Anwar et al v. Fairfield Greenwich Limited et al

Filing 1048

DECLARATION of Professor Jonathan Harris in Support re: #775 FIRST MOTION to Certify Class.. Document filed by AXA Private Management, Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit 1 through 3, #2 Exhibit 4 Part 1, #3 Exhibit 4 Part 2, #4 Exhibit 5, #5 Exhibit 6, #6 Exhibit 7 and 8, #7 Exhibit 9 through 11, #8 Exhibit 12 through 14, #9 Exhibit 15 through 21, #10 Exhibit 22 and 23, #11 Exhibit 24, #12 Exhibit 25 through 27, #13 Exhibit 28 through 32, #14 Exhibit 33, #15 Exhibit 34, #16 Exhibit 35, #17 Exhibit 36, #18 Exhibit 37 through 39, #19 Exhibit 40, #20 Exhibit 41 Part 1, #21 Exhibit 41 Part 2, #22 Exhibit 42 through 51, #23 Exhibit 52 through 65, #24 Exhibit 66 through 70, #25 Exhibit 71 through 74, #26 Exhibit 75 through 77, #27 Exhibit 78 through 81, #28 Exhibit 82, #29 Exhibit 83 Part 1, #30 Exhibit 83 Part 2, #31 Exhibit 84 and 85, #32 Exhibit 86 Part 1, #33 Exhibit 86 Part 2, #34 Exhibit 87 through 90, #35 Exhibit 91 Part 1, #36 Exhibit 91 Part 2, #37 Exhibit 92 through 103, #38 Exhibit 104 through 106, #39 Exhibit 107 and 108, #40 Exhibit 109 through 113)(Barrett, David)

EXHIBIT 83
Part 2

Recognition and Enforcement of Foreign Judgments and Arbitrations

ig on foot
roceedings
a denial of
-ssful party
.ings in the
the plenary
the plenary
:e of Lords
~enforced.
discussion
1 detail in
to whether
ve. Where
side and to
of time, it
xl remains
n that this
useless his
ause being
should be
side. In an
-ing shown
conclusive

lue from
in action

an implied
n question
;ts148 and a
R. 368 (High

1909] 21.R.

-u v.

M'DonAnanyme la
o (High Ct.,
rn, J.' s judg-

nnell [1921]
.R. 213 (Fun

603

sum which can be ascertained by a mere arithmetical calculation. 149 It also includes
ajudgment, not for a definite single sum of money, but for definite sums to be paid
periodically as ordered. An order for the payment of a sum which is subject to the
deduction of an amount for costs which has yet to be determined is not
enforceable. 150
If the foreign judgment orders the defendant to do something other than pay a
definite sum of money, it is not enforceable. Thus, a decree granting an injunction
or specific performance or restitution of a chattel will not be enforced.
The existing rule is an anomalous survival from the days when the forms of action
were all important and the appropriate form of action on a foreign judgment was
in indebitatus assumpsit. It is difficult to see why a foreign judgment of this kind
should not be enforced directly. WolfF.51 suggests that such a judgment can be
recognised as res judicata, however, so that, if the plaintiff brings an action claiming
damages for non-performance of the obligation established by the original judgment
the defendant will probably not be allowed to set up the defence that this judgment
was wrong.
Foreign Judgment

Cannot Be Examined on Merits

Up to the middle of the last century foreign judgments were regarded as merely
prima facie, and not conclusive, evidence of the existence of a debt between the
parties.!" so that the merits of the case could be re-examined when a foreign
judgment was sued upon. However, it became established that, if the foreign court
had jurisdiction in the international sense, the merits of the case could not be
re-opened.!"
The underlying reason for this position is to be found in the maxims interest rei
publicae ut sit finis litium and nemo debet bis vexari pro eadem causa - it is "contrary
to principle and expediency for the same questions to be again submitted to a jury
in this country". 154 The proper recourse of a party seeking to allege that the foreign
judgment was bad for a mistake of fact or of law is to take an appeal in the foreign
country concerned. A court in this country cannot act as an appellate court over
a judgment given by a foreign court of competent jurisdiction.
A foreign judgment is conclusive despite the fact that there was a defence available
to the defendent in the foreign court which he failed to set up. For example, in Ellis
v. M 'Henry'? judgment was given in a Canadian court for a debt against a person
who had been made bankrupt in England but who failed to plead his discharge in
the bankruptcy as a defence to the Canadian action. An action on the Canadian
judgment in England was successful: to allow the defendant to set up the defence
he could have pleaded to the original claim would impeach the propriety and
correctness of the foreign judgment. 156
'" Beatty v. Beatty, [1924] 1 K.B. 807.
Sadler v. Robins 1 Camp. 253, 170 E.R. 948 (1808); Hutton v. Dant, [1924] 1 D.L.R. 401; Taylor.
v. Begg r 1932] N.Z.L.R. 286.
151 Wolff, 265.
See also Dicey & Morris, 1093.
!52 Walker v. Witter 1 Doug.
1 at 5-6 (1778); Houlditch v. Donegal, 2 Cl. & F. 470, at 477-478,6
E,R. 1232, at 1234-1235 (1834); cf. the remarks of Lord Plunket, L.C., in the same case; see also
Smith v. Nicholls, 5 Bing. N.C. 208 at 221 (1839), Otway v. Ramsey, 2 Stra. 1090 (K.B., 1736).
See further Anon., Comment: Reciprocity and the Recognition of Foreign Judgments, 36 Yale L.J.
542, at 543 (1927).
153 Bank of Australasia v. Nias,
16 Q.B. 717 (1851); De Cosse Brissac v. Rathbone, 6 H. & N. 301 (1861)
Godard v. Gray, L.R. 6 Q.B. 139 (1870); Vadala v. Lawes, 25 Q.B.D. 310, at 316 (1890). See also
La Societe Anonyme La Chemo - Serotherapie Belge v. Dolan (Dominick A.) & Co. Ltd., [1961]
I.R. 281, Maubourquet v. Wyse, I.R. 1 C.L. 471, at 490 (Exch., per Pigot, C.B., 1867).
154 Bank of Australasia
v. Nias, 16 Q.B. 717, at 736, 107 E.R. 1055, at 1063 (1851) .
155 L.R. 6 C.P. 228 (1871).
156 Id., at 238-239.
See also Henderson v. Henderson, 6 Q.B. 288 (1844); De Cosse Brissac v. Rathbone,
supra.
150

Irish Conflicts of Law

604

In La Societe Anonyme la Chemo - Serotherapie Belge v. Dolan (Dominick A
& Co. Ltd., 157 the plaintiff, a Belgian company, obtained final judgment in Belg' .)
against the defendants, an Irish company, on foot of an agreement to compro~~m
the plaintiff's claim. The claim was for a su~ of money whic~ the defendants ~:~
undertaken to pay as a royalty on a product III respect of which the plaintiffs h d
given them the wholesale selling rights in Ireland. The defendants had contest~
the proceedings in Belgium but, when judgment was given against them there the
did not appeal.
' }
When the plaintiffs sought to enforce the judgment in Ireland, the defendant
resisted on the basis that they were entitled to a set - off, for a sum exceeding ths
amount of the judgment, to compensate them for income tax paid by them in respec~
of the royalties in Ireland. They argued'" that, since their original indebtedness to
the plaintiffs had not merged in the Belgian judgment, and that as it was thus ShU
open to the plaintiffs to sue the defendents on foot of the original cause of action
the defendants ought not to be precluded from raising all the defences which were
open to them to that cause of action, including the defence regarding the income
tax payment.
Teevan, J. agreed that the original cause of action survived. This was "so well
established that it is not unnecessary to cite authority for the proposition. "159 He
also agreed that defences to the original claim similarly survived so far as that claim
was concerned. But beyond that, he was unwilling to concur with the defence
arguments.

action?"!"
The fact that the foreign court made a mistake as to its own law will not prevent
its judgment from being conclusive. 162 Indeed, even the fact that the foreign court
made a mistake as to Irish law will not avail the defendant. 163 In Godard v. Grav"

158
159
160

[1961] I.R. 281 (High Ct., Teevan, J.)
Id., at 283.
Id., at 286.
The judgment also included amounts for costs and interest under Belgian law: [1961] I. R., at 282

Id., at 286-287.
Cf. Scott v. Pilkington, 2 B. & S. 11 (1862). See also Henderson v. Henderson supra. There is some
uncertainty as to the position where the defendant, after the foreign judgment has been handed down.
discovers new evidence which he could not reasonably have known about beforehand and which shows
that the decision was wrong. In De Cosse Brissac v. Rathbone, supra, such a plea was held bad, but
some of the commentators are of the view that this holding can be explained on its special facts and
that a plea on these lines should be admitted: see Dicey & Morris, 1074-1075, McLeod. 601.
16) Cf. Graveson,
Comparative Aspects of the General Principles of Private International Law, [1963J

161
162

164

in a
in t
def
no
la~
of

,

are
sel
ex

an
re
th(

wI

pa
cc
cc
01

w
If

He said:

"The plaintiffs had a choice of two courses of action. They could have sued here on
the original claim as it arose under the compromise agreement - using, if they wished.
the Belgian judgment as proof of the amount of indebtedness; or they could have sued
on the Belgian judgment itself, which they did. As I understand [defence counsel ls
contention it is that, by reason of the distinction between final judgments of our own
Courts and those of foreign Courts, the latter are devoid of force save as evidence
of the pre - judgment debt. At least, I think, his argument must logically be pushed
that far. He says, if the plaintiffs claim had been simply for the amount due under
the compromise agreement, he would have been entitled to deduct the tax; as there
is no merger, his right of deduction remains and he can now deduct from the amount
of the Belgian judgment - at least from so much of it as is made up of debt. 160
This is clearly contrary to authority. That this is so may not appear explicitly
from the authorities on which he grounded his arguments, but it follows from them.
Otherwise why is it permitted to sue on foreign judgments as themselves causes of

