The Gazette 1985

341 / 406

GAZETTE DECEMBER 1985
The Brussels Convention on Jurisdiction
and the Enforcement of Judgements
Parti
by
Gerald Mo l oney, Solicitor
and
George Kremlis*
THE harmonisation of the rules of jurisdiction in
international disputes and the rules governing the
enforcement of foreign judgements is an obv i ous and
desirable objective of the EEC. And, indeed, such har-
monisation was set d own in Article 220 of the EEC
Treaty as one of the goals of the Member States. Article
220 provided that Memb er States should enter negoti-
ations with a view to "securing for the benefit of their
nationals . . . the simplification of formalities govern-
ing the reciprocal recognition and enforcement of
judgements of Courts or Tribunals and of arbitration
awa r d s ". These negotiations resulted in the signing, on
the 27th September 1968, of the Conv e n t i on on Juris-
diction and the Enforcement of Judgements in Civil and
Commercial Matters, otherwise known as the Brussels
Conv e n t i on. The Co n v e n t i on came into force between
the original six Memb er States of the EEC on the 1st
February 1973. On the 3rd June 1971 these six Memb er
States signed a Protocol to the Conv e n t i on dealing with
the interpretation by the Court of Justice in Luxembourg
of the Co n v e n t i o n. The Protocol came into force on the
1st September 1975.
On the 9th October 1978 the original six Memb er
States and the three new Member States, including
Ireland, signed the first Convention of Accession whereby
the new Memb er States b e c ame parties to the 1968 Co n-
vention. This Accession Conv e n t i on also made certain
adjustments to the 1968 Conv e n t i on, s ome of which
were necessitated by the participation of the C o mm on
Law countries and others which were thought desirable
after the experience of the operation of the 1968 Co n-
vention.
The 1978 Co n v e n t i on is not yet in force as a sufficient
number of signatory States have not yet ratified it.
1 The Co n v e n t i on will c ome into force for Ireland
after it has been ratified by Ireland and the original six
States. Ac c o r d i ng to Go v e r nme nt sources draft legis-
lation is being prepared and it is now hop ed to be intro-
duced as s o on as possible in 1986. Strong criticism of
those countries which have not yet ratified, including
Ireland, is justified considering the important develop-
ments that will flow f r om the Conv e n t i on o n ce it is in
force. On the 25th October 1982 a second Co n v e n t i on
of Accession was signed whereby Greece b e c ame a party
to the Co n v e n t i o n.
When the Convention does come into force it will bring
about fundamental changes in the law. The first part of
the Conv e n t i on deals with jurisdiction and its detailed
rules determine in which country a defendant ought to
be sued. The second part of the Conv e n t i on deals with
the enforcement of judgements and sets out the conditions
in which an Irish judgement will in future be enforceable
abroad and in which foreign judgements will be enforce-
able here.
By stipulating which country's courts will have juris-
diction in particular types of dispute the possibilities of
" f o r um s h o p p i n g" are greatly reduced. (The 1980 Con-
vention on Contractual Obligations is also designed to
reduce forum shopping.) In those matters covered by
the Convention a court will be able to assume jurisdiction
only in accordance with its rules. For example, an Irish
court will no longer have jurisdiction merely because of
the service of proceedings on a defendant during his
temporary presence in Ireland. By setting d own the rules
by which the judgement of one Member State ought to
be enforced in another Memb er State the Conv e n t i on is
spoken of as giving rise to the "free movement of judge-
me n t s ". Both objectives arc seen not only as desirable
but as necessary in the achievement of the wider goals of
the EEC.
The purpose of this Article is to outline the provisions
of the Conv e n t i on as they will apply in Ireland. Under
the 1971 Protocol the Court of Justice in Luxembourg
plays an important role in interpreting the terms of the
Conv e n t i on and reference will be made to the more
important judgements. References throughout this
Article to "the Co n v e n t i o n" mean the 1968 Conv e n t i on
as amended and specific reference will be made to those
ame ndme n ts of greater import introduced by the 1978
Conv e n t i on.
Scope of Application
The first paragraph of Article 1 provides that "this
Conv e n t i on shall apply in civil and commercial matters
whatever the nature of the court or tribunal". The
second paragraph of Article 1 expressly excludes from
the scope of application of the Conv e n t i on matters con-
cerning a person's status or legal capacity, rights in
property arising out of marriage, wills or succession,
bankruptcy and liquidations, matters concerning social
security and arbitration. The expression "civil and c om-
mercial matters" automatically excludes, in the Con-
tinental legal system, all matters of public law. The
distinction between public and private law is not a well
kn own one in Ireland and the U . K. whereas it is an
integral part of the Continental system. In an attempt to
avoid c o n f u s i on in Ireland and the U . K ., therefore, the
1978 Co n v e n t i on expressly provided that revenue,
•Member of l he I eual Service of I tic Commission of the I
Communities. The writer expresses his own views. ^29