Recognition Conventions

Table of Contents

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 contracting states.

The Brussels Convention, signed in 1968 between the 6 original members of the European Economic Community, determines the jurisdiction of courts in the EU states and avoids conflicting judgements and multiple claims.

The basic principle (which survives) is that jurisdiction is determined primarily by the domicile of the defendant. By way of exception there are special rules applicable to certain types of cases where there is exclusivity which take precedence.

The Brussels Convention was enacted into law in Ireland in 1988.The legislation was replaced in 1998 making the convention giving the convention the force of law in Ireland.

EU Regulation

The Brussels Convention was replaced by the Brussels 1 Regulation in 2001. The Brussels Regulation 44/2001 was directly applicable in all member states after 2000 1 March 2002 other than Denmark.

It was replaced and updated by the Brussels 1 Regulation (recast) applicable from 10 January 2015. The Brussels Recast Regulation applies to the enforcement of judgments within the EU of judgments from the courts of other EU Member States.

Both Regulations are supplemented by Irish Regulations made under the European Communities Act.

The Irish courts must take judicial notice of the decisions of the European courts in relation to the conventions. Courts in applying the Convention must take into account the principles and any decisions thereunder.

The Court of Justice of the European Union has jurisdiction to give rulings relating to the provisions of the Brussels will regulation and Lugano Convention.

Arbitration

There is separate legislation on the recognition of arbitration awards. The Arbitration Act 2010 gives effect to the New York Convention on the recognition and enforcement of arbitral awards.

Other Conventions

There are various conventions and rules that apply to the recognition of judgment given in countries other than EU countries.

The Hague Judgments Convention has scope to be more relevant than the other instruments as more Contracting States ratify it, and it enters into force.

The Hague Convention on Choice of Court Agreements, in addition to EU Member States, applies to enforcement for the United Kingdom, Singapore, Mexico and Ukraine.

EFTA

EFTA states are party to a similar but less thoroughgoing system that the EU System. The Lugano Convention 1988 was made between the members of the European Free trade Association and certain EU members. It is very similar to the Brussels Convention.

The Lugano Convention 2007 is the latest version of that convention and became effective in 2010. The 1988 convention was replaced by the 2007 constitution convention. It is given the force in law of law in Ireland by the jurisdiction of courts and enforcement of judgements Amendment act 2012.

Hague Convention Choice of Law

The Choice of Court (Hague Convention) Act 2015 gives effect to the 2005 choice of court agreement ratified between the EU and certain other states including Mexico, the United Kingdom and the Ukraine. The Irish courts are to take judicial notice of the Convention and the case law by courts of other contracting states relating to the Convention.

The Convention applies to choice of court agreements in civil and commercial matters. It does not apply to

consumer contracts
employment contracts
legal status and the capacity of natural persons
maintenance obligations
family law matters
matrimonial property regimes
wills and succession
insolvency compositions and analogous matters
carriage of passengers and goods
marine pollution
maritime claims
competition matters
personal injury
tort claims for damage to tangible property other than from a contractual relationship
rights in rem in immovable property
tenancies of immovable property
validity and dissolution of legal persons
validity of decisions of their organs
intellectual property right other than copyright and related rights infringement
intellectual property rights except for infringements for breach of contract

The choice of court agreement must be in writing, or by other means of communication that renders the information accessible for subsequent reference

The courts of a contracting state designated as having exclusive jurisdiction are to have this jurisdiction to decide a dispute which the agreement applies unless rendered null and void and law of the state.

Hague Conventions Recognised

The courts of other contracting states must suspend or dismiss proceedings to which the choice of agreement relates unless

the choice is null and void under the law of the state chosen
the party lacked the capacity to conclude the agreement
giving effect to the agreement would lead to manifest injustice
it would be manifestly contrary to public policy of the state of the court seised
for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be enforced
the chosen court has decided not to hear the case

Manifest injustice is a high bar. Considerable inconvenience, increased costs or delay is not sufficient.

The Convention provides for recognition and enforcement of a judgement given by a court in a contracting state designated in the exclusive choice of court agreement. The agreement must be recognised and enforced by the courts of a contracting state. The merits of the agreement of the judgement cannot be reviewed.

Recognition and enforcement may be postponed if it is the subject of appeal or review in the state concerned.

Hague Convention Refusal

Recognition or enforcement may be refused if-

the agreement was null and void under the law of the State of the chosen court, unless the chosen court has determined that the agreement is valid;
a party lacked the capacity to conclude the agreement under the law of the requested State;
the document which instituted the proceedings or an equivalent document, including the essential elements of the claim,
was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant entered an appearance and presented his case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested; or
was notified to the defendant in the requested State in a manner that is incompatible with fundamental principles of the requested State concerning service of documents;
the judgment was obtained by fraud in connection with a matter of procedure;
recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State;
the judgment is inconsistent with a judgment given in the requested State in a dispute between the same parties; or
the judgment is inconsistent with an earlier judgment given in another State between the same parties on the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested State.

United Kingdom

After Brexit became effective at the end of 2020, the Brussels Regulation no longer applied to the United Kingdom. It applies to proceedings commenced before the operative date of Brexit. The recognition and enforcement of judgements of United Kingdom courts is largely governed by the common law rules again.

The EU has ratified the Hague Convention on Choice of Court Agreements which has been implemented in Irish law by legislation in 2015. It provides for the enforcement of settlements and judgements under the Hague Convention.

Intra UK & Commonwealth

There is legislation in respect to the recognition of the Commonwealth judgments in the United Kingdom. There is separate legislation for mutual recognition of English, Scottish and Northern Ireland judgments within the United Kingdom. The enforcement operates by registration of the foreign judgment with the English Court.

The criteria are similar to those with common law. The foreign Court must have had competent jurisdiction. It is enough if the defendant carried on a business in the country.

Judgments obtained in Scotland, Northern Ireland or England can be registered and enforced in other jurisdictions. It applies to money judgments and specific performance. The defences of fraud, natural justice, and public policy are not available.

The judgment is not enforced if it was not duly served, it was obtained by fraud, an appeal is pending, or it is against public policy.

Relief must be applied for to the local Court. However, a judgment cannot be enforced if it conflicts with an existing judgment on the same subject.