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GAZETTE
JANUARY/FEBRUARY 1986
The respondent is given one month from the time of
the decision (the Court is obliged to notify him) to
appeal and two months where he is domiciled in some
other Contracting State.
Article 38 allows the appellate court to stay enforce-
ment where an "ordinary appeal" has been lodged
against the judgement and for the purposes of Article 38
any appeal in Ireland will be regarded as an "ordinary
appeal".
Article 39 provides that where enforcement has
actually been ordered it may not be carried out until the
time for the appeal has expired. Not unnaturally, the
exception to this rule is the taking of provisional pro-
tective measures.
(12)
Articles 40 and 41 govern the applicants appeal,
should enforcement be refused. In the case of
Firma p -
-v-
Firma K
<'3> the Court of Justice ruled that where
the applicant appeals a refusal to enforce, the appellate
court is obliged to hear the respondent even though
enforcement was refused because certain documents
were not produced and the respondent does not reside in
the State in which enforcement is sought. Article 42
provides that where a foreign judgement has been given
in respect of several matters and enforcement cannot be
authorised for all of them then the Court may authorise
partial enforcement as, indeed, an applicant may appeal
himself for partial enforcement.
Article 45 will alter our present rules relating to
security for costs by providing that no such security may
be required of a party who in one Contracting State
applies for enforcement of a judgement given in another
Contracting State on the ground that he is a foreign
national or not domiciled in the State in which enforce-
ment is sought.
Finally, Articles 46 to 51 deal with the documents
which an applicant must produce to support his
application.
There are a number of general and final provisions in
the Convention. Articles 52 and 53 (as amended) deal
with the determination of the domicile of persons, com-
panies and trusts. These have already been dealt with
briefly in the first part of the Article.
Article 57 (as amended) provides that the Convention
shall not affect any Convention to which the Contract-
ing States are or will be parties and which, in relation to
particular matters, govern jurisdiction or the recognition
and enforcement of judgements. At present, the only
international agreement to which Ireland is a party
which could come within the ambit of Article 57 is the
1974 agreement with the U.K. on the enforcement of
maintenance orders.
Article 59 (as amended) provides that a Contracting
State may enter an obligation towards a third State not
to recognise judgements of other Contracting States
against domiciliaries of that third State, where juris-
diction was based only on exhoribtant jurisdiction
included in the list in Article 3. However, there are
exceptions which relate to the existence of property
belonging to the defendant in the Contracting State in
question.
Article 34 of the 1978 Convention provides that the
Convention will apply only to legal proceedings insti-
tuted after the entry into force of the Convention, in the
country of origin and, where recognition or enforce-
ment is sought, in the country addressed. An exception
to this Rule will arise and the judgement will be recog-
nisable where jurisdiction was founded on rules which
conform with those in the Convention.
And, as has already been mentioned, if the parties to
a dispute concerning a contract had agreed in writing,
before the entry into force of the Convention, that the
contract was to be governed by Irish or U.K. law then
the Irish or U.K. courts, as the case may be, will retain
jurisdiction. Article 36 of the 1978 Convention provides
special transitional measures in Admiralty matters.
These also have been dealt with briefly in the first part
of this Article.
The 1971 Protocol
The 1971 Protocol gives jurisdiction to the Court of
Justice to give rulings on the interpretation of the Con-
vention. The 1978 Convention (Article 30) extends this
jurisdiction to include the interpretation of the 1978
Convention. This jurisdiction is similar to that
contained in Article 177 of the EEC Treaty. However,
there are some important differences.
Where a question of interpretation of the Convention
is raised in a case pending before the Supreme Court it
must
request a preliminary ruling from the Court of
Justice where it considers that a decision on the question
is necessary. The main differences with Article 177 is
that under the Protocol it is only a court sitting in its
appellate capacity which
may
request a preliminary
ruling. Under Article 177 any court or tribunal may
request a preliminary ruling. The reasons for this more
restrictive system of requesting preliminary rulings was
stated in the separate Jenard Report on the Protocols,
tut " it was feared that, in view of the number and
diversity of the disputes to which the Convention applies,
an application for a preliminary ruling on the lines of
Article 177 might be made by one of the parties either as
a delaying tactic or as a means of putting pressure on an
opponent of modest financial means. In short, the
application might be made for improper purposes".
An interesting provision in the Protocol is contained
in Article 4. Article 4 allows a competent authority in a
Contracting State (to be appointed by that Contracting
State) to request a preliminary ruling if a judgement
given in that State conflicts with the interpretation given
either by the Court of Justice or in a judgement in one
of the courts of another Contracting State referred to in
Article 2 (the Supreme Court or another court sitting in
its appellate capacity). However, any ruling in such a
case will not affect the particular judgement which gave
rise to the request.
It is not necessary here to go into the details of formal
procedure involved in a request for a preliminary ruling,
as in most respects a request under the Protocol will be
similar to a request under Article 177. Equally, the
matters which the national court should consider before
making a request will be similar to a case under Article
177. The most important consideration is whether a
question of interpretation is really necessary to the
decision in the case.
In relation to the interpretation of the Convention,
however, one point should be made. When a question of
interpretation arises lawyers should have reeard to the
two Jenard Reports (on the 1968 Convention and the
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