The purpose of this Bill is to enable Ireland to ratify the 1968 EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. This convention, as its title implies, deals with two separate but related matters. First, it regulates, as between the contracting states, the rules governing the jurisdiction of courts of those states in civil proceedings covered by the convention, and, second, it provides speedy and informal procedures for the recognition and enforcement in one contracting state of civil judgments given in another.
The background of the convention can be stated very briefly. Article 220 of the Treaty establishing the European Economic Community requires that member states shall enter into negotiations to simplify the formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals. The philosophy behind this provision is that the free movement of goods, persons and services must be complemented by the free movement of judgments so as to ensure adequate legal protection for domicilaries of one member state doing business, or working in other member states.
Negotiations to draw up a judgments convention commenced in 1959 and eventually, on 27 September 1968, all of the then six members signed the convention at Brussels and it duly entered into force between them on 1 February 1973. A separate protocol on interpretation of the convention by the Court of Justice of the European Communities entered into force in 1975. When Ireland, Denmark and the United Kingdom joined the Community in 1973 they were required to accede to the convention and the protocol on interpretation. This obligation was expressly laid down by Article 3 (2) of the Act of Accession. Following negotiations a Convention of Accession of Ireland, Denmark and the UK to the 1968 Convention and 1971 Protocol was signed by the then nine member states in October 1978, which in addition to containing the necessary adjustments for the purpose of adapting the convention and protocol to the legal institutions and systems of the new member states also made amendments to the convention to rectify defects which had appeared since it had entered into force.
The Bill, when enacted, will enable Ireland to ratify the 1978 Accession Convention and, thereby, accede to the 1968 Convention and 1971 Protocol as adjusted. In 1982 a further Accession Convention for Greece was signed by the then ten member states, containing technical adjustments only. The Bill will enable Ireland to ratify that convention also.
The main provision in the Bill is section 3 which provides that the conventions, that is, the 1968 Convention, the 1971 Protocol, and the 1978 and 1982 Accession Conventions shall have the force of law in the State. For ease of reference a composite version of the 1968 Convention and 1971 Protocol as adjusted by the two Accession Conventions is scheduled to the Bill. It is, of course, the actual conventions, which are equally authentic in the languages of the contracting states, including Irish, which are being given the force of law.
I now turn to the 1968 convention itself. Unless I indicate otherwise, I will be referring to the convention as adjusted by the Accession Conventions. The purpose of the convention is set out in the Preamble, which indicates that the convention is concerned with determining the international jurisdiction of the courts of the contracting states and facilitating the recognition and enforcement of judgments, court settlements and authentic instruments. Its scope is set out in Article 1 — the convention is to apply to civil and commercial matters but not to judgments concerning the status or legal capacity of natural persons, matrimonial property, wills, succession, bankruptcy, arbitration, social security, revenue, customs or administrative matters. While matters relating to status, for example, divorce, are excluded, maintenance orders are included within the scope of the convention.
I will deal first with the jurisdictional rules in the convention and their main effects on Irish law. The general rule under Irish law at present is that, unless the defendant voluntarily submits, an Irish court will only have jurisdiction if he has been duly served with the appropriate summons. If the defendant is within the state — even temporarily — he may be served as of right. If, however, he is outside the state he may be served only with the permission of the court in circumstances set out in rules of court. Under the convention, however, jurisdiction will be determined in accordance with Title II, in particular Articles 2 to 18, of the convention. The main effect on Irish law will be that it will not be possible for an Irish court to assume jurisdiction over a person domiciled in another contracting state by reason only of his temporary presence in this country — this is specifically prohibited by the second paragraph of Article 3, which lists similar rules of "exorbitant" jurisdiction in other contacting states, which are also prohibited. By virtue of Article 4, however, these rules will remain in force with respect to proceedings against persons who are not domiciled in a contracting state.
As to the grounds on which jurisdiction may be assumed under the convention, the main ground, set out in Article 2, is that a person domiciled in a contracting state shall be sued in the courts of that state. I will deal later with the meaning of domicile, which for the purposes of the convention and this Bill, is being given a different and more straightforward meaning from its technical common law meaning. Articles 5, 6 and 6a, which contain a number of alternative grounds of jurisdiction, supplement the general jurisdiction based on domicile. Articles 7 to 15 contain special provisions in relation to insurance and consumer contracts. Article 16 grants exclusive jurisdiction to specified courts in relation to certain matters and Articles 17 and 18 provide for agreements on, and submission to, the jurisdiction of particular courts. The overall effect of these provisions will mean little change in the existing position under Irish law.
