Belgian Supreme Court upholds the application of the 2005 Hague Convention to exclusive choice of court agreements concluded during the Brexit transition period

In a landmark ruling on 27 March 2025 (available in French here), the Belgian Supreme Court (“Cour de cassation”/ “Hof van Cassatie”) confirmed that exclusive choice of court agreements designating the courts of the United Kingdom, concluded during the Brexit transition period, remain governed by the Hague Convention of 30 June 2005 on Choice of Court Agreements (“Hague Choice of Court Convention”). 

This case brings judicial clarification to a long-standing uncertainty that had emerged in the wake of Brexit as regards the temporal application of the Hague Choice of Court Convention. The Court expressly held that it is applicable to the UK “without any reasonable doubt” from 1 October 2015 to 31 December 2020 as a State bound via the EU’s approval, and from 1 January 2021 as a Contracting Party.

In this article we consider the significance of this case to exclusive jurisdiction agreements concluded during the Brexit transition period and how the enforcement landscape between the EU and the UK has evolved since. 

Background

As a quick refresher, following the UK’s withdrawal from the EU on 1 February 2020, the EU-UK Withdrawal Agreement (“Withdrawal Agreement”) established a so-called “transition period”, which started on 1 February 2020 ending on 31 December 2020. Until that date, EU law in its entirety – including the obligations stemming from the international agreements concluded by the EU – remained applicable to and in the UK (see Articles 2, 127(1) and 129 of the Withdrawal Agreement). 

The UK became bound by the Hague Choice of Court Convention on 1 October 2015 by virtue of its membership of the EU, which approved the instrument on that date. On 28 September 2020, with the intention of ensuring continuity in the aftermath of  Brexit, and since the Brussels “Recast” Regulation No. 1215/2012 would cease to apply to the UK following the end of the transition period, the UK deposited an instrument to achieve  accession in its own right to the Hague Choice of Court Convention (“Instrument of Accession”). The Instrument of Accession took effect only as of 1 January 2021 (a date that coincided with the end of the Brexit transition period).

While all Member States (including the UK) are de facto bound by the Convention since its approval by the EU on 1 October 2015, a key question quickly emerged in the context of  Brexit. Since the Hague Choice of Court Convention provides that it is applicable to exclusive choice of court agreements concluded “after its entry into force for the State of the chosen court” (Article 16.1), does the Convention apply (or not) to exclusive jurisdiction agreements in favour of courts within the UK concluded in the period between 1 February and 31 December 2020? In other words, was the Hague Choice of Court Convention “in force” for the UK during the transition period? This controversial issue gave rise to two strands of opinion.

On the one hand, the UK stood in favour of continuity, which is clearly reflected in the Instrument of Accession: “Whilst acknowledging that the Instrument of Accession takes effect at 00:00 CET on 1 January 2021, the United Kingdom considers that the 2005 Hague Convention entered into force for the United Kingdom on 1 October 2015 and that the United Kingdom is a Contracting State without interruption from that date” (emphasis added).

On the other hand, the European Commission in its Notice to Stakeholders on the Withdrawal of the UK and EU rules in the field of civil justice and private international law of 27 August 2020 (available here, see p. 9), considers that the Hague Choice of Court Convention would only be applicable for choice of court agreements designating UK courts that are concluded after the date of effect of the Instrument of Accession, i.e. as of 1 January 2021 (but not before). This view implies that any choice of court agreement concluded after the entry into force of the Withdrawal Agreement, but before the date of effect of the UK’s independent ratification of the Hague Choice of Court Convention, would fall outside the scope of the Convention and could not benefit from its mutual recognition regime.

Dispute before the Court

In the present case, the dispute submitted before the Supreme Court was between a Belgian distributor and its UK-based principal. The parties had entered into an exclusive distribution agreement on 10 February 2020 (i.e. during the Brexit transition period) providing for the exclusive jurisdiction of the courts within the UK. Following a termination without notice by the UK principal in July 2021, the Belgian distributor summoned its co-contractor before the Enterprise Court of Liège (Division of Namur), claiming for termination compensation as provided under the Belgian Code of Economic Law (“CEL”) and relying on the jurisdiction of the Belgian courts provided for in Article X.39 of the CEL (which has a mandatory law nature). The principal objected thereto, invoking the exclusive choice of court clause which would oblige the Belgian court to decline its jurisdiction in favour of the particular  court  within the UK specified in the agreement (Article 6 of the Hague Choice of Court Convention). 

Both the Enterprise Court and the Court of Appeal of Liège upheld the jurisdiction of the UK courts. The Belgian distributor subsequently appealed to the Supreme Court, arguing that Article X.39 CEL should prevail over the exclusive choice of court clause, as (in the distributor’s argument) the choice of court clause had been agreed on before the date of effect of the UK’s independent ratification of the Hague Choice of Court Convention through the Instrument of Accession.