157

aF1

_ II Recueil des cours 1, at 149.
L.R. 6 Q.B. 139 (1870). See also Castrique v. Imrie, L.R. 4 H.L. 414 (1870).

tI
o
II

Recognition and Enforcement

)o.minick A.)
t In Belgium
compromise
fendants had
,laintiffs had
ad Contested
[1 there, they
~ defendants
'(ceeding the
.m in respect
ebtedness to
vas thus still
se of action
which wer~
~the income
(as "so well
ition. "159 He
as that claim
the defence

ed here on
ey wished,
have sued
counsel] 's
if our own
s evidence
be pushed
due under
x; as there
he amount
debt. 160
. explicitly
'rom them.
; causes of

Inot prevent
foreign court
-rd v. Gray"

L.R. 6 Q.B. at 150 (1870).
Cf. supra, pp. 588-589.
167 Dicey
& Morris, 1080.
168 Cf. Cheshire & North, 653 -655,
Dicey & Morris, 1080-1081.
169 Cf. Pemberton v. Hughes,
[1899] 1 Ch. 781, at 791 (C.A., per Lindley, L.J.), quoted by Griffin,
J., in Gaffizey v. Gaffney, [1975] I.R. 133, at 159-160 (Sup. Ct). See also Merker v. Merker, [1963] P.
283 (Sir Jocelyn Simon, P., 1962) Contra, Bater v. Bater, [1906] P. 209, at 232-234 (C.A. per
Romer, Ci.l.), Papadopoulos v. Papadopoulas, [1930] P. 55 (Sir Jocelyn Simon, P., 1970).
170 Cheshire
& North, 653-654.
171 Id., 654, explaining
Pemberton v. Hughes, supra, and Vanquelin v. Bouard, 15 C.B.N.S. 341, 143
E.R. 817 (1863). This strategy, of course, involves difficult issues of characterisation.
172 Read,
100, explaining Vanquelin v. Bouard, supra.
I7J
[1975] I.R. 133 (Sup. Ct., 1975, affg High Ct., Kenny, J., 1973).
174
'Id., at 158-159.
175 L.R. 2 P. & D. 435, at 442 (1872).
165

~.There is some
n handed down,
nd which shows
as held bad, but
pedal facts and
tcleod. 601.
al Law, [1963]

605

a French court, acting on an erroneous view of English law, treated a penalty clause
in a charterparty governed by English law as fixing the amount of damages payable
in the event of breach. The French judgment was sued upon in England and the
defendant pleaded the mistake as to English law. It was held that the defendant could
no more set up an excuse that the judgment had proceeded on a mistake as to English
Jaw then he could set up as an excuse that there had been a mistake as to the law
of some third country incidentally involved or as to any other question of fact. 165
We must now consider an aspect of this subject on which the judicial authorities
are far from clear. Accepting that the foreign court had jurisdiction in the international
sense, what should be the effect of showing that it lacked internal jurisdiction? For
example, if a divorce were obtained by a spouse domiciled in a foreign country,
and resident there for six months, that divorce would comply with the jurisdictional
requirements, in the international sense;" but it would not necessarily comply with
the internal jurisdictional requirements of the foreign state - as would be the case
where the law of that state required a minimum period of residence of one year and
paid no attention to the petitioner's domicile.
The English decisions on this general issue are' 'at first sight in a state of some
confusion" , 167 and attempts 168 to reconcile them have proved difficult. Some of the
cases 169 appear to support the view that the judgment should be upheld regardless
of the lack of jurisdiction under the internal law of the foreign country. The problem
with this approach is that it would treat as valid a judgment which had no validity
in the foreign country itself and which thus created no rights in the plaintiff. 170
It is possible to mitigate the full effect of this rule by restricting it to cases where
the foreign court had jurisdiction under its internal law but erred in its own rules
of procedure, 171 or cases where the judgment, though irregular according to the
internal foreign law, was voidable rather than completely null.!"
Gaffney v. Gaffney" is a difficult case to interpret in this context. The judgments
in the Supreme Court, when considering the question of the English divorce court's
jurisdiction, never clearly distinguished between jurisdiction in the international sense
and jurisdiction for the purposes of English divorce law. There was an overlap in
that domicile would support jurisdiction in both senses, but the husband' s (alleged)
residence in England could also have supported jurisdiction for the purposes of English
divorce law but not for the purposes of jurisdiction in the international sense. Griffin,
L's quotation'" of a relevant passage from Lindley, M.R.'s judgment in Pemberton
v. Hughe s 175 suggests that Griffin, J. did not dissent from the view that
jurisdictional incompetence under the foreign internal law should be ignored; but
there is nothing in the remainder of his judgment, or the judgments of the other
members of the Court, which throws light on what the position would have been
where the English court had jurisdiction in the international sense but not in terms
of the requirements of its own divorce law.
166

1] I.R., at 282.

of Foreign Judgments and Arbitrations

Irish Conflicts of Law

606
Estoppel per rem judicatam

be ar

To what extent does the doctrine of estoppel per remjudicatam apply to a fore'
judgment? We have already seen that a foreign judgment is not res judicata inasm~g~
as t.he.original caus~ of acti~n is no~ merged in thejudgment and e~tinguished. T~e
plaintiff has the option of either sumg on the original cause of acnon in Ireland
suing on the foreign judgment. 176 But, while this ultimate degree of conc1usivene~r
is denied to foreign judgments, they are otherwise conclusive on the merits. IS
domestic law there is a rule of evidence whereby an unsuccessful party to litigatio~
is estopped from questioning in any subsequent proceedings the merits of a final
decision in that litigation. This species of estoppel is known as estoppel per rem
judicatam or estoppel by record.:"
Estoppel per rem judicatam applies both to judgments in personam and judgments
in rem, the former being conclusive only as between the parties or their privies
the latter being conclusive as against the whole world.
.
So far as conflicts of law aspects of estoppel per rem judicatam are concerned.
a person who successfully defended foreign proceedings where the judgment was
final and conclusive and given on the merits, cannot later be sued in Ireland by the
same plaintiff on the same cause of action. The plaintiff is estopped from denying
the conclusiveness of the judgment. Moreover, where a plaintiff suing abroad has
had judgment satisfied there, albeit of an award more modest than he could have
obtained in Ireland, he may not later proceed against the same defendant in Ireland
in respect of the same injury, looking for further compensation. 178

of thl
makE
A
enfOl
by tl

new

1

Dani

by tl
the 1
Vv
as 11

the
eon.
POSl

and
WhE

of t
mat
his
div

J.~

Defences Available Against Recognition and Enforcement
The fact that a foreign judgment is regarded as conclusive and unimpeachable as
to the merits of the dispute does not mean that a defendant to an action for enforcement
of such a judgment is entirely without recourse. We have already seen that he may
resist recognition and enforcement on the ground that the foreign court lacked
jurisdiction over the subject matter or the parties. There are a number of other
defences that he may also raise.
l79

Fraud vitiating the foreign judgment

A purely domestic judgment may be set aside upon the ground of fraud or
collusion'" since it is an abuse of the process of the Court.!" The jurisdiction to
set aside such a judgment does not depend on rules of court'" but is part of the
inherent jurisdiction of the Court.!" Whether the judgment is by default or consent,
or otherwise, is immaterial. 184 Fraud must be clearly alleged and clearly proved."
In the clearest of cases, judgment may be set aside on motion; otherwise there should
116

Carl Zeiss Stiftung v. Rayner and Keeler (No.2), [1966] 2 All E.R. 536, at 564, citing Spencer Bower

on Res Judicata, p.3.
Cf. Cheshire & North, 656. See, e.g. Harris v. Quine, L.R. 4 Q.B. 653 (1869).
178 Cheshire & North, 656.
119 See Graveson,
Fraud in Foreign Judgments, 12 Modern L. Rev. 105 (1949).
180 Duchess of Kingston's
Case 2 Sm. L.C. (13th ed.) 644, 20 State Tr. 619, [1775-1802]
All ER
Rep. 623; (1776); McLaffeyv. McLaffey [1905] 21.R. 292; Nixon v. Loundes [1909] 21.R.l (K.B.
Div., 1908), Dennis v. Leinster Paper Co., [1901] 21.R. 337, at 340 (K.B. Div., Kenny, J., affd
by C.A.). See Gordon, Actions to Set Aside Judgments, 77 L.Q.R. 358, 533 (1961), and cf. Denman

117

181
182

183

v. O'Callaghan, 31 I.L.T.R. 141 (C.A., 1897).
Nixon v. Loundes, [1909] 2 I.R., at 10-11 (K.B. Div., per Dodd, J., 1908).
See the Rules of the Superior Courts 1986, Order 13, rule 11, Order 27, rule 14, Order 36, rule 33.
Cf. Fitter & Co. v. Tuke, 401.L.T.R.
1 (C.A., 1905).
[1909]2 I.R. at 6 (per Gibson, J.).

184Id.
185 Id

at 11

([Jer

Dodd, J.)