Article 5 sets out seven categories of disputes in which, in addition to the court of domicile, a court in one of the other contracting states may exercise jurisdiction. Point 1 of Article 5 provides that in a case involving a contract the courts of the place of performance of the obligation in question will have jurisdiction. This represents a compromise between the various national laws. At present Irish courts may, generally speaking, assume jurisdiction in relation to a contract where the contract was made within the jurisdiction, or where the contract is by its terms or by implication to be governed by Irish law or where the action is brought in respect of a breach committed within the jurisdiction. Henceforth, the fact that a contract was made within the jurisdiction or that it was to be governed by Irish law will cease to be sufficient in themselves to found jurisdiction against a person domiciled in another contracting state.
Point 2 of Article 5 relates to maintenance and is framed with the interests of the maintenance creditor in mind. It confers jurisdiction on the courts for the place where the maintenance creditor is domiciled or habitually resident. This accords with our present law. The practical effect of this will be as follows: where a woman living in Ireland wishes to sue for maintenance from her husband, who is domiciled in another contracting state, she may institute proceedings in Ireland, by virtue of Article 5, or in that other state, by virtue of Article 2 and any judgment she obtains will be enforced against her husband in the other contracting state under the convention. At present, such judgments will be enforced in the United Kingdom only, under the maintenance agreement that is in force between Ireland and the United Kingdom. If the husband in question wishes to have the maintenance order varied or revoked then, by virtue of Article 2, he can only apply to the Irish courts, i.e., the courts for the state where the maintenance creditor is domiciled.
Point 3 of Article 5 confers jurisdiction in matters relating to a tort on the courts for the place where the harmful event occurred. This again accords with present Irish law. The phrase "where the harmful event occurred" has been interpreted by the European Court as meaning either the place of the event giving rise to the damage, or the place where the damage occurred and the plaintiff has the option to sue in either place.
In regard to the remaining categories of disputes in Article 5 one particular matter calls for comment. Maritime law was not the subject of any special provision in the original convention. The application of the general jurisdiction rule based on domicile would have seriously eroded the in rem jurisdiction of Irish courts in maritime claims, which is based on the arrest within the jurisdiction of the ship or cargo to which the claim relates.
During the negotiations it was decided that maritime claims would best be provided for if all contracting states ratified the 1952 Brussels convention on the Arrest of Sea-going Ships which permits jurisdiction to be assumed when a ship — or, indeed, a sister ship — is arrested. The jurisdictional provisions of that convention would then supersede those of the 1986 convention in accordance with Article 57 of the 1968 convention. As Ireland and Denmark have not ratified the 1952 convention transitional provisions modelled on that convention were inserted in Article 36 of the 1978 Accession Convention for the benefit of Ireland and Denmark. These provisions will have effect for a period of three years after the coming into force of the 1978 convention for Ireland or until we ratify the 1952 Arrest Convention, whichever is the earlier. It is our intention to bring forward legislation at an early date to enable Ireland to ratify the 1952 Arrest Convention.
Articles 7 to 12a of the convention, determine jurisdiction in insurance matters and provide the policy holder with a choice of jurisdictions, including the court for the place where he is domiciled. On the other hand, he can be sued only in the country where he is domiciled. Articles 13 to 15, determine jurisdiction in the case of consumer contracts made by way of credit sale or hire-purchase, or resulting from mail order or direct advertising from abroad. The consumer may bring proceedings in the courts of his domicile as well as in the state where the defendant is domiciled, while proceedings against him are confined to the court of his domicile. As in the case of maintenance, these provisions reflect concern for the weaker party i.e., the policy holder and the consumer, respectively.
