Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012

Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2012 Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012 Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 7 of 2012 JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS (AMENDMENT) ACT 2012 ARRANGEMENT OF SECTIONS Section 1. Amendment of Jurisdiction of Courts and Enforcement of Judgments Act 1998. 2. Amendment of Maintenance Act 1994. 3. Repeal of Part III of Jurisdiction of Courts and Enforcement of Judgments Act 1998. 4. Short title, collective citation and construction. SCHEDULE Acts Referred to Civil Law (Miscellaneous Provisions) Act 2011 2011, No. 23 Courts (Supplemental Provisions) Acts 1961 to 2008 Defence Act 1954 1954, No. 18 Enforcement of Court Orders Act 1940 1940, No. 23 Family Law (Maintenance of Spouses and Children) Act 1976 1976, No. 11 Family Law Act 1995 1995, No. 26 Jurisdiction of Courts and Enforcement of Judgments Act 1998 1998, No. 52 Maintenance Act 1994 1994, No. 28 Status of Children Act 1987 1987, No. 26 Trustee Savings Banks Acts 1989 and 2001 Number 7 of 2012 JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS (AMENDMENT) ACT 2012 AN ACT TO GIVE EFFECT TO THE CONVENTION ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS SIGNED AT LUGANO ON THE 30TH DAY OF OCTOBER 2007 AND CONCLUDED ON BEHALF OF THE EUROPEAN COMMUNITY PURSUANT TO COUNCIL DECISION 2009/430/EC 1 , AND FOR THAT PURPOSE TO AMEND THE JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS ACT 1998 AND THE MAINTENANCE ACT 1994 AND TO PROVIDE FOR RELATED MATTERS. [10th March, 2012] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: Amendment of Jurisdiction of Courts and Enforcement of Judgments Act 1998. 1.— The Jurisdiction of Courts and Enforcement of Judgments Act 1998 is amended— (a) by inserting the following Part after Part III: “PART IIIA 2007 Lugano Convention Interpretation of this Part. 20A.— (1) In this Part— ‘Convention’ means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters signed at Lugano on 30 October 2007 and concluded on behalf of the European Community pursuant to Council Decision 2009/430/EC and the Protocols and Annexes thereto (the text of which, in the English language, is, for convenience of reference, set out in the Tenth Schedule); ‘Convention court’ means a court of a state bound by the Convention; ‘enforceable maintenance order’ means— (a) a maintenance order respecting all of which an enforcement order has been made, or (b) if an enforcement order has been made respecting only part of a maintenance order, the maintenance order to the extent to which it is so ordered to be enforced; ‘enforcement order’ means an order for the recognition or enforcement of all or part of a judgment where the order— (a) is made by the Master of the High Court under section 20E, or (b) is made or varied— (i) on appeal from a decision of the Master under that section, or (ii) on appeal from a decision of the High Court on such an appeal; ‘judgment’ means a judgment or order (by whatever name called) that is a judgment for the purposes of the Convention and, except in sections 20H and 20J, includes an authentic instrument within the meaning of Article 57 and a settlement referred to in Article 58; ‘maintenance’ means maintenance within the meaning of the Convention; ‘maintenance creditor’ means, in relation to a maintenance order, the person entitled to the payments for which the order provides; ‘maintenance debtor’ means, in relation to a maintenance order, the person who is liable to make a payment under the order; ‘maintenance order’ means a judgment relating to maintenance; ‘state bound by the Convention’ means a state, other than the State, respecting which the Convention has entered into force in accordance with Article 69 or 70 of that Convention. (2) (a) A word or expression that is used in this Part and is also used in the Convention has, unless the context otherwise requires, the same meaning in this Part as it has in the Convention, and (b) a reference to an Article is a reference to an Article of the Convention. (3) The definition of ‘judgment’ in subsection (1) shall not be construed to limit the effect of Article 64 of the Convention. Convention to have force of law. 20B.— The Convention has force of law in the State. Interpretation of Convention. 20C.— (1) Judicial notice shall be taken of the Convention and of— (a) any decision of the courts of other states bound by the Convention concerning the Convention, (b) any relevant decision concerning the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on the 16th day of September 1988, and (c) any relevant decision concerning the instruments referred to in Article 64(1), and a court shall, when interpreting and applying the Convention, take due account of the principles laid down by those decisions. (2) Judicial notice shall be taken of the explanatory report prepared by Professor Fausto Pocar on the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Lugano on 30 October 2007 2 . (3) The explanatory report referred to in subsection (2) may be considered when interpreting the meaning of any provision of the Convention and shall be given such weight as is appropriate in the circumstances. Orders. 20D.