!HI.
181
188
189

19(

191

19
19

1\

Recognition and Enforcement of Foreign Judgments and Arbitrations

foreign
asmuch
ed. The
.land or
aveness
~rits. In
tigation
: a final

»er rem
jgments
privies,
lcemed,
lent was
d by the
denying
'oad has
ild have
I Ireland

be an issue to try the question of fraud. 186 The plaintiff must produce evidence of
new facts discovered since the former judgment which raise a reasonable probability
of the action succeeding. 187 Those facts must be so evidenced and so material as to
make it reasonably probable that the action will succeed. 188
A foreign judgment also may be impeached for fraud. In such circumstances,
enforcement of it will be refused in Ireland. 189 The fraud may have been perpetrated
by the foreign court itself, as in Price v. DewhurstJ" where some members of a
Danish court were shown to have had an interest in the property that was affected
by their decision. Normally, of course, the fraud will have been perpetrated upon
the foreign court by one or more of the parties. 191
What sort of evidence is required to invalidate a foreign judgment? Must there,
as in the case of domestic judgments, be evidence of new facts discovered since
the foreign judgment or may the merits of the foreign judgment be examined by
consideration of the same evidence as was given in the foreign court? And is the
position different where if the allegation of fraud was considered by the foreign court
99
and rejected by it? Fraud as to the jurisdiction occurred in Gaffney v. Gaffne/
where a divorce had been obtained in England on the basis of the common domicile
of the spouses there, even though they were in reality domiciled in Ireland at the
material time. The husband by means of the threat of physical violence had forced
his wife to petition for divorce. The Supreme Court, affirming Kenny, J., held that the
divorce decree was ineffective as the English Court had lacked jurisdiction. Henchy,
1. said:
"I fail to see why, although the decree seems good on its face, evidence should not
be received to show that its facade conceals a lack of jurisdiction no less detrimental
to its validity than if it had been written into the order. To hold otherwise would be
to close one's eyes to the available truth and to give effect instead to a spurious divorce
which the English court was deluded by sworn misrepresentations into making. ,,200

hable as

ircement
: he may
t lacked
of other

fraud or
iction to
rt of the
consent,

roved."
re should
leer Bower

] All E.R.
.R.l (K.B.

y,J.,affd
J. Denman
,6, rule 33.

607

And Griffin, J. said:
"The decree in the present case was obtained by duress and by fraud going to the
point of jurisdiction ... [T] he duress and fraud were those of the husband, but even
where a petitioner'" has obtained a decree in a foreign court which had no jurisdiction
Id.
Birch v. Birch [1902] P. 130 at 136 (C.A., per Vaughan Williams, J.).
188 Id.,
at 136-137.
189 Gaffney v. Gaffney
[1975] I.R. 133 (Sup. Ct., 1975, affg. High Ct., Kenny, J., 1973), L.B. v. H.B.,
[1980] I.L.R.M. 257 (High Ct., Barrington, J.).
190 3 Sim. 279,
59 E.R. 111 (Shadwell, V.C., 1837).
191 Cf. Gaffney v. Gaffney, supra (fraud on English court, to the knowledge of both parties, brought about
by duress exerted by one party over the other).
191 Vadala v. Lawes 25 Q.B.D.
310, at 316 (1890).
19J Aloulaffv.
Oppenheimer, 10 Q.B.D. 295 (1882), Vadala v. Lawes, 25 Q.B.D. 310 (1890); Syal v.
Heyward, [1948] 2 K.B. 443. See also Ellerman Lines v. Read, [1928] 2 K.B. 144.
194 10 Q.B.D.
295, at 306 (1882) .
195 See Read,
272-281; Castel, vol 1 488-499.
196 Svinskis v. Gibson,
[1977] 2 N.Z.L.R. 4 at 10 (C.A.).
197 Jacobs
v. Beaver, 17 O.L.R. 496 (C.A., 1908).
198 Read, p. 273.
199
[1975] I.R. 133 (Sup. Ct., 1975, aff'g High Ct., Kenny, J., 1973). See also Biggarv. Biggar, [1930]
2 D.L.R. 940.
200 [1975]
I.R., at 154-155.
201 In fact the wife had been the petitioner in the English divorce proceedings, acting under duress imposed
by her husband. What Griffin, J. appears to have in mind is a case where there is fraud by the petitioner
without any duress being exerted on him or her.

IK"

187

608

Irish Conflicts of Law

to pr~noun~e it,. by d~~~~ving the court into believing it had jurisdiction the
treat It as invalid ...
-

COUrt

will

Some distinctive aspects of the effect of fraud in respect of nullity decrees203 ha
been consi~ered earl!er. S~ ~ar as divorce decree!:04 are concerned. we have alrea~e
noted Barrmgton, J. s decIsIo~ on ~.B. v .. H.B.,
where the parties had presented
a factually untrue case to obtam a divorce in France, the country of their domicil
Barrington, J. considered that he should not recognise the divorce decree, not on
the basis of fraud, but of a "substantial defeat of justice ... " The decision han
implications far wider than the specific context of divorce. It suggests that recognitio~
may be denied to a foreign judgment based on false evidence as to any facts (rather
than specifically the question of jurisdiction) where that evidence was knowinglv
tendered by both, or perhaps one, of the parties.
"

Foreign judgment contrary to natural or constitutional justice
It is well recognised that foreign decrees contrary to "natural jusricev= or
"substantial justice"?" may not be recognised here. If a foreign judgment was
"obtained in a proceeding conducted in a manner contrary to natural justice then
although it may have been conformable to the law of the country in which it was
pronounced, it cannot be legally enforced"?" in an Irish Court. The precise scope
of the defence is not altogether clear. The expression "contrary to natural justice"
does not mean that the foreign judgment was merely unjust in the sense of being
wrong or mistaken. 209
The defence may be applicable where there was a failure on the part of the foreign
court to observe the maxim audi alteram partem. In Maubourquet v. Wyse.10
2
Pigot, C.B. observed that the foundation of this maxim was:
"laid in the general principles of all jurisprudence which deserves the name. It is a
rule of reason and justice, which from very early times the law of England appears
to have regarded as of universal application ... "

One type of case where the maxim has been held to have been infringed is where
the defendant was not given notice of the action before the foreign court and had
not been summoned before it. 2lI The maxim audi alteram partem may also be
202

201
204
205
206

207

208

209

210
211

[1975] LR., at 159, citing Bonaparte v. Bonaparte, [1892] P. 402, and Middleton v. Middleton
[1967] P. 62 (P.D.A. Div., Cairns, J., 1965).
Cf. supra, p. 263.
Cf. supra, pp. 282-284.
[1980] LL.R.M. 257 (High Ct., Barrington, J.).
Maubourquet v. Wyse, LR. 1 C.L. 471, at 481 (Exch., per Pigot, c.B., 1867) and at 497 (per Fitzgerald.
B.). See also Denman v. O'Callaghan, 31, I.L.T.R. 141, at 142 (C.A., per Ashbourne, C., 1897).
Pemberton v. Hughes [1899] 1 Ch. 781 at 790, per Lindley, M.R., cited with approval in Gaffney
v. Gaffney [1975] LR. 133 at 140-141 and 158-159. See also L.B. v. H.B., supra.
Maubourquet v. Wyse LR. 1 C.L. 471, at 481 (Exch., per Pigot, c.B. 1867). See also Dennis v.
Leinster Paper Co., [1901] 2 LR. 337, at 340-341 (K.B. Div., Kenny, 1., aff'd by C.A.).
Cf. Robinson v. Fenner [1913] 3 K.B. 835 at 842 (Channell, J., 1912):
"It is not enough to say that a decision is very wrong, any more than it is merely to say that it
is wrong. It is not enough, therefore, to say that the result works injustice in the particular case,
because a wrong decision always does."
LR. 1 C.L. 471 at 481 (Exch., per Pigot C.B., 1867).
Ferguson v. Mahon, 11 Ad. & El. 179,113 E.R. 382 (1839) (Irish judgment obtained "behind the
back of the defendant" denied recognition in England; Lord Denman considered that "when it appears,
as here, that the defendant has never had notice of the proceedings, or been before the Court, it is
impossible for us to allow the judgment to be made to the foundation of an action in this country".)
See also Schisby v. Westenholz, L.R. 6 Q.B. 155 (1870), Shaw v. Aft. Gen., L.R. 2 P. & D. 156
(1810), Rudd v. Rudd, [1924] P. 72; Gray v. Formosa, [1963] P. 259; Lepre v. Lepre, [1965]
P. 52; Macalpine v. Macalpine [1958] P. 35 (P.D.A. Div., Sachs, J., 1957). Cf. Maubourquet v.
Wyse, I.R. 1 C.L. 471 (Ex., 1867), Cowan v. Braidwood, 1 Man. & G. 882, 133 E.R. 589 (1840).
See also Duncan, Collusive Foreign Divorces - How to Have Your Cake and Eat It. 3 D.U.LJ. 17;
at 19 (1981).

Recognition and Enforcement of Foreign Judgments and Arbitrations
irt

will

have
e already
)resented
iomicile.
~, not on
ision has
cognition
ts (rather
10winglv
~S203

or
nent was
.ice then,
ch it was
ise scope
l justice"
of being
ce',206

le foreign

Wyse,210
It is a

ippears
is where
and had
, also be
t

lJiddleton,

Fitzgerald,
C., 1897),
in Gaffney

Dennis

v

609

infringed if the defendant, though given adequate notice of the proceedings, was
not given a fair hearing at them, as for example where his right to present his case
was denied or severely curtailed. But it seems that it is only in a very clear case
that a plea to this effect will be allowed. It is clearly not sufficient if the defendant
failed to raise a defence in the foreign court which might have been available to
him. In Sims v. Thomas'? the defendant sought to resist enforcement of a judgment
obtained in England upon a bond in which the defendant had joined as one of the
sureties. He alleged that no memorial of the bond containing the names of the
witnesses to it had been enrolled, with the result that the bond was technically void
under a certain English statute. The Irish court considered whether the English
judgment was against natural justice and decided that it was not.
Richards, B. said:
"I assume that the defendant, or some other person for whom he became responsible,
got £3000 from the plaintiff, or the person she represents. But, in consequence of an
omission or mistake in the names of the witnesses to the memorial, the defendant might
have relied on a certain English statute which would have enabled him, perhaps, to
keep his money in his pocket, and to defeat the plaintiff in her action. Such a defence
was, no doubt, open to him by the law of England; but by that law such a defence
must have been put upon the record, and relied on in due season; that was not done;
the defendant pretermitted his opportunity of doing so, and the plaintiff obtained a
judgment against him. Is that judgment, then, against natural right and justice; or ought
we to aid the defendant in his efforts to deprive the plaintiff of the fruits of it when
she seeks to enforce it here? In my opinion, we ought not to do SO.,,213

The fact that evidence has been excluded in the foreign court pursuant to a rule
whereby neither party to the litigation can be called as a witness on his own behalf
will not render the foreign judgment contrary to natural justice. 214 Neither will the
fact that there was some defect in the evidence before the foreign court if that defect
could have been and was brought to light in the foreign proceedings themselves. 215
We need not here recounr" the circumstances in which Barrington, J., in L.B.
v. H. B. 217 denied recognition to a French divorce decree on the basis that there had
been a "substantial defeat of justice for which the parties, and not the court, b [ore]
the responsibility. " Suffice it here to note that the exact dimensions of this concept
have yet to be filled in. It is difficult to see why it would not also extend to cases
involving unilateral fraud by one of the parties as to the grounds presented to the
court. Conceivably it could also extend to cases where, without deception by either
spouse, vital evidence had been suppressed. At some point, however, our courts
are likely to call a halt to extension of this concept on the basis that they are being
asked, in effect, to do what they ought not, namely, to become an ultimate court
of appeal from the foreign proceedings.