Article 16 of the convention grants exclusive jurisdiction to specified courts in relation to certain matters. These are matters which have traditionally been regarded as coming within the exclusive competence of the courts in question. For example, point 1 of Article 16 provides that in proceedings which have as their object rights in rem in, or tenancies of, immovable property the courts of the contracting state in which the property is situated shall have exclusive jurisdiction. This principle is already reflected in our law under which Irish courts assume jurisdiction where the sole subject matter of an action is land within the jurisdiction. The rules of exclusive jurisdiction in Article 16 apply whether or not the defendant is domiciled in a contracting state and even if the parties have purported by agreement to grant jurisdiction to another court under Article 17 or have submitted to the jurisdiction of another court by virtue of Article 18.
Articles 19 to 23 contain certain procedural rules designed to ensure that the jurisdiction provisions in the convention are given practical effect in the contracting states and to resolve conflicts which may arise where more than one court has jurisdiction over the same dispute, a situation that may occur since in some cases a plaintiff will have a choice of jurisdiction. Article 24, which authorises provisional measures when proceedings are being commenced in another contracting state, requires a change in our law which I will deal with more fully when I come to discuss the detailed provisions of the Bill.
Before I leave the jurisdictional provisions let me say that they will apply whether or not it is sought to have the resultant judgment recognised and enforced in another contracting state, although this, more often than not, will be the case. On the other hand, the provisions in the convention relating to recognition and enforcement will apply whether the judgment resulted from an action against a person domiciled in another contracting state or in some third state.
Furthermore, the inclusion in the convention of uniform and comprehensive rules on jurisdiction has meant that the provisions relating to recognition and enforcement of judgments are less complicated than would otherwise be possible. Let me explain that. Hitherto, a condition has always been placed on the party desiring to enforce a foreign judgment to show that the judgment was given by a court of competent jurisdiction, that is, that the court which gave the judgment had assumed jurisdiction on a basis which was in accord with the recognition rules of the country in which it is sought to enforce the judgment.
For example, under our rules of recognition a foreign court is considered competent where the defendant submitted to its jurisdiction in the original proceedings or was residing in the country of that court at the time the action was initiated. Recognition rules vary from country to country but invariably one finds that they are very restrictive — being designed to protect each country's own nationals. As a result there is often little point in commencing an action in one country against someone domiciled in another country if the resulting judgment will require to be enforced in that other country.
However, since the jurisdictional rules in the 1968 convention are common to, and binding on, courts in all contracting states, the country in which enforcement is sought no longer has any need to investigate the grounds on which the judgment granting court assumed jurisdiction. Indeed, apart from a number of cases expressly mentioned in Article 28, the convention expressly forbids such an investigation by the enforcing court. As a result the enforcement of a judgment delivered in one contracting state is made, as nearly as possible, automatic in all other contracting states.
Articles 26 to 45 of the convention relate to recognition and enforcement and, as I have said, are relatively straightforward. These articles lay down entitled procedures for enforcement. However, if a party requires recognition only of a judgment Article 26 provides that he may apply for this by using the enforcement procedures. Articles 27 and 28 lay down the circumstances where a judgment shall not be recognised, and, of course, not enforced. The main grounds relate to breaches of public policy or natural justice.
Point (1) of Article 27 provides that a judgment shall not be recognised if such recognition is contrary to public policy in the state in which recognition is sought. This is already the position under Irish law. One example of a breach of public policy is where the judgment in question was obtained by fraud. That is a ground for refusal to recognise a foreign judgment under our law at present. Point 2 of Article 27 (2) states that a judgment is not to be recognised if it was given in default of appearance and the defendant was not duly served with the document which instituted the proceedings in sufficient time to enable him to arrange for his defence. This is a matter of natural justice and it will fall to the enforcing court to satisfy itself in this regard.
Article 28 sets out the only instances where the enforcing court can look at the grounds on which the judgment granting court assumed jurisdiction. It provides that a judgment shall not be recognised if it conflicts with the provisions of sections 3, 4 or 5 of Title II or in a case provided for in Article 59. Sections 3 and 4 of Title II refer to jurisdiction in matters relating to insurance and consumer contracts respectively, and section 5 relates to matters of exclusive jurisdiction. Article 59 allows a contracting state to undertake not to enforce judgments given in another contracting state against a person domiciled in a third state where jurisdiction was assumed on one of the exorbitant grounds mentioned in Article 3.
