The Month in Retrospect: What Else Happened in April 2021

Some Back and Forth on Brexit and Lugano

On 8 April 2021, I covered the first anniversay of the UK’s application to join the Lugano Convention, and took a fairly pessimistic view as to the prospects of the UK becoming a member state. So I was quite surprised to see a headline in the Financial Times on 12 April 2021 that claimed: “UK set to secure Brussels’ backing for joining legal pact“. The FT’s sources apparently got it wrong, however, and a couple of hours later the FT had to retract its report: “Brussels opposes UK bid to join legal pact, splitting EU states – European Commission says Britain should not be allowed to rejoin Lugano convention.” Other sources such as  Sueddeutsche Zeitung confirm that there had been no change in the EU Commission’s policy – there is no prospect of the UK joining Lugano any time soon. Continue reading

Security for Costs after Brexit: New Federal Patent Court Decision and a Question Mark

On 1 March 2021, the Federal Supreme Court (Bundesgerichtshof) held in a patent case that as of 1 January 2021, British claimants have had to provide security for costs under Section 110 para. 1 German Code of Civil Procedure (ZPO) (see here for the related post). In its decision, the Federal Supreme Court found, without providing any detailed reasoning, that no exception pursuant to Section 110 para. 2 ZPO applied: There was no international treaty in force that would exempt British claimants from the obligation to provide security for costs (for the European law background to Section 110 ZPO, see my post at zpoblog.de). Implicitly, the Federal Supreme Court hence also addressed the question whether “old” multilateral treaties such as the 1968 Brussels Convention or bilateral treaties such as the 1960 British-German Convention were revived after Brexit. Continue reading

Federal Supreme Court: First Post-Brexit Decision on Procedural Issue

To the best of my knowledge, the Federal Supreme Court (Bundesgerichtshof) decision of 1 March 2021 is the first one dealing with one of the procedural issues arising after Brexit, namely the question of security for costs to be posted by British plaintiffs in German proceedings pursuant to Section 110 German Code of Civil Procedure (Zivilprozessordnung, ZPO). In this case, proceedings were already pending before the United Kingdom’s effective withdrawal from the European Union. Implicitly, the Federal Supreme Court also addresses the question whether “old” multilateral treaties such as the 1968 Brussels Convention or bilateral treaties such as the 1960 British-German Convention were revived after Brexit. Continue reading

Case of the Week: Litigating in the Shadow of Brexit

BrexitThis week, yet another Brexit deadline expired without additional clarity as to when and on what terms Brexit will occur. This creates uncertainties, which affect business relations with British parties, and impact, amongst many other fields, civil litigation. So in this week’s Case of the Week, we present the three cases I know of in which German courts had to decide on Brexit-related issues. The cases deal with security for costs, the validity of choice of court agreements and with freezing orders in a Brexit context.  Continue reading