must not be contrary to public policy. Some states add a further requirement: that there be no substantive error in the application of law.
This last condition – substantive review – is the most contentious. It effectively allows the enforcing court to re-examine the merits of the English judgment. Under Brussels, such review was expressly prohibited. Without Brussels, it is available in some jurisdictions, at least in principle. In practice, courts exercise this power rarely. But its availability introduces uncertainty that did not exist before 2021.
The enforcement process itself requires court filing in the relevant jurisdiction. In most EU states, the creditor presents the English judgment – authenticated and translated – and seeks a declaration of enforceability or an order to enforce. Government fees vary by jurisdiction and by the value of the judgment. Legal fees for enforcement proceedings in major EU jurisdictions typically start from several thousand euros. Where the defendant contests recognition, the proceedings can extend for one to three years.
One important structural point: enforcement is a matter of the law of the enforcing state, not of the law under which the original judgment was obtained. This means that an English solicitor advising on enforcement strategy must either have direct knowledge of the target jurisdiction's recognition rules or work with local counsel in that state. Engaging a law firm in the United Kingdom with cross-border European networks is not a procedural preference – it is a substantive necessity.
For a broader view of how corporate disputes in this jurisdiction are structured and managed, the firm's analysis of corporate disputes in the United Kingdom provides further context.
The EU side: enforcing European judgments in England after Brexit
The mirror problem affects European creditors holding judgments against UK-based defendants. English courts apply the common law rules to recognise EU judgments, just as they would to recognise judgments from any non-treaty country. This is broadly favourable to European creditors – English common law has historically been receptive to foreign judgments that meet the basic criteria.
The process, however, is different from the pre-Brexit registration mechanism. A European creditor can no longer register an EU judgment in England by filing a certificate under the Brussels regime. Instead, the creditor must commence an action on the judgment in the High Court. The judgment is treated as creating a debt. The defendant may raise limited defences – fraud in obtaining the judgment, breach of natural justice, or public policy. The merits are not generally reopened.
In practice, English courts have shown consistent willingness to recognise EU member state judgments under the common law rules. The Supreme Court of the United Kingdom has affirmed the general principle that finality in litigation and comity between legal systems support recognition. This judicial approach provides a degree of stability. It does not, however, provide the speed or certainty of the former treaty regime.
A specific complexity arises where UK defendants have structured their assets through corporate vehicles. Where enforcement targets a company registered at Companies House (the United Kingdom's central register of incorporated entities), the creditor must trace assets through the corporate structure. Post-Brexit restructuring by some UK-based groups – moving IP, receivables, or cash to entities outside England – has in some cases made enforcement more difficult. The High Court has jurisdiction to pierce this structure in cases of fraud or sham, but the threshold is demanding.
Regulatory context also matters for certain categories of dispute. Where the underlying claim involves a regulated firm. one supervised by the Financial Conduct Authority (FCA) or its predecessor the Financial Services Authority (FSA). or a tax dispute involving HMRC (His Majesty's Revenue and Customs). The enforcement landscape intersects with public law. Regulatory findings by the FCA or determinations by HMRC are not court judgments and do not follow the same recognition path. They require separate legal analysis in the enforcing jurisdiction.
Strategic architecture for cross-border disputes: building enforcement in from the start
The most effective response to the post-Brexit enforcement gap is not reactive – it is structural. The dispute resolution clause in any commercial contract touching both the UK and an EU counterparty should be designed with enforcement in mind before the contract is signed.
Three strategic instruments deserve particular attention.
Arbitration clauses. International commercial arbitration is governed by the New York Convention, to which both the UK and all EU member states are parties. An award issued by a tribunal seated in London, Paris, or Stockholm is enforceable in any Convention state under a unified procedure. The post-Brexit enforcement gap does not apply to arbitral awards. For contracts involving significant financial exposure or counterparties in multiple jurisdictions, an arbitration clause with a recognised institutional set of rules provides a materially stronger enforcement position than a litigation clause.
The trade-off is cost and speed. Arbitration proceedings are generally more expensive at the outset than High Court litigation. Interim relief is less immediately available – an emergency arbitrator application is more cumbersome than an ex parte application to the High Court. And arbitration does not produce publicly available precedent, which matters where the dispute involves a novel legal point.