— (1) The Minister for Foreign Affairs and Trade may, by order, declare— (a) that a state specified in the order is a state bound by the Convention, (b) that a denunciation has been made pursuant to Article 74 of the Convention, or (c) that a communication or declaration has been made pursuant to Article 69(3) or 71 of the Convention. (2) The text of a denunciation, communication or declaration referred to in subsection (1) shall be set out in the order declaring that the denunciation, communication or declaration has been made. (3) An order that is in force— (a) under subsection (1)(a), shall be evidence that any state to which the declaration relates is a state bound by the Convention, and (b) under subsection (1)(b) or (c), shall be evidence that the denunciation, communication or declaration, the text of which is set out in the order, was made and evidence of its contents. Applications for recognition or enforcement of judgments. 20E.— (1) An application under the Convention for the recognition or enforcement in the State of a judgment shall be made to the Master of the High Court. (2) The Master of the High Court shall determine an application referred to in subsection (1) in accordance with the Convention. (3) If the application is for the enforcement of a judgment, the Master of the High Court shall declare the judgment enforceable immediately on completion of the formalities provided for in Article 53 without any review under Articles 34 and 35 and shall make an enforcement order in relation to the judgment. (4) An order under subsection (2) may provide for the recognition or enforcement of only part of the judgment concerned. (5) For the purposes of this Part references in Articles 42, 43, 45, 47, 48, 52, 53 and 57 to a declaration of enforceability may be treated as references to an enforcement order. Enforcement of judgments. 20F.— (1) Subject to section 20H and the restrictions on enforcement contained in Article 47(3), if an enforcement order has been made respecting a judgment, the judgment— (a) shall, to the extent to which its enforcement is authorised by the enforcement order, be of the same force and effect as a judgment of the High Court, and (b) may be enforced by the High Court, and proceedings taken on it, as if it were a judgment of that Court. (2) Subject to subsections (3) and (6), subsection (1) shall not apply to a maintenance order. (3) On application by a maintenance creditor under an enforceable maintenance order, the Master of the High Court may by order declare that the following shall be regarded as being payable under a judgment referred to in subsection (1): (a) a sum payable under the enforceable maintenance order as a periodic payment but not paid before the relevant enforcement order was made; (b) a lump sum (not being a sum referred to in paragraph (a)) which is payable under the enforceable maintenance order. (4) An order shall not be made under subsection (3) unless the Master of the High Court considers that by doing so the enforceable maintenance order would be more effectively enforced respecting any sum referred to in that paragraph. (5) If such an order is made, the sum to which it relates shall be deemed to be payable under a judgment referred to in subsection (1) and not otherwise. (6) A maintenance order shall be regarded as a judgment referred to in subsection (1) if the District Court does not have jurisdiction to enforce it under section 20G. Enforcement of enforceable maintenance orders. 20G.— (1) Subject to section 20H and the restrictions on enforcement contained in Article 47(3), the District Court shall have jurisdiction to enforce an enforceable maintenance order. (2) An enforceable maintenance order shall, from the date on which the maintenance order was made, be deemed for the purposes of— (a) subsection (1), (b) section 98(1) (as amended by section 30(1) of the Act of 1976) of the Defence Act 1954 , and (c) subject to the Convention, the variation or discharge of that order under section 6 (as amended by section 43(b) of the Act of 1995) of the Act of 1976, to be an order made by the District Court under section 5, 5A (inserted by section 18 of the Act of 1987) or 21A (inserted by section 21 of the Act of 1987) of the Act of 1976, as may be appropriate. (3) Subsections (1) and (2) shall apply even though an amount payable under the enforceable maintenance order exceeds the maximum amount the District Court has jurisdiction to award under an enactment referred to in subsection (2). (4) Where an enforceable maintenance order is varied by a Convention court, and an enforcement order has been made respecting all or part of the enforceable maintenance order as so varied, or respecting all or part of the order effecting the variation, the enforceable maintenance order shall, from the date on which the variation takes effect, be enforceable in the State only as so varied. (5) Where an enforceable maintenance order is revoked by a Convention court, and an enforcement order has been made respecting the order effecting the revocation, the enforceable maintenance order shall, from the date on which the revocation takes effect, cease to be enforceable in the State except in relation to any sums under the order that were payable, but not paid, on or before that date. (6) Subject to subsections (3) to (5) of section 20F, the following shall be regarded as being payable pursuant to an order made under section 5, 5A (inserted by section 18 of the Act of 1987) or 21A (inserted by section 21 of the Act of 1987) of the Act of 1976: (a) any sum payable under an enforceable maintenance order but not paid before the relevant enforcement order was made; (b) any costs of or incidental to the application for the enforcement order that are payable under section 20H(2). (7) The jurisdiction vested in the District Court by this section may be exercised by the judge of that Court for the time being assigned to— (a) if the maintenance debtor under an enforceable maintenance order resides in the State, the district court district in which the debtor resides or carries on any profession, business or occupation, or (b) if such a maintenance