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Seanad Éireann debate -
Thursday, 2 Apr 1998

Vol. 154 No. 21

Jurisdiction of Courts and Enforcement of Judgments Bill, 1998: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The Jurisdiction of Courts and Enforcement of Judgments Bill, 1998, has two main objectives. First, it will enable Ireland to ratify the Accession Convention of Austria, Finland and Sweden to the 1968 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the associated Protocol on the interpretation of that Convention by the European Court of Justice. Second, it will consolidate the provisions of the Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993. In the course of that consolidation, the opportunity is being taken to make minor procedural adjustments to the legislation. Otherwise, the legislative machinery which has been in force since 1988 is being retained. While the extent of the Schedules to the Bill might suggest otherwise, the concept underlying the 1968 Judgments Convention is very simple. It is the provision of speedy and informal procedures for enabling judgments in one member state to be recognised and enforced in each of the other member states. The Lugano Convention, which is also the subject of this consolidating legislation, parallels the 1968 Convention and fulfils the same purpose in relation to the enforcement of judgments between EU member states and three states which are members of the European Free Trade Association — Iceland, Norway and Switzerland. The fundamental principle underlying both conventions is the creation of a common body of rules which govern the jurisdiction of the courts in a broad range of civil and commercial matters both in EU member states and members of the European Free Trade Association. This common body of rules is accompanied by a system whereby the relevant judgments in such civil and commercial matters are, by and large, subject to almost automatic enforcement.

The 1968 Convention was drawn up pursuant to an obligation under Article 220 of the EEC Treaty for member states to enter into negotiations with each other to simplify the formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals. Its effect was limited to civil and commercial matters and it entered into force between the six original member states on 1 February, 1973. Subsequently, a separate Protocol on interpretation of the Convention by the European Court of Justice was drawn up and this entered into force in 1975. Accession to the convention and its Protocol is a requirement of membership and, in consequence, a series of accession conventions has resulted in minor modifications of those original instruments as new member states have joined the Union. In 1978, there was the Accession Convention for Ireland, Denmark and the UK. In 1982, there was such a convention for Greece. In 1989, there was one for Spain and Portugal and most recently there was the 1996 Accession Convention for Austria, Finland and Sweden. The intention is that this convention will be ratified by the State as soon as is practicable, following the passage of this legislation.

The text of the 1968 Convention as amended by the 1978, 1982, 1989 and 1996 Accession Conventions is now in the form of a consolidated text which was published in the Official Journal of the European Communities on 26 January, 1998. Although the 1968 Convention has been in force in the State for ten years, it is a somewhat technical measure which may be more familiar to the legal practitioner than anyone else. Therefore, it is worth setting out some of the main features of the convention, as amended by the subsequent Accession Conventions.

Its main object is to simplify legal formalities in the civil and commercial areas. The scope of the convention is set out in Article 1. That Article provides that it 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. The convention does not cover criminal matters. Also, certain matters relating to status — for example divorce — are excluded from the scope of this convention. However, in this context I wish to mention that at EU level, negotiations on a draft Convention on jurisdiction, recognition and enforcement of judgments in matrimonial matters are close to finalisation. When finalised, this measure will, in broad terms, extend the principles of the 1968 Convention to encompass the recognition of divorces, judicial separations and annulments on an EU-wide basis.

The jurisdictional rules of the convention are set out in Title II, in particular Articles 2 to 18 therein. 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 is sued in the courts of that state. In this connection, I point out that the meaning of "domicile" under the conventions is roughly equivalent to ordinary residence. The term does not have the more particularised meaning which generally applies under Irish law. Within the Bill, provisions relating to domicile are contained in section 15 and in the Ninth Schedule.

There are a limited number of grounds on which recognition and enforcement of a judgment can be refused. The main grounds for refusal to recognise a judgment are where it would be contrary to public policy to do so or where the defendant was not made aware of the proceedings against him or her.

Special provision is made for individual litigants in areas such as insurance and consumer contracts and also in matters relating to maintenance. In these areas the plaintiff is the acknowledged weaker party and so he or she may commence proceedings in the country where he or she is domiciled. That is an exception to the general principle that proceedings must be instituted in the country where the defendant is domiciled. Other exceptions of this kind occur in matters relating to a contract — where a person may be sued in the courts for the place of performance of the obligation in question — and in tort cases, where a person may be sued in the courts for the place where the harmful event occurred.

It is an unfortunate fact of modern living that ever-increasing travel and mobility can bring more and more pressures on family life and can, where marriages have broken down, see individual family members living in different countries. In this regard the enforcement of foreign maintenance judgments will strike most people as being of particular importance.

