Brussels
Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters 1968
|
1 |
Preamble
|
2 |
The High Contracting Parties to the Treaty establishing
the European Economic Community; |
3 |
Desiring to implement the provisions of Article 220 of
that Treaty by virtue of which they undertook to secure the simplification of
formalities governing the reciprocal recognition and enforcement of judgments
of courts or tribunals; |
4 |
Anxious to strengthen in the Community the legal
protection of persons therein established; |
5 |
Considering that it is necessary for this purpose to
determine the international jurisdiction of their courts, to facilitate recognition
and to introduce an expeditious procedure for securing the enforcement of
judgments, authentic instruments and court settlements; |
6 |
Have decided to conclude this Convention and to this end
have designated as their Plenipotentiaries: |
7 |
(Designations of Plenipotentiaries of the original six
Contracting States ) |
8 |
Who, meeting within the Council, having exchanged their
Full Powers, found in good and due form; |
9 |
Have agreed as follows: |
10 |
Title
I - Scope
|
11 |
Article 1
|
12 |
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. |
13 |
The Convention shall not apply to: |
14 |
(1) the status or legal capacity of natural persons,
rights in property arising out of a matrimonial relationship, wills and
succession; |
15 |
(2) bankruptcy, proceedings relating to the winding-up
of insolvent companies or other legal persons, judicial arrangements,
compositions and analogous proceedings; |
16 |
(3) social security; |
17 |
(4) arbitration. |
18 |
Title
II - Jurisdiction
|
19 |
Section 1 - General provisions
|
20 |
Article 2
|
21 |
Subject to the provisions of this Convention, persons
domiciled in a Contracting State shall, whatever their nationality, be sued
in the courts of that State. |
22 |
Persons who are not nationals of the State in which they
are domiciled shall be governed by the rules of jurisdiction applicable to
nationals of that State. |
23 |
Article 3
|
24 |
Persons domiciled in a Contracting State may be sued in
the courts of another Contracting State only by virtue of the rules set out
in Sections 2 to 6 of this Title. |
25 |
In particular the following provisions shall not be
applicable as against them: |
26 |
- in Belgium: Article 15 of the civil code ( Code
civil-Burgerlijk Wetboek ) and Article 638 of the Judicial code (Code
Judiciaire-Gerechtelijk Wetboek ) |
27 |
- in Denmark: Article 248(2) of the law on civil procedure
( lov om rettens pleje ) and Chapter 3, Article 3 of the Greenland law on
civil procedure (Lov for Grønland om rettens pleje ) |
28 |
- in the Federal Republic of Germany: Article 23 of the
code of civil procedure ( Zivilprozessordnung ) |
29 |
- in France: Articles 14 and 15 of the civil code ( Code
civil ) |
30 |
- in Ireland: the rules which enable jurisdiction to be
founded on the document instituting the proceedings having been served on the
defendant during his temporary presence in Ireland: |
31 |
- in Italy: Article 2 and Article 4, Nos 1 and 2 of the
code of civil procedure ( Codice di procedura civile ) |
32 |
- in Luxembourg: Articles 14 and 15 of the civil code (
Code civil ) |
33 |
- in the Netherlands: Article 126(3) and Article 127 of
the code of civil procedure (Wetboek van Burgerlijke Rechtsvordering) |
34 |
- in the United Kingdom: the rules which enable
jurisdiction to be founded on: |
35 |
(a) the document instituting the proceedings having been
served on the defendant dur- ing his temporary presence in the United
Kingdom; or |
36 |
(b) the presence within the United Kingdom of property
belonging to the defendant; or |
37 |
(c) the seizure by the plaintiff of property situated in
the United Kingdom. |
38 |
Article 4
|
39 |
If the defendant is not domiciled in a Contracting
State, the jurisdiction of the courts of each Contracting State shall,
subject to the provisions of Article 16, be determined by the law of that
State. |
40 |
As against such a defendant, any person domiciled in a
Contracting State may, whatever his nationality, avail himself in that State
of the rules of jurisdiction there in force, and in particular those
specified in the second paragraph of Article 3, in the same way as the
nationals of that State. |
41 |
Section 2 - Special jurisdiction
|
42 |
Article 5
|
43 |
A person domiciled in a Contracting State may, in
another Contracting State, be sued: |
44 |
(1) in matters relating to a contract, in the courts for
the place of performance of the obligation in question; |
45 |
(2) in matters relating to maintenance, in the courts
for the place where the maintenance creditor is domiciled or habitually resident
or, if the matter is ancillary to proceedings concerning the status of a
person, in the court which, according to its own law, has jurisdiction to
entertain those proceedings, unless that jurisdiction is based solely on the
nationality of one of the parties; |
46 |
(3) in matters relating to tort, delict or quasi-delict,
in the courts for the place where the harmful event occurred; |
47 |
(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 extend that that court has jurisdiction
under its own law to entertain civil proceedings; |
48 |
(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; |
49 |
(6) in his capacity as settlor, trustee or beneficiary
of a trust created by the operation of a statue, or by a written instrument,
or created orally and evidenced in writing, in the courts of the Contracting
State in which the trust is domiciled; |
50 |
(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. |
51 |
(a) has been arrested to secure such payment, or |
52 |
(b) could have been so arrested, but bail or other
security has been given; provided that this provision shall apply only if it
claimed that the defendant has an interest in the cargo or freight or had
such an interest at the time of salvage. |
53 |
Article 6
|
54 |
A person domiciled in a Contracting State may also be
sued: |
55 |
(1) where he is one of a number of defendants, in the
courts for the place where any one of them is domiciled; |
56 |
(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; |
57 |
(3) on a counterclaim arising from the same contract or
facts on which the original claim was based, in the court in which the
original claim is pending. |
58 |
Article 6 A
|
59 |
Where by virtue of this Convention a court of a Contracting
State has jurisdiction in actions relating to liability arising 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. |
60 |
Section 3 - Jurisdiction in matters
relating to insurance
|
61 |
Article 7
|
62 |
In matters relating to insurance, jurisdiction shall be
determined by this Section, without prejudice to the provisions of Articles 4
and 5(5). |
63 |
Article 8
|
64 |
An insurer domiciled in a Contracting State may be sued:
|
65 |
(1) in the courts of the State where he is domiciled, or
|
66 |
(2) in another Contracting State, in the courts for the
place where the policy-holder is domiciled, or |
67 |
(3) if he is a co-insurer, in the courts of a Contracting
State in which proceedings are brought against the leading insurer. An
insurer who is not domiciled in a Contracting State but has a branch, agency
or other establishment in one of the Contracting States shall, in disputes
arising out of the operations of the branch, agency or establishment, be
deemed to be domiciled in that State. |
68 |
Article 9
|
69 |
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. |
70 |
Article 10
|
71 |
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. |
72 |
The provisions of Articles 7, 8 and 9 shall apply to
actions brought by the injured party directly against the insurer, where such
direct actions are permitted. |
73 |
If the law governing such direct actions provides that
the policy-holder or the insured may be joined as a party to the action, the
same court shall have jurisdiction over them. |
74 |
Article 11
|
75 |
Without prejudice to the provisions of the third
paragraph of Article 10, an insurer may bring proceedings only in the courts
of the Contracting State in which the defendant is domiciled, irrespective of
whether he is the policy-holder, the insured or a beneficiary. |
76 |
The provisions of this Section shall not affect the
right to bring a counterclaim in the court in which, in accordance with this
Section, the original claim is pending. |
77 |
Article 12
|
78 |
The provisions of this Section may be departed from only
by an agreement on jurisdiction: |
79 |
(1) which is entered into after the dispute has arisen,
or |
80 |
(2) which allows the policy-holder, the insured or a
beneficiary to bring proceedings in courts other than those indicated in this
Section, or |
81 |
(3) which is concluded between a policy-holder and an
insurer, both of whom are at the time of conclusion of the contract domiciled
or habitually resident in the same Contracting State, and which has the
effect of conferring jurisdiction on the courts of that State even if the
harm- ful event were to occur abroad, provided that such an agreement is not
contrary to the law of that State, or |
82 |
(4) which is concluded with a policy-holder who is not
domiciled in a Contracting State, except in so far as the insurance is
compulsory or relates to immovable property in a Contracting State, or |
83 |
(5) which relates to a contract of insurance in so far
as it covers one or more of the risks set out in Article 12 A. |
84 |
Article 12 A
|
85 |
The following are the risks referred to in Article
12(5): |
86 |
(1) Any loss of or damage to |
87 |
(a) sea-going ships, installations situated offshore or
on the high seas, or aircraft, arising from perils which relate to their use
for commercial purposes. |
88 |
(b) goods in transit other than passengers' baggage
where the transit consists of or includes carriage by such ships or aircraft;
|
89 |
(2) Any liability, other than for bodily injury to
passengers or loss of or damage to their baggage, |
90 |
(a) arising out of the use or operation of ships,
installations or aircraft as referred to in (1)(a) above in so far as the law
of the Contracting State in which such aircraft are registered does not
prohibit agreements on jurisdiction regarding insurance of such risks, |
91 |
(b) for loss or damage caused by goods in transit as
described in (1)(b) above; |
92 |
(3) Any financial loss connected with the use or
operation of ships, installations or aircraft as referred to in (1) (a)
above, in particular loss of freight or charter-hire; |
93 |
(4) Any risk or interest connected with any of those
referred to in (1) to (3) above. |
94 |
Section 4 - Jurisdiction over
consumer contracts
|
95 |
Article 13
|
96 |
In proceedings concerning a contract concluded by a
person for a purpose which can be regarded as being outside his trade or
profession, hereinafter called the 'consumer', jurisdiction shall be
determined by this Section, without prejudice to the provisions of Articles 4
and 5(5), if it is: |
97 |
(1) a contract for the sale of goods on instalment
credit terms, or |
98 |
(2) a contract for a loan repayable by instalments, or
for any other form of credit, made to finance the sale of goods, or |
99 |
(3) any other contract for the supply of goods or a
contract for the supply of services and |
100 |
(a) in the State of the consumer's domicile the
conclusion of the contract was preceded by a specific invitation addressed to
him or by advertising, and |
101 |
(b) the consumer took in that State the steps necessary
for the conclusion of the contract. Where a consumer enters into a contract
with a party who is not domiciled in a Contracting State but has a branch,
agency or other establishment in one of the Contracting States, that party
shall, in disputes arising out of the operations of the branch, agency or
establishment, be deemed to be domiciled in that State. |
102 |
This Section shall not apply to contracts of transport.
