The onus is on the Plaintiff to show that his claim falls within one of the exclusive jurisdiction rules. The rules on exclusive jurisdiction cannot be the subject of a contrary agreement. Therefore even if there is a choice of law the court chosen must declare it has no jurisdiction where the subject matter relates to one of the exclusive jurisdiction rules. The nature of […]
Agreement for Jurisdiction Parties can agree that a particular state’s courts will have jurisdiction. There is no requirement that there is any connection between the parties to the dispute and the forum (court) designated to hear the disputes. Subject to the rules on exclusive jurisdiction in the Brussels 1 Regulation (Recast) the general principle is that a choice of jurisdiction clause in an agreement is […]
Commencement of proceedings Where the basis of the court’s jurisdiction is the Brussels 1 Regulation, the Brussels Convention or the Lugano Convention, a statement must be endorsed on the summons (or notice of summons) that the court has power to hear and determine the claim. It should specify the provision of the Regulation or Convention relied on; It should state that no proceedings have been […]
General Rules The Brussels Convention was replaced by regulation 44/2001, the Brussels Regulation. This dealt with recognition and enforcement of judgements in claims with an international element that came within the scope within EU member states. This was replaced by regulation 1215/2012 described as the Brussels I Regulation (recast). The Brussels Regulation sets out in which states a person may or must be sued and […]
Leave to serve proceedings out of the State is regulated by Order 11 of the Rules of the Superior court. They define the right to litigate against non-Irish defendants, where the EU rules do not apply. The EU rules may apply to cases involving multiple defendants some of whom are in some of whom are not domiciled in a member state in the EU (or […]
Brussels 1 The Brussels 1 Regulation (Recast) governs the enforcement and recognition of judgements given in other EU states. Judgement recognition is almost automatic. A person seeking to enforce a judgement produces a copy of the judgement and a form of certificate issued by the court that granted the judgement. It may thereafter enforce the judgement in the national in Ireland. The Brussels 1 Regulation […]
Companies and corporations subsist by the law of the state in which they are incorporated. With exceptions, most aspects of the law relating to companies and their operations are excluded from the EU Regulations. Some aspects of corporates are subject to the EU Regulations. Apart from theses cases, common law applies. The common law conflict of law rules applicable to corporations look to and follow […]
Backgound The Choice of Court Convention was concluded under the auspices of the Hague Conference on Private International Law on 30 June 2005. The convention was signed by the EU in 2009. Parties to the convention include EU countries as well as countries outside the EU. The EU’s internal rules on recognition and enforcement of judgments in civil and commercial cases (Regulation (EU) No 1215/2012) […]
The Rome II Regulation applies after 11 January 2009. Where the events giving rise to damage occurred both before and after that date, difficulties of interpretation may apply. In the case of product liability, the European courts have held that the event giving rise to damage is the manufacture rather than the later sale or use of the product. Rome II applies to noncontractual obligations […]
The Rome Convention, now the Rome Regulations, supervened common law. The 1980 Rome Convention was updated and replaced by the Rome Regulation. It applies to contractual obligations in civil and commercial matters. A contract is an obligation freely assumed. It applies to contracts made after its commencement date. Rome II covers noncontractual obligations. The Rome I Regulation applies to contracts made after 17 December 2009 […]
Judgments Enforced A judgement outside the scope of the EU and similar Conventions may be enforced in an action based on the judgement in Ireland. The basic principle is that a judgement for a liquidated sum which is final and conclusive given by a competent court under domestic rules of private international law is entitled to recognition at common law and may be enforced by […]
EU Convention Background The common law rules apply unless there is a treaty or legislation providing for the recognition of judgments. Common Law enforcement principles apply to judgments from any countries not referenced below Ireland has entered a comprehensive EU system for the almost automatic recognition and enforcement of judgements. The Brussels Convention 1968 provided for simplified procedures for the recognition of judgements in the […]
EU Definition A special definition of domicile applies under the Brussels Regulation. This is applicable to cases where that legislation applies. This covers a very broad range of civil and commercial matters where the defendant is domiciled in another EU state in accordance with the definition of domicile. The Irish implementing regulations define “domicile” for the purpose of the Brussels regulation. This is radically different […]
