109 / 482
GAZETTE
MARCH 1989
The term "court or tribunal" is
wide and vague and includes any
institution of a judicial nature.
Article 25 of the Convention
defines a "judgment" as: "Any
judgment given by a court or
tribunal of a Contracting State,
whatever the judgment may be
called, including a decree, order,
decision or writ of execution, as
well as the determination of costs
or expenses by an officer of the
court". It is significant that the
Convention does not limit enforce-
ment to judgments which are final
and conclusive. This is in contrast
to the common law which requires
a foreign judgment to be final and
conclusive before it can constitute
a valid cause of action in this
jurisdiction. Accordingly, provis-
ional and protective judgments or
orders for periodical payments
which may be varied are capable of
being recognised and enforced
under the Convention. In case
125/79 [1980] E.C.R. 1553
Denilauler -v- S.n.c. Couchet Freres,
the European Court held that a
judgment delivered in a case where
the application had been made ex
parte did not come within the
scope of the Convention. The basis
of this ruling is not the lack of
finality of such a judgment, but
rather the fact that it is contrary to
the policy of the Convention to
allow automatic recognition and
enforcement of a judgment given in
a case where the defendant has
not been given an adequate
opportunity to put in his defence.
The European Court gave the
following interpretative ruling on
this point:
"Judicial decisions authorising
provisional or protective measures,
which are delivered without the
party against which they are
directed having been summoned to
appear and which are intended to
be enforced without prior service
do not come within the system of
recognition and enforcement
provided for by Title III of the
Convention of 27 September 1968
on Jurisdiction and the Enforce-
ment of Judgments in Civil and
Commercial matters."
Articles 50 and 51 require auth-
entic instruments (made by notaries
and certain other public officers)
and court settlements which are
enforceable in the Contracting
State where they are made, to be
enforceable under the Convention.
The Convention provides an
enforcement procedure which is as
quick, easy and effective as
possible. It also ensures that all
judgments coming within its scope
will be recognised in all Contracting
States. In the case of Community
judgments that come within the
scope of the Convention, the
Convention procedure is the only
permissible method of enforcement
in Contracting States. The common
law allowed the plaintiff to sue
again on the same cause of action
in another jurisdiction provided the
foreign judgment had not been
satisfied. In case 42/76
De Wolf
-v- Cox
[1976] E.C.R. 1759 the
European Court ruled that, if a
judgment which is entitled to
recognition under the Convention is
given by a court in a Contracting
State, the person in whose favour
the judgment was given may not
sue the defendant again on the
same cause of action in another
Contracting State. If the plaintiff in
such a case does bring fresh
proceedings in another Contracting
State, the defendant may plead
res
judicata
on the ground that the
foreign court has already
determined the issue.
JURISDICTION
One of the aims of the Convention
is to have the rules on recognition
and enforcement applied uniformly
throughout the Contracting States.
In order to achieve this, the
Convention sets out rules on
jurisdiction which are to be applied
by the court in which the original
proceedings are brought and which
must be observed even where
enforcement of the eventual
judgment in another Contracting
State will not arise. A court of a
Contracting State which is
requested to recognise and enforce
a judgment obtained in another
Contracting State must assume
that the judgment granting court
had jurisdiction under the rules in
the Convention and it may not
apply any further jurisdictional
tests. This system is in complete
contrast to the former common law
procedure, whereby the court in
which a foreign judgment was sued
upon would first check if the
original court had jurisdiction in the
matter by reference to the Irish
rules on Private International Law.
The Irish law on jurisdiction prior
to the coming into force of the
1988 Act was that, except where
a defendant voluntarily submitted
to the jurisdiction of an Irish Court,
that court would only have
jurisdiction if the defendant had
been duly served in the State with
the summons which instituted the
proceedings in question. If the
defendant was even only
temporarily within the State he
could be validly served with the
summons under Irish law and the
court would accordingly assume
jurisdiction. However, if the
defendant was outside the
jurisdiction he could only be served
with the permission of the Court,
which would be granted only if the
case complied with the conditions
set out in Order 11 of the Rules of
the Superior Courts. Article 3 of
the Convention provides that
"persons
domiciled
in a
Contracting State may be sued in
the courts of another Contracting
State only by virtue of the rules set
out" in the Convention. It
specifically states that the rule of
the Irish courts whereby jurisdiction
may be assumed on the basis of a
defendant's temporary presence
within the jurisdiction shall not be
applicable to persons domiciled in
a Contracting State.
The basic jurisdictional provision
of the Convention is that the courts
of the defendant's domicile have
jurisdiction (Article 2). Otherwise,
the court may only assume juris-
diction where the Convention
makes provsion to that effect. Such
provision is made in Title 2:-
Section 2 (Articles 5 to 6a on
special jurisdiction), Section 3
(Articles 7 to 12a relating to
insurance), Section 4 (Articles 13
to 15 relating to consumer
contracts) and Section 5 (Articles
16 and 17 providing for exclusive
jurisdiction). In addition, Article 18
allows a court before which a
defendant enters on appearance to
assume jurisdiction except where
an appearance is entered solely to
contest the jurisdiction of that
court or where another court has
exclusive jurisdiction under Article
16. The general rules on special
jurisdiction as set out in Articles 5
to 6a of the Convention do not
substantially change the present
Irish rules on jurisdiction contained
in Order 11 of the Rules of the
Superior Courts. In proceedings to
which the rules relating to special
jurisdiction apply, the plaintiff has
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