The passing into law of the Judgments Acts, which we are now consolidating, meant that Irish maintenance orders could be recognised and enforced in all EU and EFTA countries which were parties to the 1968 and Lugano Conventions. However, while the simplified enforcement mechanisms were available to the maintenance creditor, he or she had to travel to or engage a lawyer in the country concerned in order to secure enforcement of the maintenance judgment. Under the Maintenance Act, 1994, a central authority now functions which is concerned with the recovery of maintenance and acts on behalf of maintenance creditors who wish to have a maintenance order enforced where the maintenance debtor is living in another country.

The provisions of the 1994 Act mean that it is no longer necessary for Irish maintenance creditors to initiate enforcement proceedings themselves in the relevant member states. Instead, they simply apply to the central authority for assistance in having their maintenance order recognised and enforced. The central authority deals with incoming and outgoing applications, assists with documentation, locating the whereabouts of debtors and aims to ensure that moneys due are duly paid over.

There is a small procedural change introduced in the Bill that is relevant to the area of maintenance. This change in procedure relates to applications for the enforcement of authentic instruments and settlements. Instruments are a feature of the law in some Scandinavian and continental jurisdictions and usually provide for the enforcement of financial obligations without the need to have recourse to the courts. Settlements are a feature of Dutch and German law. They are approved by a court and are enforceable without further formality. At present applications for the enforcement of such instruments and settlements must go to the High Court. However, to simplify matters, I am providing in the Bill for the applications for enforcement of such instruments and settlements to be directed to the Master of the High Court.

Another matter of note in relation to maintenance is that the 1996 Accession Convention inserts a new article — Article 5(e) — into the Protocol to the 1968 Convention, providing that arrangements relating to maintenance obligations concluded with administrative authorities or authenticated by them shall be regarded as authentic instruments under the 1968 Convention. Under the Bill, these maintenance arrangements may also be enforced via the office of the Master of the High Court.

The Bill re-enacts the existing provisions of the Judgments Acts, 1988 to 1993, as adjusted to incorporate the Accession Convention for Austria, Finland and Sweden. For convenience of reference, there are set out in Schedules to the Bill the new consolidated text of the 1968 Convention and the 1971 Protocol in both the English and Irish languages. Also set out are the key provisions of the four Accession Conventions and the text of the Lugano Convention and its Protocol.

Section 1 is a standard provision in legislation of this nature and it provides that the Bill will be brought into operation on a date or dates to be fixed by order and that different parts may be brought in at different times. In respect of the 1996 Accession Convention, which involves Austria, Finland and Sweden, it will be necessary for one of those three countries to have deposited its instrument of ratification before that Convention can enter into force.

Part II of the Bill is concerned with the 1968 Convention and the subsequent Accession Conventions. Under section 5 these conventions are to have the force of law in the State. Thus, the courts are considered to know of their provisions without the requirement to have them proven in evidence. There is also an identical provision in respect of the Lugano Convention in section 18 of the Bill.

The 1971 Protocol gave jurisdiction to the Court of Justice of the European Communities to interpret the 1968 Convention and to give rulings thereon. Section 6 provides that, arising from that jurisdiction, judicial notice shall be taken of the rulings and opinions of the European Court of Justice on the conventions. The section also provides that judicial notice shall be taken of the Explanatory Reports on the Accession Conventions. The report in respect of the recent accession of Austria, Finland and Sweden is not yet available, but I would hope that it will be possible to bring forward a suitable amendment to the Bill should the report become available in the near future.

Section 7 provides that applications for the enforcement of judgments are to be made to the Master of the High Court. To facilitate speedy enforcement procedures, the Bill extends the definition of judgments, where appropriate, to include authentic instruments and settlements and arrangements relating to maintenance obligations, which are common in continental jurisdictions, so that these measures too can be enforced via the office of the Master of the High Court rather than via the High Court itself which is the case at present.

Section 8 deems convention judgments in respect of which an enforcement order has been made to be of the same force and effect as a judgment of the High Court. However, the overwhelming majority of maintenance orders will fall to be enforced by the District Court under section 9. This allows the maintenance creditor to avail of the administrative machinery for the enforcement of maintenance orders which is well established at District Court level.

Section 10 provides for the payment of interest on judgments and for the payment of costs. Section 11 provides, where the need arises, for fixing the currency and rate of exchange which should apply in the case of enforceable maintenance orders.

Under section 13 the High Court is empowered to grant any provisional, including protective, measures which are normally available to it even if the substantive matter of the case falls to be heard by the courts of another state which is a contracting party to the 1968 Convention. The measure most likely to be applied for would be an injunction to restrain a defendant transferring assets out of this jurisdiction so as to defeat any future judgment that might be given against him or her.

