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Official Journal of the European Communities No C 59/1

(Information)

COUNCIL

Report on the Convention

on jurisdiction and the enforcement of judgments in civil and commercial matters

(Signed at Brussels , 27 September 1968)

by Mr P. Jenard

Director in the Belgian Ministry of Foreign Affairs and External Trade.

committee of experts set up in 1960 by decision of the Committee of PermanentRepresentatives of the Member States, following a proposal by the Commission, prepared adraft Convention, in pursuance of Article 220 of the EEC Treaty, on jurisdiction and theenforcement of judgments in civil and commercial matters. The committee was composed ofgovernmental experts from the six Member States, representatives of the Commission, andobservers. Its rapporteur, Mr P. Jenard, Directeur d' Administration in the Belgian Ministryfor Foreign Affairs and External Trade, wrote the explanatory report, which was submittedto the governments at the same time as the draft prepared by the committee of experts. Thefollowing is the text of that report. It takes the form of a commentary on the Conventionwhich was signed in Brussels on 27 September 1968.

No C 59/2 Official Journal of the European Communities

CONTENTS

Pages

CHAPTER I Preliminary remarks

....................................................

CHAPTER II BackgroundtotheConvention

..........................................

A. The law in force in the six States

.................................................

B. Existingconventions ............................................................

C. The nature of the Convention

....................................................

CHAPTERIII Scope of the Convention

...............................................

CHAPTERIV Jurisdiction ..........................................................A. General considerations ..................................................,.......

1. Preliminary remarks

............................................,.........

2. Rationale of the basic principles of Title II ......................................

3. Determinationofdomicile ................................................... 15

B. Commentary on the Sections of Title II ............................................ 18

Section 1.Generalprovisions .............................................................

Section 2.Special jurisdictions ............................................................

Sections 3 to 5.Insurance, instalment sales, exclusive jurisdictions , general remarks

. . . . . . . . . . . . . . . . . ..

Section 3.Jurisdiction in matters relating to insurance " " 30

Section 4.Jurisdiction in matters relating to instalment sales and loans

. . . . . . . . . . . . . . . . . . . . . . . . ..

Section 5.Exclusive jurisdictions ....................................,.....................

Section 6.Prorogation of jurisdiction ...................................................... 36Section 7.Examination as to jurisdiction and admissibility

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.. 38

Section 8.Lispendens-relatedactions .............................................,...... 41Section 9.Provisional and protective measures ..............................................

CHAPTER V Recognition and enforcement ............................................ 42

A. General considerations ..........................................................

B. Commentary on the Sections .................................................... . 43

Section 1. Recognition ...............................................

..........

Section 2. Enforcement

......................................................

(a) Preliminary remarks

......................................................

(b) Conditions for enforcement ..................................................

(c) Enforcementprocedure ...........................,.......................... 48Section 3.Common provisions ............................................................

CHAPTER VI Authentic instruments and court settlements

. . . . . . . . . . . . . . . . . . .. . . . . . . . .

.. 56

CHAPTER VII General provisions ................................................... 57

CHAPTER VIII Transitionalprovisions ............................................... 57

CHAPTER IX Relationship to other international conventions. . .

. . . . . . . . . . . . . . . . . . . . . . . ..

CHAPTER X Finalprovisions ......................,................................ 62

CHAPTER XI Protocol ..............,..............................................

ANNEX ......................................................" '" 64


CHAPTER I

PRELIMINARY REMARKS

By Article 220 of the Treaty establishing the EuropeanEconomic Community, the Member States agreed toenter into negotiations with each other, so far asnecessary, with a view to securing for the benefit oftheir nationals the simplification of formalitiesgoverning the reciprocal recognition and enforcement ofjudgments of courts or tribunals and of arbitrationawards.

The fact that the Treaty of Rome requires the MemberStates to resolve this problem shows that it is important.In a note sent to the Member States on 22 October1959 inviting them to commence negotiations, theCommission of the European Economic Communitypointed out that

a true internal market between the six States will beachieved only if adequate legal protection can besecured. The economic life of the Community maybe subject to disturbances and difficulties unless it ispossible, where necessary by judicial means, toensure the recognition and enforcement of thevarious rights arising from the existence of amultiplicity of legal relationships. As jurisdiction inboth civil and commercial matters is derived fromthe sovereignty of Member States, and since theeffect of judicial acts is confined to each nationalterritory, legal protection and, hence, legal certaintyin the common market are essentially dependent onthe adoption by the Member States of a satisfactorysolution to the problem of recognition andenforcement of judgments.