In its judgment (C.24.0012.F), the Supreme Court ruled in favour of the British principal, stating that “without any reasonable doubt, the Hague Convention of 30 June 2005 is applicable to the United Kingdom as a bound State by virtue of the European Union’s approval of the Convention from 1 October 2015 until 31 December 2020, and as a contracting party, from 1 January 2021” (emphasis added). It dismissed the appeal and rejected the distributor’s argument , considering that “the argument [pursuant to which] the United Kingdom was no longer a bound State under the Convention following its withdrawal from the European Union on 1 February 2020, is unfounded in law”. In so doing, the Supreme Court seems to have endorsed the UK’s position as regards the temporal application of the Hague Choice of Court Convention as developed in its Instrument of Accession.

This decision delivers significant clarification regarding the ongoing applicability of the Hague Choice of Court Convention to the United Kingdom throughout the Brexit transition period. It confirms that, at least from the perspective of Belgian courts, exclusive jurisdiction clauses designating a court within the UK entered into during this period will continue to benefit from the Convention’s mutual recognition framework. Therefore, it strengthens the enforceability of these jurisdiction clauses in Belgium, and acts to promote legal certainty.

However, even though this ruling tends to confirm the primacy of international agreements over conflicting domestic jurisdiction rules (such as the mandatory provisions in distribution law), it is not binding as such on other EU Member States. Practitioners should therefore remain attentive to divergent national case law on this issue, particularly when litigating before courts outside Belgium.

2019 Hague Judgments Convention – application to the UK and EU

Reciprocity between the UK and EU in private international law matters has recently been further strengthened by the coming into force on 1 July 2025 in the UK of the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (“Hague Judgments Convention” – here) which establishes a framework for the cross-border recognition and enforcement of court judgments between contracting states, which already included the EU (except Denmark). The EU member states have been contracting members since September 2023. 

The purpose of the Hague Judgments Convention is to facilitate and simplify global cross-border recognition and enforcement of civil or commercial judgments. It was introduced to address the growing frustration among businesses operating across borders regarding the time, cost, and complexity of enforcing judgments. This development is particularly important for the UK as Brexit left the UK without the streamlined enforcement mechanisms between it and EU member states previously available through the Brussels Recast Regulation and the Lugano Convention, forcing reliance on a fragmented system of bilateral treaties, common law, and limited reciprocal enforcement under the Hague Choice of Court Convention for exclusive jurisdiction clauses only (as discussed above). While the Hague Judgments Convention helps address this enforcement gap through reciprocal enforcement mechanisms, it does not provide automatic recognition of judgments, and parties must note that, in accordance with Article 16, proceedings instituted before 1 July 2025 remain subject to the previous patchwork of enforcement options (except where the Hague Choice of Court Convention applies), requiring careful consideration of existing legal arrangements.

The Hague Judgments Convention’s broad application provides contracting parties with enhanced flexibility when selecting jurisdiction clauses, as they can now confidently incorporate non-exclusive and asymmetric jurisdiction provisions knowing these will be recognised and enforced by courts in EU Member States, Ukraine, and Uruguay (i.e. the contracting states in which the convention is currently into force). While the location of the counterparty’s assets remains a crucial consideration parties can now proceed with greater certainty that cross-border judgment enforcement between the UK and EU-based entities will be significantly more efficient than under previous arrangements. This, coupled with the decision from the Belgian Supreme Court on the temporal scope of the Hague Choice of Court Convention, provides welcome legal certainty for businesses trying to enforce court judgments in the UK and the EU.

Conclusion & key-takeaways

The decision of the Belgian Supreme Court has provided legal certainty for exclusive jurisdiction clauses concluded during the Brexit transition period after some years of uncertainty. The Belgian Supreme Court confirmed the UK’s binding status under the Hague Choice of Court Convention was uninterrupted from 1 October 2015 onwards, rejecting arguments that Brexit created a gap in applicability during the transition period. However, this decision is not binding on other EU Member States. Practitioners should remain vigilant about potential divergent interpretations in other jurisdictions when enforcing UK jurisdiction clauses agreed during the transition period. 

Meanwhile, the 2019 Hague Judgments Convention significantly improves the post-Brexit enforcement landscape by providing reciprocal enforcement mechanisms between the UK and EU member states, allowing recognition of non-exclusive and asymmetric jurisdiction clauses and addressing in part the enforcement gap left by the UK’s departure from the Brussels Recast Regulation. However, there are temporal limitations as it only applies to proceedings instituted on or after 1 July 2025. Earlier proceedings remain subject to the previous fragmented enforcement regime (except where the Hague Choice of Court Convention applies). The good news is that businesses can now incorporate jurisdiction clauses which specify one of the UK jurisdictions into their contracts (including non-exclusive and asymmetric provisions) with greater confidence as to their enforceability across EU member states, Ukraine, and Uruguay, though the location of counterparty assets remains an important consideration.

Please get in touch with the authors of this article, or your usual Bird & Bird disputes contact if you would like to discuss how either the 2005 or 2019 Hague Conventions may impact your commercial agreement, dispute or judgment.