Part III of the Bill makes the relevant provisions of this legislation applicable to the Lugano Convention, which governs enforcement of judgments between EU and EFTA member states. As I mentioned, the Lugano Convention mirrors the provisions of the Judgments Convention. It is possible for a state which is not yet a member of the EU or EFTA to accede to the Lugano Convention provided it is sponsored by a State which is such a member. Such accession requires the unanimous agreement of all the contracting parties. It is likely that Poland will be acceding to the Lugano Convention on the basis of these arrangements in the near future. Furthermore, as additional countries apply for membership of the EU, I would expect that accessions of this nature will become more commonplace.

Part IV of the Bill makes certain amendments to the Maintenance Act, 1994, which are necessitated by this Bill and repeals the Judgments Acts, 1988 and 1993.

Although this is a technical Bill, its effects have day to day significance for many people. As a consolidating measure it will be of benefit in simplifying this somewhat complex area of the law, both for the practitioner and anyone else who has reason to use this legislation. I commend the Bill to the House.

We have a multi-billion pounds trading and commercial relationship with our EU partners and the EFTA countries. This country must be part of an international legal system which ensures that court judgments in civil and commercial law matters — including contracts, exchange of funds, delivery of goods, etc. — made in one member state are recognised and enforceable in a uniform way in another member state.

The Minister said that Article 220 of the Treaty of Rome of 1957 required the contracting states to simplify the laws governing the reciprocal recognition and enforcement of judgments by courts and tribunals in the civil and commercial law areas. The Community was slow to simplify the recognition and enforcement of judgments; it was not until the Brussels Convention of 1968 — ten years after the original Community of six member states was formed — that the first legal framework was put into place. However, even after the Brussels Convention the harmonisation of the law in this area has remained slow, both in its making and in its usage by the people whom it could affect. This is the case despite the huge growth in trade between member states which gave rise to much litigation on contract default, employment disputes and other commercial matters.

There were some spectacular commercial scams in this period. The Cathaoirleach will know that in 1981, in my own county of Roscommon, a businessman collapsed his meat business and left for Spain with about £2.5 million owed to small farmers for livestock they delivered to his premises for slaughter. This individual was disgracefully allowed to slip out of Ireland and live in luxury on his ill-gotten gains. Spain was not at that time a member of what was then called the EEC and there was no reciprocal arrangement which would have made a civil or criminal judgment against the businessman in an Irish court recognised or enforceable against him there. Spain has built itself a reputation as a haven for people escaping maintenance orders, fraud charges or business collapses in other countries.

There were other spectacular scams during the 1980s involving investments by ordinary people. The chief culprits were able to escape to Spain or elsewhere but any civil or criminal judgments against them were not enforceable abroad. In that light the principle of this legislation is welcome because it is important that we keep developing in that direction. Spain and Portugal became part of the mutual legal arrangements with the San Sebastian Convention of 1989 and we legislated for their inclusion in those mutual arrangements in 1993 but, alas, that was too late for the victims of the fraudsters for whom Spain in particular had provided a safe haven.

I have not had time to read the 23 sections and nine Schedules in the Bill as published. Perhaps in her reply the Minister could elaborate on the measures which strengthen employees' contractual rights. I am interested in this because it was mentioned in the 1993 legislation. For example, a young Irish person may enter a work contract in Germany but find that it is varied or changed against his or her interest, causing serious loss or damage. Are there improved and enforceable legal procedures in this Bill by which such a person can easily seek compensation or redress and, if such redress is sought in an Irish court, can it be enforced in the country where the dispute arose? Presumably the Bill broadens the scope of the convention which we discussed in 1993. Can the Minister tell us what is new in the Bill? What does the convention provide as regards the enforcement in Ireland of a libel award in Austria, or vice versa?

I was delighted to hear the Minister's remarks about maintenance awards. In 1993 I was in the other House during the discussions on the legislation providing for enforcement in Spain and Portugal. The enforcement of maintenance awards covered a large part of that discussion, and rightly so, because many husbands who had deserted their wives had fled to Spain and were known as the "Marbella Set". The 1993 Act contained improvements and the former Minister, Mr. Taylor, introduced a judgments Act in 1994 but I still receive complaints about the difficulty of enforcing or varying maintenance orders — for instance, the circumstance of the ex-spouse living abroad has improved and the spouse living in Ireland may seek to have the other's improvement in income reflected in the maintenance payments. Does this Bill improve matters further?

