The Gazette 1989

GAZETTE

APRIL 1989

a choice of jurisdiction. He may sue the defendant either in the courts of the Contracting State where the defendant is domiciled (Article 2), or in the courts of the Contracting State which is entitled to assume jurisdiction under the rules relating to special jurisdiction. However, where the subject matter of the proceedings is one to which the rules relating to exclusive juris- diction apply, e.g. a dispute relating to rights in immovable property, the courts which are given exclusive jurisdiction under the Convention shall have exclusive jurisdiction regardless of domicile (Article 16). Order 11 of the Rules of the Superior Courts was used in a wide range of cases, but it was most commonly used in cases of contract or tort. Article 5(3) of the Convention provides that juris- diction in tortious matters may be assumed by the courts for the place where the harmful event occurred. This accords with the present Irish law. However, Article 5(1) of the Convention provides that, in cases involving contract, the courts of the place of performance of the obligation may assume jurisdiction. This makes a change in the present Irish law. The mere fact that a contract was made within the jurisdiction or that it was to be governed by Irish law is no longer sufficient to entitle the Irish courts to assume jurisdiction against a person domiciled in another Contracting State. However, where the parties to a contract agree in writing (or by other formality as specified in the Convention) that the Irish courts are to have jurisdiction to settle disputes under it, then an Irish court will have exclusive jurisdiction unless the agreement relates to an insurance or consumer contract in which case such an agreement will have no legal force (Article 17). Maintenance is another import- ant area of special jurisdiction which the Convention specifically provides for in Article 5(2). The maintenance debtor may, as an alternative to the courts of his State of domicile, be sued in the courts for the place where the mainten- ance creditor is domiciled or habitually resident. The object of this provision is the protection of the maintenance creditor who may not have the financial resources to pursue the defendant abroad. The

explanatory report on the 1978 Accession Convention (by Professor P. Schlosser: O.J. No. C59 of 5.3 1979, p. 71) states that the mere fact that an order is for a lump sum does not prevent it from being regarded as maintenance. The essence of maintenance is that it is intended to provide for the support of a dependant spouse or child and is based (at least in part) on need. Any lump sum payment awarded to a child is regarded prima facie as a maintenance order. There is a special procedure for the enforcement of Community main- tenance orders which is set out in S.I. No. 173 of 1988 entitled: 'District Court [Jurisdiction of Courts and Enforcement of Judgments (European Communit- ies) Act, 1988] Rules, 1988'. This amends the District Court Rules to provide that, in cases where the Master of the High Court has made an order for the enforcement of an "enforceable maintenance order", the District Court Clerk shall make the necessary arrangements for payments on foot of the said order and he shall also transmit the payments to the maintenance creditor. This procedure is similar to that used when enforcing in this jurisdiction, under the terms of the Maintenance Orders Act, 1974, a maintenance order made by the Courts of the United Kingdom. Insurance matters and consumer contracts (as defined in Article 13) have special jurisdictional rules attached to them by Articles 7 to 15 of the Convention largely because of the inequality of bargaining power which frequently exists between the parties to such contracts. These rules give effect to a social policy of protecting the weaker party. The insurer or supplier will usually be the stronger party which might use its position to impose unfair terms on the weaker party. In these Articles the Convention grants certain rights to the weaker party to such trans- actions and those rights cannot be nullified by contract. A party to a contract is regarded as a consumer when he concludes the contract for a purpose outside his trade or profession (Article 13). In order to protect the consumer or policy- holder from the imposition of unfair terms the jurisdictional rules are tilted in his favour. In cases where the insurer or supplier sues the

ISLE OF MAN Messrs Samuel McCleery Registered Legal Practitioners in the Isle of Man, of Derbyhaven House, Derbyhaven, will be pleased to accept instructions by their resident partner Mr. S. McCleery from Irish Solicitors in the formation and administration of resident and non-resident Isle of Man Companies.

M i Offlct:

London Offlco: Tel: 01-831 7761 Tele*: 297100 Fa*: 01 831 7485

(OMR Offki.

26. South Frederick St., Dublin 2. Tel: 01-760780

Tel: 0624 822210 Tele*: 628285 Fa*: 0624-823799

Fa*: 01 764037

policy-holder (or the insured or a beneficiary) or consumer, Articles 11 and 14 of the Convention pro- vide that the only courts with jurisdiction are those of the Contracting State in which the defendant is domiciled. In actions brought against the insurer or supplier a choice of jurisdiction is given. In such cases the policy- holder or consumer may choose to sue either in the Contracting State where he is domiciled or in that in which the insurer or supplier is domiciled (Articles 8 and 14). Articles 12 and 15 respectively allow the jurisdictional rules in respect of insurance and consumer contracts to be departed from only by an agreement entered into in the following circumstances: 1) if the choice of jurisdiction agreement is entered into after the dispute has arisen; 2) where the agreement allows the policy-holder, the insured, a beneficiary or the consumer, as the case may be, to bring proceedings in courts other than those already indicated; 3) where the agreement is con- cluded in a Contracting State where both parties are at that time domiciled or habitually resident and it confers jurisdiction on the courts of that State. Some additional exceptions apply in relation to insurance under Article 12(4) and (5). A court must voluntarily declare that it has no jurisdiction to hear a case if it is a case which is princi- pally concerned with a matter within the exclusive jurisdiction of the courts of another Contracting State (Article 19). Where proceedings between the same parties and involving the same cause of action are brought before the courts of different

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