General Domicile is important in relation to matters of personal status such as marriage, property transfer, succession and some contexts, long-term taxation. A person’s domicile of origin applies at birth. At common law, a legitimate child born during the lifetime of the father was deemed to have the domicile of the father at his or her date of birth. An illegitimate (nonmarital) child was deemed […]
Public Laws At common law courts may refuse to recognise foreign judgements which are contrary to domestic public policy. Public policy in this sense refers to the fundamental values of the legal system. Generally, when a court refuses to recognise a foreign law on the basis of public policy it seeks to exclude the objectionable element and recognise the balance, if possible. For example, a confiscation […]
General The courts may refuse to apply certain foreign laws where they are against public policy. Traditionally the courts have also refused to enforce foreign revenue laws. Common law private international rules do not give effect to foreign penal laws, revenue or other public laws. Penal laws are those applying sanctions or forfeitures. The identification of the foreign law as penal is undertaken under domestic […]
Issues Raised The application of foreign law may raise difficult issues in practice. The civil law system is markedly different from the common law system. In some cases, they have similar principles, but their respective procedural and evidentiary rules may be radically different. A recognised issue in conflicts of law is the characterisation or categorisation of rules. Conflicts of law apply different principles to different […]
Proof of foreign law The courts cannot take judicial notice of foreign law. Foreign law must generally be treated and proved as a matter of fact, when it applies. Ultimately foreign law must be applied and interpreted notwithstanding that it is a matter of fact. Foreign law is proved by expert evidence. The general principles applicable to expert testimony apply. Accordingly, evidence may be given […]
Conflict of Laws Conflicts of law, otherwise described as private international law, deals with legal issues that arise when more than two States’ legal systems /or jurisdictions are involved in a transaction or event. The rules decide which country’s law applies. The rules also decide which country’s courts have the sole or primary right to hear disputes. They also deal with the enforcement of judgments […]
Taking Evidence Abroad Where persons are outside the jurisdiction, practical issues may arise in compelling evidence. The courts may request foreign courts to take evidence for proceedings before them. The Irish courts may order the examination of a witness abroad on commission on such terms as they order. In this case, the order is effective only if the addressee is willing to comply. Evidence on […]
Grant of Representation When a deceased dies leaving assets, the assets pass to his personal representative. In order to carry into effect the deceased\’s wishes (or in the case of administrators, the division of assets required by law), they must obtain a grant of representation. This is a grant of probate in the case of a will and letters of administration where there is no […]
EU Regulations The position among EU states is now governed by EU regulations. It applies to foreign divorces granted after 1st March 2001 in the original 15 EU states. After May 2004, it was extended to the 10 new EU accession states and states and the three states that later acceded. The Regulation is part of the general Brussels II Regulation on the recognition of […]
Stay for Appropriate Court The Courts may stay proceedings on the basis that Ireland is not the appropriate Court. There is a similar but more precise provision in cases under the European Union rule. With the non-European Union rules, the position is much more discretionary. Where proceedings are commenced in Ireland on the basis of serving the defendant while present or seeking the Court’s permission […]
EFTA EFTA states are party to a similar but less thoroughgoing system. Under the Lugano Convention there are similar arrangements with states of the European Free trade Association i.e. Norway and Iceland and Switzerland. The Lugano Convention 2007 is the latest version of that convention and became effective in 2010. The purpose of the Jurisdiction of Courts and Enforcement of Judgments Act 2012 to give […]
Injunctions protecting the collective interests of consumers Scope (until 2023) SUMMARY OF: Directive 2009/22/EC – injunctions for the protection of consumers’ interests WHAT IS THE AIM OF THE DIRECTIVE? It introduces European Union (EU) rules to ensure that injunctions are effective enough to terminate infringements that are harmful to the collective interests of consumers. The directive will be repealed and replaced by Directive (EU) 2020/1828 […]