There are now 21 countries contracting to the convention. What kind of cases in civil or commercial law cannot be taken for judgment and on what grounds can the recognition or enforcement of judgments be refused? The Minister made a general statement on that point but perhaps she could give specific examples of cases which cannot be taken or where recognition of a judgment can be refused.

How many Irish judgments have been enforced abroad since 1993? Conversely, how many foreign judgments of the kind provided for in this legislation have been enforced here in that period? It would be interesting to know the take up rate. Many people complained in the past of the great travelling distances involved in pursuing judgments in Spain or Scandinavia and the different legal systems to be tackled. Some were overwhelmed and did not exercise their legal rights. The conventions of 1988 and 1993 have been ratified by the Houses and we now seek to ratify the 1998 convention, so there must have been an increase in the flow of judgments in both directions. Perhaps the Minister could supply the figures.

These measures only apply to our EU partners and the EFTA countries, with whom we have 80 per cent of our trade, tourism and general exchange of business. We should strive to have similar arrangements with the United States, Canada, Australia and New Zealand. We do a lot of trade with these states, they are democratic countries with fully developed legal systems and mutual arrangements with them, such as those provided for in this Bill, are possible and feasible. It would be easy to mesh with them.

While probably no more than 10 per cent of our trade is outside the EU and EFTA it is substantial. We trade and exchange with several countries where the rule of law and the quality of democracy is hardly as good as it is here. For example, our ill fated meat trade with Iraq necessitated an insurance scheme funded by the taxpayer to protect the interest of exporters — perhaps only one exporter was involved — against the default of payments by Iraq. It would be virtually impossible to have mutual legal agreements with countries such as Iraq which are not democracies and do not have developed legal systems.

The establishment of legal frameworks and measures of this kind, by which judgments made in one country are enforceable in another, are very important especially with regard to trade. There has been a massive expansion in world trade in recent years. The GATT has been broadened and negotiations for another round are due to commence. In the history of world trade, barriers have broken down and trade has expanded. There is, therefore, a necessity to construct a legal framework to protect trade from default, breach of contract, etc., which is mutually enforceable across borders. It is important that this country take a lead in this area. It is also important that we have a simple, coherent legal formulation, with the maximum co-operation between the judicial and court systems of all countries with which we trade to ensure that these measures work smoothly.

It is two years since Austria, Sweden and Finland joined the EU. I am mystified why it has taken this length to bring the ratification of the convention before these Houses. I am sure there are good reasons.

I welcome the Bill. My party has no difficulty with it. I urge the Minister to work along these lines for greater co-operation and to put in place a better and ever improving legal system and framework by which we can resolve problems surrounding maintenance orders and other areas. While the law may look good on the Statute Book difficulties arise in court. We should learn from difficulties and problems that have arisen.

I welcome this Bill. I am pleased that this is the eighth Bill from the Department of Justice, Equality and Law Reform to be initiated in this House since last September. It is an indication of the high esteem in which the House is rightly held. Other Ministers and Departments should consider this kind of approach. It would give greater significance to Seanad Éireann and would be welcomed by all Members.

In essence, there is nothing new in this Bill. It has two main functions. First, it will enable the State to ratify the convention on the accession of Austria, Finland and Sweden. Senator Connor wondered why it has taken so long to do this. To date, only one EU country has ratified; we will probably be the second. The second main function is to consolidate the provisions of the Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993. This is one of the reasons the Bill contains 23 sections and several Scheudles.

The Bill deals with contractual matters, matters of tort, maintenance orders and other civil matters outside the criminal law jurisdiction. Under the judgments conventions, jurisdiction rules are prescribed which determine which court in each member state is competent to rule on an action. The basic rule is that a defendant is to be sued in their country of domicile which, in this context, equates broadly with ordinary residence. However, in certain cases a person can take proceedings in his or her own country against a person domiciled in another contracting state instead of having to sue that person in the country in which they reside. This is to be welcomed because the previous provisions created huge difficulties for all practitioners. It will apply in areas such as maintenance where people may commence proceedings in their own country against maintenance givers who live outside the country. Consumer proceedings also benefit.

I have encountered examples of this kind in my area. For example, Mr. X, a deep sea diver who works on rigs in Saudi Arabia or off the coast of Scotland or Italy, moves to Europe after he and his wife separate. Previously, his spouse would have had severe difficulty in locating him. Furthermore, if the court granted a maintenance order of £100 per week for her and her three children it would have been virtually impossible to have it enforced. While the 1994 Act introduced a new system in this regard, the enforcement of simple things, such as maintenance orders against a husband who decided to lose himself abroad, was virtually impossible. It was necessary, for example, to apply to the courts for permission to serve documents outside the jurisdiction, which made it frustrating and probably financially disadvantageous. Most applicants for these orders were probably left high and dry and unable to afford to employ the services of lawyers in other countries, never mind in this country.

