The Gazette 1989

GAZETTE

APRIL 1989

Article 29 of the Convention provides that under no circum- stances may a foreign judgment be re-examined as to its substance. The proper procedure for a party who alleges that a foreign judgment, sought to be enforced in the State under the Convention is wrong in fact or in law is to appeal against the judgment in the Contracting State where the judgment was granted. An Irish Court cannot act as an appellate court in relation to a matter which has already been decided by a court of competent jurisdiction in another Contracting State. Under Article 30, if an "ordinary appeal" has been lodged against the judgment in the Contracting State of origin, the judgment- recognising court may stay the proceedings. In case No. 43/77 Industrial Diamond Supplies -v- Riva (1977) E.C.R. 2175, it was held that an appeal should be regarded as "ordinary" if it could result in the annulment or amendment of the judgment and the time within which it must be lodged must run from the date of the judgment. GROUNDS FOR NON-RECOGNITION OF A FOREIGN JUDGMENT A judgment will not be recognised or enforced if it is outside the scope of the Convention. However a judgment will not fall outside the scope of the Convention merely because one of the matters excluded by Article 1 was con- sidered by the judgment-granting court as an incidental issue. There are also certain specific grounds on which a court may refuse to recog- nise or enforce a judgment of a court in another Contracting State. These are set out in Articles 27 and 28 of the Convention. The more important of these grounds are:- 1. public policy (Article 27(i)); 2. that it would be contrary to natural justice (Article 27(2)) and 3. Res Judicata (Article 27(3)). The public policy exception allows some discretion in relation to matters which may be contrary to public policy in certain Contracting States but not in others. Such problems would only arise in exceptional cases. Article 27(2) allows non- recognition in cases where the judgment-granting court did not observe the rules of natural justice, in that the judgement was given in

default of appearance and it can be shown that the defendant was not duly served with the document which instituted the proceedings in sufficient time prior to the marking of judgment to enable him to arrange for his defence. Article 27(3) provides that a judgment will not be recognised if it is irreconcilable with a judgment given in a dispute between the same parties in the Contracting State in which recognition is sought. This is the case irrespective of which judgment was given first. Article 29 does not allow a foreign judgment to be re-examined as to its substance. If a defendant alleges fraud in proceedings the recognising court may grant him a stay on the enforcement proceedings to enable him to apply in the judgment-granting State to have judgment set aside. It may be also that enforcement of a judgment obtained by fraud could be refused on the grounds of public policy. PROVISIONAL/PROTECTIVE MEASURES The Convention provides a very useful device which could become important in relation to debt col- lection. Article 24 of the Convention confirms the usual power of the Court to grant provisional or protective measures such as a Mareva-type or other form of injunction, but it also extends this power by allowing an application for such provisional or protective measures to be made to the courts of one Contracting State in cases where the courts of another Contractng State are seised of the main action. The court could thus make an order freezing the assets of the defendant in the former State pending the outcome of the proceedings in the latter. If the plaintiff succeeded in his action, there would then be funds available to meet the judgment debt when enforcement proceedings are brought in the the former State. Section 11(1) of the Act gives the High Court power to grant "provis- ional, including protective, measures of any kind that the Court has power to grant in proceedings that apart from this Act, are within its jurisdiction. "An application for such provisional or protective measures should be made ex parte to the High Court grounded on an affidavit (Order 42(a), Rules 1 and 2).

ENFORCEMENT OF IRISH JUDGMENTS IN OTHER CONTRACTING STATES Section 12 of the Act requires the Courts in the State to provide to an interested party an authenticated copy of a judgment together with a certificate signed by the registrar or clerk of the court setting out the relevant particulars of the proceed- ings in question. Order 42(a), Rules 18 and 19 set out the procedure to be followed in relation to judgments of the High Court and Supreme Court which an interested party is seeking to have recognised or enforced in another Contracting State. In any case where an interested party is seeking to enforce a judgment of the High Court or Supreme Court in another Contracting State he should obtain an authenticated copy of the judgment or order from the Registrar of the High Court or Supreme Court (as the case may be) (Rule 18), together with a certificate pursuant to Rule 19 setting out the particulars of the proceedings required by that rule. The form of certificate is set out in Form No. 1 of Appendix F, Part 111 of the amended Rules of the Superior Courts. The authenticated copy order together with the certificate should then be forwarded to a firm of lawyers in the Contract- ing State in which judgment is sought to be enforced, so that it may be enforced in accordance with the procedures laid down in that State. CONCLUSION The ratification by Ireland of the Convention means that it now operates between nine Member States of the Euopean Community — the original six (Belgium, France, Germany, Italy, Luxembourg and the Netherlands) and the three States which joined the Com- munity in 1973 (Denmark, Ireland and the United Kingdom). Greece signed the 1982 Accession Con- vention and deposited its instru- ment of ratification with the Secretary-General of the Council of the European Communities in January 1989. The Convention will therefore enter into force for Greece on the 1st day of April, 1989 in accordance with Article 15 of the Fourth Schedule to the Convention. Negotiations for accession are proceeding with the latest two Member States to join the Community (Spain and Portugal). EILEEN McAULEY

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