The Gazette 1986

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

7