debtor does not so reside but is employed by a person residing or having a place of business in the State or by a body whose seat of management or control is in the State, the district court district in which the person resides or the body has its seat. (8) Notwithstanding anything to the contrary in an enforceable maintenance order, the maintenance debtor shall pay any sum payable under that order to— (a) in a case referred to in subsection (7)(a), the district court clerk for the district court area in which the debtor for the time being resides, or (b) in a case referred to in subsection (7)(b), a district court clerk specified by the District Court, for transmission to the maintenance creditor or, if a public authority has been authorised by the creditor to receive the sum, to the public authority. (9) If a sum payable under an enforceable maintenance order is not duly paid and if the maintenance creditor so requests in writing, the district court clerk concerned shall— (a) issue a summons respecting that sum under section 8 (as amended by section 63 of the Civil Law (Miscellaneous Provisions) Act 2011 ) of the Act of 1940, or (b) make an application respecting that sum to the District Court under section 10 (as amended by section 43 of the Act of 1995) of the Act of 1976. (10) For the purposes of subsection (9)(a) a reference to an applicant in section 8(1) of the Act of 1940 shall be construed as including a reference to the district court clerk. (11) Nothing in this section shall affect the right of a maintenance creditor under an enforceable maintenance order to institute proceedings for the recovery of a sum payable to a district court clerk under subsection (8). (12) The maintenance debtor shall give notice of any change of address to the district court clerk for the district court area in which the debtor has been residing. (13) A person who, without reasonable excuse, contravenes subsection (12) is guilty of an offence and liable on summary conviction to a class C fine. (14) If there are two or more district court clerks for a district court area, a reference in this section to a district court clerk shall be construed as a reference to any of them. (15) For the purposes of this section the Dublin Metropolitan District is deemed to be a district court area. (16) In this section— ‘Act of 1940’ means the Enforcement of Court Orders Act 1940 ; ‘Act of 1976’ means the Family Law (Maintenance of Spouses and Children) Act 1976 ; ‘Act of 1987’ means the Status of Children Act 1987 ; ‘Act of 1995’ means the Family Law Act 1995 . Interest on judgments and payment of costs. 20H.— (1) Where, on application for an enforcement order respecting a judgment, it is shown— (a) that the judgment provides for the payment of a sum of money, and (b) that in accordance with the law of the state bound by the Convention in which the judgment was given, interest on the sum is recoverable under the judgment at a particular rate or rates and from a particular date or time, the enforcement order, if made, shall provide that the person liable to pay that sum shall also be liable to pay the interest, apart from any interest on costs recoverable under subsection (2), in accordance with the particulars noted in the order, and the interest shall be recoverable by the applicant as though it were part of the sum. (2) An enforcement order may provide for the payment to the applicant by the respondent of the reasonable costs of or incidental to the application for the enforcement order. (3) A person required by an enforcement order to pay costs shall be liable to pay interest on the costs as if they were the subject of an order for the payment of costs made by the High Court on the date on which the enforcement order was made. (4) Interest shall be payable on a sum referred to in subsection (1)(a) only as provided for in this section. Currency of payments under enforceable maintenance orders. 20I.— (1) An amount payable in the State under a maintenance order by virtue of an enforcement order shall be payable in the currency of the State. (2) If the amount is stated in the maintenance order in any other currency, payment shall be made on the basis of the exchange rate prevailing on the date the enforcement order is made between the currency of the State and the other currency. (3) For the purposes of this Part a certificate purporting to be signed by an officer of an authorised institution and to state the exchange rate prevailing on a specified date between a specified currency and the currency of the State shall be admissible as evidence of the facts stated in the certificate. (4) In this section, ‘authorised institution’ means— (a) a credit institution within the meaning of Directive 2006/48/EC 3 of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (including a branch, within the meaning of Article 4(3) of that Directive, located in a Member State of a credit institution having its head office in or, in accordance with Article 38 of that Directive, elsewhere than in a Member State), (b) a trustee savings bank within the meaning of the Trustee Savings Banks Acts 1989 and 2001, or (c) An Post. Proof and admissibility of judgments and certain translations. 20J.