The Gazette 1985

GAZETTE

SEPTEMBER1985

to be defined. The primary effect of Article 52 for an

Irish court is that it must decide, according to Irish law,

whether a party to a matter before it is domiciled in

Ireland. If according to Irish L aw that party is domiciled

in Ireland the Irish Court, in deciding whether he is

domiciled in another contracting State, must apply the law

of that other State.

The problem is that the concept of " d om i c i l e" is

quite different in Ueland and the U . K. than it is in the

original six Contracting States. Apart from s ome slight

differences, " d om i c i l e" in these six Continental legal

systems c onno t es a person's connection to a particular

place within the Stale; it is most akin to habitual resi-

dence. "D om i c i l e" in Ireland and the U . K. is more

restrictively defined and can involve not only residence

but also an intention to remain in a place permanently.

Because of the o b v i o us adverse consequences of not so

doing it was r e c omme nd ed that both Ireland and the

U . K. would provide, in their implementing legislation,

for the purposes of the Co n v e n t i o n, for a concept of

domicile which wou ld reflect the concept as it is under-

stood in the original six Contracting States.

The

c omp r e h e n s i ve

Civil

Jurisdiction

and

Judgements Act 1982 in the U . K. has followed this rec-

omme n d a t i on and it provides that for the purposes of

the Act (and therefore the Conv e n t i on) a person is

domiciled in the U . K ., if, and only if, he is resident

there and the nature and circumstances of his residence

indicate that he has a substantial connection with the

U . K. F urther, there is a rebuttable presumption of such

a connection in the ease of an individual resident in the

U . K. for the three mo n t hs preceding the determination

of his domicile.

In the case of c omp a n i e s, Irish law looks to the place

of incorporation and not to the c omp a n y 's " s e a t ".

Again it was r e c omme nd ed that both Ireland and the

U.K. adopt a concept of the " s e a t" of a C omp a ny for

the purposes of the Co n v e n t i o n. The 1982 Act in the

U.K. therefore prov ided that for the purposes of the Act

the " s e a t" of a C omp a ny would be treated as a domicile

and " s c a t" would include the place of central manage-

ment and control. It is to he assumed (and indeed hoped)

that our implementing legislation will adopt a similar

course.

The rules of exhorbitant jurisdiction set out in Article

3 (as amended by Article 4 of the 1978 Co n v e n t i o n) may

not be used against a person domiciled in a Contracting

State. It is Article 3 therefore which prohibits the

assumption by an Irish Court of jurisdiction over a

defendant domiciled in a Contracting State merely by

reason ol the service of proceedings on him while tem-

porarily present in Ireland.

Article 4 specifically provides that where a person is

not domiciled in a Contracting State the law of the Co n-

tracting State concerned will, subject to certain exceptions

under Article 16, determine jurisdiction.

Other Exceptional Rules of Jurisdiction

So, the primary rule of jurisdiction is that a defendant

must be sued in the courts of the country where he is

domiciled. This is so except where the Co n v e n t i on

specifically allows or obliges the plaintiff to sue in

another Contracting State. Articles 5 and 6 give the

plaintiff the choice of suing in the country of the

defendant's domicile under Article 2 or in the place

determined by these Articles.

Article 5 sets out seven instances where the plaintiff

has a choice of jurisdiction. Article 5(1) provides that in

matters relating to contract a defendant may be sued in

the place of p e r f o rman ce of the obligation in question.

This rule has given rise to a number of important inter-

pretations by the Court of Justice. An important limit-

ation was impo s ed in the case of

de Bloos

-v-

Bouyer

The Court held that the word " o b l i g a t i o n" in Article

5(1) meant the obligation forming the basis of the legal

proceedings. For the purpose of determing the place of

performance within the meaning of Article 5(1) the

obligation to be taken into account was that which cor-

responded to the contractual right on which the plain-

tiff's action was based. An d, in another case

the

Court held that the national court must decide in

according to its own laws whether the obligation was

one which was to be performed within its jurisdiction.

(And, it has been held that the parties to a contract ma y,

subject to national law, specify the place of perform-

ance of the obligation

An interesting point was raised in case 38/81.

The

plaintiff sued in the Ge rman courts as the place where

the particular contractual obligation was to be per-

formed. The defendant denied the very existence of the

contract. A preliminary reference was made to the

Court of Justice which held that ". . . the national

court's jurisdiction to determine questions relating to a

contract includes the power to consider the existence of

the constituent parts of the contract itself since that is

indispensible in order to enable the national court in

which proceedings are brought to examine whether it

has jurisdiction under the Co n v e n t i o n ". Otherwise the

defendant could t oo easily defeat the effect of Article

5(1) by simply claiming that no contract existed.

Article 5(2) (as ame nd ed in the 1978 Co n v e n t i o n)

provides that in maintenance matters a domiciliary of a

contracting Stale may be sued where the maintenance

creditor is domiciled or habitually resident or where the

matter is ancillary to proceedings concerning the

status of a person in the court which has jurisdiction to

entertain those proceedings unless jurisdiction is based

solely on the nationalitv of one of the parties.

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