|
103 |
Article 14
|
104 |
A consumer may bring proceedings against the other
party to a contract either in the courts of the Contracting State in which that
party is domiciled or in the courts of the Contracting State in which he is
himself domiciled. |
105 |
Proceedings may be brought against a consumer by the
other party to the contract only in the courts of the Contracting State in
which the consumer is domiciled. |
106 |
These provisions shall not affect the right to bring a
counterclaim in the court in which, in accordance with this Section, the
original claim is pending. |
107 |
Article 15
|
108 |
The provisions of this Section may be departed from
only by an agreement: |
109 |
(1) which is entered into after the dispute has arisen,
or |
110 |
(2) which allows the consumer to bring proceedings in
courts other than those indicated in this Section, or |
111 |
(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 Contracting State, and
which confers jurisdiction on the courts of that State, provided that such an
agreement is not contrary to the law of that State. |
112 |
Section 5 - Exclusive jurisdiction
|
113 |
Article 16
|
114 |
The following courts shall have exclusive jurisdiction,
regardless of domicile: |
115 |
(1) in proceedings which have as their object rights in
rem in, or tenancies of, immovable property, the courts of the Contracting
State in which the property is situated; |
116 |
(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 the
decision of their organs, the courts of the Contracting State in which the
company, legal person or association has its seat; |
117 |
(3) in proceedings which have as their object the
validity of entries in public registers, the courts of the Contracting State
in which the register is kept; |
118 |
(4) in proceedings concerned with the registration or
validity of patents, trade marks, designs, or other similar rights required
to be deposited or registered, the courts of the Contracting State in which
the deposit or registration has been applied for, has taken place or is under
the terms of an international convention deemed to have taken place; |
119 |
(5) in proceedings concerned with the enforcement of
judgments, the courts of the Contracting State in which the judgment has been
or is to be enforced. |
120 |
Section 6 - Prorogation of
jurisdiction
|
121 |
Article 17
|
122 |
If the parties, one or more of whom is domiciled in a
Contracting State, have agreed that a court or the courts of a Contracting
State 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 exclusive jurisdiction. Such an agreement
conferring jurisdiction shall be either in writing or evidenced in writing
or, in international trade or commerce, in a form which accords with
practices in that trade or commerce of which the parties are or ought to have
been aware. Where such an agreement is concluded by parties, none of whom is
domiciled in a Contracting State, the courts of other Contracting States
shall have no jurisdiction over their disputes unless the court or courts
chosen have declined jurisdiction. |
123 |
The court or courts of a Contracting State 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. |
124 |
Agreements or provisions of a trust instrument
conferring jurisdiction shall have no legal force if they are contrary to the
provisions of Articles 12 or 15, or if the courts whose jurisdiction they purport
to exclude have exclusive jurisdiction by virtue of Article 16. |
125 |
If an agreement conferring jurisdiction was concluded
for the benefit of only one of the parties, that party shall retain the right
to bring proceed- ings in any other court which has jurisdiction by virtue of
this Convention. |
126 |
Article 18
|
127 |
Apart from jurisdiction derived from other provisions
of this Convention, a court of a Contracting State before whom a defendant
enters an appearance shall have jurisdiction. This rule shall not apply where
appearance was entered solely to contest the jurisdiction, or where another
court has exclusive jurisdiction by virtue of Article 16. |
128 |
Section 7 - Examination as to
jurisdiction and admissibility
|
129 |
Article 19
|
130 |
Where a court of a Contracting State is seised of a
claim which is principally concerned with a matter over which the courts of
another Contracting State have exclusive jurisdiction by virtue of Article
16, it shall declare of its own motion that it has no jurisdiction. |
131 |
Article 20
|
132 |
Where a defendant domiciled in one Contracting State is
sued in a court of another Contracting State 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. |
133 |
The court shall stay the proceedings so long as it is
not shown that the defendant has been able to receive a 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. |
134 |
The provisions of the foregoing paragraph shall be
replaced by those of Article 15 of the Hague Convention of 15 November 1965
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, if the documents instituting the proceedings or notice
thereof had to be transmitted abroad in accordance with that Convention. |
135 |
Section 8 - Lis Pendens-Related
actions
|
136 |
Article 21
|
137 |
Where proceedings involving the same cause of action
and between the same parties are brought in the courts of different Contracting
States, any court other than the court first seised shall of its own motion
decline jurisdiction in favour of that court. |
138 |
A court which would be required to decline jurisdiction
may stay its proceedings if the jurisdiction of the other court is contested.
|
139 |
Article 22
|
140 |
Where related actions are brought in the courts of
different Contracting States, any court other than the court first seised
may, while the actions are pending at first instance, stay its proceedings. |
141 |
A court other than the court first seised may also, on
the application of one of the parties, decline jurisdiction if the law of
that court permits the consolidation of related actions and the court first
seised has jurisdiction over both actions. |
142 |
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. |
143 |
Article 23
|
144 |
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. |
145 |
Section 9 - Provisional, including
protective, measures
|
146 |
Article 24
|
147 |
Application may be made to the courts of a Contracting
State 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 Contracting State have jurisdiction as to the substance of the
matter. |
148 |
Title
III - Recognition and Enforcement
|
149 |
Article 25
|
150 |
For the purposes of this Convention, 'judgment' means
any judgment given by a court or tribunal of a Contracting State, 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. |
151 |
Section 1 - Recognition
|
152 |
Article 26
|
153 |
A judgment given in a Contracting State shall be
recognised in the other Contracting States without any special procedure
being required. |
154 |
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. |
155 |
If the outcome of proceedings in a court of a
Contracting State depends on the determination of an incidental question of
recognition that court shall have jurisdiction over that question. |
156 |
Article 27
|
157 |
A judgment shall not be recognised: |
158 |
(1) If such recognition is contrary to public policy in
the State in which recognition is sought; |
159 |
(2) where it was given in default of appearance, if the
defendant was not duly served with the document which instituted the
proceedings or with an equivalent document in sufficient time to enable him
to arrange for his defence; |
160 |
(3) if the judgment is irreconcilable with a judgment
given in a dispute between the same parties in the State in which recognition
is sought; |
161 |
(4) if the court of the State in which the judgment was
given, in order to arrive at its judgment, has decided a preliminary question
concerning the status or legal capacity of natural persons, rights in
property arising out of a matrimonial relationship, wills or succession in a
way that conflicts with a rule of the private international law of the State
in which the recognition is sought, unless the same result would have been
reached by the application of the rules of private international law of that
State; |
162 |
(5) if the judgment is irreconcilable with an earlier
judgment given in a non-Contracting State involving the same cause of action
and between the same parties, provided that this latter judgment fulfils the
conditions necessary for its recognition in the State addressed. |
163 |
Article 28
|
164 |
Moreover, a judgment shall not be recognised if it
conflicts with the provisions of Sections 3, 4 or 5 of Title II, or in a case
provided for in Article 59. |
165 |
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 in
which the judgment was given based its jurisdiction. |
166 |
Subject to the provisions of the first paragraph, the
jurisdiction of the court of the State in which the judgment was given may
not be reviewed; the test of public policy referred to in Article 27(1) may
not be applied to the rules relating to jurisdiction. |
167 |
Article 29
|
168 |
Under no circumstances may a foreign judgment be
reviewed as to its substance. |
169 |
Article 30
|
170 |
A court of a Contracting State in which recognition is
sought of a judgment given in another Contracting State may stay the
proceedings if an ordinary appeal against the judgment has been lodged. |
171 |
A court of a Contracting State 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 in which the judgment
was given by reason of an appeal. |
172 |
Section 2 - Enforcement
|
173 |
Article 31
|
174 |
A judgment given in a Contracting State and enforceable
in that State shall be enforced in another Contracting State when, on the
application of any interested party, the order for its enforcement has been
issued there. |
175 |
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. |
176 |
Article 32
|
177 |
The application shall be submitted: |
178 |
- in Belgium, to the tribunal de première
instance or rechtbank van eerste aanleg; |
179 |
- in Denmark, to the underret; |
180 |
- in the Federal Republic of Germany, to the presiding
judge of a chamber of the Landgericht; |
181 |
- in France, to the presiding judge of the tribunal de
grande instance; |
182 |
- in Ireland, to the High Court; |
183 |
- in Italy, to the corte d'appello; |
184 |
- in Luxembourg, to the presiding judge of the tribunal
d'arrondissement; |
185 |
- in the Netherlands, to the presiding judge of the
arrondissementsrechtbank; |
186 |
- in the United Kingdom; |
187 |
(1) in England and Wales, to the High Court of Justice,
or in the case of a maintenance judgment to the Magistrates' Court on
transmission by the Secretary of State; |
188 |
(2) in Scotland, to the Court of Session, or in the
case of a maintenance judgment to the Sheriff Court on transmission by the
Secretary of State; |
189 |
(3) in Northern Ireland, to the High Court of Justice,
or in the case of a maintenance judgment to the Magistrates' Court on
transmission by the Secretary of State. The jurisdiction of local courts
shall be determined by reference to the place of domicile of the party
against whom enforcement is sought. If he is not domiciled in the State in
which enforcement is sought, it shall be determined by reference to the place
of enforcement. |
190 |
Article 33
|
191 |
The procedure for making the application shall be
governed by the law of the State in which enforcement is sought. |
192 |
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. |
193 |
The documents referred to in Articles 46 and 47 shall
be attached to the application. |
194 |
Article 34
|
195 |
The court applied to shall give its decision without
delay; the party against whom enforcement is sought shall not at this stage