Choice of jurisdiction clause combined with asset tracing. Where the parties choose English jurisdiction. The litigation strategy should incorporate early analysis of where the defendant's assets are held and what recognition route is available in each asset location. If assets are concentrated in Germany or the Netherlands, early engagement with local counsel in those jurisdictions provides realistic enforcement forecasts before the claim is filed. If assets are held in jurisdictions where recognition is uncertain or slow, the business case for proceeding in England at all may need to be reconsidered.
Multi-jurisdictional injunction strategy. Where asset preservation is urgent, a coordinated application for interim relief. an interim injunction in England combined with equivalent applications in the asset jurisdictions. provides greater protection than a unilateral English order. This is more expensive. It requires coordinated instructions across multiple counsel. But the alternative – obtaining an English freezing order that cannot be enforced where the assets are – may produce an empty victory.
Practitioners in cross-border disputes note one further strategic consideration. The choice of where to file the statement of claim. in England, in an EU member state. Alternatively. In arbitration. affects not only enforcement but also the applicable law, the procedural rules, the evidential standards, and the time to judgment. These variables interact. A claim that would succeed under English contract law might face a different analysis under the contract law of an EU civil law jurisdiction. Optimising across all these dimensions requires early involvement of counsel with genuine cross-border experience.
To explore legal options for managing cross-border disputes between the UK and European jurisdictions, schedule a consultation at info@ferrazwhitmore.com.
Competing court interpretations and the gap between statute and practice
The doctrinal position described above is relatively settled. The practical position is more contested. Several fault lines have emerged in the courts and in commercial practice since 2021.
The forum non conveniens problem in reverse. English courts have shown some willingness to decline jurisdiction – or to stay proceedings – where parallel litigation is ongoing in an EU member state. This mirrors the pre-Brexit position, but without the lis pendens rules of Brussels. The court has discretion. Some judges have stayed English proceedings pending the outcome of EU proceedings on the same facts. Others have refused to stay, reasoning that the absence of a treaty framework means the English court should not defer to a foreign court unless the case for doing so is overwhelming. The result is inconsistency that makes pre-litigation planning harder.
The treatment of exclusive jurisdiction clauses in pre-Brexit contracts. Many contracts concluded before 2021 contain exclusive jurisdiction clauses nominating English courts. Whether those clauses continue to be treated as exclusive under post-Brexit law is contested. The general English position is that they remain effective and the English court will enforce them. However, courts in some EU member states have taken the view that a pre-Brexit English jurisdiction clause does not create the same level of obligation that it would have under the Brussels regime. This divergence creates a genuine risk of parallel proceedings – the EU court accepting a claim on the merits while the English court issues an anti-suit injunction.
The anti-suit injunction question. English courts retain the power to grant anti-suit injunctions restraining a party from pursuing proceedings in a foreign court. Before Brexit, this power could not be used against EU proceedings, because Brussels allocated jurisdiction exclusively between member states. Post-Brexit, English courts have used anti-suit injunctions in disputes with EU counterparties. This is controversial. Several EU courts have refused to recognise or give effect to such injunctions, treating them as incompatible with the principle of judicial independence. The result is a situation where two courts – one in London and one in an EU member state – are simultaneously hearing the same dispute, each having rejected the other's procedural order.
This is not a hypothetical scenario. It has arisen in practice in disputes involving financial services, shipping, and long-term commercial contracts. The litigation cost and commercial uncertainty generated by parallel proceedings are substantial. A business facing this situation needs a strategy that resolves the competition between courts rather than simply asserting one court's primacy.
The Hague Convention on Choice of Court Agreements. The UK acceded to the Hague Convention on Choice of Court Agreements in its own right after Brexit. This Convention provides a treaty-based recognition mechanism for judgments arising from exclusive choice-of-court clauses. The EU is also a party. This means that, for contracts concluded after the UK's accession, an English judgment based on an exclusive English jurisdiction clause should be recognisable in EU member states under the Hague Convention – and vice versa.
The Hague Convention is not a complete substitute for Brussels. It applies only to exclusive jurisdiction clauses, not to all commercial disputes. It does not cover employment, consumer, or insurance contracts. It does not address provisional measures. But for a significant subset of business-to-business disputes, it restores a level of treaty-based enforcement that the loss of Brussels otherwise removed. Practitioners advising on new contracts should consider structuring jurisdiction clauses specifically to fall within the Hague Convention's scope.
Outlook: the regulatory trajectory and what to monitor
The post-Brexit legal position in cross-border litigation is not static. Several developments are in motion and merit continued attention.
