The Gazette 1989

GAZETTE

MARCH 1989

The term "court or tribunal" is wide and vague and includes any institution of a judicial nature. Article 25 of the Convention defines a "judgment" as: "Any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court". It is significant that the Convention does not limit enforce- ment to judgments which are final and conclusive. This is in contrast to the common law which requires a foreign judgment to be final and conclusive before it can constitute a valid cause of action in this jurisdiction. Accordingly, provis- ional and protective judgments or orders for periodical payments which may be varied are capable of being recognised and enforced under the Convention. In case 125/79 [1980] E.C.R. 1553 Denilauler -v- S.n.c. Couchet Freres, the European Court held that a judgment delivered in a case where the application had been made ex parte did not come within the scope of the Convention. The basis of this ruling is not the lack of finality of such a judgment, but rather the fact that it is contrary to the policy of the Convention to allow automatic recognition and enforcement of a judgment given in a case where the defendant has not been given an adequate opportunity to put in his defence. The European Court gave the following interpretative ruling on this point: "Judicial decisions authorising provisional or protective measures, which are delivered without the party against which they are directed having been summoned to appear and which are intended to be enforced without prior service do not come within the system of recognition and enforcement provided for by Title III of the Convention of 27 September 1968 on Jurisdiction and the Enforce- ment of Judgments in Civil and Commercial matters." Articles 50 and 51 require auth- entic instruments (made by notaries and certain other public officers) and court settlements which are enforceable in the Contracting State where they are made, to be enforceable under the Convention.

The Convention provides an enforcement procedure which is as quick, easy and effective as possible. It also ensures that all judgments coming within its scope will be recognised in all Contracting States. In the case of Community judgments that come within the scope of the Convention, the Convention procedure is the only permissible method of enforcement in Contracting States. The common law allowed the plaintiff to sue again on the same cause of action in another jurisdiction provided the foreign judgment had not been satisfied. In case 42/76 De Wolf -v- Cox [1976] E.C.R. 1759 the European Court ruled that, if a judgment which is entitled to recognition under the Convention is given by a court in a Contracting State, the person in whose favour the judgment was given may not sue the defendant again on the same cause of action in another Contracting State. If the plaintiff in such a case does bring fresh proceedings in another Contracting State, the defendant may plead res judicata on the ground that the foreign court has already determined the issue. JURISDICTION One of the aims of the Convention is to have the rules on recognition and enforcement applied uniformly throughout the Contracting States. In order to achieve this, the Convention sets out rules on jurisdiction which are to be applied by the court in which the original proceedings are brought and which must be observed even where enforcement of the eventual judgment in another Contracting State will not arise. A court of a Contracting State which is requested to recognise and enforce a judgment obtained in another Contracting State must assume that the judgment granting court had jurisdiction under the rules in the Convention and it may not apply any further jurisdictional tests. This system is in complete contrast to the former common law procedure, whereby the court in which a foreign judgment was sued upon would first check if the original court had jurisdiction in the matter by reference to the Irish rules on Private International Law. The Irish law on jurisdiction prior to the coming into force of the

1988 Act was that, except where a defendant voluntarily submitted to the jurisdiction of an Irish Court, that court would only have jurisdiction if the defendant had been duly served in the State with the summons which instituted the proceedings in question. If the defendant was even only temporarily within the State he could be validly served with the summons under Irish law and the court would accordingly assume jurisdiction. However, if the defendant was outside the jurisdiction he could only be served with the permission of the Court, which would be granted only if the case complied with the conditions set out in Order 11 of the Rules of the Superior Courts. Article 3 of the Convention provides that "persons domiciled in a Contracting State may be sued in the courts of another Contracting State only by virtue of the rules set out" in the Convention. It specifically states that the rule of the Irish courts whereby jurisdiction may be assumed on the basis of a defendant's temporary presence within the jurisdiction shall not be applicable to persons domiciled in a Contracting State. The basic jurisdictional provision of the Convention is that the courts of the defendant's domicile have jurisdiction (Article 2). Otherwise, the court may only assume juris- diction where the Convention makes provsion to that effect. Such provision is made in Title 2:- Section 2 (Articles 5 to 6a on special jurisdiction), Section 3 (Articles 7 to 12a relating to insurance), Section 4 (Articles 13 to 15 relating to consumer contracts) and Section 5 (Articles 16 and 17 providing for exclusive jurisdiction). In addition, Article 18 allows a court before which a defendant enters on appearance to assume jurisdiction except where an appearance is entered solely to contest the jurisdiction of that court or where another court has exclusive jurisdiction under Article 16. The general rules on special jurisdiction as set out in Articles 5 to 6a of the Convention do not substantially change the present Irish rules on jurisdiction contained in Order 11 of the Rules of the Superior Courts. In proceedings to which the rules relating to special jurisdiction apply, the plaintiff has

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