On reCeIVIng this note the Committee of PermanentRepresentatives decided on 18 February 1960 to set upa committee of experts. The committee, consisting of

delegates from the six Member countries, observersfrom the Benelux Committee on the unification of lawand from the Hague Conference on privateinternational law, and representatives from the EECCommission departments concerned, met for the firsttime from 11 to 13 July 1960 and appointed as itschairman Professor Billow then Ministerialdirigent andlater Staatssekretar in the Federal Ministry of Justice inBonn, and as its rapporteur Mr Jenard, directeur in theBelgian Ministry for Foreign Affairs.

At its 15th meeting, held in Brussels from 7 to 11December 1964 , the committee adopted a 'PreliminaryDraft Convention on jurisdiction and the recognitionand enforcement of judgments in civil and commercialmatters , and the enforcement of authentic instruments(document 143711IV/64). This preliminary draft, withan explanatory report (document 2449/IV/65), wassubmitted to the Governments for comment.

The comments of the Governments, and thosesubmitted by the Union of the Industries of theEuropean Community, the Permanent Co~ference ofChambers of Commerce and Industry of the EEC, the

Banking Federation of the EEC, the ConsultativeCommittee of the Barristers ' and Lawyers ' Associationsof the six EEC countries (a committee of theInternational Association of Lawyers), were studied bythe Committee at its meeting of 5 to 15 July 1966. Thedraft Convention was finally adopted by the experts atthat meeting.

The names of the governmental experts who took partin the work of the committee are set out in the annex tothis report.

CHAPTER II

BACKGROUND TO THE CONVENTION

It is helpful to consider, first, the rules in ea~h of the sixcountries governing the recognition and enforcement offoreign judgments.

A. THE LAW IN FORCE IN THE SIX STATES

In Belgium, until the entry into force of the JudicialCode (Code Judiciaire), the relevant provisions as


regards enforcement are to be found in Article 10 of theLaw of 25 March 1876 , which contains Title I of theIntroductory Book of the Code of Civil Procedure (1).

Where there is no reciprocal convention, a court seised

of an application for an order for enforcement ' hasjurisdiction over a foreign judgment as to both formand substance, and can re-examine both the facts andthe law. In other words, it has power to review thematter fully . (2) e)

) Article 10 of the Law of 1876 provides that: They (courtsof first instance) shall also have jurisdiction in relation tojudgments given by foreign courts in civil and commercialmatters. Where there exists a treaty concluded on a basis ofreciprocity between Belgium and the country in which thejudgment was given , they shall review only the followingfive points:

1. whether the judgment contains anything contrary topublic policy or to the principles of Belgian public law;

2. whether, under the law of the country in which the

judgment was given, it has become res judicata;

3. whether, under that law, the certified copy of thejudgment satisfies the conditions necessary to establishits authenticity;

4. whether the rights of the defendant have beenobserved;

5. whether the jurisdiction of the foreign court is basedsolely on the nationality of the plaintiff.

Article 570 of the Judicial Code contained in the Law of10 October 1967 (supplement to the Moniteur beige of31 October 1967) reads as follows:

Courts of first instance shall adjudicate on applications fororders for the enforcement of judgments given by foreigncourts in civil matters, regardless of the amount involved.Except where the provisions of a treaty between Belgiumand the country in which judgment was given are to beapplied, the court shall examine, in addition to thesubstance of the matter:

1. whether the judgment contains anything contrary topublic policy or to the principles of Belgian publiclaw;

2. whether the rights of the defendant have beenobserved;

3. whether the jurisdiction of the foreign court is basedsolely on the nationality of the plaintiff;

4. whether, under the law of the country in which the

judgment was given, it has become res judicata;

5. whether, under that law, the certified copy of thejudgment satisfies the conditions necessary to establishits authenticity.' These provisions will enter into forceon 31 October 1970 at the latest. Before that date anarrete royal (Royal Decree) will determine the date onwhich the provisions of the Judicial Code enter intoforce.

(l) GRAULICH , Principes de droit international prive, No 248et seq.

) RIGAUX, L'efficacite des jugements etrangers en Belgique,Journal des tribunaux, 10. 4. 1960, P 287.

As regards recognition, text-book authorities andcase- law draw a distinction between foreign judgmentsrelating to status and legal capacity and those relatingto other matters. The position at present is that foreignjudgments not relating to the status and legal capacityof persons are not regarded by the courts as having theforce of res judicata.

However, foreign judgments relating to a personstatus or legal capacity may be taken as evidence of thestatus acquired by that person (4). Such foreignjudgment thus acts as a bar to any new proceedings fordivorce or separation filed before a Belgian court if thefive conditions listed in Article 10 of the Law of 1876are fulfilled, as they 'constitute no more than theapplication to foreign judgments of rules which thelegislature considers essential for any judgment to bevalid' .

