The Gazette 1987

GAZETTE

JULY/AUGUST

1987

Jurisdiction of Courts and Enforcement of Judgements (European Communities) Bill*

This Bill first introduced

in 1986, lapsed with the dissolution

of

enforcement of judgments. Title III of the Convention — set out in the Bill — seeks to facilitate the free movement of judgements by a reduction in the number of grounds which can operate in the domestic Courts of one contracting state, to prevent the recognition and en- forcement of a judgement of a court of another contracting state and, secondly by the simplification of the enforcement procedures which will be common to the con- tracting states. At present, it is, in general, only foreign judgements for fixed sums of money which can be enforced in Ireland. The Irish courts at present have a very broad power to refuse to enforce a foreign judgement. Under the proposed legislation a foreign judgement shall not be en- parted here only: — pearance and sufficient time was not given to the defen- dant to file a defence; (iii) if it is irreconcilable with another judgement recognis- ed by the State; (iv) if the judgement conflicts with a rule(s) of private inter- national law of the State. An application for the recogni- tion or enforcement of a foreign judgement will, under the propos- ed legislation, be made to the Master of the High Court, and, presumably rules of Court regar- ding this type of application will be made when the Bill becomes law. The Bill provides that the proof and admissibility of judgements and related t r ans l a t i ons and documents may be effected by duly authenticated documents. * See Gerald Moloney and George Krem/is "The Brussels Convention on Jurisdiction and the Enforce- ment of Judgements", Gazette, December 1985 and Jan-Feb. 1986. (i) if it is against public policy; (ii) if it was given in default of ap-

the 24th Dái/ and the outgoing Seanad. It was again presented by the Minister for Justice on 1st May, 1987. Due to pressure of business the Bill was withdrawn from the Dái/ and re-introduced in the Seanad on 3 June, 1987. This Bill seeks to enact into Irish legislation the 1968 Con- vention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters, two subsequent Conven- tions required for the Accession of other States and other amendments, and the 1971 Protocol on the Interpretation of the Convention.

The first part of the Convention sets out to harmonise the rules on jurisdiction among all the contrac- ting states to the Convention. Under the proposed legislation a person is domiciled in a State where he is "ordinarily resident" and a company must be incor- porated, or have its central management and control, in a state to be domiciled there. A person domiciled in a state may be sued there. If an individual is not domiciled in the State of the presiding court then the court will decide whether he is domiciled in another state by reference to the law of that other state. This will require evidence of the other state's law to be adduc- ed at any hearing. A defendant may be sued in a contracting state where he or she or it is not domiciled if the courts of that state are enabled to ad- judicate by virtue of the Conven- tion. These instances are set out at Title II of the 1968 Convention and in the Bill. In summary, a person may be sued outside the state in which he/she/it is domiciled where: — a) a contractual obligation is to be formed; b) a maintenance creditor is habitually resident; c) the harmful event occurs in tortious matters; d) a branch or agency is situated in the case of a dispute about the operations of the branch or agency;

e) the trust is domiciled;' f) a co-defendant is domiciled; g) the original proceedings to a third party action have been commenced; h) there is a counterclaim; i) the insurance policy holder is domiciled; j) the leading insurer is dommicil- ed, and k) the branch or agency of a sup- plier which dealt with the consumer is domiciled except in the case of transport contracts. In the event of proceedings in- volving the same cause of action and between the same parties being instituted in different contracting states, any court other than the court first seized shall of its own motion decline jurisdiction in favour of that court. Article 22 provides for similar rules for related actions. Article 24 enables the courts of the contracting state to take pro- visional and protective measures which would include a "Ma r eva" type injunction procedure, even if another contracting state has jurisdiction as to the substantial issues. The second part of the Conven- tion relates to the recognition and by Tony O' Conno r, Solicitor

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