— (1) For the purposes of the Convention a document, duly authenticated, which purports to be a copy of a judgment given by a Convention court shall without further proof be deemed to be a true copy of the judgment, unless the contrary is shown. (2) A document purporting, under subsection (1), to be a copy of a judgment shall be regarded for those purposes as being duly authenticated if it— (a) purports to bear the seal of the Convention court or authority concerned, or (b) purports to be certified by a judge or officer of the Convention court or authority to be a true copy of the judgment. (3) A document which— (a) purports to be a translation of— (i) a judgment given by a Convention court, (ii) an authentic instrument within the meaning of Article 57(1), (iii) a settlement within the meaning of Article 58, or (iv) a certificate mentioned in Article 54, 57(4) or 58, and (b) is certified as correct by a person competent to do so, shall be admissible as evidence of the document of which it purports to be a translation. Provisional, including protective, measures. 20K.— (1) The High Court may, on application to it pursuant to Article 31, grant any provisional measures, including protective measures, that the Court has power to grant in proceedings that, apart from this Act, are within its jurisdiction if— (a) proceedings have been or are to be commenced in a state bound by the Convention, and (b) the subject matter of the proceedings is within the scope of the Convention (whether or not that Convention has effect in relation to the proceedings). (2) On such an application the High Court may refuse to grant the measures sought if, in its opinion, the fact that, apart from this section, the Court does not have jurisdiction in relation to the subject matter of the proceedings makes it inexpedient for it to grant those measures. (3) Subject to Article 47(3), an application to the Master of the High Court for an enforcement order respecting a judgment may include an application for any protective measures the High Court has power to grant in proceedings that, apart from this Part, are within its jurisdiction. (4) Where an enforcement order is made, the Master of the High Court shall grant any protective measures referred to in subsection (3) that are sought in the application for the enforcement order. Domicile. 20L.— For the purposes of the Convention and this Part— (a) a person is domiciled in the State or another state (not being a state bound by the Convention) if he or she is ordinarily resident in the State or that other state, (b) a person is domiciled in a place in the State if he or she is domiciled in the State and is ordinarily resident or carries on any profession, business or occupation in that place, and (c) a trust is domiciled in the State if the law of the State is the system of law with which the trust has its closest and most real connection. Venue for certain proceedings. 20M.— (1) Subject to Articles 2 to 31, the jurisdiction of the Circuit Court in proceedings that may be instituted in the State by virtue of Article 2, 9(1)(a), 12(1), 16(2), 19(1) or 20(1) or the proviso to Article 22(1) shall be exercised by the judge of the Court for the time being assigned to the circuit where the defendant, or one of the defendants, ordinarily resides or carries on any profession, business or occupation. (2) Subsection (1) shall apply where, apart from that subsection, the Circuit Court’s jurisdiction would be determined by reference to the place where the defendant resides or carries on business. (3) The jurisdiction of the Circuit Court or District Court in proceedings that may be instituted in the State under Article 9(1)(b) or 16(1) by a plaintiff domiciled in the State may be exercised by the judge for the time being assigned— (a) in the case of the Circuit Court, to the circuit, and (b) in the case of the District Court, to the district court district, in which the plaintiff or one of the plaintiffs ordinarily resides or carries on any profession, business or occupation. Restriction of Part III. 20N.— Part III shall, except as provided in Article 65, cease to apply between the State and a state bound by the Convention.”, (b) by inserting the Schedule set out in the Schedule to this Act after the Ninth Schedule. Amendment of Maintenance Act 1994. 2.— (1) The Maintenance Act 1994 is amended— (a) in section 3(1) (as amended by Regulation 13 of the Regulations of 2002), by inserting the following definition: “ ‘the 2007 Lugano Convention’ means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the Protocols and Annexes thereto signed at Lugano on 30 October 2007;”; (b) in section 4(2) (as amended by Regulation 13 of the Regulations of 2002) by substituting the following paragraphs for paragraph (a): “(a) For the purposes of section 8 of the Enforcement of Court Orders Act 1940 (as amended by section 63 of the Civil Law (Miscellaneous Provisions) Act 2011 ), the Acts of 1976, 1995, 1996 and 1998, the Brussels I Regulation, and the 2007 Lugano Convention, the Central Authority shall have authority to act on behalf of a maintenance creditor or of a claimant (as defined in section 13(1)), and references therein to a maintenance creditor or to such a claimant shall be construed as including references to that Authority. (aa) In paragraph (a) ‘maintenance creditor’ means, in the context of the Brussels I Regulation or the 2007 Lugano Convention, a maintenance creditor referred to in Article 5(2) of that Regulation or Article 5(2) of that Convention.”; (c) in section 5 (as amended by Regulation 13 of the Regulations of 2002) by substituting “, the Brussels I Regulation and the 2007 Lugano Convention” for “and the Brussels I Regulation”; (d) in section 6(1) (as amended by Regulation 13 of the Regulations of 2002), by substituting the following definition for that of “reciprocating jurisdiction”: “ ‘reciprocating jurisdiction’ means a Contracting State within the meaning of the Act of 1998 or, as appropriate, a Member State to which the Brussels I Regulation applies or a state bound by the 2007 Lugano Convention;”; (e) in section 6(2) (as amended by section 22(4)(c) of the Act of 1998) by substituting the following paragraph for