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GAZETTE
JANUARY/FEBRUARY 1986
judgement given in a dispute between the same parties in
the State in which recognition is sought. The fourth
exception provides that a judgement should not be
recognised where the original court decided a prelimin-
ary point relating to the capacity of persons, property
rights arising out of marriage or relating to Wills or suc-
cession, which conflicts with a rule of private inter-
national law in the State where recognition is sought.
Finally, and this is a new exception added by the 1978
Convention, a fifth exception is where the judgement
in question is irreconcilable with a previous judgement
in the same cause of action between the same parties
provided that it was decided in a non-Contracting State
and is itself enforceable.
Article 28 also provides that a judgement need not be
recognised if it conflicts with those jurisdictional rules
of the Convention relating to insurance contracts, con-
sumer contracts or the rules of exclusive jurisdiction or
conflicts with the provisions of Article 59 (which allow
certain obligations in bilateral Conventions with third
countries). However, the court in which recognition is
sought is bound by the findings of fact in the original
court.
Article 39 is simply stated and to the point and pro-
vides that "under no circumstances may a foreign
judgement be reviewed as to its substance." As the
Jenard Report explains <
7
> "the court in the State in
which recognition is sought is not to examine the correct-
ness of that judgement; it may not substitute its own dis-
cretion for that of the foreign court nor refuse recog-
nition if it considers that a point of fact or law has been
wrongly decided".
The effect of Article 30 is that an Irish court in which
recognition is sought may stay the proceedings if an
"ordinary appeal" (essentially an appeal which
suspends enforcement in the original country) has been
lodged in that original country and a foreign court may
stay the proceedings where an appeal has been lodged in
the Irish courts and the effect of the appeal is to suspend
enforcement in Ireland.
Enforcement
The drafters of the Convention realised <»> that the
progress made by the jurisdictional provisions of the
Convention would be rendered nugatory if a party seek-
ing enforcement of a judgement given in his favour were
impeded by procedural obstacles. Because the recognis-
ing court is strictly limited in its power to look into the
judgement and because the defendant is adequately
protected in the original proceedings — "it is proper
that the application for enforcement be enabled to pro-
ceed rapidly with all the necessary formalities in the
State in which enforcement is sought, that he be free to
act without prior warning and that enforcement be
obtained without unnecessary complications".
On the basis of such reasoning it was decided to base
the enforcement procedure on an
ex parte
application.
Article 31 provides simply that a judgement given in one
Contracting State and enforceable there shall be enfor-
ceable in another Contracting State. The application for
enforcement is made, in Ireland, to the High Court and
the procedure for making application is governed by the
law of the country where enforcement is sought. The
application must provide an address for service within
the jurisdiction of the court applied to or, if the law
does not provide for the furnishing of such an address,
he must appoint a representative
Ad Litem.
In
De Wolf
-v-
Cox
<
9
> it was held that the enforce-
ment procedure under the Convention was obligatory
even if, in exceptional circumstances, there was a cheaper
or easier procedure under National Law.
The application is made
ex parte
and Article 34 pro-
vides that the court must give its decision without delay.
Further, it is specifically provided in Article 34 that the
party against whom enforcement is sought is not entitled
to make any submission to the Court at this stage. The
case of
Denilauler
-v-
Couchet Freres
<"» is of interest.
The judgemept which was sought to be enforced was an
order to freeze a party's bank accounts. The Court of
Justice recognised that there were cases such as this one,
where the nature of the order being requested required
that defendant not be notified of the proceedings
against him or indeed of the order when made. How-
ever, having regard to the nature of the Convention and
the essential safeguards for defendants contained
therein the Court of Justice held that such orders were
not enforceable under the Convention.
Apart from cases such as
Denilauler
it was considered
ci) that the rights of the respondant were adequately
safeguarded since he can appeal against the decision
authorising enforcement. The application for enforce-
ment may only be refused for one of the reasons
specified in Articles 27 and 28. It is reiterated in Article
34 that the foreign judgement may not, under any cir-
cumstances, be reviewed as to its substance.
Walter Conan Ltd.,
Academi c -Lega l -Ci v i l -Cl er i cal
Robemake r s.
Telephone - 97J 730 - 971887
¥
PHELAN - CONAN GROUP
WOODLEIGH HOUSE, HOLLYBANK AVENUE. RANELAGH D.6
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