If somebody came to my office ten years ago for advice on commercial and civil matters of this kind I would have cautioned against proceeding unless the client had money to latch on to the defendant in another jurisdiction. In view of this, the consolidation of the law in this area is to be welcomed.

The convention also provides for speedy and informal procedures to enable the reciprocal recognition and enforcement of judgments in civil and commercial, but not criminal, matters as between Ireland and other EU member states and states which are members of EFTA. All EU member states are parties to the original convention, accession to which is a condition of EU membership.

When enacted, the Bill will enable the State to ratify the convention dealing with the accession of Austria, Sweden and Finland, the 1996 accession convention to the 1968 convention on jurisdiction and enforcement of judgments in civil and commercial matters and to the associated Protocol on the interpretation of that convention by the European Court of Justice. The 1996 accession convention is not yet in force because it must be ratified by Austria, Finland or Sweden before it can come into effect. To date, it has been ratified by only one country, the Netherlands. Following the passing of this Bill it will be our intention to be one of the first group of countries in the EU to ratify it.

The Bill also consolidates and makes minor amendments to the Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993. Consolidation was desirable because, at present, relevant provisions are to be found in several pieces of legislation — the Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993, and the Maintenance Act, 1994. In this regard, I am encouraged by Senator Connor's remarks that his party largely supports this consolidating legislation which also recognises the accession of three new countries.

Apart from the adjustments to the legislation as a result of the 1996 Accession Convention, the only change is a procedural one which relates to certain specialised applications for the enforcement of authentic instruments and court settlements. These are relatively new to Irish law although, as the Minister stated, they are quite common in countries such as the Netherlands. The Bill provides that such applications will be made to the Master of the High Court rather than to the High Court itself, which is the case at present. This is a very practical and sensible provision because the High Court lists are extremely clogged up, even for ex parte applications, but the Master of the High Court could give a decision on an application within a month or six weeks.

The development of legislation which provides for similar procedures in civil matters throughout the EU and EFTA states should be encouraged. Most of the 50 lives lost in the Betelgeuse disaster off Whiddy Island in 1979 were French. The vessel's owners were of different nationalities and it took a tribunal and several years of litigation and wrangling before settlements could be enforced. Fortunately, for those who were injured or suffered, the tanker was owned by a commercially viable and reputable company and the awards were eventually enforced. However, there have been severe difficulties in civil and commercial matters concerning tort, contract, maintenance orders etc.

I compliment the central authority, which was set up under the Maintenance Act, 1994, on its work. If one obtains a maintenance summons against a person living in another country the central authority will assist in processing the application. This is a very important and simplified way of doing business. Not only will the central authority assist in the enforcement of an order made by an Irish court, it will also, conversely, assist in the enforcement here of an order made in a foreign court. This central authority is doing excellent work on behalf of people who have maintenance orders made in their favour but cannot afford the time, frustration and cost of litigation. It has filled a huge vacuum which existed for decades.

The Bill is extremely technical but, as the Minister said, is basically consolidating existing provisions. I commend the Bill to the House. Its implementation will assist in the smooth operation throughout the EU of contractual and commercial matters, such as maintenance orders and the law of tort. For example, if an accident occurs in another EU state, where does one issue proceedings and who does one sue at present? If the person complained against resides elsewhere does he have to be pursued through the EU? Once this measure is ratified we will have a simplified and practical workable law throughout the EU. I thank the Minister for initiating the Bill in this House and for recognising the important legislative role of the Seanad.

The Labour Party also supports the Bill, which ratifies the Accession Convention of Austria, Finland and Sweden to the 1968 Convention, and also consolidates the provisions of the Jurisdiction of Courts and Enforcement of Judgments Acts, 1988 and 1993. My erstwhile colleague, the former Minister for Equality and Law Reform, initiated this legislation and I am glad the Government has taken up his suggestions in this regard. It follows on from the 1988 Act which allowed for the enforcement of judgments throughout the European Union, as it then stood, and the 1993 Act which was also introduced by Mr. Mervyn Taylor and which extended this to Spain, Portugal and the EFTA states. This Bill goes an extra step by adding Austria, Finland and Sweden to the existing law on the enforcement of judgments. Therefore, the legislation now covers all EU member states and the remaining EFTA states.