Articles 31 to 49 of the convention deal with applications for enforcement and appeals against decisions authorising or rejecting enforcement and are in the main self-explanatory. Article 33 provides that the procedure for making the application shall be governed by the law of the state in which enforcement is sought. It is with this aspect that the Bill is mostly concerned. I will, therefore, discuss the enforcement provisions of the convention and the relevant provisions of the Bill together.
Article 32 of the convention provides that an application for the enforcement of a judgment in Ireland shall be made to the High Court and Article 34 provides that the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submission on the application. Section 5 of the Bill provides that the application will be made to the Master of the High Court and, in accordance with Article 34, it will be made ex parte. By virtue of Article 36 an appeal against a decision authorising enforcement of a judgment may be made within one month of service of notice of the decision if the defendant is domiciled in the state or within two months of service if he is domiciled outside the state. Article 37 provides that the appeal shall be made to the High Court and a further appeal on a point of law only may be made to the Supreme Court.
Article 39 is an important provision. It provides that during the time specified in Article 36 for making an appeal and pending the determination of that appeal no measures of enforcement, other than protective measures, may be taken against the property of the party against whom enforcement is sought. The article also provides that the decision authorising enforcement shall carry with it the power to proceed to any such protective measures. I have already mentioned that Article 24 of the convention, which authorises provisional measures when proceedings are being commenced in another contracting state, requires a change in our law. Section 11 of the Bill gives effect in Ireland to Articles 24 and 39.
First, in regard to the Article 24 provision, the section extends the power of the High Court to grant provisional, including protective, measures to the case where it has not jurisdiction as to the substance of the case. At present the High Court may grant provisional or protective measures only where the substantive issue in question will be litigated before it. The purpose of Article 24 and section 11 (1) of the Bill is to ensure that, when the judgment eventually comes here for enforcement, there will be assets to satisfy it. The measure that is likely to be most commonly applied for under this provision will be what is often referred to as a Mareva injunction, which restrains a defendant from transferring his assets out of the jurisdiction or otherwise disposing of them so as to defeat any judgment that may be given against him.
As to the Article 39 provision, the Court of Justice in a recent decision on that article ruled that a person who has obtained authorisation for enforcement does not need to obtain a separate court authorisation for the purpose of proceeding with protective measures. In line with that decision subsection (3) of section 11 of the Bill provides that an application for enforcement may include an application for the granting of such protective measures as the High Court has power to grant and, where an enforcement order is made, the order will include a provision granting the protective measures requested.
The remaining articles in Title III make provision in regard to legal aid and the documentation which will accompany the request for enforcement. Section 10 of the Bill provides for the proof and admissibility of these documents in our courts. Section 12 relates to the provision of documents by our authorities where it is sought to enforce an Irish judgment abroad.
Articles 50 and 51 of the convention deal with legal instruments which are not known in this jurisdiction. Article 50 provides that authentic instruments, which are enforceable in one contracting state, shall be enforced in another contracting state in accordance with the procedures which the convention lays down for the enforcement of judgments. Authentic instruments are used mainly in continental countries and usually provide for the enforcement of financial obligations without the need to have recourse to the courts.
Since these instruments will be new to our courts, it has been decided not to include them in the jurisdiction which the Bill is giving to the Master of the High Court. Applications for the enforcement of an authentic instrument will, instead, be made ex parte to a judge of the High Court by virtue of Articles 32 and 34. Article 51 provides that a settlement which has been approved by a court in the course of proceedings and is enforceable in the state in which it was concluded shall be enforced in the judgment enforcing state in the same manner as authentic instruments. The settlements in question arise in the German and Dutch legal systems.
Once an order for the enforcement in the State of a judgment from a contracting state has been made, enforcement will be a matter for Irish law. For this purpose section 6 of the Bill provides that a judgment, other than a maintenance order for periodic payments, in respect of which an enforcement order has been made, shall be of the same force as a judgment of the High Court. Section 7 provides for the enforcement of maintenance orders for periodic payments and contains provisions modelled on those used in the Maintenance Orders Act, 1974, for the enforcement in the State of maintenance orders originating in the United Kingdom. Any detailed analysis of these provisions would, I think, be more appropriate to Committee Stage.