Court jurisdiction in legal cases involving different EU countries Regulation (EU) No 1215/2012 – jurisdiction and the recognition and enforcement of judgments in civil and commercial matters It updates a previous EU law on the jurisdiction, the recognition and enforcement of judgments in civil and commercial matters (known as the ‘ Brussels I regulation ’). It aims to make the circulation of judgments in civil […]
Convention on the law applicable to contractual obligations (Rome Convention) Convention 80/934/EEC on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 The convention establishes uniform rules concerning the law applicable to contractual obligations in the EU.It has applied since 1 January 1991. Scope The convention on the law applicable to contractual obligations was opened for signature in Rome […]
More effective rules on insolvency proceedings across EU borders Regulation (EU) 2015/848 — insolvency proceedings It aims to ensure the efficient administration of insolvency proceedings involving an individual or business with business activities or financial interests in an European Union (EU) country other than the one in which they are usually based. It recasts and replaces Regulation (EC) No 1346/2000. General The regulation sets out […]
Jurisdiction and applicable law in succession matters and European Certificate of Succession Regulation (EU) No 650/2012 on matters of succession and on the creation of a European Certificate of Succession It provides legal certainty to beneficiaries of international successions, avoids conflicting decisions and simplifies proceedings. It thus makes it easier for beneficiaries in another EU country to enjoy the rights which have been granted or […]
Taking of evidence in civil and commercial matters Regulation (EU) 2020/1783 on cooperation between the courts of the EU countries in taking evidence in civil or commercial matters aims to improve the effectiveness and speed of cross-border judicial proceedings in civil and commercial cases by simplifying and streamlining procedures for taking evidence. The regulation applies in civil and commercial matters when a court (‘requesting court’) either […]
Transmitting judicial and extrajudicial documents between EU countries (Post July 22) Regulation (EU) 2020/1784 on the service in the EU countries of judicial and extrajudicial documents in civil or commercial matters aims to improve the efficiency and speed of transmitting and servicing judicial* and extrajudicial* documents in cross-border civil and commercial cases by reducing the use of paper. It does so while ensuring the documents’ security […]
Mediation in civil and commercial matters A predictable legal framework can enable European Union (EU) citizens to benefit fully from the advantages of mediation* as a dispute resolution process, particularly in terms of cost-effectiveness and speed. Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters The directive aims to encourage […]
Legal aid in civil and commercial matters Directive 2003/8/EC — improved access to justice in cross-border disputes by establishing minimum common rules relating to legal aid It seeks to: improve access to justice in cross-border civil cases; establish EU-wide rules on legal aid; make sure people who cannot afford legal help have access to it; encourage cooperation on legal aid between EU countries. It has […]
European order for payment procedure Regulation (EC) No 1896/2006 — creating a European order for payment procedure The regulation creates a European order for payment procedure for claims not contested by the defendant. This simplifies, speeds up and reduces the costs of litigation in cases involving more than one EU country. It also permits the free circulation of European orders for payment which are recognised […]
The European Account Preservation Order for debt recovery between EU countries Regulation (EU) No 655/2014 — European Account Preservation Order It aims to facilitate debt recovery between EU countries in civil and commercial matters. It establishes a new procedure allowing a court in one EU country to freeze funds in the bank account of a debtor in another EU country. A European procedure is established […]
Matrimonial and parental responsibility judgments — jurisdiction, recognition and enforcement Regulation (EU) 2019/1111 on jurisdiction, recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction It repeals Regulation (EC) No 2201/2003, known as ‘The Brussels IIa Regulation’, to provide more effective rules protecting children and their parents caught up in cross-border parental-responsibility disputes, for example concerning […]
Law applicable to divorce and legal separation Regulation (EU) No 1259/2010 — law applicable to divorce and legal separation It establishes a single set of rules to determine which national law should apply to proceedings for divorce or legal separation involving spouses who are of different nationality, live in a country different from their country of nationality or no longer live in the same EU […]