The Gazette 1985

DECEMBER 1985

GAZETTE

The Brussels Convention on Jurisdiction and the Enforcement of Judgements Parti by Gerald Mo l oney, Solicitor and George Kremlis*

T HE harmonisation of the rules of jurisdiction in international disputes and the rules governing the enforcement of foreign judgements is an obv i ous and desirable objective of the EEC. And, indeed, such har- monisation was set d own in Article 220 of the EEC Treaty as one of the goals of the Member States. Article 220 provided that Memb er States should enter negoti- ations with a view to "securing for the benefit of their nationals . . . the simplification of formalities govern- ing the reciprocal recognition and enforcement of judgements of Courts or Tribunals and of arbitration awa r d s ". These negotiations resulted in the signing, on the 27th September 1968, of the Conv e n t i on on Juris- diction and the Enforcement of Judgements in Civil and Commercial Matters, otherwise known as the Brussels Conv e n t i on. The Co n v e n t i on came into force between the original six Memb er States of the EEC on the 1st February 1973. On the 3rd June 1971 these six Memb er States signed a Protocol to the Conv e n t i on dealing with the interpretation by the Court of Justice in Luxembourg of the Co n v e n t i o n. The Protocol came into force on the 1st September 1975. On the 9th October 1978 the original six Memb er States and the three new Member States, including Ireland, signed the first Convention of Accession whereby the new Memb er States b e c ame parties to the 1968 Co n- vention. This Accession Conv e n t i on also made certain adjustments to the 1968 Conv e n t i on, s ome of which were necessitated by the participation of the C o mm on Law countries and others which were thought desirable after the experience of the operation of the 1968 Co n- vention. The 1978 Co n v e n t i on is not yet in force as a sufficient number of signatory States have not yet ratified it. 1 The Co n v e n t i on will c ome into force for Ireland after it has been ratified by Ireland and the original six States. Ac c o r d i ng to Go v e r nme nt sources draft legis- lation is being prepared and it is now hop ed to be intro- duced as s o on as possible in 1986. Strong criticism of those countries which have not yet ratified, including Ireland, is justified considering the important develop- ments that will flow f r om the Conv e n t i on o n ce it is in force. On the 25th October 1982 a second Co n v e n t i on of Accession was signed whereby Greece b e c ame a party to the Co n v e n t i o n. When the Convention does come into force it will bring about fundamental changes in the law. The first part of the Conv e n t i on deals with jurisdiction and its detailed rules determine in which country a defendant ought to

be sued. The second part of the Conv e n t i on deals with the enforcement of judgements and sets out the conditions in which an Irish judgement will in future be enforceable abroad and in which foreign judgements will be enforce- able here. By stipulating which country's courts will have juris- diction in particular types of dispute the possibilities of " f o r um s h o p p i n g" are greatly reduced. (The 1980 Con- vention on Contractual Obligations is also designed to reduce forum shopping.) In those matters covered by the Convention a court will be able to assume jurisdiction only in accordance with its rules. For example, an Irish court will no longer have jurisdiction merely because of the service of proceedings on a defendant during his temporary presence in Ireland. By setting d own the rules by which the judgement of one Member State ought to be enforced in another Memb er State the Conv e n t i on is spoken of as giving rise to the "free movement of judge- me n t s ". Both objectives arc seen not only as desirable but as necessary in the achievement of the wider goals of the EEC. The purpose of this Article is to outline the provisions of the Conv e n t i on as they will apply in Ireland. Under the 1971 Protocol the Court of Justice in Luxembourg plays an important role in interpreting the terms of the Conv e n t i on and reference will be made to the more important judgements. References throughout this Article to "the Co n v e n t i o n" mean the 1968 Conv e n t i on as amended and specific reference will be made to those ame ndme n ts of greater import introduced by the 1978 Conv e n t i on. Scope of Application The first paragraph of Article 1 provides that "this Conv e n t i on shall apply in civil and commercial matters whatever the nature of the court or tribunal". The second paragraph of Article 1 expressly excludes from the scope of application of the Conv e n t i on matters con- cerning a person's status or legal capacity, rights in property arising out of marriage, wills or succession, bankruptcy and liquidations, matters concerning social security and arbitration. The expression "civil and c om- mercial matters" automatically excludes, in the Con- tinental legal system, all matters of public law. The distinction between public and private law is not a well kn own one in Ireland and the U . K. whereas it is an integral part of the Continental system. In an attempt to avoid c o n f u s i on in Ireland and the U . K ., therefore, the 1978 Co n v e n t i on expressly provided that revenue, •Member of l he I eual Service of I tic Commission of the I uropc.in Communities. The writer expresses his own views. ^29