In the Federal Republic of Germany, foreign judgmentsare recognized and enforced on the basis ofreciprocity (5). The conditions for recognition of foreignjudgments are laid down in paragraph 328 of the Codeof Civil Procedure (Zivilprozegordnung):

I. A judgment given by a foreign court may not berecognized:

1. where the courts of the State to which theforeign court belongs have no jurisdictionunder German law;

2. where the unsuccessful defendant is Germanand has not entered an appearance, if thedocument instituting the proceedings wasnot served on him in person either in theState to which the court belongs, or by a

German authority under the system ofmutual assistance in judicial matters;

3. where, to the detriment of the Germanparty, the judgment has not complied withthe provisions of Article 13 (1) and (3)or Articles 17, 18 , and 22 of the IntroductoryLaw to the Civil Code . (Einfuhrungsgesetzzum Burgerlichen Gesetzbuch), or with theprovisions of Article 27 of that Law whichrefer to Article 13 (1), nor where, in mattersfalling within the scope of Article 12 (3) ofthe Law of 4 July 1939 on disappearances

certifications of death , and establishment ofthe date of decease (RGBI. I, p. 1186), therehas been a failure to comply with theprovisions of Article 13 (2) of theIntroductory Law to the Civil Code, to the

) Casso 16. 1. 1953 Pas. I. 335.) Riezler, Internationales ZivilprozeBrecht, 1949 , p. 509

seq.


detriment of the wife of a foreigner who hasbeen declared dead by judgment of thecourt (1);

4. where recognition of the judgment would becontrary to 'good morals ' (gegen die gutenSitten) or the objectives of a German law;

5. where there is no guarantee of reciprocity.

II. The provision in (5) above shall not preventrecognition of a judgment given in a matter notrelating to property rights where no court inGermany has jurisdiction under German law.'

The procedure for recognizing judgments delivered inactions relating to matrimonial matters is governed by aspecial Law (Familienrechtsanderungsgesetz) of August 1961 (BGBI. I , p. 1221 , Article 7).

Enforcement is governed by Articles 722 and 723 of theCode of Civil Procedure, which read as follows:

Article 722

I. A foreign judgment may be enforced only wherethis is authorized by virtue of an order forenforcement.

II. An application for an order for enforcement shall beheard either by the Amtsgericht or the Landgerichthaving general jurisdiction in relation to thedefendant, or otherwise by the Amtsgericht or theLandgericht before which the defendant may besummoned under Article 23.

Article 723

I. An order for enforcement shall be granted withoutre-examination of the substance of the judgment.

II. An order for enforcement shall be granted only ifthe foreign judgment has become res judicata underthe law of the court in which it was given. No orderfor enforcement shall be granted where recognition

of the judgment is excluded by Article 328.'

In France, Article 546 of the Code of Civil Procedure(Code de procedure civile) provides that judgments

(1) These Articles of the Introductory Law to the Civil Codeprovide for the application of German law in many cases:condition of validity of marriage, form of marriage

divorce, legitimate and illegitimate paternity, adoptioncertification of death.

given by foreign courts and instruments recorded byforeign officials can be enforced only after beingdeclared enforceable by a French court (Articles 2123and 2128 of the Civil Code).

The courts have held that four conditions must besatisfied for an order for enforcement to be granted: theforeign court must have had jurisdiction; the procedurefollowed must have been in order; the law applied musthave been that which is applicable under the Frenchsystem of conflict of laws; and due regard must havebeen paid to public policy (2).

The Cour de cassation recently held (Cass. civ. 1 Section, 7 January 1964 Munzer case) that thesubstance of the original action could not be reviewedby the court hearing the application for an order forenforcement. This judgment has since been followed.

In Italy, on the other hand , the Code of Civil Procedure(Codice di procedura civile) in principle allows foreignjudgments to be recognized and enforced.

Under Article 796 of the Code of Civil Procedure, anyforeign judgment may be declared enforceable in Italyby the Court of Appeal (Corte d' appello) for the placein which enforcement is to take place (Dichiarazione diefficacia) .

Under Article 797 of the Code of Civil Procedure, theCourt of Appeal examines whether the foreignjudgment was given by a judicial authority havingjurisdiction under the rules in force in Italy; whether inthe proceedings abroad the document instituting theproceedings was properly served and whether sufficientnotice was given; whether the parties properly enteredan appearance in the proceedings or whether theirdefault was duly recognized; whether the judgment hasbecome res judicata; whether the judgment conflictswith a judgment given by an Italian judicial authority;whether proceedings between the same parties andconcerning the same claim are pending before an Italianjudicial authority; and whether the judgment containsanything contrary to Italian public policy.

