The Gazette 1985

SEPTEMBER1985

GAZETTE

customs or administrative matters were not covered by the Convention. Article 1 has given rise to several important interpre- tative judgements o f the Court of Justice. It is clear f r om the report o f the drafters o f the Convention and f r om the judgements o f the Court o f Justice that the term "civil and commercial matters" was intended to be and will be interpreted broadly whereas the exceptions will be interpreted more restrictively. 2 In an early case 1 the Court sought to prevent dif- ferent interpretations in different Member States by holding that the concept o f civil and commercial matters was not to be interpreted by reference to the internal law of any one State but by reference both to the objectives and the scheme o f the Convention and the general prin- ciples which stem f r om the corpus o f the national legal system. In the same case the Court dealt with the exclusion o f matters o f public law f r om the application o f the Convention. The Court held that " a l t hough certain judgements in actions between a public authority and a person governed by private law may fall within the area o f application o f the Convention, this is not so where the public authority acts in the exercise o f its powe r s " . 4 Lest there would be doubt about it the Court specifically held in the case o f Sanicentral -v- Collins 6 that Employment Law did c ome within the field o f application o f the Convention. The trend o f the decisions in relation to the exceptions in the second paragraph o f Article 1 is that they were interpreted restrictively and the Court would appear to regard the list o f exceptions as exhaustive. Some inter- esting cases have been decided on the exception in Article 1 relating to property rights arising out o f marriage. In the first de Cavel case 6 , while divorce proceed- ings were pending in the French courts an interim Order was made freezing the wife's assets. The husband sought to enforce the Order in the German courts which referred a question to the Court of Justice as whether the matter came within the scope o f the Convention. The Court held that such matters were excluded, stating that:— " t he enforced settlement on a provisional basis o f propriety legal relationships between spouses in the course o f proceedings for divorce is closely linked to the grounds for the divorce and the personal situation o f the spouses or any children o f the marriage and is, for that reason, inseparable f r om questions relating to the status o f persons raised by the dissolution o f the matrimonial relationship and from the settlement of rights in property arising out of the matrimonial relationship". It is clear f r om this judgement that disputes concern- ing proprietary legal relations between spouses only fall within the scope o f the Convention where they have no connection with the marriage itself. Another interesting point decided by this case was that, for the purposes o f the Convention it did not matter whether a court Order was provisional or final. The second de Cavel case concerned maintenance payments by one spouse to another. 7 During the course o f the divorce proceedings the wife sought to enforce, in Germany, the French court's interim Order that the husband make certain maintenance payments. Before the point was decided the divorce was granted and the French court made a further Order o f monthly payments to be made after the divorce. The Court firstly

held that "it is well settled that the subject o f mainten- ance obligations itself falls within the concept o f "civil matter" and since it is not taken out by the exceptions provided for in the second paragraph of Article 1 o f the Convention it therefore falls within the scope o f the C o n v e n t i o n ". The Court further held that maintenance obligations relating to the period after divorce came equally within the scope of application of the Convention. It is interesting to note that the maintenance questions were part o f divorce proceedings that, o f course, d o not c ome within the scope o f the Convention. The Court held that the fact that a matter was ancillary to another matter which itself was not covered by the Convention did not exclude it. 8 Another c a s e» dealt with the interpretation o f the second exception in Article 1 relating to bankruptcy, winding up, etc. Jurisdiction — Basic Rule Article 2 lays d own the basic rule for determining jurisdiction f r om which all other provisions on juris- diction derive their exceptional nature. Article 2 provides that where a person is domiciled in a Contrast- ing State he must be sued in the Court of the State except where the Convention specifically allows him to be sued elsewhere. This is the case whatever the nation- ality o f the defendant. The definition of domicile for the purpose o f the Convention will be o f considerable importance to Irish lawyers. The Convention itself does not define what " d o m i c i l e" is to mean but Article 52 indicates how it is Walter Conan Ltd., Academic-Legal-Civil-Clerical Robemake r s. Telephone - 9/1730 - 971887

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