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GAZETTE
JANUARY/FEBRUARY 1986
1971 Protocol) and the Schlosser Report (on the 1978
Convention) referred to throughout this Article. The
Reports are very extensive and should prove to be of
valuable assistance. In fact, the Court of Justice has
referred to the various Reports in reaching its decision.
Also, because the different language versions of the
Conventions are equally valid, an interpretative
problem may exist which is not immediately apparent
from, for example, the English text. Where appropriate,
the Irish courts will be obliged to have regard to the
other language texts.
Conclusion
It is to be regretted that the Convention has not yet
been ratified in Ireland and that implementing legis-
lation has not yet been passed. It is 6Vi years since we
have signed the Convention and there can be no reason-
able excuse for not having taken the necessary steps
before now.
Nevertheless, the Convention will eventually become
part of our Law and with it will come many and far
reaching changes. And, being derived from the EEC
Treaty, the Convention will have supremacy over
provisions of national Law which conflict with it. Irish
lawyers will have to familiarise themselves with the
provisions of the Convention in many disputes which
have an international aspect. They will have to become
accustomed to the application of the Convention in the
light of the objectives of the Convention in general and
its application throughout the other Member States of
the Community and not merely in the light of its
incorporation into the Irish legal system. Judges will
have to apply the rules of jurisdiction contained in the
Convention regardless of whether they have been
pleaded by the parties. And, they will also have to
accept considerable restriction on their traditional dis-
cretionary powers both in deciding matters of jurisdiction
and in deciding whether to recognise and enforce
foreign judgements.
In a word, the Convention will have far reaching
effects on the Irish legal system. It introduces modern
concepts in the field of the conflict of laws and for this
reason it is to be welcomed. However, it seems that we
as a country and we as lawyers are ill prepared for its
introduction into the legal system in Ireland.
•
Footnotes
(Concluded)
(1) See the Report of M. P. Jenard — Chairman of the Committee
of drafters of the 1968 Convention — Official Journal 1979 C59
at page 42.
(2) See the Jenard Report at page 43.
(3) See the Report of Dr. Peter Schlosser, Report of the drafters of
the 1978 Convention — Official Journal 1979 C59 at page 128.
(4) See the Jenard Report at page 44.
(5) Case 166/80 1981 ECR 1593.
(6) See also the case of
Pendy Plastics
-v-
Pluspunkt
- case 228/1981,
dealing with the service of the originating document. And see the
case of
Debaeker
-v-
Bouwman -
case 49/1984 which has not yet
been decided.
(7) See the Jenard Report at page 46.
(8) See the Jenard Report at page 47.
•(9) Case 42/1976 ECR 1759.
(10) Case 125/79 1980 ECR 1553.
(11) See Jenard Report at page 50.
(12) Two cases are at present before the Court of Justice dealing with
the taking of interim protective measures — case 258/83 and
case 119/84.
(13) Case 173/83.
(14) Official Journal 1979 C59 page 66.
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