I congratulate the Minister on coming up with the idea to consolidate the law in this Bill, which repeals the Acts of 1988 and 1993. It is an excellent idea to simplify the legislation and make it more accessible. That is the direction which our legislation should take in future.

I note the text of the conventions are given in Irish and English in the First and Second Schedules to the Bill but in only one of the official languages — English — from the Third Schedule onwards. I ask the Minister to examine that anomaly for Committee and Report Stages.

I join with other speakers in welcoming the thrust of this legislation, which enables us to recognise and implement judgments enforced in other countries and to have reciprocal arrangements here. Will the Minister give some indication of the extent of the use of this legislation? Do we have any mechanism for compiling reports? Is there provision for an annual report on the progress of the legislation? Is there any mechanism in the Department to show how extensively it is used in terms of maintenance, commercial law and judgments relating to tort, damages and contracts? Although criminal matters are not included, it would be interesting to see if judgments in civil cases in other countries are recognised and enforced. It would be fascinating to read an annual report on the operation of this legislation.

I welcome the establishment of a central authority under the Maintenance Act, 1994. That is the way forward on all judgments we are seeking to enforce under this legislation. We are talking about a wide range of countries and different operations of law. It is difficult for our citizens, who are consumers of the provisions of this legislation, to find the means or the time to exercise their rights. They have recourse to the legal profession, but a central body to deal with all matters is a reassuring and accessible mechanism. This is one area where we could begin the process of compiling an annual report. If a central authority processes maintenance orders, then surely its files should be accessible. It would also be good if a central processing or enforcement authority was set up to deal with commercial matters and our citizens could avail of it. I ask the Minister to consider this point.

Our society is now more pluralist and mobile. In fact, the definition of domicile means little more than residence. The people of this nation were always great to travel. They move between countries more regularly now but they always come home again. That is also true of citizens of other jurisdictions and those in matrimonial or commercial relationships in this country. As time goes on, civil relationships and the number of contracts entered into will increase. The use of these instruments will continue to expand.

Criminal matters are omitted from this Bill, although such judgments are equally important. The provisions of this legislation should be extended, particularly if criminal assets and property are seized in this country or in other jurisdictions to which many of our drug barons have fled and judgments are enforced in this country. Interpol and the Garda Síochána are operating in conjunction with their colleagues in other jurisdictions. It would be useful if the Criminal Assets Bureau had access to a central authority, as proposed in the maintenance order, where they could view all the judgments entered about people, such as drug barons, who travel abroad regularly, particularly when fleeing the law, and have civil obligations and criminal records in other jurisdictions. Perhaps the Minister might consider maintenance, commercial and criminal matters, which are important in terms of inter-jurisdictional activity.

Section 13 states that an order may be made against transferring assets out of the jurisdiction where that might be seen as defeating a future judgment. Perhaps the Minister could clarify how the legislation will operate in terms of different countries. If one country believes that an asset might be transferred out of our jurisdiction, how will the legislation operate in terms of giving evidence and ensuring that the court can act? Can that matter be dealt with through the central authority? Although it is a maintenance matter, it might also be a commercial matter if the assets from a person's company or from a liquidation sale have a bearing on the operation of the company or its subsidiary in another jurisdiction?

I welcome this legislation, which extends our role in the European Union and consolidates our relationship with the other member states and EFTA countries. As Senator Connor said, there seems to be an omission of a range of other countries with which we could enter into such legislative arrangements, particularly the western group of democratic countries such as the United States, Canada and Australia and the next wave of accession countries from central Europe such as Poland, Hungary, Romania, the Czech Republic and Slovakia. We do not have to wait for their accession to the European Union to make progress on such matters. Accession conventions would not be required in the case of the United States, for example, but there would be separate arrangements parallel to what we are entering into with all the countries in the European Union. The same terms and provisions would apply for recognition and enforcement of matters in our joint jurisdictions.

I welcome the legislation. I am delighted it has come forward without too much delay and I hope the other European countries to which it applies will ratify it as speedily as we have.

I am grateful for the welcome extended to this legislation and particularly for comments made by Senators who are anxious to see the development of this type of legislation.

The Bill is primarily a consolidating measure which repeals and re-enacts the Judgments Acts, 1988 and 1993, as well as amending certain sections of the Maintenance Acts, 1994, which has been absorbed into the consolidated text. It will also enable the State to ratify the 1996 Accession Convention dealing with the accession of the three new member states to the Judgments Convention.