of the proceedings be entitled to make any submissions on the application. |
196 |
The application may be refused only for one of the
reasons specified in Articles 27 and 28. |
197 |
Under no circumstances may the foreign judgment be
reviewed as to its substance. |
198 |
Article 35
|
199 |
The appropriate officer of the court shall without
delay bring the decision given on the application to the notice of the applicant
in accordance with the procedure laid down by the law of the State in which
enforcement is sought. |
200 |
Article 36
|
201 |
If enforcement is authorised, the party against whom
enforcement is sought may appeal against the decision within one month of
service thereof. |
202 |
If that party is domiciled in a Contracting State other
than that in which the decision authorising enforcement was give, the time
for appealing shall be two months and shall run from the date of service,
either on him in person or at his residence. No extension of time may be
granted on account of distance. |
203 |
Article 37
|
204 |
An appeal against the decision authorising enforcement
shall be lodged in accordance with the rules governing procedure in
contentious matters: |
205 |
- in Belgium, with the tribunal de premiére
instance or rechtbank van eerste aanleg; |
206 |
- in Denmark, to the landsret; |
207 |
- in the Federal Republic of Germany, with the
Oberlandesgericht; |
208 |
- in France, with the cour d'appel; |
209 |
- in Ireland, with the High Court; |
210 |
- in Italy, with the corte d'appello; |
211 |
- in Luxembourg, with the Cour supérieure de
Justice sitting as a court of civil appeal; |
212 |
- in the Netherlands, with the
arrondissementsrechtbank; |
213 |
- in the United Kingdom; |
214 |
(1) in England and Wales, with the High Court of
Justice, or in the case of a maintenance judgment with the Magistrates'
Court; |
215 |
(2) in Scotland, with the Court of Session, or in the
case of a maintenance judgment with the Sheriff Court; |
216 |
(3) in Northern Ireland, with the High Court of
Justice, or in the case of a maintenance judgment with the Magistrates'
Court. |
217 |
The judgment given on the appeal may be contested only:
|
218 |
- in Belgium, France, Italy, Luxembourg and the
Netherlands, by an appeal in cassation; |
219 |
- in Denmark, by an appeal to the højesteret, with
the leave of the Minister of Justice; |
220 |
- in the Federal Republic of Germany, by a
Rechtsbeschwerde; |
221 |
- in Ireland, by an appeal on a point of law to the
Supreme Court; |
222 |
- in the United Kingdom, by a single further appeal on
a point of law. |
223 |
Article 38
|
224 |
The court with which the appeal under the first
paragraph of Article 37 is lodged may, on the application of the appellant,
stay the proceedings if an ordinary appeal has been lodged against the
judgment in the State in which that judgment was given or if the time for
such an appeal has not yet expired; in the latter case, the court may specify
the time within which such an appeal is to be lodged. |
225 |
Where the judgment was given in Ireland or the United
Kingdom, any form of appeal available in the State in which it was given
shall be treated as an ordinary appeal for the purposes of the first
paragraph. |
226 |
The court may also make enforcement conditional on the
provision of such security as it shall determine. |
227 |
Article 39
|
228 |
During the time specified for an appeal pursuant to
Article 36 and until any such appeal has been determined, no measures of
enforcement may be taken other than protective measures taken against the
property of the party against whom enforcement is sought. |
229 |
The decision authorising enforcement shall carry with
it the power to proceed to any such protective measures. |
230 |
Article 40
|
231 |
If the application for enforcement is refused, the
applicant may appeal: |
232 |
- in Belgium, to the cour d'appel or hof van beroep; |
233 |
- in Denmark, to the landsret; |
234 |
- in the Federal Republic of Germany, to the
Oberlandesgericht; |
235 |
- in France, to the cour d'appel; |
236 |
- in Ireland, to the High Court; |
237 |
- in Italy, to the corte d'appello; |
238 |
- in Luxembourg, to the Cour supérieure de
Justice sitting as a court of civil appeal; |
239 |
- in the Netherlands, to the gerechtshof; |
240 |
- in the United Kingdom: |
241 |
(1) in England and Wales, to the High Court of Justice,
or in the case of a maintenance judgment to the Magistrates' court; |
242 |
(2) in Scotland, to the Court of Session, or in the
case of a maintenance judgment to the Sheriff Court; |
243 |
(3) in Northern Ireland, to the High Court of Justice,
or in the case of a maintenance judgment to the Magistrates' Court. The party
against whom enforcement is sought shall be summoned to appear before the
appellate court. If he fails to appear, the provisions of the second and
third paragraphs of Article 20 shall apply even where he is not domiciled in
any of the Contracting States. |
244 |
Article 41
|
245 |
A judgment given on an appeal provided for in Article
40 may be contested only: |
246 |
- in Belgium, France, Italy, Luxembourg and the
Netherlands, by an appeal in cassation; |
247 |
- in Denmark, by an appeal to the højesteret,
with the leave of the Minister of Justice; |
248 |
- in the Federal Republic of Germany, by a
Rechtsbeschwerde; |
249 |
- in Ireland, by an appeal on a point of law to the
Supreme Court; |
250 |
- in the United Kingdom, by a single further appeal on
a point of law. |
251 |
Article 42
|
252 |
Where a foreign judgment has been given in respect of
several matters and enforcement cannot be authorised for all of them the
court shall authorise enforcement for one or more of them. |
253 |
An applicant may request partial enforcement of a
judgment. |
254 |
Article 43
|
255 |
A foreign judgment which orders a periodic payment by way
of a penalty shall be enforceable in the State in which enforcement is sought
only if the amount of the payment has been finally determined by the courts
of the State in which the judgment was given. |
256 |
Article 44
|
257 |
An applicant who, in the State in which the judgment
was given, has benefited from complete or partial legal aid or exemption from
costs or expenses, shall be entitled, in the procedures provided for in
Articles 32 to 35, to benefit from the most favourable legal aid or the most
extensive exemption from costs or expenses provided for by the law of the
State addressed. |
258 |
An applicant who requests the enforcement of a decision
given by an administrative authority in Denmark in respect of a maintenance
order may, in the State addressed, claim the benefits referred to in the
first paragraph if he presents a statement from the Danish Ministry of
Justice to the effect that he fulfils the economic requirements to qualify
for the grant of complete or partial legal aid or exemption from costs or
expenses. |
259 |
Article 45
|
260 |
No security, bond or deposit, however described, shall
be required of a party who in one Contracting State applies for enforcement
of a judgment given in another Contracting State on the ground that he is a
foreign national or that he is not domiciled or resident in the State in
which enforcement is sought. |
261 |
Section 3 - Common provisions
|
262 |
Article 46
|
263 |
A party seeking recognition or applying for enforcement
of a judgment shall produce: |
264 |
(1) a copy of the judgment which satisfies the
conditions necessary to establish its authenticity; |
265 |
(2) in the case of a judgment given in default, the
original or a certified true copy of the document which establishes that the
party in default was served with the document instituting the proceedings or
with an equivalent document. |
266 |
Article 47
|
267 |
A party applying for enforcement shall also produce: |
268 |
(1) documents which establish that, according to the
law of the State in which it has been given, the judgment is enforceable and
has been served; |
269 |
(2) where appropriate, a document showing that the
applicant is in receipt of legal aid in the State in which the judgment was
given. |
270 |
Article 48
|
271 |
If the documents specified in Article 46(2) and Article
47(2) are not produced, the court may specify a time for their production,
accept equivalent documents or, if it considers that it has sufficient
information before it, dispense with their production. |
272 |
If the court so requires, a translation of the
documents shall be produced; the translation shall be certified by a person
qualified to do so in one of the Contracting States. |
273 |
Article 49
|
274 |
No legislation or other similar formality shall be
required in respect of the documents referred to in Articles 46 or 47 or the
second paragraph of Article 48, or in respect of a document appointing a
representative ad litem. |
275 |
Title
IV - Authentic Instruments and Court Settlements
|
276 |
Article 50
|
277 |
A document which has been formally drawn up or
registered as an authentic instrument and is enforceable in one Contracting State
shall, in another Contracting State, have an order for its enforcement issued
there, on application made in accordance with the procedures provided for in
Article 31 et seq. The application may be refused only if enforcement of the
instrument is contrary to public policy in the State in which enforcement is
sought. |
278 |
The instrument produced must satisfy the conditions
necessary to establish its authenticity in the State of origin. |
279 |
The provisions of Section 3 of Title III shall apply as
appropriate. |
280 |
Article 51
|
281 |
A settlement which has been approved by a court in the
course of proceedings and is enforceable in the State in which it was
concluded shall be enforceable in the State in which enforcement is sought
under the same conditions as authentic instruments. |
282 |
Title
V - General Provisions
|
283 |
Article 52
|
284 |
In order to determine whether a party is domiciled in
the Contracting State whose courts are seised of the matter, the court shall
apply its internal law. |
285 |
If a party is not domiciled in the State whose courts
are seised of the matter, then, in order to determine whether the party is
domiciled in another Contracting State, the court shall apply the law of that
State. |
286 |
The domicile of a party shall, however, be determined
in accordance with his national law if, by that law, his domicile depends on
that of another person or on the seat of an authority. |
287 |
Article 53
|
288 |
For the purposes of this Convention, the seat of a
company or other legal person or association of natural or legal persons shall
be treated as its domicile. However in order to determine that seat, the
court shall apply its rules of private international law. |
289 |
In order to determine whether a trust is domiciled in
the Contracting State whose courts are seised of the matter, the court shall
apply its rules of private international law. |
290 |
Title
VI - Transitional Provisions
|
291 |
Article 54
|
292 |
The provisions of this Convention shall apply only to
legal proceedings instituted and to documents formally drawn up or registered
as authentic instruments after its entry into force. |
293 |
However, judgments given after the date of entry into
force of this Convention in proceedings instituted before that date shall be
recognised and enforced in accordance with the provisions of Title III if
jurisdiction was founded upon rules which accorded with those provided for
either in Title II of this Convention or in a convention concluded between
the State or origin and the State addressed which was in force when the
proceedings were instituted. |
294 |
Title
VII - Relationship to other Conventions
|
295 |
Article 55
|
296 |
