Recognition Non-EU

Common Law Enforcement

The common law rules apply to judgements and like orders which are not within the scope of the Brussels 1 Regulation, the Hague Convention on Choice of Court Agreements or the Lugano Convention.

At common law, recognition of judgments is not automatic. An application must be made to the court. The common law rules in relation to recognition and enforcement apply where the judgment was given in a state not covered by the EU Regulations  or another Convention.

The claimant may wish to take steps against the defendant personally or against his assets within the jurisdiction. It may be desired, for example, to take steps to enforce a judgment against in multiple different jurisdictions where assets are available.

Recognition of the foreign judgment involves the Irish court authorising the claimant or other person with a judgment given in a foreign place to take enforcement steps to have it satisfied within Ireland. If the claimants were to take the same claim again in Ireland, the foreign judgment may be raised as a defence.

After Brexit, the Brussels 1 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.

Common Law Criteria

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 action.

At common law, the following is generally required in order for a judgment/court order to be recognised:

• The original Court must have had competent jurisdiction.
• Judgment must be final and conclusive.
• Judgment must be for a fixed sum of money.
• It must not be a tax or a penalty.

If the foreign judgment satisfies these criteria, it is presumptively enforced. It is then a matter for the defendant or person who is liable on the judgment to show a defence by which the judgment should not be enforced.

The above principles apply to a judgement in personam. A judgement in personam is an action between parties enforcing civil obligation such as a contract or tort or restitution. A judgement in rem relates to proprietary interests. It determines the position as against the whole world and not just the parties.

Competence of Foreign Court

The foreign court must be a court of competent jurisdiction. It is not necessary for the Irish court to  go into detail as to whether it had jurisdiction in the particular circumstances. However the determination of the foreign court that it had jurisdiction is not conclusive. What is considered are the above principles for recognition of a foreign judgement at common law. There are a number of alternative grounds.

Broadly the position at common law is that a court is competent and has jurisdiction if

• the judgement debtor was present in the foreign country when proceedings were commenced
• if the judgement debtor was the plaintiff or counterclaimed in the foreign court
• if the judgement debtor submitted to the jurisdiction by voluntary appearance
• if the judgement debtor being a defendant had before commencement agreed to submit to the jurisdiction of the foreign court.

The question of whether the foreign court was competent depends on whether it was entitled to hear the proceedings under Irish conflict of law rules. This would be the case where the defendant submitted to jurisdiction or whether there are sufficient connections between the debtor and the relevant country. Other connections, such as the mere fact that the dispute arose in a particular country or the mere fact that the defendant has assets, are insufficient.

Jurisdiction may be found at common law on the basis of presence in the state at the time proceedings were commenced. This emphasises the significance of commencing  proceedings being served upon a person within the foreign jurisdiction. Temporary presence is likely to be enough unless it is forced or involuntary induced by e.g. compulsion duress fraud et cetera

Submission to Jurisdiction

Submission to jurisdiction is a basis for foreign jurisdiction. This may arise by an unconditional appearance or by an agreement conferring jurisdiction.

A submission to the jurisdiction can take place in several ways. If the defendant consented to the jurisdiction. This could happen by way of a contractual clause in an agreement submitted to that particular jurisdiction.

A contractual agreement to submit to jurisdiction is generally binding. It is not clear whether submission for the purpose of contesting jurisdiction is acceptance of jurisdiction for this purpose. It would appear that it is not likely to be sufficient to afford jurisdiction.

The defendant may have submitted to jurisdiction by voluntarily appearing. This covers appearing and defending the claim on its merits.  Entering an appearance, even if he took no further steps, may be sufficient.

It is not sufficient that he submitted in the eyes of the Court. There must be proof that he accepted jurisdiction. Appearing to contest the jurisdiction or asking the court to stay the proceedings would not be sufficient.

An appearance is not voluntary if it’s due to duress. This may include appearing to release properties seized or threatened with seizure.

Territorial Connection

The territorial connection must be in the nature of presence or residence.  Where a person is resident and present, this is a sufficient connection. Where a person is present but not resident, the modern approach is that a person voluntarily present has a sufficient connection even if they are not long-term residents. It is not clear if the person is a resident but not there at the time proceedings are commenced if this is sufficient.