It is important that there is a greater awareness of the origins of the Brussels Convention. The impetus behind the convention, as drawn up originally in 1968, was to give meaningful effect to Article 220 of the Treaty of Rome. That Article called on member states to secure "the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals". While the actual convention is a technical measure which may be more familiar to the legal profession than to the general public, it is worth reminding ourselves that the fundamental aim is to simplify legal formalities in the civil and commercial areas so that, by and large, the relevant judgments are subject to almost automatic enforcement. So, while the Bill is a technical measure, the Brussels and Lugano Conventions have the capacity to impact in a practical way on people's daily lives where the legal action they are taking has a transnational dimension.

Many examles were quoted in the debate. For example, if an person resident in Ireland is injured while using a product manufactured in another contracting state and wishes to bring a negligence suit to obtain damages, the conventions enable him to bring an action before the Irish courts should he wish. Similarly, if business and commercial relationships are to function with maximum efficiency those engaged in contractual relationships across national boundaries must be assured that the full range of enforcement remedies are available to them, notwithstanding that the parties may be based in different EU or EFTA member states.

In the current climate, when European affairs are subject to so much debate, I am glad to be able to say that we are among the first of our EU partners to be taking steps to ratify the Accession Convention of Austria, Finland and Sweden. The only other state which has ratified this convention so far is the Netherlands. The convention will not, however, come into force until one of these acceding states has ratified it. It is likely that this will happen later in the year.

Senator Connor quoted the example of an Irish person who had been working abroad. An Irish person working under an employment contract in another EU state who is unfairly dismissed has a number of options when it comes to bringing a suit against an empoyer. Under Article 2 of the convention the person could sue in the courts of the place where the employer is domiciled. In addition, under Article 5.1 he could sue in the place where he habitually carries out his work. If he does habitually carry out his work in any other country the employer may also be sued in the courts for the place where the business which engaged the employee was, or is now, situated.

Senator O'Donovan referred to the country in which a court case can be heard. If an Irish person is knocked down by a car driven, for example, by a French person, it would not be necessary for the Irish person to sue in the French courts, although this would be an option. Instead, relying on Article 5.3, he could bring a case before the Irish courts since Ireland would be the place where the harmful event occurred.

The example of short term tenancy disputes might be of interest to Senators. As a general rule, under Article 16, proceedings involving disputes concerning immovable property or tenancies of such property must be taken before the courts where the property is situated. An exception to this rule concerns proceedings involving tenancies of immovable property concluded for temporary, private use for a maximum period of six consecutive months. This provision refers essentially to short term holiday lettings. In such proceedings an action may be taken in the courts where the defendant is domiciled, provided the landlord and tenant are natural persons and are domiciled in the same contracting state. This provision would be of assistance where an Irish person rents property owned by another Irish person in, for example, Spain. In such a case a court action could be brought before the Irish courts and it would not be necessary to go before the Spanish courts. The rule is even more flexible under the Lugano Convention in that only the tenant must be a natural person and what matters is that neither the landlord nor the tenant is domiciled in the state where the property is situated.

Senator Connor stressed the importance of continuing to develop our legislation and Senators O'Donovan and Costello were also anxious that we would continue to make improvements in this area. It might, therefore, be useful to refer briefly to the fact that, under the Treaty of Amsterdam, provisions are made for enhanced judicial co-operation in civil matters between EU member states. Such co-operation is part of the process whereby the objective of maintaining and developing the EU as an area of freedom, security and justice can be achieved.

The areas covered by the proposed co-operation in addition to recognition and enforcement of judgments in civil and commercial matters include improvement and simplification in the system of serving legal documents, co-operation in taking evidence and measures aimed at the elimination of obstacles to the good functioning of civil proceedings generally. An important element in the Treaty is that, for the future, measures falling within this area of EU co-operation will become a Community responsibility. This arises as a result of the transfer from a largely intergovernmental framework of the Third Pillar — known as Title VI or the Justice and Home Affairs provisions of the EU Treaty — to the First Pillar or EC Treaty.

While these changes, which are aimed at strengthening co-operation between member states, are to be welcomed and are evidence of the interest in developing this area of Community activity, Senator Connor and other contributors to the debate will be happy to note that it is already the case that civil judicial co-operation under the present Title VI of the EU Treaty is progressing at a steady pace. The Convention on the service in the member states of the Union of judicial and extra-judicial documents in civil and commercial matters has already been negotiated under the Title VI arrangements. That convention was signed in May 1997.

Senators O'Donovan and Costello referred to the Central Authority for Maintenance. This Authority came into being in November 1995 pursuant to the Maintenance Act, 1994. It is, at present, operating from the Department of Justice, Equality and Law Reform. The Authority assists Irish people who wish to recover maintenance payments from persons residing in over 40 countries worldwide, including all the EU countries as well as the United States, Australia and New Zealand. I thank Senator O'Donovan, in particular, for his positive remarks about the work of the Central Authority. A total of 26 incoming applications for maintenance recovery has been dealt with by the Central Authority for Maintenance and the Authority has dealt with 34 outgoing applications since it was set up. Most of the cases involved the United States.