Subject to the provisions of the second paragraph of
Article 54, and of Article 56, this Convention shall, for the States which
are parties to it, supersede the following conventions concluded between two
or more of them: |
297 |
- the Convention between Belgium and France on
Jurisdiction and the Validity and Enforcement of Judgments, Arbitration
Awards and Authentic Instruments, signed at Paris on 8 July 1899; |
298 |
- the Convention between Belgium and the Netherlands on
Jurisdiction, Bankruptcy, and the Validity and Enforcement of Judgments,
Arbitration Awards and Authentic Instruments, signed at Brussels on 28 March
1925; |
299 |
- the Convention between France and Italy on the
Enforcement of Judgments in Civil and Commercial Matters, signed at Rome on 3
June 1930; |
300 |
- the Convention between the United Kingdom and the
French Republic providing for the Reciprocal Enforcement of Judgments in Civil
and Commercial Matters, with Protocol, signed at Paris on 18 January 1934; |
301 |
- the Convention between the United Kingdom and the
Kingdom of Belgium providing for the Reciprocal Enforcement of Judgments in
Civil and Commercial Matters, with Protocol, signed at Brussels on 2 May
1934; |
302 |
- the Convention between Germany and Italy on the
Recognition and Enforcement of the Judgments in Civil and Commercial matters,
signed at Rome on 9 March 1936; |
303 |
- the Convention between the Federal Republic of
Germany and the Kingdom of Belgium on the Mutual Recognition and Enforcement
of Judgments, Arbitration Awards and Authentic Instruments in Civil and Commercial
Matters, signed at Bonn on 30 June 1958; |
304 |
- the Convention between the Kingdom of the Netherlands
and the Italian Republic on the Recognition and Enforcement of Judgments in
Civil and Commercial Matters, signed at Rome on 17 April 1959; |
305 |
- the Convention between the United Kingdom and the
Federal Republic of Germany for the Reciprocal Recognition and Enforcement of
Judgments in Civil and Commercial Matters, signed at Bonn on 14 July 1960; |
306 |
- the Convention between the Kingdom of Belgium and the
Italian Republic on the Recognition and Enforcement of Judgments and other
Enforceable Instruments in Civil and Commercial Matters, signed at Rome on 6
April 1962; |
307 |
- the Convention between the Kingdom of the Netherlands
and the Federal Republic of Germany on the Mutual Recognition and Enforcement
of Judgments and other Enforceable Instruments in Civil and Commercial
Matters, signed at The Hague on 30 August 1962; |
308 |
- the Convention between the United Kingdom and the
Republic of Italy for the Reciprocal Recognition and Enforcement of Judgments
in Civil and Commercial Matters, signed at Rome on 7 February 1864, with
amending Protocol signed at Rome on 14 July 1970; |
309 |
- the Convention between the United Kingdom and the
Kingdom of the Netherlands providing for the Reciprocal Recognition and
Enforcement of Judgments in Civil Matters, signed at The Hague on 17 November
1967. and, in so far as it is in force: |
310 |
- the Treaty between Belgium, the Netherlands and
Luxembourg on Jurisdiction, Bankruptcy, and the Validity and Enforcement of
Judgments, Arbitration Awards and Authentic Instruments, signed at Brussels
on 24 November 1961. |
311 |
Article 56
|
312 |
The Treaty and the conventions referred to in Article
55 shall continue to have effect in relation to matters to which this
Convention does not apply. |
313 |
They shall continue to have effect in respect of
judgments given and documents formally drawn up or registered as authentic
instruments before the entry into force of this Convention. |
314 |
Article 57
|
315 |
This Convention shall not affect any conventions to
which the Contracting States are or will be parties and which, in relation to
particular matters, govern jurisdiction or the recognition or enforcement of
judgments. |
316 |
This Convention shall not affect the application of
provisions which, in relation to particular matters, govern jurisdiction or
the recognition or enforcement of judgments and which are or will be
contained in acts of the Institutions of the European Communities or in
national laws harmonised in implementation of such acts. |
317 |
( Article 25(2) of the Accession Convention provides: |
318 |
'With a view of its uniform interpretation, paragraph 1
of Article 57 shall be applied in the following manner: |
319 |
(a) The 1968 Convention as amended shall not prevent a
court of a Contracting State which is a party to a convention on a particular
matter from assuming jurisdiction in accordance with that convention, even
where the defendant is domiciled in another Contracting State which is not a
party to that convention. The court shall, in any event, apply Article 20 of
the 1968 Convention as amended. |
320 |
(b) A judgment given in a Contracting State in the
exercise of jurisdiction provided for in a convention on a particular matter
shall be recognised and enforced in the other Contracting States in
accordance with the 1968 Convention as amended. |
321 |
Where a convention on a particular matter to which both
the State of origin and the State addressed are parties lays down conditions
for the recognition or enforcement of judgments, those conditions shall
apply. In any event, the provisions of the 1968 Convention as amended which
concerned the procedures for recognition and enforcement of judgments may be
applied.') |
322 |
Article 58
|
323 |
This Convention shall not affect the rights granted to
Swiss nationals by the Convention concluded on 15 June 1869 between France
and the Swiss Confederation on Jurisdiction and the Enforcement of Judgments
in Civil Matters. |
324 |
Article 59
|
325 |
This Convention shall not prevent a Contracting State
from assuming, in a convention on the recognition and enforcement of
judgments, an obligation towards a third State not to recognise judgments
given in other Contracting States against defendants domiciled or habitually
resident in the third State where, in cases provided for in Article 4, the
judgment could only be founded on a ground of jurisdiction specified in the
second paragraph of Article 3. |
326 |
However, a Contracting State may not assume an
obligation towards a third State not to recognise a judgment given in another
Contracting State by a court basing its jurisdiction on the presence within
that State of property belonging to the defendant, or the seizure by the
plaintiff of property situated there: |
327 |
(1) if the action is brought to assert or declare
proprietary or possessory rights in that property, seeks to obtain authority
to dispose of it, or arises from another issue relating to such property, or,
|
328 |
(2) if the property constitutes the security for a debt
which is the subject-matter of the action. |
329 |
Title
VIII - Final Provisions
|
330 |
Article 60
|
331 |
This Convention shall apply to the European territories
of the Contracting States, including Greenland, to the French overseas
departments and territories, and to Mayotte. |
332 |
The Kingdom of the Netherlands may declare at the time
of signing or ratifying this Convention or at any later time, by notifying
the Secretary- General of the Council of the European Communities, that this
Convention shall be applicable to the Netherlands Antilles. In the absence of
such declaration, proceedings taking place in the European territory of the
Kingdom as a result of an appeal in cassation from the judgment of a court in
the Netherlands Antilles shall be deemed to be proceedings taking place in
the latter court. |
333 |
Notwithstanding the first paragraph, this Convention
shall not apply to: |
334 |
(1) the Faroe Islands, unless the Kingdom of Denmark
makes a declaration to the contrary, |
335 |
(2) any European territory situated outside the United
Kingdom for the international relations of which the United Kingdom is
responsible, unless the United Kingdom makes a declaration to the contrary in
respect of any such territory. |
336 |
Such declarations may be made at any time by notifying
the Secretary-General of the Council of the European Communities. |
337 |
Proceedings brought in the United Kingdom on appeal
from courts in one of the territories referred to in subparagraph (2) of the
third paragraph shall be deemed to be proceedings taking place in those
courts. |
338 |
Proceedings which in the Kingdom of Denmark are dealt
with under the law on civil procedure for the Faroe Islands ( lov for
Faerøerne om rettens pleje ) shall be deemed to be proceedings taking
place in the courts of the Faroe Islands. |
339 |
Article 61
|
340 |
This Convention shall be ratified by the signatory
States. The instruments of ratification shall be deposited with the
Secretary-General of the Council of the European Communities. |
341 |
Article 62
|
342 |
This Convention shall enter into force on the first day
of the third month following the deposit of the instrument of ratification by
the last signatory State to take this step. |
343 |
Article 63
|
344 |
The Contracting States recognise that any State which
becomes a member of the European Economic Community shall be required to
accept this Convention as a basis for the negotiations between the
Contracting States and that State necessary to ensure the implementation of
the last paragraph of Article 220 of the Treaty establishing the European
Economic Community. |
345 |
The necessary adjustments may be the subject of a
special convention between the Contracting States of the one part and the new
Member State of the other part. |
346 |
Article 64
|
347 |
The Secretary-General of the Council of the European
Communities shall notify the signatory States of: |
348 |
(a) the deposit of each instrument of ratification; |
349 |
(b) the date of entry into force of this Convention; |
350 |
(c) any declaration received pursuant to Article 60; |
351 |
(d) any declaration received pursuant to Article IV of
the Protocol; |
352 |
(e) any communication made pursuant to Article VI of
the Protocol. |
353 |
Article 65
|
354 |
The Protocol annexed to this Convention by common
accord of the Contracting States shall form an integral part thereof. |
355 |
Article 66
|
356 |
This Convention is concluded for a unlimited period. |
357 |
Article 67
|
358 |
Any Contracting State may request the revision of this
Convention. In this event, a revision conference shall be convened by the
President of the Council of the European Communities. |
359 |
Article 68
|
360 |
This Convention, drawn up in a single original in the
Dutch, French, German and Italian languages, all four texts being equally authentic,
shall be deposited in the archives of the Secretariat of the Council of the
European Communities. The Secretary-General shall transmit a certified copy
to the Government of each signatory State. |
361 |
[Signatures of the original six Contracting States] |
362 |
Annexed
Protocol
|
363 |
Article I
|
364 |
Any person domiciled in Luxembourg who is sued in a
court of another Contracting State pursuant to Article 5 (1) may refuse to submit
to the jurisdiction of that court. If the defendant does not enter an
appearance the court shall declare of its own motion that it has no
jurisdiction. |
365 |
An agreement conferring jurisdiction, within the
meaning of Article 17, shall be valid with respect to a person domiciled in
Luxembourg only if that person has expressly and specifically so agreed. |
366 |
Article II
|
367 |
Without prejudice to any more favourable provisions of
national laws, persons domiciled in a Contracting State who are being
prosecuted in the criminal courts of another Contracting State of which they
are not nationals for an offence which was not intentionally committed may be
defended by persons qualified to do so, even if they do not appear in person.
