I move: "That the Bill be now read a Second Time."
The measure we are now considering, the Jurisdiction of Courts and Enforcement of Judgments Bill, 1993, has one overriding objective, namely, to ensure a structured and coherent approach to the international recognition and enforcement of judgments in civil and commercial law matters. Since 1988, we have had the benefits of this approach in relation to all the EC member states, with the exception of Spain and Portugal. This Bill extends these benefits to a wider territorial area. It does so by enabling Ireland to ratify the convention providing for the accession of Spain and Portugal to the 1968 Brussels Convention, and also to ratify a parallel convention, known as the Lugano Convention, which was negotiated between the member states of the European Communities and those of the European Free Trade Association.
The impetus behind the original Brussels Convention, which was drawn up in 1968, was to give meaningful effect to Article 220 of the Treaty of Rome. That article called on member states to secure "the simplication of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals." At the time, it was perceived that the economic wellbeing of the Community required a legal framework which would ensure that commercial relationships, in particular, would not be unduly hampered by the absence of a uniform system of law throughout the participating member states.
The original convention did succeed in simplifying legal formalities of enforcement in the areas of civil and commercial law. Of course, as the Community has developed closer links with other countries, such as those which form part of the European Free Trade Association, the EFTA group, the need for such simplification has grown and not lessened.
It will be recalled that before Ireland's accession to the EC no Irish judgment was enforceable in another country by any simplified procedure — apart from a number of minor exceptions in the United Kingdom — nor was it possible for any foreign judgment to be enforced here. Before our accession to the Community an Irish person who wished to bring a claim in France, Germany, Italy or some other EC country was obliged to retain lawyers in that country and bring separate legal proceedings there and go through the panoply of the legal procedures in that country and obtain a separate judgement in each country. The fact that the Irish citizen might have had a decree or a judgment of an Irish court was of little or no value save in the couple of minor exceptions in the United Kingdom. Likewise, a debtor in Ireland who owed money to a resident of another country had to be sued separately here and a judgement obtained in any other country was not enforceable here but it could be used as a basis for bringing a claim but of itself it could not be enforced in this country.
In Ireland, after joining the EC in 1973, we took on board the obligation to accede to the Brussels Convention, as did Denmark, the United Kingdom and, subsequently, Greece. The convention was modified both in 1978 and in 1982 to accommodate these accessions. In our case, the force of law was given to the amended convention by the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988. A further amendment is now necessary because of the more recent accession of Spain and Portugal.
In the context of that accession, an opportunity was provided to take account of some important issues which had emerged during the course of the earlier negotiations on the Lugano Convention. These issues arose as a result of experience of the working of the Brussels Convention and of decisions of the European Court of Justice on the interpretation of its provisions. Part III of the Bill deals specifically with the Lugano Convention.
Part II consists largely of a series of technical adjustments to the 1988 Act. They reflect the changes brought about by the 1989 convention on the accession of Spain and Portugal known as the Convention of San Sebastian. But the more significant changes are those that have been incorporated from the Lugano Convention. For example, in the area of employment contracts, the position of an employee who is in dispute with his or her employer will be appreciably improved as a result of those changes. Under the Brussels Convention, the employee had to sue the employer in the courts of the state where the employer is domiciled or where the contract is to be performed. Such an individual will now have a right to sue the employer in the place where he or she habitually works or, if this is not appropriate, in the place where the business which engaged the employee was or is now situated. The right of an employee to sue in a member state, to which the business which engaged him or her has moved, is a benefit particularly to the amended Brussels Convention.
This concern to protect employees is also seen in an amendment to Article 17 of the Brussels Convention. That article allowed parties to a contract to agree on the court of the contracting state that would have jurisdiction in the event of a dispute. The amendment provides that in the case of an individual contract of employment the agreement will have legal force only if it is entered into after the dispute has arisen. The employee also has the option under the convention of using a pre-dispute agreement to sue in the courts of any other state.
Another change of note is one which will impact on individuals who wish to rent short-term holiday accommodation abroad. An Irish resident might let a holiday home he or she owned in, say, France, to another Irish resident for part of the year. If the tenant defaulted in payment of the rent or damaged the premises, the proceedings up to now would have to be taken in the courts of the state where the property was situated, that is, in the local French courts. Now the action may be brought in the territory of the member state in which the defendant is domiciled, provided the tenant and landlord are natural persons and domiciled in the same member state. The corresponding provision in the Lugano Convention for the EFTA countries allows the plaintiff in such cases to proceed in the courts of the state where the defendant is domiciled, provided only that the tenant is an individual and that neither party is domiciled in the country in which the property is situated. So, in the example I have taken, the aggrieved Irish owner will be able to get redress in the appropriate circuit or district court just as if the holiday home were located in Ireland.
Part III of the Bill gives the force of law to the Lugano Convention. This convention is identical to the Brussels Convention in all essential respects and its implementation does not require any substantial adjustments to our domestic law. As already indicated, the main advantage of ratification is that it ensures that the judgments of a greater range of countries will, within the relevant categories have more or less free circulation throughout a wider territorial area.
