110 / 482
GAZETTE
APRIL 1989
a choice of jurisdiction. He may sue
the defendant either in the courts
of the Contracting State where the
defendant is domiciled (Article 2),
or in the courts of the Contracting
State which is entitled to assume
jurisdiction under the rules relating
to special jurisdiction. However,
where the subject matter of the
proceedings is one to which the
rules relating to exclusive juris-
diction apply, e.g. a dispute relating
to rights in immovable property, the
courts which are given exclusive
jurisdiction under the Convention
shall have exclusive jurisdiction
regardless of domicile (Article 16).
Order 11 of the Rules of the
Superior Courts was used in a wide
range of cases, but it was most
commonly used in cases of
contract or tort. Article 5(3) of the
Convention provides that juris-
diction in tortious matters may be
assumed by the courts for the place
where the harmful event occurred.
This accords with the present Irish
law. However, Article 5(1) of the
Convention provides that, in cases
involving contract, the courts of the
place of performance of the
obligation may assume jurisdiction.
This makes a change in the present
Irish law. The mere fact that a
contract was made within the
jurisdiction or that it was to be
governed by Irish law is no longer
sufficient to entitle the Irish courts
to assume jurisdiction against a
person domiciled in another
Contracting State. However, where
the parties to a contract agree in
writing (or by other formality as
specified in the Convention) that
the Irish courts are to have
jurisdiction to settle disputes under
it, then an Irish court will have
exclusive jurisdiction unless the
agreement relates to an insurance
or consumer contract in which
case such an agreement will have
no legal force (Article 17).
Maintenance is another import-
ant area of special jurisdiction
which the Convention specifically
provides for in Article 5(2). The
maintenance debtor may, as an
alternative to the courts of his State
of domicile, be sued in the courts
for the place where the mainten-
ance creditor is domiciled or
habitually resident. The object of
this provision is the protection of
the maintenance creditor who may
not have the financial resources to
pursue the defendant abroad. The
explanatory report on the 1978
Accession
Convention
(by
Professor P. Schlosser: O.J. No.
C59 of 5.3 1979, p. 71) states that
the mere fact that an order is for a
lump sum does not prevent it from
being regarded as maintenance.
The essence of maintenance is that
it is intended to provide for the
support of a dependant spouse or
child and is based (at least in part)
on need. Any lump sum payment
awarded to a child is regarded
prima facie as a maintenance order.
There is a special procedure for the
enforcement of Community main-
tenance orders which is set out in
S.I. No. 173 of 1988 entitled:
'District Court [Jurisdiction of
Courts and Enforcement of
Judgments (European Communit-
ies) Act, 1988] Rules, 1988'. This
amends the District Court Rules to
provide that, in cases where the
Master of the High Court has made
an order for the enforcement of an
"enforceable maintenance order",
the District Court Clerk shall make
the necessary arrangements for
payments on foot of the said order
and he shall also transmit the
payments to the maintenance
creditor. This procedure is similar to
that used when enforcing in this
jurisdiction, under the terms of the
Maintenance Orders Act, 1974, a
maintenance order made by the
Courts of the United Kingdom.
Insurance matters and consumer
contracts (as defined in Article 13)
have special jurisdictional rules
attached to them by Articles 7 to
15 of the Convention largely
because of the inequality of
bargaining power which frequently
exists between the parties to such
contracts. These rules give effect
to a social policy of protecting the
weaker party. The insurer or
supplier will usually be the stronger
party which might use its position
to impose unfair terms on the
weaker party. In these Articles the
Convention grants certain rights to
the weaker party to such trans-
actions and those rights cannot be
nullified by contract. A party to a
contract is regarded as a consumer
when he concludes the contract for
a purpose outside his trade or
profession (Article 13). In order to
protect the consumer or policy-
holder from the imposition of unfair
terms the jurisdictional rules are
tilted in his favour. In cases where
the insurer or supplier sues the
ISLE OF MAN
Messrs Samuel McCleery
Registered Legal Practitioners in the
Isle of Man, of Derbyhaven House,
Derbyhaven, will be pleased to accept
instructions by their resident partner
Mr. S. McCleery from Irish Solicitors in
the formation and administration of
resident and non-resident Isle of Man
Companies.
M i Offlct:
London Offlco:
(OMR Offki.
26. South Frederick St.,
Tel: 01-831 7761
Tel: 0624 822210
Dublin 2. Tel: 01-760780
Tele*: 297100
Tele*: 628285
Fa*: 01 764037
Fa*: 01 831 7485
Fa*: 0624-823799
policy-holder (or the insured or a
beneficiary) or consumer, Articles
11 and 14 of the Convention pro-
vide that the only courts with
jurisdiction are those of the
Contracting State in which the
defendant is domiciled. In actions
brought against the insurer or
supplier a choice of jurisdiction is
given. In such cases the policy-
holder or consumer may choose to
sue either in the Contracting State
where he is domiciled or in that in
which the insurer or supplier is
domiciled (Articles 8 and 14).
Articles 12 and 15 respectively
allow the jurisdictional rules in
respect of insurance and consumer
contracts to be departed from only
by an agreement entered into in the
following circumstances:
1) if the choice of jurisdiction
agreement is entered into after the
dispute has arisen;
2) where the agreement allows the
policy-holder, the insured, a
beneficiary or the consumer, as the
case may be, to bring proceedings
in courts other than those already
indicated;
3) where the agreement is con-
cluded in a Contracting State
where both parties are at that time
domiciled or habitually resident and
it confers jurisdiction on the courts
of that State. Some additional
exceptions apply in relation to
insurance under Article 12(4) and
(5).
A court must voluntarily declare
that it has no jurisdiction to hear a
case if it is a case which is princi-
pally concerned with a matter
within the exclusive jurisdiction of
the courts of another Contracting
State (Article 19).
Where proceedings between the
same parties and involving the
same cause of action are brought
before the courts of different
96