|
368 |
However, the court seised of the matter may order
appearance in person; in the case of failure to appear, a judgment given in
the civil action without the person concerned having had the opportunity to
arrange for his defence need not be recognised or enforced in the other
Contracting States. |
369 |
Article III
|
370 |
In proceedings for the issue of an order for
enforcement, no charge, duty or fee calculated by reference to the value of
the matter in issue may be levied in the State in which enforcement is
sought. |
371 |
Article IV
|
372 |
Judicial and extrajudicial documents drawn up in one
Contracting State which have to be served on persons in another Contracting
State shall be transmitted in accordance with the procedures laid down in the
conventions and agreements concluded between the Contracting States. |
373 |
Unless the State in which service is to take place
objects by declaration to the Secretary-General of the Council of the
European Communities, such documents may also be sent by the appropriate
public officers of the State in which the document has been drawn up directly
to the appropriate public officers of the State in which the addressee is to
be found. In this case the officer of the State of origin shall send a copy
of the document to the officer of the State addressed who is competent to
forward it to the addressee. The document shall be forwarded in the manner
specified by the law of the State addressed. The forwarding shall be recorded
by a certificate sent directly to the officer of the State of origin. |
374 |
Article V
|
375 |
The jurisdiction specified in Article 6(2) and Article
10 in actions on a warranty or guarantee or in any other third party
proceedings may not be resorted to in the Federal Republic of Germany. In
that State, any person domiciled in another Contracting State may be sued in
the courts in pursuance of Articles 68, 72, 73 and 74 of the code of civil
procedure ( Zivilprozessordnung ) concerning third-party notices. |
376 |
Judgments given in the other Contracting States by
virtue of Article 6(2) or Article 10 shall be recognised and enforced in the
Federal Republic of Germany in accordance with Title III. Any effects which
judgments given in that State may have on third parties by application of
Articles 68, 72, 73 and 74 of the code of civil procedure
(Zivilprozessordnung ) shall also be recognised in the other Contracting
States. |
377 |
Article V A
|
378 |
In matters relating to maintenance, the expression
'court' includes the Danish administrative authorities. |
379 |
Article V B
|
380 |
In proceedings involving a dispute between the master
and a member of the crew of a sea-going ship registered in Denmark or in Ireland,
concerning remuneration or other conditions of service, a court in a
Contracting State shall establish whether the diplomatic or consular officer
responsible for the ship has been notified of the dispute. It shall stay the
proceedings so long as he has not been notified. It shall of its own motion
decline jurisdiction if the officer, having been duly notified, has exercised
the powers accorded to him in the matter by a consular convention, or in the
absence of such a convention has, within the time allowed, raised any
objection to the exercise of such jurisdiction. |
381 |
Article V C
|
382 |
Articles 52 and 53 of this Convention shall, when
applied by Article 69(5) of the Convention for the European Patent for the Common
Market, signed at Luxembourg on 15 December 1975, to the provisions relating
to 'residence' in the English text of that Convention, operate as if
'residence' in that text were the same as 'domicile' in Articles 52 and 53. |
383 |
Article V D
|
384 |
Without prejudice 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 Contracting State shall have exclusive jurisdiction,
regardless of domicile, in proceedings concerned with the registration or
validity of any European patent granted for that State which is not a
Community patent by virtue of the provisions of Article 86 of the Convention
for the European Patent for the Common Market, signed at Luxembourg on 15
December 1975. |
385 |
Article VI
|
386 |
The Contracting States shall communicate to the
Secretary-General of the Council of the European Communities the text of any provisions
of their laws which amend either those Articles of their laws mentioned in
the Convention or the lists of courts specified in Section 2 of Title III of
the Convention. |
387 |
THE HIGH CONTRACTING PARTIES TO THE TREATY
ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY,
DESIRING to implement the provisions of
Article 220 of that Treaty by virtue of which they undertook to secure the
simplification of formalities governing the reciprocal recognition and
enforcement of judgments of courts or tribunals;
ANXIOUS to strengthen in the Community the
legal protection of persons therein established;
CONSIDERING that it is necessary for this
purpose to determine the international jurisdiction of their courts, to
facilitate recognition and to introduce an expeditious procedure for securing
the enforcement of judgments, authentic instruments and court settlements2;
HAVE DECIDED to conclude this Convention and
to this end have designated as their Plenipotentiaries:
HIS MAJESTY THE KING OF THE BELGIANS:
Mr Pierre HARMEL, Minister for Foreign
Affairs;
THE PRESIDENT OF THE FEDERAL REPUBLIC OF
GERMANY:
Mr Willy BRANDT, Vice-Chancellor, Minister
for Foreign Affairs;
THE PRESIDENT OF THE FRENCH REPUBLIC:
Mr Michel DEBRЙ, Minister for Foreign
Affairs;
THE PRESIDENT OF THE ITALIAN REPUBLIC:
Mr Giuseppe MEDICI, Minister for Foreign
Affairs;
HIS ROYAL HIGHNESS THE GRAND DUKE OF
LUXEMBOURG:
Mr Pierre GRЙGOIRE, Minister for Foreign
Affairs;
HER MAJESTY THE QUEEN OF THE NETHERLANDS:
Mr. J.M.A.H. LUNS, Minister for Foreign
Affairs;
WHO, meeting within the Council, having
exchanged their Full Powers, found in good and due form, HAVE AGREED AS
FOLLOWS:
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 matters3.
The Convention shall not apply to:
1. the status or legal capacity of natural
persons, rights in property arising out of a matrimonial relationship, wills
and succession;
2. bankruptcy, proceedings relating to the
winding-up of insolvent companies or other legal persons, judicial
arrangements, compositions and analogous proceedings;
3. social security;
4. arbitration.
Subject to the provisions of this
Convention, persons domiciled in a Contracting State shall, whatever their
nationality, be sued in the courts of that State.
Persons who are not nationals of the State
in which they are domiciled shall be governed by the rules of jurisdiction applicable
to nationals of that State.
Persons domiciled in a Contracting State may
be sued in the courts of another Contracting State only by virtue of the rules
set out in Sections 2 to 6 of this Title.
In particular the following provisions shall
not be applicable as against them:
- in Belgium: Article 15 of the civil code
(Code civil - Burgerlijk Wetboek) and Article 638 of the judicial code (Code
judiciaire - Gerechtelijk Wetboek),
- in Denmark: Article 246 (2) and (3) of the
law on civil procedure (Lov om rettens pleje)4,
- in the Federal Republic of Germany:
Article 23 of the code of civil procedure (ZivilprozeЯordnung),
- in Greece, Article 40 of the code of civil
procedure (),
- in France: Articles 14 and 15 of the civil
code (Code civil),
- in Ireland: the rules which enable jurisdiction
to be founded on the document instituting the proceedings having been served on
the defendant during his temporary presence in Ireland,
- in Italy: Articles 2 and 4, Nos 1 and 2 of
the code of civil procedure (Codice di procedura civile),
- in Luxembourg: Articles 14 and 15 of the
civil code (Code civil),
- in the Netherlands: Articles 126 (3) and
127 of the code of civil procedure (Wetboek van Burgerlijke Rechtsvordering),
- in Portugal: Article 65 (1) (c), Article
65 (2) and Article 65A (c) of the code of civil procedure (Cуdigo de Processo
Civil) and Article 11 of the code of labour procedure (Cуdigo de Processo de
Trabalho),
- in the United Kingdom: the rules which
enable jurisdiction to be founded on:
(a) the document instituting the proceedings having been served
on the defendant during his temporary presence in the United Kingdom; or
(b) the presence within the United Kingdom of property belonging
to the defendant; or
(c) the seizure by the plaintiff of property
situated in the United Kingdom5.
If the defendant is not domiciled in a
Contracting State, the jurisdiction of the courts of each Contracting State
shall, subject to the provisions of Article 16, be determined by the law of
that State.
As against such a defendant, any person
domiciled in a Contracting State may, whatever his nationality, avail himself
in that State of the rules of jurisdiction there in force, and in particular
those specified in the second paragraph of Article 3, in the same way as the
nationals of that State.
A person domiciled in a Contracting State
may, in another Contracting State, be sued:
1. in matters relating to a contract, in the
courts for the place of performance of the obligation in question; in matters
relating to individual contracts of employment, this place is that where the
employee habitually carries out his work, or if the employee does not
habitually carry out his work in any one country, the employer may also be sued
in the courts for the place where the business which engaged the employee was
or is now situated6;
2. in matters relating to maintenance, in
the courts for the place where the maintenance creditor is domiciled or
habitually resident or, if the matter is ancillary to proceedings concerning
the status of a person, in the court which, according to its own law, has
jurisdiction to entertain those proceedings, unless that jurisdiction is based
solely on the nationality of one of the parties7;
3. in matters relating to tort, delict or
quasi-delict, in the courts for the place where the harmful event occurred;
4. as regards a civil claim for damages or
restitution which is based on an act givingrise 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 Contracting State
in which the trust is domiciled8;
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 salvage9.
A person domiciled in a Contracting State
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;
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 claimwas 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
Contracting State in which the property is situated10.
Where by virtue of this Convention a court
of a Contracting State 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.
In matters relating to insurance,
jurisdiction shall be determined by this Section, without prejudice to the
provisions of Articles 4 and 5 point 5.
An insurer domiciled in a Contracting State
may be sued:
1. in the courts of the State where he is
domiciled, or
2. in another Contracting State, in the
courts for the place where the policy-holder is domiciled, or
3. if he is a co-insurer, in the courts of a
Contracting State in which proceedings are brought against the leading insurer.