:.A.).

Foreign judgment
say that it
cular case,

A foreign judgment that is contrary to Irish public policy will be refused recognition
and enforcement

behind the
it appears,
:ourt, it is
country" .)
& D. 156
e, [1965]
ourquet v.
89 (1840).
U.LJ. 17,

contrary to public policy
here. This issue has been examined in detail in Chapter 9.218

!12 3 I.L.R. 415 (1841).
mId., at 421.
~"Scarpetta v. Lowenfeld 27 T.L.R. 509 (1911). See also Robinson v. Fenner [1913] 3 K.B. 835
(Channell, J., 1912).
215 Jacobson
v. Frachon 138 L.T. 386 (C.A., 1927).
216 Cf. supra,
pp. 285-286.
217 Supra.
218 Supra,
pp. 207-208.

610

Irish Conflicts of Law

Direct Enforcement of Foreign Judgments by Statute
At common law a foreign judgment can be enforced in Ireland only by bring'lOg
an action here on the obligation which it creates. The common law does not an
for direct enforcement by a process of registration or otherwise. However, stat~~
may provide for a simpler, more direct form of enforcement in the case of certaie
foreign judgments.
n
Judgments Extension Act 1868 no longer applicable
The Judgments Extension Act 1868 provided for a just such simplified method
of enforcement of judgments as between England, Wales, Scotland and Ireland.1'9
Under the Act a judgment obtained in one of those countries "for any debt, damages
or costs" could be "extended" to one of the other countries by registering in the
appropriate court a certificate to the effect that a judgment had been obtained. The
registered certificate was of the same force and effect as if the judgment certified
by it had been originally obtained in the court in which it was registered.f" Courts
in England" and Northern Ireland'" regarded the 1868 Act as never having applied
to the Irish Free State, though the Irish'" and Scottish'" courts took a different
view. The 1868 Act was eventually repealed by the Courts of Justice Act 1936.221
Administration

of Justice Act 1920 not applicable

The Administration of Justice Act 1920, which provided for reciprocal enforcement
of judgments by registration as between the United Kingdom and Commonwealth
counties, has never applied in or to this country.
Maintenance

Orders Act 1974

The Maintenance Orders Act 1974, makes provision for the enforcement on a
basis of reciprocity of maintenance orders made in the State, in Northern Ireland,
England and Wales and Scotland. The Act is "largely modelled" 226 on the
provision of the European Convention on Jurisdiction and Enforcement of Judgments
See Anon., The Judgments Extension Act J 868, 2 Ir. L. T. & Sol. J. 441 (1868), Anon., Reciprocal
Enforcement of Judgments, 62 I.R. L. T. & Sol. J. 39 (1928), Anon., Reciprocal Enforcement of
Judgments and Decrees, Part J, 2 N. Ir. L.Q. 189 (1938), Part ll, 3 N. Ir. L.Q. 91, at 92 (1939),
also Articles in 57 Ir. L.T. & Sol. 1. 269 (1923), 58 Ir. L.T. & Sol. J. 279 (1924), 59 Ir. L.T. &
Col. J. 181 (1925). Decisions considering aspects of the Act, prior to Independence, include Booth
v. Egan, 6 L.R. Ir. 282 (Q.B. Div., 1880), Johnstone v. Bucknall, [1898] 2 I.R. 499 (Q.B. Div.,
Gibson, J.), Boss v. O'Connor, I.R. 9 c.L. 478 (Consol. Cham., 1875), Part v. Scannell, I.R. Q
c.L. 426 (Com. Pleas, 1875), Bailey v. Welply, I.R. 4 C.L. 243 (Com. Pleas, 1869) and Brookes
v. Harrison, 6 L.R. (Ir.) 332 (C.A., 1880), affg 6 L.R. (Ir.) 85 Ir. 1 (C.A., 1908) aff'g Wylie, J., 1908)
220 Section
1 of the Act.
2'1
Wakely v. Triumph Cycle Co. [1924] 1 K.B. 214 (C.A., 1923), Banfieldv. Chester, 94 LJ. K B
805,59 I.L.T.R. 118 (C.A., 1925).
m Callan v. McKenna, 63 I.L.T.R.
16 (N.1. High Ct., K.B. Div., Moore, L.C.J. 1928).
m Gieves v. O'Conor,
[1924] 21.R. 182. And see Read, 297. Yntema, The Enforcement of Foreign
Judgments in Anglo-American Law 33 Mich. L. Rev. 1129, at 1152 (1935).
224 Cf. Anton,
594, Doohan v. National Coal Board, 1959 S.C. 310, Harley v. Kinnear Moodie & Co.
1964 s.c. 99.
22'
Section 3, Sch. 1, Pt.l. See The State (Dowling) v. Kingston (No.2), [1937] I.R. 699, at 757-758
(Sup. Ct., per Meredith, J.) The Scottish decisions referred to at fn. 224 above would appear to have
been based on lack of awareness of the repeal effected by the 1936 Act.
It is worth also noting section 180 (1) of the Companies (Consolidation) Act 1908 (repealed by the
Companies Act 1963), under which any order made by the Court in England in the winding up of
a company could be enforced here' 'in the same manner in all respects" as if the order had been made
by the Irish Court; see further In re The Bank of Egypt Ltd., [1913] 1 I.R. 502 (Barton, J.), and
supra, pp. 485-486. As to the enforcement of foreign (and, specifically, British) adjudications in respect
of bankruptcy, see supra, ch. 25.
226 Terry,
Convention of Accession of Denmark, Ireland and the United Kingdom to the Convention on
Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 41. of Irish Soc. for
Europ. L. 26, at 40 (1980).

219

Recognition and Enforcement of Foreign Judgments and Arbitrations

611

in Civil and Commercial Matters."? The Act is analysed in detail in the chapter on
maintenance obligations. 228
y by bringing
loes not allow
wever, statute
.ase of certain

llified method
ind Ireland.219
:iebt, damages
.stering in the
obtained. The
nent certified
r DO
~e d .-- C ourts
laving applied
ik a different
~ Act 1936.m

.1 enforcement
immonwealjj,

rcement on a
hern Ireland,
d' >226 on the
of Judgments

European Community Judgments
Under Articles 187 and 192 of the E.E.C. Treaty.:" which are part of the
domestic law of the State by virtue of the European Communities Act 1972,230
judgments of the Court of Justice of the European Communities and decisions of
the Councilor of the Commission which impose a pecuniary obligation on persons
other than the States are enforceable. Enforcement is governed by the rules of civil
procedure in force in the State in the territory of which it is carried out. 231 The
order for enforcement is appended to the judgment or decision, without formality,
other than verification of the authenticity of the decision, by the national authority
which the Government of each member State must designate for this purpose.?"
The European Communities (Enforcement of Community Judgments) Regulations
1972233 designate the Master of the High Court as the national authority for this
purpose. On application duly made by the person entitled to enforce a community
judgment, the Master must make an order for the enforcement of the Community
judgment and append the order of it. 234
A Community judgment to which an enforcement order has been appended is,
for all purposes of execution, of the same force and effect as if the judgment had
been a judgment or order given or made by the High Court.'" Where a sum of
money is payable under the Community judgment, the enforcement order must
provide that the amount payable is to be such a sum in Irish currency as, on the
basis of the rate of exchange prevailing at the date on which the Community judgment
was originally given, is equivalent to the sum payable.?" If the Community
judgment has been partly satisfied when enforcement is sought, the enforcement order
must be made only in respect of the balance.:" If the Community judgment is
partly or wholly satisfied after the Master has made an enforcement order, he must
vary or cancel his order accordingly. 238 Enforcement of a Community judgment
may be suspended only by a decision of the European Court of Justice.:" for the
period and on the conditions, if any, stated in the order. 240
I

non., Reciprocal
I Enforcement oj
H, at 92 (1939),
.), 59 Ir. L.T &
:e, include Booth
499 (Q.B. Div.,

infra, pp. 612-616.
'" Supra, pp. 310-317 .

m Cf.

no See also Articles
DO

180, 159 and 164 of the Euratom

Treaty and Articles

44 and 92 of the ECSC Treaty.

Section 2.
Article 192 of the EEC Treaty.

Scannell, LR. 9

m

:69) and Brookes
Wylie, J., 1908).

<t«
m S.T.
B4

er,

94 L.J. K.B.

'.15
'.16

(928).

m

iment of Foreign

DB
')9

ir Moodie & Co.
;99, at 757 -758
d appear to have
(repealed by the
e winding up of
:r had been made
Barton, J.), and
cations in respect

e Convention 011
of Irish Soc. for

"0

No. 331 of 1972, made under
1972 Regulations,
Regulation 4(1).
!d., Regulation 5.
!d., Regulation 4(2).
/d., Regulation 4(3).
Id., Regulation 4(4).
Article 192 of the E.E.C. Treaty.
1972 Regulations,
regulation 6.

section

3 of the European

Communities

Act 1972.

