The Gazette 1986

GAZETTE

JANUARY/FEBRUARY 1986

judgement given in a dispute between the same parties in the State in which recognition is sought. The fourth exception provides that a judgement should not be recognised where the original court decided a prelimin- ary point relating to the capacity of persons, property rights arising out of marriage or relating to Wills or suc- cession, which conflicts with a rule of private inter- national law in the State where recognition is sought. Finally, and this is a new exception added by the 1978 Convention, a fifth exception is where the judgement in question is irreconcilable with a previous judgement in the same cause of action between the same parties provided that it was decided in a non-Contracting State and is itself enforceable. Article 28 also provides that a judgement need not be recognised if it conflicts with those jurisdictional rules of the Convention relating to insurance contracts, con- sumer contracts or the rules of exclusive jurisdiction or conflicts with the provisions of Article 59 (which allow certain obligations in bilateral Conventions with third countries). However, the court in which recognition is sought is bound by the findings of fact in the original court. Article 39 is simply stated and to the point and pro- vides that "under no circumstances may a foreign judgement be reviewed as to its substance." As the Jenard Report explains < 7 > "the court in the State in which recognition is sought is not to examine the correct- ness of that judgement; it may not substitute its own dis- cretion for that of the foreign court nor refuse recog- nition if it considers that a point of fact or law has been wrongly decided". The effect of Article 30 is that an Irish court in which recognition is sought may stay the proceedings if an "ordinary appeal" (essentially an appeal which suspends enforcement in the original country) has been lodged in that original country and a foreign court may stay the proceedings where an appeal has been lodged in the Irish courts and the effect of the appeal is to suspend enforcement in Ireland. Enforcement The drafters of the Convention realised <»> that the progress made by the jurisdictional provisions of the Convention would be rendered nugatory if a party seek- ing enforcement of a judgement given in his favour were impeded by procedural obstacles. Because the recognis- ing court is strictly limited in its power to look into the judgement and because the defendant is adequately protected in the original proceedings — "it is proper that the application for enforcement be enabled to pro- ceed rapidly with all the necessary formalities in the State in which enforcement is sought, that he be free to act without prior warning and that enforcement be obtained without unnecessary complications". On the basis of such reasoning it was decided to base the enforcement procedure on an ex parte application. Article 31 provides simply that a judgement given in one Contracting State and enforceable there shall be enfor- ceable in another Contracting State. The application for enforcement is made, in Ireland, to the High Court and the procedure for making application is governed by the law of the country where enforcement is sought. The application must provide an address for service within

the jurisdiction of the court applied to or, if the law does not provide for the furnishing of such an address, he must appoint a representative Ad Litem. In De Wolf -v- Cox < 9 > it was held that the enforce- ment procedure under the Convention was obligatory even if, in exceptional circumstances, there was a cheaper or easier procedure under National Law. The application is made ex parte and Article 34 pro- vides that the court must give its decision without delay. Further, it is specifically provided in Article 34 that the party against whom enforcement is sought is not entitled to make any submission to the Court at this stage. The case of Denilauler -v- Couchet Freres <"» is of interest. The judgemept which was sought to be enforced was an order to freeze a party's bank accounts. The Court of Justice recognised that there were cases such as this one, where the nature of the order being requested required that defendant not be notified of the proceedings against him or indeed of the order when made. How- ever, having regard to the nature of the Convention and the essential safeguards for defendants contained therein the Court of Justice held that such orders were not enforceable under the Convention. Apart from cases such as Denilauler it was considered ci) that the rights of the respondant were adequately safeguarded since he can appeal against the decision authorising enforcement. The application for enforce- ment may only be refused for one of the reasons specified in Articles 27 and 28. It is reiterated in Article 34 that the foreign judgement may not, under any cir- cumstances, be reviewed as to its substance. Walter Conan Ltd., Academi c -Lega l -Ci v i l -Cl er i cal Robemake r s. Telephone - 97J 730 - 971887 ¥ PHELAN - CONAN GROUP WOODLEIGH HOUSE, HOLLYBANK AVENUE. RANELAGH D.6 Official Robemakers To:- The Incorporated Law Society of Ireland also N.U.I. N.C.E.A. N.I.H.E. Q.U.B. We cater for all English universities and the Inter-Collegiate code of North America and C a n a d a.

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