BREXIT has left the UK frozen out of an international treaty that has governed cross-border civil and commercial legal disputes since it first joined the EU – and the European Commission (EC) appears to be blocking efforts to ease its return.

The legal framework is the Lugano Convention, which operates between the EU and other European states in Efta – the European Free Trade Association – and which streamlines the handling of international legal disputes.

When Brexit took Britain out of Europe, it applied to re-join Lugano as an independent state, but the EC recommended that existing members deny its accession, leaving the UK in a legal limbo.

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The commission said the UK had decided not to remain an EU member and Lugano was only accessible to states on a basis of mutual trust.

Resulting uncertainty about cross-border legal disputes in the future has worsened the already tense relationship between the EU and UK.

The legal services sector is worth around £60 billion a year to the UK economy – £1.7bn in Scotland – and it has reaped significant benefits from the EU. International companies could enforce rulings from British courts across the bloc or choose the UK as a venue for their legal battles.

And while Lugano was a perfectly acceptable alternative, and in some ways better, that door has been slammed shut.

The National:

Michael Clancy, director of law reform for the Law Society Scotland (above), told The National: “We still have a judicial system which wants to be able to have this kind of civil judicial cooperation and we hope the EU will agree to the accession ultimately for the UK to the Lugano Convention.

“That would be a good solution for people here in Scotland and the other jurisdictions in the UK, and also for people in any member state jurisdiction, because it would provide an easier way of getting a judgement and enforcing it across the 27 [EU states] and the UK.”

He said being outside the convention would cause additional delay, expense and in some cases would see a race to get some cases to court, as one benefit of the convention was its clear-cut rules about which court had jurisdiction over various matters.

“Now, we could have an instance where parties to a litigation, one person could raise a court action in France, and the other could reason an action in Scotland, and it would be a question as to which is the most convenient forum for dealing with the court case,” said Clancy. “Under the Lugano Convention the domicile of the company or individual was the ruling feature, and it was all laid out properly and of course, under the Brussels regulations it was even better laid out … so delays, expense, lack of clarity and potential confusion are the problems litigants will be facing.”

There are alternatives to Lugano, and Clancy said that if people understand the nature of the problem the legal sector is facing with no civil judicial co-operation in place, they will realise that the gap has to be filled.

He added: “That might be the Lugano Convention, and some have talked about another international convention which has been created by the Hague Conference on International Law which was issued in 2019, called Hague/19.

“It does some of the same things that Lugano does but it’s a newer model as it were, so people will be thinking about those things.

“But the objective is to make law, clear and accessible, usable and effective. If those are the kind of objectives that we’re looking for, then having Lugano is a good start and something upon which we could then build.”