The Gazette 1985

GAZETTE

SEPTEMBER1985

to be defined. The primary effect of Article 52 for an Irish court is that it must decide, according to Irish law, whether a party to a matter before it is domiciled in Ireland. If according to Irish L aw that party is domiciled in Ireland the Irish Court, in deciding whether he is domiciled in another contracting State, must apply the law of that other State. The problem is that the concept of " d om i c i l e" is quite different in Ueland and the U . K. than it is in the original six Contracting States. Apart from s ome slight differences, " d om i c i l e" in these six Continental legal systems c onno t es a person's connection to a particular place within the Stale; it is most akin to habitual resi- dence. "D om i c i l e" in Ireland and the U . K. is more restrictively defined and can involve not only residence but also an intention to remain in a place permanently. Because of the o b v i o us adverse consequences of not so doing it was r e c omme nd ed that both Ireland and the U . K. would provide, in their implementing legislation, for the purposes of the Co n v e n t i o n, for a concept of domicile which wou ld reflect the concept as it is under- stood in the original six Contracting States. 10 The c omp r e h e n s i ve Civil Jurisdiction and Judgements Act 1982 in the U . K. has followed this rec- omme n d a t i on and it provides that for the purposes of the Act (and therefore the Conv e n t i on) a person is domiciled in the U . K ., if, and only if, he is resident there and the nature and circumstances of his residence indicate that he has a substantial connection with the U . K. F urther, there is a rebuttable presumption of such a connection in the ease of an individual resident in the U . K. for the three mo n t hs preceding the determination of his domicile. In the case of c omp a n i e s, Irish law looks to the place of incorporation and not to the c omp a n y 's " s e a t ". Again it was r e c omme nd ed that both Ireland and the U.K. adopt a concept of the " s e a t" of a C omp a ny for the purposes of the Co n v e n t i o n. The 1982 Act in the U.K. therefore prov ided that for the purposes of the Act the " s e a t" of a C omp a ny would be treated as a domicile and " s c a t" would include the place of central manage- ment and control. It is to he assumed (and indeed hoped) that our implementing legislation will adopt a similar course. The rules of exhorbitant jurisdiction set out in Article 3 (as amended by Article 4 of the 1978 Co n v e n t i o n) may not be used against a person domiciled in a Contracting State. It is Article 3 therefore which prohibits the assumption by an Irish Court of jurisdiction over a defendant domiciled in a Contracting State merely by reason ol the service of proceedings on him while tem- porarily present in Ireland. Article 4 specifically provides that where a person is not domiciled in a Contracting State the law of the Co n- tracting State concerned will, subject to certain exceptions

defendant's domicile under Article 2 or in the place determined by these Articles. Article 5 sets out seven instances where the plaintiff has a choice of jurisdiction. Article 5(1) provides that in matters relating to contract a defendant may be sued in the place of p e r f o rman ce of the obligation in question. This rule has given rise to a number of important inter- pretations by the Court of Justice. An important limit- ation was impo s ed in the case of de Bloos -v- Bouyer The Court held that the word " o b l i g a t i o n" in Article 5(1) meant the obligation forming the basis of the legal proceedings. For the purpose of determing the place of performance within the meaning of Article 5(1) the obligation to be taken into account was that which cor- responded to the contractual right on which the plain- tiff's action was based. An d, in another case 12 the Court held that the national court must decide in according to its own laws whether the obligation was one which was to be performed within its jurisdiction. (And, it has been held that the parties to a contract ma y, subject to national law, specify the place of perform- ance of the obligation 11 .) An interesting point was raised in case 38/81. 14 The plaintiff sued in the Ge rman courts as the place where the particular contractual obligation was to be per- formed. The defendant denied the very existence of the contract. A preliminary reference was made to the Court of Justice which held that ". . . the national court's jurisdiction to determine questions relating to a contract includes the power to consider the existence of the constituent parts of the contract itself since that is indispensible in order to enable the national court in which proceedings are brought to examine whether it has jurisdiction under the Co n v e n t i o n ". Otherwise the defendant could t oo easily defeat the effect of Article 5(1) by simply claiming that no contract existed. 11 Article 5(2) (as ame nd ed in the 1978 Co n v e n t i o n) provides that in maintenance matters a domiciliary of a contracting Stale may be sued where the maintenance creditor is domiciled or habitually resident or where the matter is ancillary to proceedings concerning the status of a person in the court which has jurisdiction to entertain those proceedings unless jurisdiction is based solely on the nationalitv of one of the parties.

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under Article 16, determine jurisdiction. Other Exceptional Rules of Jurisdiction

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So, the primary rule of jurisdiction is that a defendant must be sued in the courts of the country where he is domiciled. This is so except where the Co n v e n t i on specifically allows or obliges the plaintiff to sue in another Contracting State. Articles 5 and 6 give the plaintiff the choice of suing in the country of the

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