Some countries may purport to allow a person to be sued on the basis of the presence of property in that country only.  The defendant would be regarded as submitting to the Court if he took part as a claimant in the proceedings.

In the case of property, the country in which the property is situated will be regarded as the competent jurisdiction.

Companies

In relation to a company, the question is whether it is economically present in the country where the judgment was given by doing business there. The mere fact that a company carries on business in a country is not enough to make it subject to that country’s jurisdiction for this purpose.

A presence would require it has established a fixed place of business for more than a minimal period and carries on such business through employees or agents.

Indirect presence may arise where there is a representative of the company present for more than a minimal period in carrying on the company’s business in that other country at or from some fixed place of business. He must carry on the company’s business and not his own.

In the case of an agency the main test of whether the overseas corporation is carrying on business through the agency is whether the patient had authority to enter contracts on behalf of the overseas corporation without submitting them for approval.

Company Presence Issues

A company is deemed present if it is incorporated in and carrying on a business in the state concerned. It  is likely to be treated as present

• if it is incorporated under the laws of another state but  established and maintains at its own expense a fixed place of business in the country in which jurisdiction was exercised or
• a representative of the overseas corporation has been  carrying in the oversea’s corporation’s business in the state from a place  of business
• the overseas corporation’s business has been transacted  from the fixed place of business.

Relevant factors include

• whether or not the fixed place of business from which the representative operates was originally acquired for the purpose of enabling him to act on behalf of the overseas corporation
• whether the overseas corporation has directly reimbursed him for the cost of his accommodation staff and other expenses at the fixed place of business
• whether the representative is remunerated by reference to transactions e.g. commission fixed payments
• what degree of control the overseas corporation exercises over the running of the business conducted by the representative
• whether the representative displays the overseas corporations name at its premises and if so whether it does so in a way that is indicative of his being representative of the overseas corporation
• what business if any the representative transacts on its own behalf and I behalf of the overseas corporation
• whether the representative makes contract with customers in the name of the overseas corporation

Final Judgment

The judgment must be final and conclusive. It must be on the merits. It must be shown that  established the position conclusively between the parties. The same parties must be involved as are parties to the application for recognition.

If it may be challenged by the losing party in the same court, it will not be regarded as final and conclusive and will not be enforced. It is not conclusive if notwithstanding such judgement, it is possible under the jurisdiction concerned to re-litigate the issue or vary the judgement.

Once the foreign judgement is final and unalterable the fact that it is the subject to appeal or even that the appeal is pending does not render it unenforceable.

Where there is appeal the domestic court may make such orders as the justice of the case require. In particular it may make an order for enforcement but may stay execution pending the outcome of the appeal.

Where there is a right of appeal against the foreign judgement, it may be enforced with provisions to protect the interests of the person who has appealed. There may be a stay of execution until the appeal is disposed of.

Nature of Orders

At common law, orders for delivery of goods, specific performance or injunctions were not enforced. There must be an order for a fixed sum of money.

The Courts do not enforce each other’s revenue law at common law, unlike the position under the EU regulations.

An order by a criminal court that a defendant must compensate the victim is enforceable. However, a punishment or tax is not enforceable.

Procedure

A foreign judgement may be enforced by an action on the judgement or action on the original claim or cause of action, for which the judgement was given. An action for the recognition and enforcement of a foreign in the state may include costs given by the foreign court together with interest. A judgement given on foot of such proceedings is enforceable as a domestic judgement.

The enforcement of a foreign judgement for a sum declared due is commenced by Summary Summons. The procedures are similar to those for a liquidated sum due. The matter may be sent to a plenary hearing if there are arguable grounds on which the judgement should not be recognised.

The application for recognition must be grounded on an affidavit. The defendant may raise grounds which may apply to deny recognition  under substantive Irish conflicts of law rules to recognition and enforcement.

Enforcement will be denied only if the defendant establishes an arguable defence. If questions of law or interpretation are raised, the court may be able to resolve them on the application for summary judgement, where the issues raised are straightforward and there is no risk of injustice in their determination in the summary proceedings.