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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
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of business the Bill was withdrawn from the Dái/ and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.
by
Tony O' Conno r,
Solicitor
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
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: —
(i)
if it is against public policy;
(ii) if it was given in default of ap-
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.
157