First, the Hague Convention's role will expand as its application to post-accession contracts becomes more established. The courts of EU member states are beginning to apply it with greater frequency. Early decisions are broadly positive – judgments based on qualifying exclusive English jurisdiction clauses are being recognised. But the body of practice is still thin. Clients should treat the Convention as a useful tool, not a guaranteed solution.
Second, there is ongoing political discussion about the UK's potential accession to the Lugano Convention. This remains the most significant structural development that could alter the enforcement landscape. Accession would restore something close to the Brussels regime for Lugano states. The EU's current position is resistant, but the commercial and legal arguments in favour of accession are strong, and the position of key member states is not uniform. Any change here would require careful analysis of transitional provisions and their application to existing contracts.
Third, the UK's domestic civil procedure rules are themselves evolving. The courts have adapted to the post-Brexit environment with increasing speed. The use of the Hague Convention is being refined through practice directions and judicial guidance. The Supreme Court of the United Kingdom continues to develop common law principles on jurisdiction and enforcement in ways that sometimes diverge from, and sometimes align with, EU approaches. Monitoring this case law development is a practical necessity for any lawyer advising on cross-border disputes.
Fourth, financial regulation continues to generate cross-border litigation. The FCA's enforcement actions and the regulatory relationship between the UK and EU financial regulators create disputes that straddle both systems. Where a European firm loses its UK equivalence determination or a UK firm loses its EU passporting rights, commercial disputes about losses, representations, and contractual rights follow. These disputes interact with the jurisdictional and enforcement analysis in complex ways that require specialist understanding of both the regulatory regime and the litigation procedure.
For a European business with commercial exposure to the UK, the post-Brexit environment requires a more deliberate approach to dispute resolution than the Brussels era demanded. The tools exist – arbitration, Hague Convention clauses, coordinated multi-jurisdictional strategies. Using them effectively requires early planning, genuine cross-border expertise, and a clear-eyed assessment of where assets are and how they can be reached.
For a tailored strategy on cross-border litigation and enforcement between the UK and European jurisdictions, reach out to info@ferrazwhitmore.com.
Frequently asked questions
Q: How does a European company enforce a court judgment against a UK-based defendant after Brexit?
A: Since the Brussels Recast Regulation no longer applies to the UK, European companies must rely on the common law rules of the English courts or bilateral treaty arrangements. This typically requires commencing fresh proceedings in the jurisdiction where enforcement is sought, presenting the foreign judgment as a debt. The process adds time and cost compared to the pre-Brexit position, and outcomes depend on how the receiving court characterises the foreign judgment.
Q: What is the realistic timeline for cross-border litigation between the UK and an EU member state?
A: The timeline varies considerably depending on whether the case involves parallel proceedings, jurisdictional disputes, or enforcement steps. A contested High Court claim through to judgment commonly takes between two and four years. Enforcement of that judgment in an EU member state then adds further time – often six months to two years depending on the destination country's procedural rules. Building realistic timelines into commercial contracts and into any litigation strategy is therefore essential.
Q: Is it a misconception that English court judgments are automatically recognised across the EU after Brexit?
A: Yes – this is the single most common misunderstanding among cross-border clients. Automatic mutual recognition under the Brussels regime ceased at the end of the transition period. Engaging a lawyer with United Kingdom and EU cross-border experience is critical to identifying which recognition route applies in each target jurisdiction and to designing a litigation or arbitration strategy that accounts for the enforcement gap.
About Ferraz & Whitmore
Ferraz & Whitmore is an international law firm based in Lisbon, advising business clients across 46 jurisdictions. Our team combines Portuguese civil law expertise with English common law tradition to deliver cross-border legal solutions in post-Brexit litigation, judgment enforcement, and commercial dispute resolution between UK and European counterparties. Our dispute resolution practice covers the full lifecycle of cross-border litigation – from jurisdiction analysis and statement of claim preparation, through interim injunction applications, to multi-jurisdictional enforcement strategies. The firm's attorneys have advised on cross-border enforcement matters before the High Court and in multiple EU jurisdictions, and have experience with both ICC arbitration and Hague Convention recognition proceedings. As an international law firm in the United Kingdom market and across Europe, Ferraz & Whitmore supports in-house legal teams, institutional investors, and international entrepreneurs who need results-oriented counsel across multiple legal systems. The firm is a member of international legal associations with active cross-border practice groups focused on commercial litigation and enforcement. To discuss how post-Brexit litigation rules apply to your dispute, contact us at info@ferrazwhitmore.com.
Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.