Irish Conflicts of Law

612

EEC Convention on Jurisdiction and the Enforcement of Judgments in Civ'l
and Commercial Matters"
I
This Convention is concerned with judgments in civil and commercial matters242
of the national Courts of Member States ofthe E. E. C. The Convention is a "double"
one, laying down direct rules as to jurisdiction, which we have already examined.243
On the assumption that these rules as jurisdiction are properly complied with, the
Convention establishes rules for recognition and enforcement which are allowed to
take place "virtually automatically" .244 Thus, any defendant who believes that the
exercise of jurisidction over him is not permitted by the Convention should, in his
own interests, contest the matter by challenging the jurisdiction initially, rather than
by standing back and letting the action proceed to judgment, hoping to call the
judgment into question when the plaintiff seeks to have it recognised or enforced>'
,., For the English and Irish texts of the original Convention of 1968 and the English text of the 1978
Convention of Accession of Denmark, Ireland and the United Kingdom to the 1968 Convention, see
the Official Journal of the European Communities, No. L. 304, vol. 21, 30 October 1978, which
also contains a consolidated text of the two Conventions. The Irish text of the 1978 Convention is
published in Iris Oijigiui! na glomhphobal Eorpach - Eagran Speisialta, 31 Nollaig 1982, which
also contains the texts of the Greek Accession Convention. For the Jenard Report on the 1968 Convention
and the Schlosser Report on the Convention of Accession, see OJ, C59, Vol. 22 5 March 1979. See
generally, I. Fletcher, Conflict of Laws and European Community Law, With Special Reference t~
the Community Conventions on Private International Law,Ch. 4, esp. at 133 -138 (1982), Terry,

Convention of Accession of Denmark. Ireland and the United Kingdom to the Convention on Jurisdiction
and Enforcement of Judgments in Civil and Commercial Matters, 4 J. of Irish Soc. for European L.
26 (1980), Hauschild, The European Communities Convention of27 September 1968 on Jurisdiction
and Enforcement of Judgments in Civil and Commercial Matters. 4 J. of Irish Soc. for European L.
43 (1980). Hartley, The Recognition of Foreign Judgments in England Under the Jurisdiction and
Judgments Convention. in K. Lipstein ed., Harmonization of Private International Law of the EEC
103, G. Droz, Competence Judiciare et Elfets des Jugements dans le Marche Commun (1972), M
Weser, Convention Communautaire sur la Competence Iudiciare et I 'Execution des Decisions (1975),
L. Collins, The Civil Jurisdiction and Judgments Act 1982 chs. 1,2,3,5 (1983), Pointon, The EEC
Convention on the Recognition and Enforcement of Civil and Commercial Judgments and its Implications
for English Law, 1975 - 2 Legal Issues of European Integration 1, Moloney & Kremlis, The Brussels
Convention on Jurisdiction and the Enforcement of Judgments, 79 Inc. L. Soc. of Ireland Gaz. 329
(1985), 80 Inc. L. Soc. of Ireland Gaz, 5 (1986).
Article 1 provides that the Convention does not apply to four specific
matters which could otherwise have fallen within the scope of the words "civil and commercial matters.

~4' Article 1 of the Convention.

These are:
(1) the status or legal capacity of natural persons, rights in property arising out of a matrimonial
relationship, (cf. De Cavel v. De Cavel (No.1), [1979] E.C.R. 1055, [1979] 2 C.M.L.R. 547.
CHWv. GJH. [1982] E.C.R. 1189, [1983] 2 C.M.L.R. 125) wills and succession;
(2) bankruptcy, proceedings relating to the winding - up of insolvent companies (cf. Goudain v,
Nadler. [1979] E.C.R. 733, [1979] 3 C.M.L.R. 180) or other legal persons, judicial arrangements.
compositions and analogous proceedings;
(3) social security; and
( 4 )arbitration.
In these four matters, Irish common law rules will continue to apply. What falls within the scope of
the concept of "civil and commercial matters" (apart from these four matters) must be determined
by an interpretation independent of the law of either the court giving the original judgment or of the
country in which enforcement is sought; instead it "must be interpreted by reference, first, to the
objectives and scheme of the Convention and, secondly, to the general principles which stem from
the corpus of the national legal systems": LTV GmbH & Co. K.G. v. Eurocontrol, [1976] E.C.R.
1541, at 1551. The nature of the court charged with the task of hearing the proceedings does not determine
whether the matter is or is not a "civil [or] commercial" one for the purpose of the Convention.
In the Eurocontrol case, it was noted that" Article 1 shows that the concept 'civil and commercial
matters' cannot be interpreted solely in the light of the division of jurisdiction between the various
types of courts existing in certain States." Collins, 19-20 observes that "[t]he Convention will,
therefore, cover civil and commercial claims in administrative tribunals [citing the Jenard Report.
p. 9] and will not include public claims in commercial tribunals [citing Eurocontrol] ."
243
244

245

See further supra p. 182.
See supra, pp. 181-191.
Saunders, 133.
Id. See also Article 28.

Ther
the I
appE
Tl
effe
l

autc

beir
and

app
thel
the]
the
apf
1

27

Recognition and Enforcement of Foreign Judgments and Arbitrations
tl

Civil

itters242
ouble"
ined.243
ith, the
'wed to
hat the
, in his
erthan
all the
rced.245

613

There is no danger in contesting the jurisdiction at the initial stage: Article 18 protects
the defendant from being held to have consented to the jurisdiction where his
appearance was entered "solely to contest the jurisdiction. "
The basic recognition and enforcement provisions of the Convention are to the
effect that a judgment of a court of one E.E.C. Contracting State is to be given
automatic recognition in another Contracting State without any special procedure
being required.:" Article 31 provides that a judgment given in a Contracting State
and enforceable there is to be enforced in another Contracting State when, on the
application of any interested party, the order for its enforcement has been issued
there. If the recognition of a judgment is raised as the principal issue in a dispute,
then the simplified procedure for enforcement of judgments that is provided for in
the Convention may be applied.?" Under Article 32, in the case of Ireland, the
application is to be submitted to the High Court.
The Convention contains a number of grounds for refusing the application. Article
27 provides that a judgment will not be recognised:
I

the 1978
tion, see
~, which
ention is
!, which
nvention
79. See,
renee to
, Terry,
isdiction
ipean L.
isdiction
ipean L.
tion and
the EEC
172), M.
~(1975),
'he EEC
lications
Brussels
Iaz. 329
specific
matters.
rimonial
.R.547,
udain v.
~ements,

scope of
ermined
rr of the
t, to the
~m from
E.C.R.
etermine
vention.
imercial
various
on will,
Report,

(1) If such recogrnnon 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 that instituted the proceedings or with an equivalent
document?" in sufficient time to enable him to arrange his defence;"?
(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 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 Stater"
(5) If the judgment is irreconcilable with an earlier judgment given in a
non +contracting State involving the same parties, provided that this latter
judgment fulfills the conditions necessary for its recognition in the State
addressed. 251
Article 28 specifies the four cases in which it is permissible to refuse to recognise
a foreign judgment on the ground that the court of the State of origin lacked
jurisdiction. These are cases where a judgment conflicts with section 3, 4 or 5 of
Title II, or in a case mentioned by Article 59. Section 3 deals with jurisdiction in
,., Article 26(1). Cf. Hartley, supra, at 104;
"If the free movement of goods, labour, services, capital etc. are part of the concept of a common
market, surely the free movement of judgments should also be regarded as an essential element:
its commercial importance is indisputable."
,., Article 26(2).
,., Article 27 (1). See Collins, 107 - 108.
,." These words were added by the Accession Convention to harmonise the Convention with Irish and
British procedure: see Terry, Convention of Accession of Denmark, Ireland and the United Kingdom
to the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters,
4 J. of Irish Soc. for European L. 26, at 41 (1980). The same change was made to Articles 20 and
46 of the Convention.
"" Article 27(2), as amended by Article 13(1) of the Convention.
,,' Article 27(3).
'S.' Article 27(4).
'51 Article 27(5),
added by Article 13(2) of the Convention.

.
I

.,

.
"

' .•••

, •• _.

a
614

Irish Conflicts of Law

matters relating to insurance; section 4 with jurisdiction in relation to consu
contracts; and section 5 with excessive jurisdiction. Article 59 envisages a situame.
t
h
.
'.
were a C ontractmg S tate may assume, in a convention, an 0 bli
ligation toward 101
.
third State not to recognise judgments given in other Contracting States aga'l, •
defendants domiciled or habitually resident in the third State, using rules of eXhorbi:~
jurisdiction.?"
n
Article 28(2) provides that, in its examination of the grounds of jurisdiction'
any of these four cases, the court or authority to which application is made is bou I~
by the findings of fact on which the court of the State in which the judgment wnc
given based its jurisdiction. m As has been pointed out, "[ t] his may of cour:
include a finding on the vital question of the facts relevant to any determination
of the defendant's domicile in the eyes ofthejorum, or, semble, even of some oth II
Contracting State". 256
•
er
Apart from the four cases in which it is permissible to refuse to recogni~e a
judgment based on lack of jurisdiction, the jurisdiction of the court of the State in
which the judgment was given may not be reviewed.": Moreover, the test of puhlic
policy referred to in Article 27(1) may not be applied to the rules relating to

jurisdiction?"
The cardinal principle underlying the rules for recognition is that under no
circumstances maya foreign judgment be reviewed as to its substance. 259
The Convention provides for a rapid and simple procedure for enforcement26(j of
orders.:" The procedure is based on ex parte application.t" As has been mentioned.
application for enforcement must be submitted, in the case of Ireland, to the High
Court. 2(,3 The procedure for making the application is governed by the law of the
State in which enforcement is sought. 264 The 1986 Bill265 which sought to give
effect to the Convention adopted a procedure involving ex parte application
to the Master of the High Court similar to that under the Maintenance Orders
266
Act 1974.
In any event the decision on an application will have to be given
without delay. 267 The party against whom enforcement is sought is not entitled to
be heard at this stage.:" The Convention does not even require that he have been
~q

255

'50
257
258

259

260

261

202
'0)
2M

Cf. Fletcher, 119-120, 135.
But the Court in the State in which enforcement is sought "is not bound by the findings of the original
court as to whether the case is within the scope of the Convention": Morris, 133, citing case 29176
L.T.v. v. Eurocontrol, [1976] E.C.R. 1541.
Fletcher, 135-136.
Article 28(2).
Article 28(3). See Collins, 108; cf. Saunders, 136.
"This .... provision ensures that the potentially elastic notion of public policy cannot be used as
a 'long stop' to enable recognition and enforcement to be resisted in cases where the proper course
of action which the defendant ought to have pursued was to contest before the foreign court the
propriety of its initial assumption of jurisdiction. "
Article 29.
The enforcement procedure is exclusive; an action on the judgment at common law is not permitted.
Cf. De Wolfv. Cox, [1976] E.C.R. 1759, [1979] 2 C.M.L.R. 43, Hartley, (1977) 2 E.L.R. 146.
Provisional or protective orders are enforceable: (Case 143178 De Cavel v. De Cavel (No. 1), [1979J
E.C.R. 1055); unless they are granted ex parte without giving the defendant an opportunity to be heard.
Case 123179 Denilauler v. Couchet Freres, [1980] E.C.R. 1553.
See Article 31. See Jenard Report, p. 47.
Article 32.
Article 33(1).