An insurer who is not domiciled in a
Contracting State but has a branch, agency or other establishment in one of the
Contracting States shall, in disputes arising out of the operations of the
branch, agency or establishment, be deemed to be domiciled in that State.
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.
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 had brought against the insured.
The provisions of Articles 7, 8 and 9 shall
apply to actions brought by the injured party directly against the insurer,
where such direct actions are permitted.
If the law governing such direct actions
provides that the policy-holder or the insured may be joined as a party to the
action, the same court shall have jurisdiction over them.
Without prejudice to the provisions of the
third paragraph of Article 10, an insurer may bring proceedings only in the courts
of the Contracting State in which the defendant is domiciled, irrespective of
whether he is the policy-holder, the insured or a beneficiary.
The provisions of this Section shall not affect
the right to bring a counterclaim in the court in which, in accordance with
this Section, the original claim is pending.
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 policy-holder, the
insured or a beneficiary to bring proceedings in courts other than those
indicated in this Section, or
3. which is concluded between a
policy-holder and an insurer, both of whom are domiciled in the same
Contracting State, 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 policy-holder
who is not domiciled in a Contracting State, except in so far as the insurance
is compulsory or relates to immovable property in a Contracting State, or
5. which relates to a contract of insurance
in so far as it covers one or more of the risks set out in Article 12a.
The following are the risks referred to in
point 5 of Article 12:
1. Any loss of or damage to:
(a) sea-going 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) above in so far as the law of the
Contracting State 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) above;
3. Any financial loss connected with the use
or operation of ships, installations or aircraft as referred to in point 1 (a)
above, 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 above.
In proceedings concerning a contract
concluded by a person for a purpose which can be regarded as being outside his
trade or profession, hereinafter called `the consumer', jurisdiction shall be
determined by this Section, without prejudice to the provisions of Articles 4
and 5(5), if it is:
1. a contract for the sale of goods on
instalment credit terms; or
2. a contract for a loan repayable by
instalments, or for any other form of credit, made to finance the sale of
goods; or
3. any other contract for the supply of
goods or a contract for the supply of services, and
(a) in the State of the consumer's domicile the conclusion of
the contract was preceded by a specific invitation addressed to him or by
advertising; and
(b) the consumer took in that State the steps necessary for the
conclusion of the contract.
Where a consumer enters into a contract with
a party who is not domiciled in a Contracting State but has a branch, agency or
other establishment in one of the Contracting States, that party shall, in
disputes arising out of the operations of the branch, agency or establishment,
be deemed to be domiciled in that State.
This Section shall not apply to contracts of
transport.
A consumer may bring proceedings against the
other party to a contract either in the courts of the Contracting State in
which that party is domiciled or in the courts of the Contracting State in
which he is himself domiciled.
Proceedings may be brought against a
consumer by the other party to the contract only in the courts of the
Contracting State in which the consumer is domiciled.
These provisions 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.
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 Contracting State,
and which confers jurisdiction on the courts of that State, provided that such
an agreement is not contrary to the law of that State.
The following courts shall have exclusive
jurisdiction, regardless of domicile:
1. (a) in proceedings which have as their
object rights in rem in immovable property or tenancies of immovable
property, the courts of the Contracting State in which the property is
situated;
(b) 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 Contracting State in which the
defendant is domiciled shall also have jurisdiction, provided that the landlord
and the tenant are natural persons and are domiciled in the same Contracting
State16;
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 the
decisions of their organs, the courts of the Contracting State in which the
company, legal person or association has its seat;
3. in proceedings which have as their object
the validity of entries in public registers, the courts of the Contracting
State 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, the courts of the Contracting
State in which the deposit or registration has been applied for, has taken
place or is under the terms of an international convention deemed to have taken
place;
5. in proceedings concerned with the
enforcement of judgments, the courts of the Contracting State in which the
judgment has been or is to be enforced.
If the parties, one or more of whom is
domiciled in a Contracting State, have agreed that a court or the courts of a
Contracting State 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 shallhave exclusive jurisdiction. 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.
Where such an agreement is concluded by
parties, none of whom is domiciled in a Contracting State, the courts of other
Contracting States shall have no jurisdiction over their disputes unless the
court or courts chosen have declined jurisdiction.
The court or courts of a Contracting State
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.
Agreements or provisions of a trust
instrument conferring jurisdiction shall have no legal force if they are
contrary to the provisions of Articles 12 or 15, or if the courts whose
jurisdiction they purport to exclude have exclusive jurisdiction by virtue of
Article 16.
If an agreement conferring jurisdiction was
concluded for the benefit of only one of the parties, that party shall retain
the right to bring proceedings in any other court which has jurisdiction by
virtue of this Convention.
In matters relating to individual contracts
of employment an agreement conferring jurisdiction shall have legal force only
if it is entered into after the dispute has arisen or if the employee invokes
it to seise courts other than those for the defendant's domicile or those
specified in Article 5 (1).
Apart from jurisdiction derived from other provisions
of this Convention, a court of a Contracting State before whom a defendant
entersan appearance shall have jurisdiction. This rule shall not apply where
appearance was entered solely to contest the jurisdiction, or where another
court has exclusive jurisdiction by virtue of Article 16.
Where a court of a Contracting State is
seised of a claim which is principally concerned with a matter over which the
courts of another Contracting State have exclusive jurisdiction by virtue of
Article 16, it shall declare of its own motion that it has no jurisdiction.
Where a defendant domiciled in one
Contracting State is sued in a court of another Contracting State 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 the
Convention.
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 end18.
The provisions of the foregoing paragraph
shall be replaced by those of Article 15 of the Hague Convention of 15 November
1965 on the service abroad of judicial and extrajudicial documents in civil or
commerical matters, if the document instituting the proceedings or notice
thereof had to be transmitted abroad in accordance with that Convention.
Where proceedings involving the same cause
of action and between the same parties are brought in the courts of different
Contracting States, anycourt 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.
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.
Where related actions are brought in the
courts of different Contracting States, any court other than the court first
seised may, while the actions are pending at first instance, stay its
proceedings.
A court other than the court first seised
may also, on the application of one of the parties, decline jurisdiction if the
law of that court permits the consolidation of related actions and the court
first seised has jurisdiction over both actions.
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.
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.
Application may be made to the courts of a
Contracting State 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 Contracting State have jurisdiction as to the substance of
the matter.
For the purposes of this Convention,
`judgment' means any judgment given by a court or tribunal of a Contracting
State, 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.
A judgment given in a Contracting State
shall be recognized in the other Contracting States without any special
procedure being required.
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 recognized.
If the outcome of proceedings in a court of
a Contracting State depends on the determination of an incidental question of
recognition that court shall have jurisdiction over that question.
A judgment shall not be recognized:
1. if such recognition is 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 duly served with the document which
instituted the proceedings or with an equivalent document in sufficient time to
enable him to arrange for his defence20;
3. if the judgment is irreconcilable with a
judgment given in a dispute between the same parties in the State in which
recognition is sought;
4. if the court of the State of origin, in
order to arrive at its judgment, has decided a preliminary question concerning
the status or legal capacity of natural persons, rights in property arising out
of a matrimonial relationship, wills or succession in a way that conflicts with
a rule of the private international law of the State in which the recognition
is sought, unless the same result would have been reached by the application of
the rules of private international law of that State21;
5. if the judgment is irreconcilable with an
earlier judgment given in a non-contracting State involving the same cause of action
and between the same parties, provided that this latter judgment fulfils the
conditions necessary for its recognition in the state addressed22.
Moreover, a judgment shall not be recognized
if it conflicts with the provisions of Sections 3, 4 or 5 of Title II, or in a
case provided for in Article 59.
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 jurisdiction23.
Subject to the provisions of the first
paragraph, the jurisdiction of the court of the State of origin may not be
reviewed; the test of public policy referred to in point 1 of Article 27 may
not be applied to the rules relating to jurisdiction24.
Under no circumstances may a foreign
judgment be reviewed as to its substance.
A court of a Contracting State in which recognition
is sought of a judgment given in another Contracting State may stay the
proceedings if an ordinary appeal against the judgment has been lodged.
A court of a Contracting State 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 appeal25.
A judgment given in a Contracting State and
enforceable in that State shall be enforced in another Contracting State when,
on the application of any interested party, it has been declared enforceable
there26.
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 Kingdom27.
1. The application shall be submitted:
- in Belgium, to the tribunal de premiиre
instance or rechtbank van eerste aanleg,
- in Denmark, to the byret28,
- in the Federal Republic of Germany, to the
presiding judge of a chamber of the Landgericht,
- in Greece, to the ,
- in Spain, to the Juzgado de Primera
Instancia,
- in France, to the presiding judge of the tribunal
de grande instance,
- in Ireland, to the High Court,
- in Italy, to the corte d'appello,
- in Luxembourg, to the presiding judge of
the tribunal d'arrondissement,
- in the Netherlands, to the presiding judge
of the arrondissementsrechtbank,
- in Portugal, to the Tribunal Judicial de
Cнrculo,
- in the United Kingdom:
1. in England and Wales, to the High Court of Justice, or in the
case of maintenance judgment to the Magistrates' Court on transmission by the
Secretary of State;
2. in Scotland, to the Court of Session, or in the case of a
maintenance judgment to the Sheriff Court on transmission by the Secretary of
State;
3. in Northern Ireland, to the High Court of Justice, or in the case
of a maintenance judgment to the Magistrates' Court on transmission by the
Secretary of State29.
2. The jurisdiction of local courts shall be
determined by reference to the place of domicile of the party against whom
enforcement is sought. If he is not domiciled in the State in which enforcement
is sought, it shall be determined by reference to the place of enforcement.
The procedure for making the application
shall be governed by the law of the State in which enforcement is sought.
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.
The documents referred to in Articles 46 and
47 shall be attached to the application.
The court applied to shall give its decision
without delay; the party against whom enforcement is sought shall not at this
stage of the proceedings be entitled to make any submissions on the
application.