Regarding Senator Costello's point about the Irish language version of the text, The First and Second Schedules contain consolidated texts of the 1968 Convention with the amendments made to it by the later accession conventions as well as the 1971 Protocol on the interpretation of the conventions by the European Court of Justice. These Schedules would be the most useful texts for practitioners and anyone else who needed to refer to the conventions. Not to add too much volume to the text, we decided to limit the Irish text published in the Bill to those two Schedules. I am glad to be able to say that all the Schedules are published in Irish and are available in the Official Journal of the European Communities. Senator Costello will note that the Ninth Schedule, which deals with domicile, contains text in both Irish and English.

Senator Costello inquired whether a system is in place to monitor proceedings where jurisdiction is grounded on the Brussels Convention. There are no statistics available at present in respect of such proceedings.

Are the any plans to compile statistics?

I will consult with the officials in my Department to see what can be done about compiling statistics in that field.

Another point to which Senators Costello and Connor referred involves trading relationships with other countries and the importance of non-EU states in this area. A substantial portion of our trade is with our EU partners. I do not have precise figures, but I estimate this is in excess of 70 per cent. This openness to trade makes it very important that legal certainty exists for those involved in the import-export business by specifying precise rules of jurisdiction and ensuring that judgments given in accordance with the Convention can be easily enforced. The Convention creates a climate which is conducive to the expansion of trade.

We are aware of the desirability of extending the principles of the Convention to countries outside the EU. Within the Hague Conference and private international law, work is taking place on a worldwide judgments convention. While they are at an early stage, a successful conclusion to those negotiations would be welcome. I am sure Senators would like to see more progress in that area.

Senator Connor inquired about the grounds for refusal of recognition. Article 27 sets out the grounds on which a judgment shall be refused recognition. It states that recognition of a judgment shall be refused: if it is contrary to public policy in the state in which recognition is sought; if it is given in the defendant's absence where the defendant has not been served with the document instituting the proceedings or with an equivalent document in sufficient time to arrange for his defence; or if it is irreconcilable with a judgment given in a dispute between the same parties in the state in which recognition is sought.

Senators Connor and Costello also inquired about applications of enforcement of judgments made to this country in recent years. The number of applications under the Brussels and Lugano Conventions for enforcement of judgments has increased from a low of four in 1988 — the first year of operation — to approximately 30 applications in 1997. Despite our increased "Europeanisation" in the decade of operation of the Brussels Convention, the overwhelming majority — approximately 80 per cent — of applications for enforcement came from the UK. In almost all cases, applications for enforcement lodged with the Master result in an order being made. The subject matter is usually commercial, involving enforcement of a contract or payment of a debt. Over 300 applications for enforcement of judgments were made to the Master's office from 1988 — the first year of operation of the Judgments Convention — to date. There were 33 applications in 1997, 35 in 1996 and 47 in 1995.

As stated earlier, another Convention — the draft Convention on Jurisdiction Recognition and Enforcement of Judgments in Matrimonial Matters — is close to finalisation and should be signed shortly. Ongoing work involves the review of the subject matter of this Bill, namely, the 1968 Brussels Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters between EU states and the parallel 1988 Lugano Convention between EU states and EFTA states. Consideration is also being given to the possible introduction of further simplifications in the procedure for the recognition and enforcement of certain civil and commercial judgments between EU states.

The new Treaty provisions move judicial co-operation in civil matters closer to the centre of EU activity. This recognises that the Union has the possibility to be a judicial space as well as an economic power and that compatibility within our legal systems can be a force which will impact favourably upon our citizens. Against that background, the Judgments Convention may assume even greater importance than it has to date and may be utilised even more intensively that it is at present. I hope the Bill will help to make people more conscious of the fact that their legal rights have a genuine European and extra-territorial dimension.

I express my appreciation to the Senators who took part in the constructive and useful debate on this technical Bill and I thank them for their support. I look forward to the debate on Committee Stage and to the passage of the Bill through the House. I assure Senators I will take note of their suggestions.

Question put and agreed to.

An Leas-Chathaoirleach

When is it proposed to take Committee Stage?

On Tuesday next, subject to agreement between the Whips.

Committee Stage ordered for Tuesday, 7 April 1998.
Sitting suspended at 12.20 p.m. and resumed at 2 p.m.
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