The Explanatory and Financial Memorandum published by the Department of Justice in December.
1986, accompanying the Bill, set out very clearly in paragraphs 19 to 20 how applications for recognition
and enforcement would operate.
260 Cf. supra,
pp. 311-312.
'67
Article 34(1).
268Id.
265

Recognition and Enforcement of Foreign Judgments and Arbitrations

tsurnetuation
lards a
against
)rbitant
tion in
bound
.nt was
course
nations
e other

gnise a
itate in
. public
ting to

615

informed of the fact that the application had been made, the intention being "to
preserve, the element of surprise and to prevent him from removing his assets out
of the jurisdiction. ,,269
Enforcement may be refused only on one of the grounds for refusal of recognition
already referred to above" and again the foreign judgment may under no
circumstances be reviewed as to its substance.":
The defendant:" may appeal against an enforcement order within a month of
being served notice of ir'" or within two months if he is domiciled in a Contracting
State other than that in which the decision authorising enforcement was given.:"
The appropriate court in Ireland before which an appeal should be lodged is the
High Court. m During the time specified for an appeal and until the appeal has been
determined, no measures for enforcement "other than protective measures" may
be taken against the property of the party against whom enforcement is sought. 276
The High Court may stay the proceedings if an ordinary appeal'" or, so far as a
British judgment is concerned, any form of appeal.:" has been lodged against a
decision authorising enforcement, or the time for lodging the appeal has not expired .
A further appeal to the Supreme Court on a point of law is permitted by Article
41.279

der no
!nf6(lof

tioned,
e High
of the
to give
lication
Orders
!

given

itled to
re been
original
se 29176

~ used as
!r course
court the

As regards the enforcement process in general, it is worth noting Article 45 which
reflects the Community ethos clearly. It provides that no security, bond or deposit,
however described, is to 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 foreign national or is not domiciled or resident in the State in which
enforcement is sought.
One noteworthy feature of the Convention is that the exorbitant bases of jurisdiction
in Contracting States, the application of which is prohibited by the Convention as
against domiciliaries of E.E.C. Contracting States,"? will remain available against
defendants who are not such domiciliaries; and judgments given against such
defendants on such basis of jurisdiction will be enforceable Community-wide under
the Convention's simplified enforcement procedure. This has given rise to concern
in countries such as Australia and the U.S.A. 281 The Convention enables a
Contracting State to enter into a convention with a third country under which
judgments given by the courts of other Contracting States on an exorbitant jurisdiction
basis would not be enforceable against domiciliaries of the third country. 282
The Convention entered into force, as between States that have ratified it, on 1
November 1986, which was the first day of the third month following the ratification
by all of the original Contracting States and one new Contracting State.?" For a
Contracting State ratifying thereafter, the Convention enters into force for that
2.' Morris, 131.
Article 34(2).
Article 34(3).
m A party whose application for enforcement is refused also has a right of appeal: Article 40 .
m Article 36(1).
274 Article
36(2).
275 Article
37.
21. Article 39(1). Article 39(2) provides that the decision authorising enforcement
carries with it the power
to proceed to any such protective measures. Thus Mareva-type injunctions are not merely permitted
but required: Capel/oni & Aquilini v. Pelkmans [1986] I C.M.L.R. 388 (Eur. Ct. of Justice, 1985).
in Article 38(1).
m Article 38(2).
m As amended by Article 20 of the Convention of Accession.
2'" Article 3. See supra, p. 182.
181 See Pryles and Trindade,
The Common Market (E.£. C.) Convention on Jurisdiction and Enforcement
of Judgments in Civil and Commercial Matters - Possible Impact upon Australian Citizens, 42 Aust.
L.J. 185, at 192-195 (1974).
m Article 59.
281 Article 39 of the Accession
Convention.
270

srmitted
.R.146.
[1979]
)eheard:
I

~ember,
;:ognition

m

616

Irish Conflicts of Law

Contracting State on the first day of the third month following its ratification 28<1
Although the 1986 Bill s~e~ing to give effect t? the Con~ention died with the f~1I
of the last Government, It IS probable that a BIll drafted m almost identical tern
will shortly be published.
1S

Arbitration=
In this section .we.will examine th.e conflicts rul.es i~ relation to foreign arbitral
~wards: The tOpIC IS O.f sO.me considerabl~ practIca.l Importance, in view of the
mcreasmg resort to arbitration as a mechanism for dispute resolution especially'
.
In
commercrar1'86 matters.
A foreign arbitral award may be enforced in Ireland in a number of different way .
it may be sued upon in an action at common law or it may be enforced under the
Arbitration Act 1954 or the Arbitration Act 1980.

Enforcement at common law
Enforcement by action at common law is always available, whether or not the
arbitration award may also be enforced under the 1954287 or 1980288 Act. In
International Alltex Corporation v. Lawler Creations Ltd.289 Kenny, J. cited the
following passage from Cheshire'" with approval:
"A foreign arbitral award is on the same footing as a foreign judgrnenr in the sense
that an action to recover the sum awarded may be brought in England. The essentials
of success are proof that the parties submitted to arbitration, that the arbitration was
conducted in accordance with the submission, and that the award is valid by the law
of the country in which it has been made."

The first requirement is that the defendant must have validly submitted to
arbitration, as, for example, by having contracted to submit to the jurisdiction of
a foreign arbitrator. 291 The validity of any clause in a contract agreeing to submit
any disputes to arbitration is governed by the proper law of the contract. 292 Where
the parties enter into a contract containing an arbitration clause to cover future disputes
that may arise under the contract, there is a strong presumption that the proper law
is that of the country where the arbitration is to be held. 293 However, this
presumption is rebuttable, since an arbitration clause is only one of a number of
circumstances to be considered in determining the proper law of a contract. 2'14
284

Id. See Terry, Convention of Accession of Denmark, Ireland and the United Kingdom to the Convention
on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 4 J. of Irish Soc.
for European L. 26, at 42 (1980).

See generally C. Schmittohoff ed., International Commercial Arbitration (1979), Symposium _
International Commercial Arbitration, 13 Int'l Law. 209 (1979), A Sy.nposium on the Enforcement
of Foreign Judgments and Arbitral Awards, 17 Va. J. Int'I L. 729 (1977), Mann, State Contracts
and International Arbitration, in Studies in International Law 56 (1973), J. Wetter, The International
Arbitral Process, (1979), Ehrenhaft, Effective International Commercial Arbitration, 9 L. & Pol'y
Infl Bus. 1191 (1977), Shareholders and Arbitration Clauses, 7 Int'l Bus. Law 129 (1979).
286 It is of interest to note that arbitration
has also played a growing role in respect of family disharmony
in some countries: see Spencer & Zamrnitt, Arbitration: A Proposal for Private Resolution of Disputes
Between Divorced or Separated Parents, (1976] Duke L.J. 911.
287 Cf. the Arbitration
Act 1954, section 59, which preserves the right of enforcement at common law.
288 Cf. the Arbitration Act 1980, section 11, which also preserves the right of enforcement at common law.
289
[1965] I.R. 264 at 270. For the facts of the case cf. supra, p. 594.
290 3rd ed., 1947, p. 768 (see now Cheshire & North,
10th ed., 1979, p. 680), citing Norske Atlas Insurance
Co. Ltd. v. London Generallnsurance Co. Izd., 43 T.L.R. 541, at 542 (K.B. Div., MacKinnon, 1. 1927)
291 International
Alltex Corporation v. Lawler Creations Ltd. (1965] I.R. 264, at 269.
292 Dalmia Dairy Industries Ltd. v. National Bank of Pakistan
(1978] 2 Lloyd's Rep. 223.
293 Dicey & Morris, 1127, citing Hamlyn v. Talisker Distillery
[1894] A.C. 202; Spurrier v. La Cloche,
(1902] A.C. 466; Norske Atlas Insurance Co. Ltd. v. London General Insurance Co. Ltd., supra,
Tzortzis v. Monark Line AlB (1968] 1 All E.R. 949. See Hirsch, The Place of Arbitration and the
Lex Arbitri, 34 Arb. J. 43 (1979).
285

294

Dicey & Morris, 1127, citing Dalmia Dairy Industries Ltd. v. National Bank of Pakistan, supra.

tion. ~&4
he fall
term

lrbitral
of the
ally in
ways:
ler the

lot the
.ct. In
ed the
~nse

tials
was
law

ted to

tion of
submit
Where
isputes
ler law
r, this
iber of
ract. 294
nvention
ish Soc.