However, if the defendant failed to appear in theforeign proceedings , he may request the Italian court toreview the substance of the case (Article 798). In such acase, the Court may either order enforcement, or 'hearthe substance of the case and give judgment.

(2) Batiffol, Traite elementaire de droit international priveNo 741 et seq.


There is also in Italian law the 'delibazione incidentale(Article 799 of the Code of Civil Procedure) which,however, applies only to proceedings in which it sought to invoke a foreign judgment.

Luxembourg. Under Article 546 of the LuxembourgCode of Civil Procedure (Code de procedure civile),judgments given by foreign courts and instrumentsrecorded by foreign officials can be enforced in theGrand Duchy only after being declared enforceable by aLuxembourg court (see Articles 2123 and 2128 of theCivil Code).

Luxembourg law requires seven conditions to besatisfied before an order for enforcement can begranted: the judgment must be enforceable in thecountry in which it was given; the foreign court musthave had jurisdiction; the law applied must have beenthat applicable under the Luxembourg rules of conflictof laws; the rules of procedure of the foreign law musthave been observed; the rights of the defendant musthave been observed; due regard must have been paid topublic policy; the law must not have been contravened(Luxembourg, 5. 2. 64 , Pasicrisie luxembourgeoise XIX285).

Luxembourg law no longer permits any review of aforeign judgment as to the merits.

In the Netherlands, the Code of Civil Procedure(Wetboek van Burgerlijke Rechtsvordering) lays downthe principle that judgments of foreign courts are notenforceable in the Kingdom. Matters settled by foreigncourts may be reconsidered by Netherlands courts (seeArticle 431 of the Code of Civil Procedure).

The national laws of the Member States thus varyconsiderably.

B. EXISTING CONVENTIONS

Apart from conventions dealing with particular matters(see p. 10), various conventions on enforcement existbetween the Six; they are listed in Article 55 of theConvention. However, relations between France and the

Federal Republic of Germany, France and theNetherlands, France and Luxembourg, Germany andLuxembourg, and Luxembourg and Italy are hamperedby the absence of such conventions (1).

There are also striking differences between the variousconventions. Some, like those between France andBelgium, and between Belgium and the Netherlands

and the Benelux;, Treaty, are based on ' directjurisdiction; but all the others are based on ' indirectjurisdiction. The Convention between France and Italyis based on indirect jurisdiction, but neverthelesscontains some rules of direct jurisdiction. Someconventions allow only those judgments which have

becom res judicata to be recognized and enforced

whilst others such as the Benelux Treaty and theConventions between Belgium and the NetherlandsGermany and Belgium, Italy and Belgium and Germanyand the Netherlands apply to judgments which arecapable of enforcement (2). Some cover judgments givenin civil matters by criminal courts, whilst others aresilent on this point or expressly exclude such judgmentsfrom their scope (Conventions between Italy and theNetherlands, Article 10, and between Germany andItaly, Article 12).

There are various other differences between thesetreaties and conventions which need not be discussed indetail; they relate in particular to the determination ofcompetent courts and to the conditions governingrecognition and enforcement. It should moreover be

stressed that these conventions either do not lay downthe enforcement procedure or give only a summaryoutline of it.

The present unsatisfactory state of affairs as regards therecognition and enforcement of judgments could havebeen improved by the conclusion of new bilateralconventions between Member States not yet bound bysuch conventions.

(1) It should be noted that at the time of writing this reportthe Benelux Treaty has not yet entered into force and thereis no agreement existing between Luxembourg on the onehand and Belgium and the Netherlands on the other.

(l) The Franco-Belgian convention, in spite of the provisionsof Article 11 (2) which impose the condition of res judi-

cata nevertheless applies to enforceable judgments even ifthere is still a right of appeal (see Niboyet, Droit inter-national prive fran~ais , T. VII 2022).


However, the Committee has decided in favour of theconclusion of a multilateral convention between thecountries of the European Economic Community, inaccordance with the views expressed in theCommission letter of 22 October 1959. TheCommittee felt that the differences between the bilateralconventions would hinder the 'free movement' ofjudgments and lead to unequal treatment of the variousnationals of the Member States, such inequality beingcontrary to the fundamental EEC prinj:iple ofnon-discrimination, set out, in particular, in Article 7 ofthe Treaty of Rome.

In addition, the European Economic Communityprovided the conditions necessary for a modern, liberallaw on the recognition and enforcement of judgmentswhich would satisfy both legal and commercialInterests.

