Some certainty has been achieved on issues of jurisdiction and the enforcement of judgments in Gibraltar following Brexit by, first, the continued application of EU laws beyond midnight on the 31st of December 2020, in specified circumstances, by the joint effect of:
(1) the European Union (Withdrawal) Act 2019 (“2019 Act”); and
(2) the European Union (Withdrawal Agreement) Act 2020 (“2020 Act”); and, separately,
(3) by the Civil Jurisdiction and Judgments Act 1993 (“CJJA”).
The CJJA continues in full effect in Gibraltar. Accordingly, judgments given by courts covered by the CJJA continue to be enforceable in Gibraltar.
Further the rules in Gibraltar to determine jurisdiction continue unchanged. They are governed by the CJJA.
The issue is one of lack of reciprocity. Previously reciprocity was achieved by all other countries covered by the CJJA being subject to compliance with the same regulations and conventions as Gibraltar. Following withdrawal, the availability of that reciprocity cannot be assumed.
Any reciprocity will depend on the domestic law of each country engaged. The imbalance is obvious with Gibraltar being generous in its laws.
There may be situations where there will be conflicts of private international law, especially where issues of jurisdiction arise.
The law relating to similar situations concerning countries not covered by the CJJA remains unchanged.
In general terms, but subject to certain exceptions and savings applicable to all1:
(1) All EU-derived domestic legislation and the English language version of direct EU legislation which was effective immediately before midnight on 31st December 20202 continues in effect and forms part of domestic law3.
(2) Any rights, powers liabilities, obligations, restrictions, remedies, and procedures which before midnight on 31st December 2020 are recognised and available in domestic law and are enforced and followed continue to be recognised and available in domestic law (and to be enforced and followed accordingly with some specified exceptions4.
However, subject to certain savings and exceptions5, a court or tribunal is not bound by decisions of the European Court made on or after midnight on 31st December 2020 and prohibits any reference being made to the European Court on or after that moment but subject to specific provisions that permits a court or tribunal to have regard to anything done by the EC or any other EU entity or the EU that may be relevant6. The applied provisions extend to Iceland, Liechtenstein, and Norway to the extent previously applicable7 Accordingly, under these provisions the Brussels Regulations (Recast) No. 1215/2012, the Rome I Regulation No 593/2008 and Rome II Regulation No 864/2007 as they stood at midnight on 31st December 2020 continue in force and effect in Gibraltar, contrary to what is the position in the UK.
The Lugano Convention has currently ceased to have effect under English law. The UK is seeking to re-join (in its own right). For Gibraltar to achieve reciprocity, the UK would specifically need to extend any re-joining to Gibraltar, which it is seeking to do.
However, in the interim Gibraltar, contrary to the position in the UK, has amended the CJJA and thus implemented the Lugano Convention in Gibraltar giving it continuing effect.
In any event and in addition the CJJA, as amended to implement the Lugano Convention8, remains in force and effect setting the rules that determine the jurisdiction of the courts of Gibraltar and to allow for the enforcement in Gibraltar of judgments given by the courts covered in it.
Accordingly, each including the various conventions as defined in S. 2(1) CJJA and the English text of most of them are to be found in Schedules to the CJJA have the force of law in Gibraltar:
(1) Brussels Convention.
(2) Lugano Convention.
(3) 2005 Hague Convention.
(4) 2007 Hague Convention.
So, the extent that any had effect for the purposes of determining jurisdiction or the enforceability of judgments in Gibraltar, the position remains unchanged.
There is specific provision in the CJJA dealing with the UK, as there is a specific UK Order in Council dealing with the position of Gibraltar in the UK.
The CJJA makes specific arrangements between the UK and Gibraltar9. It provides that each of Gibraltar and UK be treated as a separate Regulation State for the purposes of:
(a) Regulation (EU) No 1215/2012 of 12th December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) as amended from time to time (subject now to any restrictions by the joint effect of the 2119 Act and the 2020 Act) and as applied by virtue of the Agreement made on 19th October 2005 between the EU and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; and
(b)Council Regulation (EC) No 2201/2003 of 27th November 2003 concerning jurisdiction and therecognition and enforcement of judgments in matrimonial matters and the matters of parentalresponsibility, repealing Regulation (EC) No 1347/2000.
The CJJA 1982 (Gibraltar) Order 1997 of the Privy Council, as a matter of English law, continues the application, as between Gibraltar and the UK, of the 1968 Brussels Convention on the Recognition and Enforcement of Judgments in Civil and Commercial Matters.
In general terms the position on the subject of jurisdiction that governed EU/EEA related cases and the recognition and enforcement of judgments in Gibraltar of EU/EEA judgments continues unchanged after midnight on the 31st December 2020 but to the extent of their application and as they stood at that moment.
The CJJA remains also in full force and effect and amendments to it have given the Lugano Convention continuing effect.
A beady eye must be kept on any changes that may be made as a matter of Gibraltar law. Further any changes made (be it law or judicial decisions) in the EU after midnight on the 31st December 2020 will not, as a generality, apply to Gibraltar. Each will have to be considered individually.
As between Gibraltar and the UK the position continues unchanged and is as applied prior to midnight on the 31st December 2020. It is unaffected by withdrawal from the EU.
Robert M. Vasquez QC
T: +350 200 72020
This document has been issued on the 10th Feb 2021 by Triay Lawyers Limited, trading as Triay Lawyers, a Gibraltar private company limited by shares with registered office at 28 Irish Town, Gibraltar, GX11 1AA and with incorporation number 112599. The information in this document is for general information purposes only and does not constitute professional advice, legal or otherwise and does not intend to be comprehensive. Triay Lawyers does not accept responsibility for any loss that may arise from accessing or relying upon the information contained in this document.
We are often asked about the extent to which prenuptial agreements and other financial agreements between spouses are enforceable. In short, the local Matrimonial Causes Act 1962 (Gibraltar)