-sium -rcement
'ontracts
national
& Pol'y

Recognition and Enforcement of Foreign Judgments and Arbitrations
617
Where the arbitration agreement relates to a dispute already in existence rather than
one that may arise at some time in the future, the law of the country where the
arbitration is to be held "is even more likely to be the proper law of the contract,
because the arbitration is the sole object of the agreement. ,,295 The proper law will
determine such questions as whether the arbitration agreement has been abrogated
by subsequent illegality. 296
The arbitration must also have been conducted in accordance with the submission.
This raises the question of what law is to govern the actual arbitration proceedings
themselves (as distinct from the agreement to arbitrate). The parties may, of course,
expressly select the law which is to govern the arbitration proceedings. If they fail
to make a choice, the arbitration proceedings will "almost certainly"?" be
governed by the law of the place of arbitration as being the place with which the
proceedings are most closely connected. 298
To be enforceable here, the award must be valid by the law governing the arbitration
proceedings.:" which will in most cases be the law of the country in which the
arbitration is held. 300
That law will determine such questions as the failure by one
party to appoint an arbitrator, and what law the arbitrators are to apply. 30!Once the
award is valid by that law, the fact that it would not be in harmony with Irish law
- on such a matter as ousting the jurisdiction, for example - will not render it
unenforceable. 302
The award must also be final and conclusive under the law governing the arbitration
procecdings.:" A foreign arbitration award that has been rendered enforceable by
a court judgment in the country where it was given may be enforced by an action
as a foreign judgment. Thus in International Alltex Corporation v. Lawler Creations
Ltd. ,304
where contracts for the cotton goods by a United States company to an Irish
purchaser contained terms specifying?" that disputes arising from the contracts
should be settled by arbitration in New York City in accordance with the rules of
the American Arbitration Association, Kenny, J. held that this submission to the
jurisdiction of the arbitrator in New York necessarily involved the submission to
an order by the Supreme Court of the State of New York confirming the arbitrator's
award.:" On the other hand, a foreign award may be enforced even though it has
not been so rendered enforceable by a court judgment in the country where it was
given, regardless of whether even if the law of that country requires a court judgment
to make the award enforceable.?"
It appears that a foreign arbitration award, like a foreign judgment, will not be
recognised or enforced if the arbitrator had not jurisdiction to make it,308or it was
obtained by fraud.?" or its recognition or enforcement would be contrary to public
policy.:" or the arbitration proceedings were contrary to natural justice.":
295
296
297
29&

~).

iarmony
Disputes

299
300
301

law.
non law.
IOn

302
303
304

isurance

305

1. 1927).

306
307
30&

Cloche,
, supra,
and the
supra.

309
310

311

Morris, 136.
Compagnie Tunisienne de Navigation S.A. v. Compagnie d'Arment Maritime S.A., [1971] A.C. 572.
Morris, 136.
James Miller & Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd., [1970] A.C. 583; Dalmia
Dairy Industries Ltd. v. National Bank of Pakistan, supra.
Union Nationale des Co-operatives Agricoles et Cereales v. R. Catterall & Co. Ltd. [1959] 2 Q.B. 44.
Morris, 137.
/d.
Addison v. Brown [1954] 2 All E.R. 213.
Dalmia Dairy Industries Ltd. v. National Bank of Pakistan, supra, at 246-250, Morris, 137.
[1965] I. R. 264 (High Ct., Kenny, J.).
As one of two options.
Cf. [1965] I.R., at 269-270.
Union Nationale des Co-operatives Agricoles et Cereales v. R. Catterall & Co. Ltd., supra.
Kionta Osakeyhtio v. Britain and Overseas Trading Co. Ltd. 1 Lloyd's Rep. 247; Dalmia Dairy Industries
Ltd. v. National Bank of Pakistan, supra.
Oppenheim & Co. v. Mahomed Haneef [1922] 1 A.C. 482, at 487.
Hamlyn & Co. v. Talisker Distillery [1894] A.C. 202 at 209, 214; Dalmia Dairy Industries Ltd.
v. National Bank of Pakistan, supra at 267-269, 299-301.
Dalmia Industries Ltd. v. National Bank of Pakistan, supra, at 269-270.

618

Irish Conflicts of Law

It has ~lready been m~ntioned that a foreign arbitration a~ard may be enforced
by an acnon. An alternative method of enforcement may possibly be available und
section 41 of the Arbitration Act 1954. This provides that an award on an arbitral' er
agreement may, by leave of the Court, be enforced in the same manner as a jUdgm~on
or order to the same effect, and that, where leave is so given, judgment may be
entered in terms of the award.
e

Enforcement under the Arbitration Act 1954
Part V of the Arbitration Act 1954 provides for the enforcement of certain foreig
arbitration awards. The awards in question are those that are governed by the 192~
Geneva Protocol on Arbitration Clauses'" or the 1927 Geneva Convention on th~
Execution of Foreign Arbitral Awards."? The award must have been made in
pursuance of an arbitration agreement to which the 1923 Protocol applies and between
persons who are subject to the jurisdiction'" of two different States which, on a
basis of reciprocity, have been declared by Government order to be parties to the
1927 Convention; the agreement must also have been made in the territory of a
State'" party to the 1927 Convention."? The foreign award is enforceable in the
State either by action or in the same manner as a domestic award may be enforced
by virtue of section 41317 of the Act. 318 Any foreign award that is enforceable under
Part V of the Act must be treated as binding for all purposes on the persons as between
whom it was made, and may be relied on by any of them by way of defence, set-off
or otherwise in any legal proceedings in the State.:"
To be enforceable the foreign award must have:
(a) been made in pursuance of an agreement for arbitration which was valid
under the law by which it was governed.?"
(b) been made by the tribunal provided for in the agreement or constituted
in manner agreed upon by the parties,
(c) been made in conformity with the law governing the arbitration procedure,
(d) become final in the country in which it was made.?'
(e) been in respect of a matter which may lawfully be referred to arbitration
under the law of the State,
and the enforcement of the award must not be contrary to the public policy or the
law of the State.:"
A foreign award is not enforceable if:
(a) the award has been annulled in the country in which it was made, or
(b) the party against whom it is sought to enforce the award was not given
notice of the arbitration proceedings in sufficient time to enable him to present
his case, or was under some legal incapacity and was not properly represented,

or
(c) the award does not deal with all the questions referred or contains decisions
beyond the scope of the arbitration agreement. 323
312

See the 1954 Act, First Schedule.

313

Id., Second Schedule.

314
315

316
317
318
319
320
321

322
323

The meaning of the expression "subject to the jurisdiction" has given rise to discussion.
It should be noted that this State need not be one in which either party resides or of which eit her
is a citizen.
Section 54(2) of the Act.
Discussed supra.
Section 55(1).
Section 55(2) of the Act.
Cf. Kianta Osakeyhtio v. Britain and Overseas Trading Co. Ltd., [1954] 1 Lloyd's Rep. 247
Cf. Union Nationale des Co-operatives Agricoles v. Catterall, [1959] 2 Q.B. 44. An award is ~ot
deemed final if any proceedings for the purposes of contesting the validity of the award are pendlOg
in the country in which it was made: section 58 of the Act.
Section 56(1).
Section 56(2).

Recognition and Enforcement of Foreign Judgments and Arbitrations

lforced
~under
itration
jgment
nay be

619

The party seeking to enforce a foreign award must produce certain specified
evidence.?' including the original award or a duly authenticated copy and evidence
proving that the award has become final.
In the next section we will consider the extent to which Part V of the 1954 Act
has been superseded by the Arbitration Act 1980.

Enforcement under the Arbitration Act 1980
foreign
le 1923
on the
lade in
,etween
1, on a
i to the
ry of a
~in the
iforce]
~under
etween

set-off

-alid
uted
ure,

ition
I

or the

The Arbitration Act 1980 gives effect to two international Conventions on
arbitration. The 1958 New York Convention on the Recognition and Enforcement
of Foreign Arbitral Awards'" and the 1965 Washington Convention on the
Settlement of Investment Disputes between States and Nationals of Other States. 326
The New York Convention was drawn up under the auspices of the United Nations
to replace the 1923 Geneva Protocol on Arbitration Clauses and the 1927 Geneva
Convention on the Execution of Foreign Arbitral Awards. As we have noted, Part
V of the Arbitration Act 1954 gave effect to the earlier Protocol and Convention.
It has now been replaced by Part III of the 1980 Act insofar as arbitration awards

emanating from countries that are parties to the New York Convention are
concerned. 327 Part V of the 1954 Act continues to apply in relation to countries that
are parties to the Geneva Protocol and Convention but not to the New York
Convention.
The overall effect of the 1980 Act is to simplify and extend the scope of enforceable
arbitration awards, as well as shifting onto the defendant the burden of resisting
enforcement.?" so that enforcement "can only be refused by the court in very
limited circumstances". J29 An award is enforceable as a New York Convention
award if it is made, in pursuance of an arbitration agreement in writing.l" in the
territory of a State, other than Ireland, which is party to the Convention.'" The Act
enables the Minister for Foreign Affairs to make an order declaring that any specified
State is a party to the Convention and the order is to be evidence that that State
is a party to the Convention.:" It is worth noting that the definition of award under
the New York Convention is far less demanding than that under the earlier Protocol
and Convention. m It is not necessary that the parties be "subject to the
324
325

or
iven
sent

ited,

.ions

326

:h eit her
m
328
329

,.247.
ird is not
: pending

330
331
J32
J33

Section 57(1).
Cf. the First Schedule to the 1980 Act. See generally G. Gaja, International Commercial Arbitration:
New York Convention (1978), Sanders, A Twenty Years' Review of the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, 13 Int'I Law. 269 (1979), Quigley, Accession by the
United States to the United Nations Conventions on the Recognition and Enforcement of Foreign Arbitral
Awards, 70 Yale L.J. 1049 (1961), Tooboff & Goldstein, Foreign Arbitral Awards and the 1958 New
York Convention: Experience to Date in the U.S. Courts, 17 Va. J. Int'l L. 469 (1977), Springer,
The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 3
Int'l Law. 320 (1969), Contini, International Commercial Arbitration: The United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, 8 Am. J. Compar. L. 283 (1959),
Olson, Note, 16 Harv. Int. LJ. 705 (1975). Harnick, Recognition and Enforcement of Foreign Arbitral
Awards, 31 Am. J. Compar. L. 703 (1983), Loftis, Securing Arbitral Awards: Waiving Immunity under
the Sovereign Immunities Act and Ensuring Equitable Remedy by Pre-Award Attachment under the
New York Convention, 9 Suffolk Transnat. LJ. 235 (1985).
Cf. The Second Schedule to the 1980 Act. S.1. No. 195 of 1981 brought Part III of the 1980 Act
in relation to the New York Convention into force with effect from 10 August, 1981; S.1. No. 356
of 1980 brought Part IV of the 1980 Act in relation to the Washington Convention into force with
effect from 1 January 1981.
Section 10 of the 1980 Act.
Morris, 141.
Cremer GmbH Co. v. Co-Operative Molasses Traders Ltd, [1985J I.L.R.M. 564, at 570 (High Ct.,
Costello, J. (aff'd by Sup. Ct.j).
Including an agreement contained in an exchange of letters or telegrams: section 2.
Section 6(1) of the 1980 Act.
Section 6(2). Cf. S.1. No. 175 of 1981. See also section 6(3) of the 1980 Act.
See Morris, 141.