C. THE NATURE OF THE CONVENTION

Some of the bilateral conventions concluded betweenthe Member States , such as the Convention betweenFrance and Belgium of 8 July 1899, the Convention

between Belgium and the Netherlands of 28 March1925 , and the Benelux Treaty of 24 November 1961are based on rules of direct jurisdiction, whilst in theothers the rules of jurisdiction are indirect. Underconventions of the first type known also as 'doubletreaties , the rules of jurisdiction laid down areapplicable in the State of origin, i.e. the State in whichthe proceedings originally took place; they thereforeapply independently of any proceedings for recognitionand enforcement, and permit a defendant who issummoned before a court which under the conventionin question would not have jurisdiction to refuse toaccept its jurisdiction.

Rules of jurisdiction in a convention are said to be

indirect ' when they do not affect the courts of the Statein which the judgment was originally given , and are tobe considered only in relation to recognition andenforcement. They apply only in determining cases inwhich the court of the State in which recognition orenforcement of a judgment is sought (the Stateaddressed) is obliged to recognize the jurisdiction of thecourt of the State of origin. They can therefore be takenas conditions governing the recognition andenforcement of foreign judgments and morespecifically, governing supervision of the jurisdiction foreign courts.

The Committee spent a long time considering which ofthese types of convention the EEC should have. Iteventually decided in favour of a new system based ondirect jurisdiction but differing in several respects fromexisting bilateral conventions of that type.

Although the Committee of experts did notunderestimate the value and importance of ' singleconventions, (i. e. conventions based on rules of indirectjurisdiction) it felt that within the EEC a conventionbased on rules of direct jurisdiction as a result of theadoption of common rules of jurisdiction would allowincreased harmonization of laws, provide greater legalcertainty, avoid discrimination and facilitate the ' freemovement ' of judgments , which is after all the ultimateobjective.

Conventions based on direct jurisdiction lay downcommon rules of jursidiction, thus bringing about theharmonization of laws , whereas under those based onindirect jurisdiction, national provisions apply, withoutrestriction, in determining international jurisdiction ineach State.

Legal certainty is most effectively secured byconventions based on direct jurisdiction since, underthem, judgments are given by courts deriving theirjurisdiction from the conventions themselves; howeverin the case of conventions based on indirect jurisdictioncertain judgments cannot be recognized and enforcedabroad unless national rules of jurisdiction coincidewith the rules of the convention (1

Moreover, since it establishes , on the basis of mutualagreement, an autonomous system of internationaljurisdiction in relations between the Member States, theConvention makes it easier to abandon certain rules ofjurisdiction which are generally regarded as exorbitant.

Finally, by setting out rules of jurisdiction which may berelied upon as soon as proceedings are begun in theState of origin, the Convention regulates the problem oflis pendens and also helps to minimize the conditionsgoverning recognition and enforcement.

) WESER, Les conflits de juridictions dans Ie cadre duMarche Commun , Revue Critique de droit internationalprive 1960 , pp. 161- 172.


As already stated, the Convention is based on directjurisdiction, but differs fundamentally from treaties andconventions of the same type previously concluded. Thisis not the place to undertake a detailed study of the

differences, or to justify them; it will suffice merely tolist them:

1. the criterion of domicile replaces that of nationality;

2. the principle of equality of treatment is extended toany person domiciled in the Community, whateverhis nationality;

3. rules of exclusive jurisdiction are precisely defined;

CHAPTER III

4. the right of the defendant to defend himself in theoriginal proceedings is safeguarded;

5. the number of grounds for refusal of recognitionand enforcement is reduced.

In addition, the Convention is original in that:

for enforcementobtaining1. the procedurestandardized;

2. rules of procedure are laid down for cases in whichrecognition is at issue;

3. provision is made for cases of conflict with otherconventions.

SCOPE OF THE CONVENTION

The scope of the Convention is determined by thepreamble and Article 1.

It governs international legal relationships, appliesautomatically, and covers all civil and commercialmatters, apart from certain exceptions which areexhaustively listed.

I. INTERNATIONAL LEGAL RELATIONSHIPS

As is stressed in the fourth paragraph of the preamble,the Convention determines the international jurisdictionof the courts of the Contracting States.

It alters the rules of jurisdiction in force in eachContracting State only where an international element isinvolved. It does not define this concept, since theinternational element in a legal relationship may dependon the particular facts of the proceedings of which thecourt is seised. Proceedings instituted in the courts of aContracting State which involves only personsdomiciled in that State will not normally be affected bythe Convention; Article 2 simply refers matters back tothe rules of jurisdiction in force in that State. It ispossible, however, that an international element may beinvolved in proceedings of this type. This would be thecase, for example, where the defendant was a foreignnational, a situation in which the principle of equalityof treatment laid down in the second paragraph ofArticle 2 would apply, or where the proceedings related

to a matter over which the courts of another State hadexclusive jurisdiction (Article 16), or where identical orrelated proceedings had been brought in the courts ofanother State (Article 21 to 23).