The application may be refused only for one
of the reasons specified in Articles 27 and 28.
Under no circumstances may the foreign
judgment be reviewed as to its substance.
The appropriate officer of the court shall
without delay bring the decision given on the application to the notice of the
applicant in accordance with the procedure laid down by the law of the State in
which enforcement is sought.
If enforcement is authorized, the party
against whom enforcement is sought may appeal against the decision within one
month of service thereof.
If that party is domiciled in a Contracting
State other than that in which the decision authorizing enforcement was given,
the time for appealing shall be two months and shall run from the date of
service, either on him in person or at his residence. No extension of time may
be granted on account of distance.
1. An appeal against the decision authorizing
enforcement shall be lodged in accordance with the rules governing procedure in
contentious matters:
- in Belgium, with the tribunal de premiиre
instance or rechtbank van eerste aanleg,
- in Denmark, with the landsret,
- in the Federal Republic of Germany, with
the Oberlandesgericht,
- in Greece, with the ,
- in Spain, with the Audiencia Provincial,
- in France, with the cour d'appel,
- in Ireland, with the High Court,
- in Italy, with the corte d'appello,
- in Luxembourg, with the Cour supйrieure de
justice sitting as a court of civil appeal,
- in the Netherlands, with the
arrondissementsrechtbank,
- in Portugal, with the Tribunal da Relaзгo,
- in the United Kingdom:
(a) in England and Wales, with the High Court of Justice, or in
the case of a maintenance judgment with the Magistrates' Court;
(b) in Scotland, with the Court of Session, or in the case of a
maintenance judgment with the Sheriff Court;
(c) in Northern Ireland, with the High Court of Justice, or in
the case of a maintenance judgment with the Magistrates' Court.
2. The judgment given on the appeal may be
contested only:
- in Belgium, Greece, Spain, France, Italy,
Luxembourg and in the Netherlands, by an appeal in cassation,
- in Denmark, by an appeal to the
hшjesteret, with the leave of the Minister of Justice,
- in the Federal Republic of Germany, by a
Rechtsbeschwerde,
- in Ireland, by an appeal on a point of law
to the Supreme Court,
- in Portugal, by an appeal on a point of
law,
- in the United Kingdom, by a single further
appeal on a point of law.
The court with which the appeal under
Article 37(1) is lodged may, on the application of the appellant, stay the
proceedings if an ordinary appeal has been lodged against the judgment in the
State of origin or if the time for such an appeal has not yet expired; in the
latter case, the court may specify the time within which such an appeal is to
be lodged31.
Where the judgment was given in Ireland or
the United Kingdom, any form of appeal available in the State of origin shall
be treated as an ordinary appeal for the purposes of the first paragraph32.
The court may also make enforcement
conditional on the provision of such security as it shall determine.
During the time specified for an appeal
pursuant to Article 36 and until any such appeal has been determined, no
measures of enforcement may be taken other than protective measures taken
against the property of the party against whom enforcement is sought.
The decision authorizing enforcement shall
carry with it the power to proceed to any such protective measures.
1. If the application for enforcement is
refused, the applicant may appeal:
- in Belgium, to the cour d'appel or hof van
beroep,
- in Denmark, to the landsret,
- in the Federal Republic of Germany, to the
Oberlandesgericht,
- in Greece, to the ,
- in Spain, to the Audiencia Provincial,
- in France, to the court d'appel,
- in Ireland, to the High Court,
- in Italy, to the corte d'appello,
- in Luxembourg, to the Cour supйrieure de
justice sitting as a court of civil appeal,
- in the Netherlands, to the gerechtshof,
- in Portugal, to the Tribunal da Relaзгo,
- in the United Kingdom:
(a) in England and Wales, to the High Court of Justice, or in
the case of a maintenance judgment to the Magistrates' Court;
(b) in Scotland, to the Court of Session, or in the case of a
maintenance judgment to the Sheriff Court;
(c) in Northern Ireland, to the High Court of Justice, or in the
case of a maintenance judgment to the Magistrates' Court33.
2. The party against whom enforcement is
sought shall be summoned to appear before the appellate court. If he fails to
appear, the provisions of the second and third paragraphs of Article 20 shall
apply even where he is not domiciled in any of the Contracting States.
A judgment given on an appeal provided for in
Article 40 may be contested only:
- in Belgium, Greece, Spain, France, Italy,
Luxembourg and in the Netherlands, by an appeal in cassation,
- in Denmark, by an appeal to the
hшjesteret, with the leave of the Minister of Justice,
- in the Federal Republic of Germany, by a
Rechtsbeschwerde,
- in Ireland, by an appeal on a point of law
to the Supreme Court,
- in Portugal, by an appeal on a point of
law,
- in the United Kingdom, by a single further
appeal on a point of law.
Where a foreign judgment has been given in
respect of several matters and enforcement cannot be authorized for all of
them, the court shall authorize enforcement for one or more of them.
An applicant may request partial enforcement
of a judgment.
A foreign judgment which orders a periodic
payment by way of a penalty shall be enforceable in the State in which
enforcement is sought only if the amount of the payment has been finally
determined by the courts of the State of origin35.
An applicant who, in the State of origin has
benefited from complete or partial legal aid or exemption from costs or
expenses, shall be entitled, in the procedures provided for in Articles 32 to
35, to benefit from the most favourable legal aid or the most extensive
exemption from costs or expenses provided for by the law of the State
addressed.
However, an applicant who requests the
enforcement of a decision given by an administrative authority in Denmark in
respect of a maintenance order may, in the State addressed, claim the benefits
referred to in the first paragraph if he presents a statement from the Danish
Ministry of Justice to the effect that he fulfils the economic requirements to
qualify for the grant of complete or partial legal aid or exemption from costs
or expenses.
No security, bond or deposit, however
described, shall be required of a party who in one Contracting State applies
for enforcement of a judgment given in another Contracting State on the ground
that he is a foreign national or that he is not domiciled or resident in the
State in which enforcement is sought.
A party seeking recognition or applying for
enforcement of a judgment shall produce:
1. a copy of the judgment which satisfies
the conditions necessary to establish its authenticity;
2. in the case of a judgment given in
default, the original or a certified true copy of the document which
establishes that the party in default was served with the document instituting
the proceedings or with an equivalent document37.
A party applying for enforcement shall also produce:
1. documents which establish that, according
to the law of the State of origin the judgment is enforceable and has been
served;
2. where appropriate, a document showing
that the applicant is in receipt of legal aid in the State of origin.
If the documents specified in point 2 of
Articles 46 and 47 are not produced, the court may specify a time for their
production, accept equivalent documents or, if it considers that it has
sufficient information before it, dispense with their production.
If the court so requires, a translation of
the documents shall be produced; the translation shall be certified by a person
qualified to do so in one of the Contracting States.
No legalization or other similar formality
shall be required in respect of the documents referred to in Articles 46 or 47
or the second paragraph of Article 48, or in respect of a document appointing a
representative ad litem.
A document which has been formally drawn up
or registered as an authentic instrument and is enforceable in one Contracting
State shall, in another Contracting State, be declared enforceablethere, on
application made in accordance with the procedures provided for in Article 31 et
seq.The application may be refused only if enforcement of the instrument is
contrary to public policy in the State addressed39.
The instrument produced must satisfy the
conditions necessary to establish its authenticity in the State of origin.
The provisions of Section 3 of Title III
shall apply as appropriate.
A settlement which has been approved by a
court in the course of proceedings and is enforceable in the State in which it
was concluded shall be enforceable in the State addressed under the same
conditions as authentic instruments40.
In order to determine whether a party is
domiciled in the Contracting State whose courts are seised of a matter, the
Court shall apply its internal law.
If a party is not domiciled in the State
whose courts are seised of the matter, then, in order to determine whether the
party is domiciled in another Contracting State, the court shall apply the law
of that State.
... 41.
For the purposes of this Convention, the
seat of a company or other legal person or association of natural or legal
persons shall be treated as its domicile. However, in order to determine that
seat, the court shall apply its rules of private international law.
In order to determine whether a trust is
domiciled in the Contracting State whose courts are seised of the matter, the
court shall apply its rules of private international law42.
The provisions of the Convention shall apply
only to legal proceedings instituted and to documents formally drawn up or
registered as authentic instruments after its entry into force in the State of
origin and, where recognition or enforcement of a judgment or authentic
instruments is sought, in the State addressed.
However, judgments given after the date of
entry into force of this Convention between the State of origin and the State
addressed in proceedings instituted before that date shall be recognized and
enforced in accordance with the provisions of Title III if jurisdiction was
founded upon rules which accorded with those provided for either in Title II of
this Convention or in a convention concluded between the State of origin and
the State addressed which was in force when the proceedings were instituted44.
If the parties to a dispute concerning a
contract had agreed in writing before 1 June 1988 for Ireland or before 1
January 1987 for the United Kingdom that the contract was to be governed by the
law of Ireland or of a part of the United Kingdom, the courts of Ireland or of
that part of the United Kingdom shall retain the right to exercise jurisdiction
in the dispute45.
For a period of three years from 1 November
1986 for Denmark and from 1 June 1988 for Ireland, jurisdiction in maritime
matters shall be determined in these States not only in accordance with the
provisions of Title II, but also in accordance with the provisions of
paragraphs 1 to 6 following. However, upon the entry into force of the
International Convention relating to the arrest of sea-going ships, signed at
Brussels on 10 May 1952, for one of these States, these provisions shall cease
to have effect for that State.
1. A person who is domiciled in a
Contracting State may be sued in the courts of one of the States mentioned
above in respect of a maritime claim if the ship to which the claim relates or
any other ship owned by him has been arrested by judicial process within
theterritory of the latter State to secure the claim, or could have been so
arrested there but bail or other security has been given, and either:
(a) the claimant is domiciled in the latter State; or
(b) the claim arose in the latter State; or
(c) the claim concerns the voyage during which the arrest was
made or could have been made; or
(d) the claim arises out of a collision or out of damage caused
by a ship to another ship or to goods or persons on board either ship, either
by the execution or non-execution of a manoeuvre or by the non-observance of
regulations; or
(e) the claim is for salvage; or
(f) the claim is in respect of a mortgage or hypothecation of
the ship arrested.