620

Irish Conflicts of Law

jurisdiction" of different Contracting States; nor is an arbitration agreement governed
by Irish law excluded. Finally, it is worth noting that ratification of the New Yo k
~onvention has ~ad the incidental effect of enablin~ Ire~and to fulfil the obligati~n
Imposed by Article 220 of the E.E.C. Treaty to simplify the formalities relatin
to the enforcement of arbitration awards throughout the E.E.C.
g
An award is enforceable either by action or in the same manner as a domesti
arbitration award is enforceable by virtue of section 41 of the Arbitration Act 1954
c
The effect of an enforceable New York Convention award is that it is to be treated
as binding for all purposes on the persons between whom it was made and may be
relied on by any of them by way of defence, set off or otherwise in any legal
proceedings in the State. 334
As has been mentioned, the burden of proof on the person seeking enforcement
of an award is easier than under the earlier Conventions. He must produce the dUI}
authenticated original award or a duly certified copy, and the original arbitration
agreement or a duly certified copy, and a certified translation if either of these is
in a language other than English or Irish.?" When he does this the award will be
enforced, unless the defendant can establish one or more of the "limited policy
grounds' '336 specified on the 1980 Act, which are the only ones on which
recognition and enforcement may be refused.!" These are that:
(a) a party to the arbitration agreement was (under the law applicable to him)
under some incapacity, or
(b) the arbitration agreement was not valid under the law of the country to
which the parties subjected it or, failing any indication thereon, under the law
of the country where the award was made, or
(c) the defendant proves that he was not given proper notice of the appointment
of the arbitrator or of the arbitration proceedings or was otherwise unable to
present his case, or
(d) the award deals with a difference not contemplated by or not falling within
the terms of the submission to arbitration or contains decisions on matters
The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 3
InCI Law. 320 (1969), Contini, International Commercial Arbitration: The United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, 8 Am. J. Compar. L. 283 (1959),
Olson, Note, 16 Harv. Int. LJ. 705 (1975). Harnick, Recognition and Enforcement of Foreign Arbitral
Awards, 31 Am. J. Compar. L. 703 (1983), Loftis, Securing Arbitral Awards: Waiving Immunity under
the Sovereign Immunities Act and Ensuring Equitable Remedy by Pre-Award Attachment under the
New York Convention, 9 Suffolk Transnat. L.J. 235 (1985).
'" Cf. The Second Schedule to the 1980 Act. S.1. No. 195 of 1981 brought Part III of the 1980 Act
in relation to the New York Convention into force with effect from 10 August, 1981; S.1. No. 356
of 1980 brought Part IV of the 1980 Act in relation to the Washington Convention into force with
effect from I January 1981.
m Section 10 of the 1980 Act.
.1" Morris, 141.
"" Cremer GmbH Co. v. Co-Operative Molasses Traders Ltd, [1985] I.L.R.M. 564, at 570 (High Ct.,
Costel\o, J. (aff'd by Sup. Ct.)) .
.1J" Including an agreement
contained in an exchange of letters or telegrams: section 2.
"I Section 6(1) of the
1980 Act.
'.'2 Section 6(2). Cf. S.1. No. 175 of 1981. See also section 6(3) of the 1980 Act.
'J' See Morris, 141.
.1'4 Section 7(2) of the
1980 Act.
'.J< Section 8.
"0 Springer,
supra, at 323.
'" Section 9( I). Contrast the defences under section 56(2) of the 1954 Act which give the Court no discretion
in the matter.
-

Recognition and Enforcement of Foreign Judgments and Arbitrations

v'emed
. York
gation
~lating
nestic
1954.
reated
lay be
legal
ement
e duly
ration
lese is
/ill be
policy
which

m)
to
aw
ent
~to
hin
ers
ards, 3
vention
(1959),
4rbitral
y under
der the
180 Act
Io. 356
:::ewith

gh Ct.,

beyond the scope of the submission to arbitration.!" or
(e) the composition of the arbitral authority or the arbitral procedure was not
in accordance with what the parties had agreed or, failing an agreement, with
the law of the country where the arbitration took place.?" or
(f) the award has not yet become binding on the parties or has been set aside
or suspended by a competent authority of the country in which, or under the
law of which, the award was made.?"
Enforcement of an award may also be refused if the award is in respect of a matter
which is not capable of settlement by arbitration under the law of the State, or if
it would be contrary to public policy to enforce the award.":
The Arbitration Act 1980 also gives effect'? to the Washington Convention
which was drawn up under the aspices ofthe World Bank to facilitate the settlement
of disputes between States (including State agencies) and foreign investors, the object
being to stimulate a greater flow of foreign private capital into countries needing
it. The Convention provides for the establishment of an International Centre for the
Settlement of Investment Disputes, for the setting up of panels of conciliators and
arbitrators, for the regulation of conciliation and arbitration proceedings under the
Convention and for the enforcement of the pecuniary obligations imposed by an
arbitration award. The International Centre has jurisdiction over any legal dispute
arising directly out of an investment, between a Contracting State and a national
of another Contracting State, which the parties to the dispute consent in writing to
submit to the Centre. 343
The pecuniary obligations imposed by an award of the Centre are, by leave of
the High Court, enforceable in the same manner as a judgment order of that Court
to the same effect .344 Where leave is so given, judgment may be entered for the
amount due or outstanding under the award.?" A person applying for enforcement
must lodge with his application a copy of the award certified in accordance with'"
the Convention.?" The Convention provides for a procedure whereby enforcement
of an award may be stayed by a Tribunal of the International Centre.:" If such a
stay has been granted in any case before it, the High Court must stay enforcement
of the pecuniary obligations imposed by the award and, if an application has been
made which might result in such a stay, may stay enforcement of these
obligations.?"

n,

Section 9(2)(d). An award containing decisions on matters not submitted to arbitration may, however,
be enforced to the extent that it contains decisions on matters which were submitted to arbitration
and which can be separated from any decision on matters not submitted: section 9(4). Cf. Cremer
GmbH Co. v. Co-Operative Molasses Traders Ltd., supra, where the Supreme Court held that section
9(2)(d) had no application to a case where the appellants contended that there had been no binding
agreement containing an arbitration clause. If matters were as the appellants claimed, said Finlay,
C.J. (at 573), then there could be no submission to arbitration and thus no issue as to whether an
award dealt with differences not contemplated by, or falling within, the terms of a submission.
\W
Section 9(2)(e). Cf. Cremer GmbH Co. v. Co-Operative Molasses Traders Ltd., supra, at 573.
340 Section 9(2).
\'1 Section 9(3) of the 1980 Act.
,,~ In Part IV .
. .\ Article 25 of the Washington Convention.
"
Section 16(1) of the 1980 Act.
.14; Id .
.140 Article 54(2) of the Convention .
.\47 Section
16(2) of the 1980 Act.
\" Articles 50-52 of the Convention.
"" Section 17 of the 1980 Act.
\4-1

.cretion

621

622

Irish Conflicts of Law

Staying of Irish proceedings
Under section 12 of the Arbitration Act 1954 the position used to be that a COUrt
was required to stay proceedings where there was an arbitration agreement to which
the Geneva Protocol on Arbitration Clauses applied unless the court was satisfied
that the agreement or arbitration had become inoperative or could not proceed 0
that there was not in fact any dispute between the parties with regard to the matt/
agreed to be referred to arbitration. As far as domestic arbitration agreements wer~
concerned, the court might stay proceedings if it was satisfied that there was not
sufficient reason why the matter should not be referred to arbitration and that the
party against whom proceedings had been instituted was ready and willing to proceed
with arbitration.
The Arbitration Act 1980 has made an important change in the position. The effect
of the 1980 Act is to put all written'" arbitration agreements" on an equal footing
as regards proceedings commenced in breach of them.
Section 5 provides that, if any party to an arbitration agreement commences any
proceedings in any court against any other party to such agreement in respect of
any matter agreed to be referred to arbitration, any other party to the proceedings
may apply to the court to stay the proceedings. The application may be made at
any time after an appearance has been entered and before the applicant delivers any
pleadings or takes any other steps in the proceedings.i" Unless the court is satisfied
that the arbitration agreement is null and void, inoperative or incapable of being
performed or that there is not in fact any dispute between the parties with regard
to the matter agreed to be referred to arbitration, it must make an order staying the
proceedings.?" However, the Court does have power to refuse to stay proceedings
in relation to domestic arbitration where a question of lack of impartiality on the
part of the arbitrator or a question of fraud on the part of any party arises."
"0 Cf. section 2(1) of the Act.
Whether domestic or foreign and, in the case of foreign agreements, whether covered by the Geneva
Convention and Protocol, the New York Convention, the Washington Convention, or none of these
international instruments.
,," Section 5.
", Section 5(1) of the 1980 Act.
354 Section 5(2) of the 1980 Act, preserving
the power of the High Court in this regard under section 39(3)
of the 1954 Act.
'51