It is clear that at the recognition and enforcement stagethe Convention governs only international legalrelationships since ex hypothesi it concerns therecognition and enforcement in one Contracting State ofjudgments given in another Contracting State (1

II. THE BINDING NATURE OF THE CONVENTION

It was decided by the committee of experts that theConvention should apply automatically. This principleis formally laid down in Articles 19 and 20 which dealwith the matter of examination by the courts of the

Contracting States of their international jurisdiction.The courts must apply the rules of the Conventionwhether or not they are pleaded by the parties. Itfollows from this, for example, that if a persondomiciled in Belgium is sued in a French court on thebasis of Article 14 of the French Civil Code, andcontests the jurisdiction of that court but withoutpleading the provisions of the Convention, the court

(1) A. BOLOW, Vereinheitlichtes internationales ZivilprozeB-recht in der Europaischen Wirtschaftsgemeinschaft Rabels Zeitschrift fur auslandisches und internationalesPrivatrecht, 1965 , p. 473 et seq.


must nevertheless apply Article 3 and declare that it hasno jurisdiction (1).

III. CIVIL AND COMMERCIAL MA TIERS

The Committee did not specify what is meant by ' civiland commercial matters , nor did it point to a solutionof the problem of classification by determining the lawaccording to which that expression should beinterpreted.

In this respect it followed the practice of existingconventions (2).

However, it follows from ' the text of the Conventionthat civil and commercial matters are to be classified assuch according to their nature, and irrespective of thecharacter of the court or tribunal which is seised of theproceedings or which has given judgment. This emerges

from Article 1 , which provides that the Conventionshall apply in civil and commercial matters 'whateverthe nature of the court or tribunal'. The Conventionalso applies irrespective of whether the proceedings arecontentious or non-contentious. It likewise applies tolabour law in so far as this is regarded as a civil orcommercial matter (see also under contracts ofemployment , page 24).

The Convention covers civil proceedings brought beforecriminal courts, both as regards decisions relating tojurisdiction, and also as regards the recognition andenforcement of judgments given by criminal courts insuch proceedings. It thereby takes into account certainlaws in force in the majority of the ContractingStates (3), tends to rule out any differences ofinterpretation such as have arisen in applying theConvention between Belgium and the Netherlands (4

(1) Tribunal civil de Lille, 9. 11. 1953 , Revue critique de droitinternational prive , 1954 , p. 832.

(2) This problem is not dealt with in any treaty onenforcement. See also the report by Professor Fragistas onthe Preliminary Draft Convention adopted by the SpecialCommission of the Hague Conference on privateinternational law, preliminary document No 4 for the tenthsession , p. 11.

(3) In Belgium, see Article 4 of the Law of 17 April 1878containing the Introductory Title of the Code of CriminalProcedure.In the Federal Republic of Germany, see Article 403 et seq.of the Code of Criminal Procedure.In France see Article 4 of the Code of Criminal Procedure.In Luxembourg, any person who claims to have sufferedloss or injury as a result of a crime or other wrongful actmay, under Article 63 of the Code of Criminal Procedurebe joined as a civil party.In the Netherlands see Articles 332 to 337 of the Code Criminal Procedure, and Articles 44 and 56 of the Law Judicial Procedure, which gives jurisdiction to the justicesof the peace or to the courts up to Fl 200 and 500

respectively.) In interpreting the 1925 Convention between Belgium and

the Netherlands , the Netherlands Court of Cassation heldin its judgment of 16. 3. 1931 (N.J. 1931 , p. 689) thatArticles 11 and 12 did not affect orders by criminal courtsto pay compensation for injury or loss suffered by a party.

and, finally, meets current requirements arising from theincreased number of road accidents.

The relevant provisions of the treaty and conventionsalready concluded between the Member States varywidely, as has already been pointed out in ChapterI (A).

The formula adopted by the Committee reflects thecurrent trend in favour of inserting in conventionsclauses specifying that they apply to judgments given incivil or commercial matters by criminal courts. This canin particular be seen in the Benelux Treaty of 24November 1961 and in the work of the HagueConference on private international law.

It should be noted that the provisions of Article 5 (4) ofthe Convention in no way alter the penal jurisdiction ofcriminal courts and tribunals as laid down in thevarious codes of criminal procedure.

As regards both jurisdiction and recognition andenforcement the Convention affects only civilproceedings of which those courts are seised, andjudgments given in such proceedings.

However, in order to counter the objection that a partyagainst whom civil proceedings have been broughtmight be obstructed in conducting his defence criminal sanctions could be imposed on him in the sameproceedings, the Committee decided on a solutionidentical to that adopted in the Benelux Treaty. ArticleII of the Protocol provides that such persons may bedefended or represented in criminal courts. Thus theywill not be obliged to appear in person to defend theircivil interests.