I might mention at this point, however, that the general position relating to the maintenance agreement which we have with the United Kingdom is under discussion at present with the UK authorities. The original intention was that, when the EC Convention came into force, the agreement with the United Kingdom would lapse and the Community provisions would then apply between the two countries. However, by virtue of Article 57 of the convention it would be possible to maintain the maintenance agreement with the UK. If we were to do that the enforcement and other provisions at present in operation in the case of Irish and UK maintenance orders under that agreement would continue to apply, subject to any amendments that might be agreed.
Section 8 of the Bill is a technical provision dealing with the payment of interest and costs on judgments. Section 9 makes provision for fixing the currency and rate of exchange for the payment of maintenance orders for periodic sums in respect of which an order for enforcement has been made.
Section 13 and the Fifth Schedule of the Bill provide for the definition of domicile for the purposes of the Act and the convention. The convention does not define domicile or the seat of a company or association, which is to be treated as its domicile. It was agreed during the negotiations on the 1978 Accession Convention that the common law concept of domicile was not suitable for the purposes of the convention and that the term should be defined in our enabling legislation in a way that approximated to the definition of domicile in continental countries. This we have done. Senators will note that the definitions are in both Irish and English.
Dúirt mé cheana féin gur tarraingíodh an Coinbhinsiún suas i dteangacha uile na Stát Conarthacha, an Ghaeilge ina measc. Tá comhúdarás ag gach ceann de na téacsanna sin. Mar sin, ón ár dtaobhne de, tá comhúdarás ag an teács Gaeilge agus ag an téacs Béarla. Ní mór dúinn, mar sin, "domicile" agus "seat" san téacs Béarla agus "sainchónaí" agus "suíomh" san téacs Gaeilge a shainmhíniú chun críocha an choinbhinsiúin agus an Bhille. Tá na míniúcháin sin le fáil san Chúigiú Sceideal agus tá cur síos iomlán déanta orthu san Mheamran Míniúcháin a théann leis an mBille. Ní dóigh liom, mar sin, gur gá dom moill a chur ar an Teach tré dhul tríothu go mion. Níl an téacs Gaeilge den choinbhinsiún sceidealta don Bhille, mar a tíolacadh é, mar dá ndéanfaí san bheadh an dá théacs ann faoi dhó nuair a fhoilseofaí an tAcht. Le go mbeadh sé ar fáil go caothúil do Sheanadóirí agus do Theachtaí, áfach, dheineamar socrú é a chur ar fáil mar Aguisín san Mheamram Miniúcháin. Ar ndóigh, tá sé ar fáil freisin in Eagrán Speisialta d'Iris Oifigiúil na gComhphobal Eorpach a foilsíodh ar an 31ú Nollaig 1982. Nuair a fhoilseofar an Bille ina Acht beidh an dá leagan ar fáil taobh le taobh.
Before I conclude there is one final matter with which I want to deal; the position relating to the interpretation of the conventions. As I have already mentioned, the 1971 Protocol confers jurisdiction on the European Court to interpret the conventions. References for a ruling on interpretation will be made to the European Court by national courts in a similar way to references under Article 177 of the Treaty of Rome, except that, under the 1971 Protocol references may only be made by appellate courts. Rulings of the European Court made as a result of such a request will be binding on the courts of contracting states. In addition, national authorities, to be designated by the contracting states, may request rulings from the European Court "in the interests of the law" in the event of a conflict of interpretations arising from different judgments, for example, as between a judgment handed down by the appellate courts of different contracting states, without, however, affecting those judgments. While references from courts have been quite common since the coming into effect of the Protocol in 1975, no references have yet been made by a national authority.
In addition, as an aid to interpretation of the 1968 and 1978 conventions, two explanatory reports have been produced. The first by Mr. P. Jenard deals with the original 1968 Convention and the 1971 Protocol and the second, by Professor Peter Schlosser deals with the amendments made to the 1968 Convention and 1971 Protocol by the 1978 Accession Convention. Both Mr. Jenard and Professor Schlosser were closely involved with negotiations on the respective conventions. Section 4 (2) of the Bill provides that their reports, which have been published in the Official Journal of the European Communities, may be considered by any court when interpreting the conventions and the protocol. While these reports have not been formally approved by the contracting states, they were intended to express the view of the drafters as to the meaning of the conventions.
I commend the Bill to the House.