2. A claimant may arrest either the
particular ship to which the maritime claim relates, or any other ship which is
owned by the person who was, at the time when the maritime claim arose, the
owner of the particular ship. However, only the particular ship to which the
maritime claim relates may be arrested in respect of the maritime claims set
out in (5) (o), (p) or (q) of this Article.
3. Ships shall be deemed to be in the same
ownership when all the shares therein are owned by the same person or persons.
4. When in the case of a charter by demise
of a ship the charterer alone is liable in respect of a maritime claim relating
to that ship, the claimant may arrest that ship or any other ship owned by the
charterer, but no other ship owned by the owner may be arrested in respect of
such claim. The same shall apply to any case in which a person other than the
owner of a ship is liable in respect of a maritime claim relating to that ship.
5. The expression `maritime claim' means a
claim arising out of one or more of the following:
(a) damage caused by any ship either in collision or otherwise;
(b) loss of life or personal injury caused by any ship or
occurring in connection with the operation of any ship;
(c) salvage;
(d) agreement relating to the use or hire of any ship whether by
charterparty or otherwise;
(e) agreement relating to the carriage of goods in any ship
whether by charterparty or otherwise;
(f) loss of or damage to goods including baggage carried in any
ship;
(g) general average;
(h) bottomry;
(i) towage;
(j) pilotage;
(k) goods or materials wherever supplied to a ship for her
operation or maintenance;
(l) construction, repair or equipment of any ship or dock
charges and dues;
(m) wages of masters, officers or crew;
(n) master's disbursements, including disbursements made by
shippers, charterers or agents on behalf of a ship or her owner;
(o) dispute as to the title to or ownership of any ship;
(p) disputes between co-owners of any ship as to the ownership,
possession, employment or earnings of that ship;
(q) the mortgage or hypothecation of any ship.
6. In Denmark, the expression `arrest' shall
be deemed as regards the maritime claims referred to in 5 (o) and (p) of this
Article, to include a `forbud', where that is the only procedure allowed in
respect of such a claim under Articles 646 to 653 of the law on civil procedure
(lov om rettens pleje).
Subject to the provisions of the second
subparagraph of Article 54, and of Article 56, this Convention shall, for the
States which are parties to it, supersede the following conventions concluded
between two or more of them:
- the Convention between Belgium and France
on jurisdiction and the validity and enforcement of judgments, arbitration
awards and authentic instruments, signed at Paris on 8 July 1899,
- the Convention between Belgium and the
Netherlands on jurisdiction, bankruptcy, and the validity and enforcement of
judgments, arbitration awards and authentic instruments, signed at Brussels on
28 March 1925,
- the Convention between France and Italy on
the enforcement of judgments in civil and commercial matters, signed at Rome on
3 June 1930,
- the Convention between the United Kingdom
and the French Republic providing for the reciprocal enforcement of judgments
in civil and commercial matters, with Protocol, signed at Paris on 18 January
193447,
- the Convention between the United Kingdom
and the Kingdom of Belgium providing for the reciprocal enforcement of
judgments in civil and commercial matters, with Protocol, signed at Brussels on
2 May 193448,
- the Convention between Germany and Italy
on the recognition and enforcement ofjudgments in civil and commercial matters,
signed at Rome on 9 March 1936,
- the Convention between the Federal
Republic of Germany and the Kingdom of Belgium on the mutual recognition and
enforcement of judgments, arbitration awards and authentic instruments in civil
and commercial matters, signed at Bonn on 30 June 1958,
- the Convention between the Kingdom of the
Netherlands and the Italian Republic on the recognition and enforcement of
judgments in civil and commercial matters, signed at Rome on 17 April 1959,
- the Convention between the United Kingdom
and the Federal Republic of Germany for the reciprocal recognition and
enforcement of judgments in civil and commercial matters, signed at Bonn on 14
July 196049,
- the Convention between the Kingdom of
Greece and the Federal Republic of Germany for the reciprocal recognition and
enforcement of judgments, settlements and authentic instruments in civil and
commercial matters, signed in Athens on 4 November 196150,
- the Convention between the Kingdom of Belgium
and the Italian Republic on the recognition and enforcement of judgments and
other enforceable instruments in civil and commercial matters, signed at Rome
on 6 April 1962,
- the Convention between the Kingdom of the
Netherlands and the Federal Republic of Germany on the mutual recognition and
enforcement of judgments and other enforceable instruments in civil and
commercial matters, signed at The Hague on 30 August 1962,
- the Convention between the United Kingdom
and the Republic of Italy for the reciprocal recognition and enforcement of
judgments in civil and commercial matters, signed at Rome on 7 February 1964,
with amending Protocol signed at Rome on 14 July 197051,
- the Convention between the United Kingdom
and the Kingdom of the Netherlands providing for the reciprocal recognition
andenforcement of judgments in civil matters, signed at The Hague on 17
November 196752,
- the Convention between Spain and France on
the recognition and enforcement of judgment arbitration awards in civil and
commercial matters, signed at Paris on 28 May 196953,
- the Convention between Spain and Italy
regarding legal aid and the recognition and enforcement of judgments in civil
and commercial matters, signed at Madrid on 22 May 197354,
- the Convention between Spain and the
Federal Republic of Germany on the recognition and enforcement of judgments,
settlements and enforceable authentic instruments in civil and commercial
matters, signed at Bonn on 14 November 198355,
and, in so far as it is in force:
- the Treaty between Belgium, the
Netherlands and Luxembourg on jurisdiction, bankruptcy, and the validity and
enforcement of judgments, arbitration awards and authentic instruments, signed
at Brussels on 24 November 1961.
The Treaty and the conventions referred to
in Article 55 shall continue to have effect in relation to matters to which
this Convention does not apply.
They shall continue to have effect in
respect of judgments given and documents formally drawn up or registered as
authentic instruments before the entry into force of this Convention.
1. This Convention shall not affect any
conventions to which the Contracting States are or will be parties and which in
relation to particular matters, govern jurisdiction or the recognition or
enforcement of judgments56.
2. With a view to its uniform
interpretation, paragraph 1 shall be applied in the following manner:
(a) this Convention shall not prevent a
court of a Contracting State which is a party to a convention on a particular
matter from assuming jurisdiction in accordance with that Convention, even
where the defendant is domiciled in another Contracting State which is not a
party to that Convention. The court hearing the action shall, in any event,
apply Article 20 of this Convention;
(b) judgments given in a Contracting State
by a court in the exercise of jurisdiction provided for in a convention on a
particular matter shall be recognized and enforced in the other Contracting
State in accordance with this Convention.
Where a convention on a particular matter to which both the
State of origin and the State addressed are parties lays down conditions for
the recognition or enforcement of judgments, those conditions shall apply. In
any event, the provisions of this Convention which concern the procedure for
recognition and enforcement of judgments may be applied57.
3. This Convention shall not affect the
application of provisions which, in relation to particular matters, govern
jurisdiction or the recognition or enforcement of judgments and which are or will
be contained in acts of the institutions of the European Communities or in
national laws harmonized in implementation of such acts58.
Until such time as the Convention on
jurisdiction and the enforcement of judgments in civil and commercial matters,
signed at Lugano on 16 September 1988, takes effect with regard to France and
the Swiss Confederation, this Convention shall not affect the rights granted to
Swiss nationals by the Convention between France and the Swiss Confederation on
jurisdiction and enforcement of judgments in civil matters, signed at Paris on
15 June 1869.
This Convention shall not prevent a
Contracting State from assuming, in a convention on the recognition and
enforcement of judgments, an obligation towards a third State not to recognize
judgments given in other Contracting States against defendants domiciled or
habitually resident in the third State where, in cases provided for in Article
4, the judgment could only be founded on a ground of jurisdiction specified in
the second paragraph of Article 3.
However, a Contracting State may not assume
an obligation towards a third State not to recognize a judgment given in
another Contracting State by a court basing its jurisdiction on the presence
within that State of property belonging to the defendant, or the seizure by the
plaintiff of property situated there:
1. if the action is brought to assert or
declare proprietary or possessory rights in that property, seeks to obtain
authority to dispose of it, or arises from another issue relating to such
property; or
2. if the property constitutes the security
for a debt which is the subject-matter of the action60.
... 61
This Convention shall be ratified by the
signatory States. The instruments of ratification shall be deposited with the
Secretary-General of the Council of the European Communities.
This Convention shall enter into force on
the first day of the third month following the deposit of the instrument of
ratification by the last signatory State to take this step.
The Contracting States recognize that any State
which becomes a member of the European Economic Community shall be required to
accept this Convention as a basis for the negotiations between the Contracting
States and that State necessary to ensure the implementation of the last
paragraph of Article 220 of the Treaty establishing the European Economic
Community.
The necessary adjustments may be the subject
of a special convention between the Contracting States of the one part and the
new Member States of the other part.
The Secretary-General of the Council of the
European Communities shall notify the signatory States of:
(a) the deposit of each instrument of
ratification;
(b) the date of entry into force of this
Convention;
(c) ... 65;
(d) any declaration received pursuant to
Article IV of the Protocol;
(e) any communication made pursuant to
Article VI of the Protocol.
The Protocol annexed to this Convention by
common accord of the Contracting States shall form an integral part thereof.
This Convention is concluded for an
unlimited period.
Any Contracting State may request the
revision of this Convention. In this event, a revision conference shall be
convened by the President of the Council of the European Communities.
This Convention, drawn up in a single
original in the Dutch, French, German and Italian languages, all four texts
being equally authentic, shall be deposited in the archives of the Secretariat
of the Council of the European Communities. The Secretary-General shall
transmit a certified copy to the Government of each signatory State67.
In witness whereof, the undersigned
Plenipotentiaries have signed this Convention
Done at Brussels this twenty-seventh day of
September in the year one thousand nine hundred and sixty-eight.