The Convention also applies to civil or commercialmatters brought before administrative tribunals.

The formula adopted by the Committee is identical tothat envisaged by the Commission which was given thetask at the fourth session of the Hague Conference onprivate international law of examining the Conventionof 14 November 1896 in order to draw up commonrules on a number of aspects of private internationallaw relating to civil procedure. It reported as follows:

The expression "civil or commercial mattersvery wide and does not include only those matterswhich fall within the jurisdiction of civil tribunalsand commercial tribunals in countries whereadministrative tribunals also exist. Otherwise therewould be a wholly unjustifiable inequality betweenthe Contracting States: service abroad of judicial

No C 59110 Official Journal of the European Communities

instruments could take place on a wider scale forcountries which do not have administrativetribunals than for countries which have them. Inbrief, the Convention is applicable from the momentwhen private interests become involved . . .' (1

Thus, for example, decisions of the French ConseilEtat given on such matters may be recognized and

enforced (2).

IV. MA TIERS EXCLUDED FROM THE SCOPE OF THECONVENTION

The ideal solution would certainly have been to applythe Convention to all civil and commercial matters.However, the Committee did not feel able to adopt thisapproach , and limited the scope of the Convention tomatters relating to property rights for reasons similar tothose which prevailed when the Hague Convention onthe recognition and enforcement of foreign judgments incivil and commercial matters was drafted, the mainreason being the difficulties resulting from the absenceof any overall solution to the problem of conflict oflaws.

The disparity between rules of conflict of laws isparticularly apparent in respect of matters not relatingto property rights, since in general the intention of theparties cannot regulate matters independently ofconsiderations of public policy.

The Committee, like the Hague Conference on privateinternational law, preferred a formula which excludedcertain matters to one which would have involvedgiving a positive definition of the scope of theConvention. The solution adopted implies that alllitigation and all judgments relating to contractual ornon-contractual obligations which do not involve thestatus or legal capacity of natural persons, wills orsuccession rights in property arising out of matrimonial relationship, bankruptcy or social securitymust fall within the scope of the Convention, and thatin this respect the Convention should be interpreted aswidely as possible.

However, matters falling outside the scope of theConvention do so only if they constitute the principalsubject-matter of the proceedings. They are thus notexcluded when they come before the court as a

(1) See The Hague Conference on private international law documents of the fourth session (May to June 1904),

84.(2) WESER, Traite franco-beige du 8. 7. 1899 , No 235.

subsidiary matter either in the main proceedings or inpreliminary proceedings (3).

A. Status , legal capacity, rights in property arising outof a matrimonial relationship, wills , succession

Apart from the desirability of bringing the Conventioninto force as soon as possible, the Committee wasinfluenced by the following considerations. Evenassuming that the Committee managed to unify therules of jurisdiction in this field, and whatever thenature of the rules selected, there was such disparity onthese matters between the various systems of law, in

particular regarding the rules of conflict of laws , that itwould have been difficult not to re-examine the rules ofjurisdiction at the enforcement stage. This in turn wouldhave meant changing the nature of the Convention andmaking it much less effective. In addition, if theCommittee had agreed to withdraw from the court enforcement all powers of examination, even in mattersnot relating to property rights, that court wouldsurely have been encouraged to abuse the notion ofpublic policy, using it to refuse recognition to foreign

judgments referred to it. The members of theCommittee chose the lesser of the two evils, retaining

the unity and effectiveness of their draft whilerestricting its scope. The most serious difficulty withregard to status and legal capacity is obviously that divorce, a problem which is complicated by the extremedivergences between the various systems of law: Italianlaw prohibits divorce, while Belgian law not onlyprovides for divorce by consent (Articles 223 , 275

seq. of the Civil Code), which is unknown under theother legal systems apart from that of Luxembourg, butalso, by the Law of 27 June 1960 on the admissibility ofdivorce when at least one of the spouses is a foreignnational, incorporates provisions governing divorces byforeign nationals who ordinarily reside in Belgium.

The wording used

, '

status or legal capacity of naturalpersons , differs slightly from that adopted in the HagueConvention , which excludes from its scope judgmentsconcerning ' the status or capacity of persons orquestions of family law, including personal or financialrights and obligations between parents and children orbetween spouses ' (Article 1 (1)). The reason for this istwofold. Firstly, family law in the six Member States ofthe Community is not a concept distinct from questionsof status or capacity; secondly, the EEC Conventionunlike the Hague Convention, applies to maintenance(Article 5 (2)) even where the obligation stems from thestatus of the persons and irrespective of whether rights

(3) BELLET

, '

elaboration d'une convention sur reconnaissance des jugements dans Ie cadre du Marchecommun , Clunet, 1965.


and duties between spouses or between parents andchildren are involved.