paragraph (a): “(a) The Minister for Foreign Affairs and Trade may by order declare that any Contracting State (as defined in sections 4(1) or 17(1) of the Act of 1998) or a state bound by the 2007 Lugano Convention specified in the order is a reciprocating jurisdiction.”; (f) in section 6(3), by inserting “, Article 57 or 58 of the Brussels I Regulation or Article 57 or 58 of the 2007 Lugano Convention” after “Convention”; (g) in section 7— (i) in subsection (1) (as amended by Regulation 13 of the Regulations of 2002) by substituting “, the Brussels I Regulation or the 2007 Lugano Convention” for “or the Brussels I Regulation”, (ii) by substituting the following subsection for subsection (2A) (inserted by Regulation 13 of the Regulations of 2002): “(2A) In the case of an application under the Brussels I Regulation or the 2007 Lugano Convention the Master shall determine it in accordance with Regulation 4 of the European Communities (Civil and Commercial Judgments) Regulations 2002.”, (iii) in subsection (4)(a) (as amended by Regulation 13 of the Regulations of 2002) by substituting “, Article 43 of the Brussels I Regulation or Article 43 of the 2007 Lugano Convention” for “or Article 43 (right of appeal against declaration of enforceability) of the Brussels I Regulation”, (iv) in subsection (5)(a) (as amended by Regulation 13 of the Regulations of 2002) by deleting “or (2)” after “subsection (1)”, and (v) in subsection (5)(b)(iv) (as amended by Regulation 13 of the Regulations of 2002), by substituting “, Articles 53, 54 or 57 of the Brussels I Regulation or Articles 53, 54 or 57 of the 2007 Lugano Convention” for “or Articles 53, 54 or 57 of the Brussels I Regulation”; (h) in section 14— (i) in subsection (1), by substituting the following paragraph for paragraph (aa) (inserted by Regulation 13 of the Regulations of 2002): “(aa) if the request is accompanied by an order of a court of a Member State to which the Brussels I Regulation applies or by an order of a court of a state bound by the 2007 Lugano Convention, transmit the request to the Master of the High Court for determination in accordance with that Regulation or that Convention,”, and (ii) in subsection (9A)(a) (as amended by Regulation 13 of the Regulations of 2002), by substituting “the Brussels I Regulation or the 2007 Lugano Convention” for “or the Brussels I Regulation”. (2) In this section “the Regulations of 2002” means the European Communities (Civil and Commercial Judgments) Regulations 2002 ( S.I. No. 52 of 2002 ). Repeal of Part III of Jurisdiction of Courts and Enforcement of Judgments Act 1998. 3.— Part III of the Jurisdiction of Courts and Enforcement of Judgments Act 1998 is repealed. Short title, collective citation and construction. 4.— (1) This Act may be cited as the Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012. (2) The Courts (Supplemental Provisions) Acts 1961 to 2008 and sections 20A, 20E to 20H, 20J, 20K and 20M (inserted by this Act) of the Jurisdiction of Courts and Enforcement of Judgments Act 1998 may be cited together as the Courts (Supplemental Provisions) Acts 1961 to 2012 and shall be construed together as one. SCHEDULE Section 1 . “TENTH SCHEDULE CONVENTION on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters PREAMBLE THE HIGH CONTRACTING PARTIES TO THIS CONVENTION, DETERMINED to strengthen in their territories the legal protection of persons therein established, CONSIDERING that it is necessary for this purpose to determine the international jurisdiction of the courts, to facilitate recognition, and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements, AWARE OF the links between them, which have been sanctioned in the economic field by the free trade agreements concluded between the European Community and certain States members of the European Free Trade Association, TAKING INTO ACCOUNT: — the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Accession Conventions under the successive enlargements of the European Union, — the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, which extends the application of the rules of the 1968 Brussels Convention to certain States members of the European Free Trade Association, — Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which has replaced the above-mentioned Brussels Convention, — the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Brussels on 19 October 2005, PERSUADED that the extension of the principles laid down in Regulation (EC) No 44/2001 to the Contracting Parties to this instrument will strengthen legal and economic cooperation, DESIRING to ensure as uniform an interpretation as possible of this instrument, HAVE in this spirit DECIDED to conclude this Convention, and HAVE AGREED AS FOLLOWS: TITLE I SCOPE Article 1 1. This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters. 2. The Convention shall not apply to: (a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession; (b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; (c) social security; (d) arbitration. 3. In this Convention, the term “State bound by this Convention” shall mean any State that is a Contracting Party to this Convention or a Member State of the European Community. It may also mean the European Community. TITLE II JURISDICTION SECTION 1 General provisions Article 2 1. Subject to the provisions of this Convention, persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State. 2. Persons who are not nationals of the State bound by this Convention in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State. Article 3 1. Persons domiciled in a State bound by this Convention may be sued in the courts of another State bound by this Convention only by virtue of the rules set out in Sections 2 to 7 of this Title. 