It may be worth recalling briefly the essential principles which govern both conventions. Of primary importance is the fact that we now have the framework for a procedure of virtually automatic enforcement of judgments given in 18 individual states. Provided the court giving the judgement sought to be enforced has jurisdiction to entertain the case under the rules of the conventions, the judgement can be enforced simply and quickly in any of the other states which are a party to their terms.
There is a very limited number of grounds upon which recognition and enforcement of a judgement can be refused. The main ones would be 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. In Ireland, the usual way of securing enforcement of a judgement under the Brussels Convention is by way of application to the Master of the High Court. From the information available to me, it appears that this aspect of the procedure has worked well to date. While there has not been an enormous number of such applications, there has been a relatively steady stream of applications to the Master from time to time.
A number of matters are excluded from the scope of the conventions. These include matters of an explicitly criminal nature, revenue, customs and administrative matters, status issues, social security and arbitration. Nevertheless, their scope is extremely wide, covering the whole spectrum of international business transactions and litigation between individuals.
Special provision is made for individual litigants in areas such as insurance and consumer contracts, matters relating to maintenance and personal injury actions. In these areas, the plaintiff is the acknowledged weaker party and so he or she may commence proceedings in the country in which he or she resides. That is an exception to the general principle that proceedings must be instituted in the country where the defendant is resident. Other exceptions of this kind occur in matters relating to a contract — where a person may be sued in the courts of the place of performance of the obligation in question — and in tort cases, where a person may be used in the courts of the place in which the tortious event occurred.
The protection afforded to the weaker party is particularly important in maintenance matters where the expense of obtaining a judgement in a foreign country could place a very difficult obstacle in the path of most maintenance creditors. I fully accept that extending the enforcement "net" is only a partial solution to the problems which such creditors face. Indeed, for that reason I am pressing ahead with a Bill which will allow Ireland to accede to the EC Maintenance Convention, thus making it unnecessary for Irish maintenance creditors to initiate enforcement proceedings themselves in the relevant member states. That Bill will also facilitate our accession to the 1956 UN Convention on the Recovery Abroad of Maintenance.
The purpose of the Bill which I will introduce is to enable Ireland to accede to two conventions dealing with the recovery of maintenance payments from abroad. The first is the convention between the member states of the EC on the simplification of procedures for the recovery of maintenance payments, signed in Rome on 6 November 1990, known as the EC Maintenance Convention. This convention will provide for a much more readily available, simplified procedure in the area of maintenance applications. The second convention is the United Nations Convention on the recovery abroad of maintenance, signed in New York on 20 June 1956, known as the UN Maintenance Convention. Those conventions will be enforced under the central authority procedure whereby a central authority court official or Government Department will be appointed in each relevant country. The enactment into law of such an authority will represent a further major improvement in the recovery of maintenance procedures and will apply to countries outside EC and EFTA countries.
The Brussels and Lugano Conventions also seek to introduce an element of legal certainty into business and commercial relationships. More than 70 per cent of our trade is currently with other EC member states. A further 5 per cent is with the EFTA countries. These markets are very important to our future prosperity and, with regard to the EFTA countries in particular, there is obviously scope for additional market opportunities. A speedy method for enforcing legal remedies for breach of contract, supply of goods and other commercial relationships, such as that offered by both conventions, will be of practical benefit in developing our trade relationships with these countries and I hope, will be one factor which will encourage an increasing interplay of trade and commercial transactions with the EFTA countries.
It is perhaps unfortunate that the contents of this Bill will not immediately strike many people as particularly relevant to them. However, despite its apparent complexity, the fundamental principle of the Bill is essentially very simple. People, in their daily lives, often confront problems which require legal remedies. Sometimes these remedies may need to be availed of outside this jurisdiction. In such cases, the approach reflected in the amended Brussels Convention and in the Lugano Convention will greatly ease the task of an individual plaintiff in obtaining justice.
The maintenance issue will strike the most familiar chord with people. The plight of individuals who are unable to recover maintenance payments properly due to them is all too familiar to most of us. A partial solution is extending the enforcement net and in reducing the number of countries in which enforcement may be difficult or impossible. As a result of this Bill a further eight countries will be added to the "ease of enforceability" net and it will be more difficult for recalcitrant spouses to escape their personal and social responsibilities to other dependent members of their families.
If business and commercial arrangements are to function to maximum efficiency, people, firms, manufacturers of goods and contractors must have an assurance that legal remedies will not be bungled by national frontiers. It is not extreme to say this Bill will make a valuable contribution to fostering a climate which will help to increase our export growth, especially in non-EC countries.
The Brussels Convention has operated well to date without giving rise to any specific difficulties. This is important because the familiarity which the courts and practitioners will have gained in operating its provisions, and the limited extent to which it has operated to date, will smooth the implementation of this measure for the remaining EC countries and the EFTA countries now being brought within the ambit of this legislation.
I commend the Bill to the House and ask that it be given a Second Reading.