2. In particular the rules of national jurisdiction set out in Annex I shall not be applicable as against them. Article 4 1. If the defendant is not domiciled in a State bound by this Convention, the jurisdiction of the courts of each State bound by this Convention shall, subject to the provisions of Articles 22 and 23, be determined by the law of that State. 2. As against such a defendant, any person domiciled in a State bound by this Convention may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in Annex I, in the same way as the nationals of that State. SECTION 2 Special jurisdiction Article 5 A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued: 1. (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question; (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: — in the case of the sale of goods, the place in a State bound by this Convention where, under the contract, the goods were delivered or should have been delivered, — in the case of the provision of services, the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided; (c) if subparagraph (b) does not apply then subparagraph (a) applies; 2. in matters relating to maintenance, (a) in the courts for the place where the maintenance creditor is domiciled or habitually resident; or (b) in the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties; or (c) in the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility, if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties; 3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur; 4. as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings; 5. as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated; 6. as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the State bound by this Convention in which the trust is domiciled; 7. as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question: (a) has been arrested to secure such payment, or (b) could have been so arrested, but bail or other security has been given, provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage. Article 6 A person domiciled in a State bound by this Convention may also be sued: 1. where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings; 2. as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case; 3. on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending; 4. in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the State bound by this Convention in which the property is situated. Article 7 Where by virtue of this Convention a court of a State bound by this Convention has jurisdiction in actions relating to liability from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that State, shall also have jurisdiction over claims for limitation of such liability. SECTION 3 Jurisdiction in matters relating to insurance Article 8 In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5). Article 9 1. An insurer domiciled in a State bound by this Convention may be sued: (a) in the courts of the State where he is domiciled, or (b) in another State bound by this Convention, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled, or (c) if he is a co-insurer, in the courts of a State bound by this Convention in which proceedings are brought against the leading insurer. 2. An insurer who is not domiciled in a State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State. Article 10 In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency. Article 11 1. In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured. 2. Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted. 3. If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them. Article 12 1. Without prejudice to Article 11(3), an insurer may bring proceedings only in the courts of the State bound by this Convention in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary. 2. The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending. Article 13 The provisions of this Section may be departed from only by an agreement: 1. which is entered into after the dispute has arisen, or 2. which allows the policyholder, the insured or a beneficiary to bring proceedings in courts other than those indicated in this Section, or 3. which is concluded between a policyholder and an insurer, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which has the effect of conferring jurisdiction on the courts of that State even if the harmful event were to occur abroad, provided that such an agreement is not contrary to the law of that State, or 4. which is concluded with a policyholder who is not domiciled in a State bound by this Convention, except insofar as the insurance is compulsory or relates to immovable property in a State bound by this Convention, or 5. which relates to a contract of insurance insofar as it covers one or more of the risks set out in Article 14. Article 14 The following are the risks referred to in Article 13(5): 1. any loss of or damage to: (a) seagoing ships, installations situated offshore or on the high seas, or aircraft, arising from perils which relate to their use for commercial purposes; (b) goods in transit, other than passengers’ baggage, where the transit consists of or includes carriage by such ships or aircraft; 2. any liability, other than for bodily injury to passengers or loss of or damage to their baggage: (a) arising out of the use or operation of ships, installations or aircraft as referred to in point 1(a) insofar as, in respect of the latter, the law of the State bound by this Convention in which such aircraft are registered does not prohibit agreements on jurisdiction regarding insurance of such risks; (b) for loss or damage caused by goods in transit as described in point 1(b); 3. any financial loss connected with the use or operation of ships, installations or aircraft as referred to in point 1(a), in particular loss of freight or charter-hire; 4. any risk or interest connected with any of those referred to in points 1 to 3; 5. notwithstanding points 1 to 4, all large risks. SECTION 4 Jurisdiction over consumer contracts Article 15 1. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5), if: (a) it is a contract for the sale of goods on instalment credit terms, or (b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods, or (c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the State bound by this Convention of the consumer’s domicile or, by any means, directs such activities to that State or to several States including that State, and the contract falls within the scope of such activities. 2. Where a consumer enters into a contract with a party who is not domiciled in the State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State. 3. This section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation. Article 16 1. A consumer may bring proceedings against the other party to a contract either in the courts of the State bound by this Convention in which that party is domiciled or in the courts for the place where the consumer is domiciled. 2. Proceedings may be brought against a consumer by the other party to the contract only in the courts of the State bound by this Convention in which the consumer is domiciled. 3. This Article shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending. Article 17 The provisions of this Section may be departed from only by an agreement: 1. which is entered into after the dispute has arisen; or 2. which allows the consumer to bring proceedings in courts other than those indicated in this Section; or 3. which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which confers jurisdiction on the courts of that State, provided that such an agreement is not contrary to the law of that State. SECTION 5 Jurisdiction over individual contracts of employment Article 18 1. In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5). 2. Where an employee enters into an individual contract of employment with an employer who is not domiciled in a State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State. Article 19 An employer domiciled in a State bound by this Convention may be sued: 1. in the courts of the State where he is domiciled; or 2. in another State bound by this Convention: (a) in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so; or (b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated. Article 20 1. An employer may bring proceedings only in the courts of the State bound by this Convention in which the employee is domiciled. 2. The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending. Article 21 The provisions of this Section may be departed from only by an agreement on jurisdiction: 1. which is entered into after the dispute has arisen; or 2. which allows the employee to bring proceedings in courts other than those indicated in this Section. SECTION 6 Exclusive jurisdiction Article 22 The following courts shall have exclusive jurisdiction, regardless of domicile: 1. in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the State bound by this Convention in which the property is situated. However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the State bound by this Convention in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same State bound by this Convention; 2. in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the State bound by this Convention in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law; 3. in proceedings which have as their object the validity of entries in public registers, the courts of the State bound by this Convention in which the register is kept; 4. in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, irrespective of whether the issue is raised by way of an action or as a defence, the courts of the State bound by this Convention in which the deposit or registration has been applied for, has taken place or is, under the terms of a Community instrument or an international convention, deemed to have taken place. Without prejudice to the jurisdiction of the European Patent Office under the Convention on the grant of European patents, signed at Munich on 5 October 1973, the courts of each State bound by this Convention shall have exclusive jurisdiction, regardless of domicile, in proceedings concerned with the registration or validity of any European patent granted for that State irrespective of whether the issue is raised by way of an action or as a defence; 5. in proceedings concerned with the enforcement of judgments, the courts of the State bound by this Convention in which the judgment has been or is to be enforced. SECTION 7 Prorogation of jurisdiction Article 23 1. If the parties, one or more of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing, or (b) in a form which accords with practices which the parties have established between themselves, or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. 2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to “writing”. 3. Where such an agreement is concluded by parties, none of whom is domiciled in a State bound by this Convention, the courts of other States bound by this Convention shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction. 4. The court or courts of a State bound by this Convention on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved. 5. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to the provisions of Articles 13, 17 or 21, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 22. Article 24 Apart from jurisdiction derived from other provisions of this Convention, a court of a State bound by this Convention before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22. SECTION 8 Examination as to jurisdiction and admissibility Article 25 Where a court of a State bound by this Convention is seised of a claim which is principally concerned with a matter over which the courts of another State bound by this Convention have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction. Article 26 1. Where a defendant domiciled in one State bound by this Convention is sued in a court of another State bound by this Convention and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Convention. 2. The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end. 3. Instead of the provisions of paragraph 2, Article 15 of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Convention. 4. Member States of the European Community bound by Council Regulation (EC) No 1348/2000 of 29 May 2000 or by the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters, signed at Brussels on 19 October 2005, shall apply in their mutual relations the provision in Article 19 of that Regulation if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Regulation or that Agreement. SECTION 9 Lis pendens — Related actions Article 27 1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different States bound by this Convention, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court. Article 28 1. Where related actions are pending in the courts of different States bound by this Convention, any court other than the court first seised may stay its proceedings. 2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. 3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. Article 29 Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court. Article 30 For the purposes of this Section, a court shall be deemed to be seised: 1. at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or 2. if the document has to be served before being lodged with the court at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court. SECTION 10 Provisional, including protective, measures Article 31 Application may be made to the courts of a State bound by this Convention for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another State bound by this Convention have jurisdiction as to the substance of the matter. TITLE III RECOGNITION AND ENFORCEMENT Article 32 For the purposes of this Convention, “judgment” means any judgment given by a court or tribunal of a State bound by this Convention, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court. SECTION 1 Recognition Article 33 1. A judgment given in a State bound by this Convention shall be recognised in the other States bound by this Convention without any special procedure being required. 2. Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Title, apply for a decision that the judgment be recognised. 3. If the outcome of proceedings in a court of a State bound by this Convention depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question. Article 34 A judgment shall not be recognised: 1. if such recognition is manifestly contrary to public policy in the State in which recognition is sought; 2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so; 3. if it is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought; 4. if it is irreconcilable with an earlier judgment given in another State bound by this Convention or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State addressed. Article 35 1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Title II, or in a case provided for in Article 68. A judgment may furthermore be refused recognition in any case provided for in Article 64(3) or 67(4). 2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the State of origin based its jurisdiction. 3. Subject to the provisions of paragraph 1, the jurisdiction of the court of the State of origin may not be reviewed. The test of public policy referred to in Article 34(1) may not be applied to the rules relating to jurisdiction. Article 36 Under no circumstances may a foreign judgment be reviewed as to its substance. Article 37 1. A court of a State bound by this Convention in which recognition is sought of a judgment given in another State bound by this Convention may stay the proceedings if an ordinary appeal against the judgment has been lodged. 2. A court of a State bound by this Convention in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the State of origin, by reason of an appeal. SECTION 2 Enforcement Article 38 1. A judgment given in a State bound by this Convention and enforceable in that State shall be enforced in another State bound by this Convention when, on the application of any interested party, it has been declared enforceable there. 2. However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom. Article 39 1. The application shall be submitted to the court or competent authority indicated in the list in Annex II. 2. The local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement. Article 40 1. The procedure for making the application shall be governed by the law of the State in which enforcement is sought. 2. The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem. 3. The documents referred to in Article 53 shall be attached to the application. Article 41 The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application. Article 42 1. The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the State in which enforcement is sought. 2. The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the judgment, if not already served on that party. Article 43 1. The decision on the application for a declaration of enforceabilit …