Moreover in order to avoid differences ofinterpretation, Article 1 specificies that the Conventiondoes not apply to the status or legal capacity of naturalpersons, thereby constituting a further distinctionbetween this Convention and the Hague Conventionwhich specifies that it does not apply to judgmentsdealing principally with ' the existence or constitution oflegal persons or the powers of their organs' (Article 1(2) third indent).

With regard to matters relating to succession, theCommittee concurred in the opinion of theInternational Union of Latin Notaries.

This body, when consulted by the Committeeconsidered that it was necessary, and would becomeincreasingly so as the EEC developed in the future, to

facilitate the recognition and enforcement of judgmentsgiven in matters relating to succession, and that it wastherefore desirable for the six Member States toconclude a convention on the subject. However, theUnion considered that it was essential first to unify therules of conflict of laws.

As is pointed out in the Memorandum of the PermanentBureau of the Hague Conference on privateinternational law (1), from which this commentary hasbeen taken, there are fairly marked differences betweenthe various States on matters of succession and of rightsin property arising out of a matrimonial relationship.

1. As regards succession, some systems of law makeprovision for a portion of the estate to devolve

compulsorily upon the heirs, whereas others do not.The share allocated to the surviving spouse (aquestion which gives rise to the greatest number ofproceedings in matters of succession because of theclash of interests involved) differs enormously fromcountry to country. Some countries place the spouseon the same footing as a surviving child, or grant

him or her a certain reserved portion (Italy), whileothers grant the spouse only a limited life interest(for example, Belgium).

The disparities as regards rules of conflict of lawsare equally marked. Some States (Germany, Italyand the Netherlands) apply to succession thenational law of the de CUjllS; others (Belgium andFrance) refer succession to the law of the domicile

(1) The Hague Conference on private international law,recognition and enforcement of foreign judgments inmatters relating to property rights. Memorandum, with

Annexes , by the Permanent Bureau. Preliminary documentNo 1 of January 1962 for the Special Committee, p. 10.

as regards movable property and, as regardsimmovable property, to the law of the place wherethe property is situated; or (as in Luxembourg) referto the law of the place where the property issituated in the case of immovable property, butsubject movable property to national law.

2. As regards rights in property arising out of matrimonial relationship, the divergences between thelegal - systems are even greater, ranging from jointownership of all property (Netherlands) through jointownership of movable property and all propertyacquired during wedlock (France, Belgium andLuxembourg) or joint ownership of the increase incapital value of assets (Federal Republic of Germany) tothe complete separation of property (Italy).

There are also very marked divergences between therules of conflict of laws, and this provokes positiveconflicts between the systems. In some States the rulesgoverning matrimonial property, whether laid down bylaw or agreed between the parties, are subject to thenational law of the husband (Germany, Italy and theNetherlands); in the other States (Belgium , France, andLuxembourg) matrimonial property is subject to therules impliedly chosen by the spouses at the time oftheir marriage.

Unlike the preliminary draft the Convention does notexpressly exclude gifts from its scope. In this respect follows the Hague Convention, though gifts will ofcourse be excluded in so far as they relate to succession.

However, the Committee was of the opinion that theremight possibly be grounds for resuming discussion ofthese problems after the Judgments Convention hadentered into force , depending on the results of the workcurrently being done by the Hague Conference and bythe International Commission on Civil Status.

It should be stressed that these matters will still begoverned, temporarily at least, by existing bilateralconventions, in so far as these conventions apply (seeArticle 56).

B. Bankruptcy

Bankruptcy is also excluded from the scope of thisConvention.

A separate Convention is currently being drafted, sincethe peculiarities of this branch of law require specialrules.

Article 1 (2) excludes bankruptcy, proceedings relatingto the winding-up of insolvent companies or other legalpersons judicial arrangements compositions and

analogous proceedings, i.e. those proceedings which


depending on the system of law involved, are based onthe suspension of payments, the insolvency of thedebtor or his inability to raise credit, and which involvethe judicial authorities for the purpose either

compulsory and collective liquidation of the assets or

simply of supervision.

Thus the Convention will cover proceedings arISIngfrom schemes of arrangement out of court, since thelatter depend on the intention of the parties and are of

purely contractual nature. The insolvency of

non-trader (deconfiture civile) under French law, whichdoes not involve organized and collective proceedingscannot be regarded as falling within the category

analogous proceedings' within the meaning of Article 1

(2).

Proceedings relating to a bankruptcy are not necessarilyexcluded from the Convention. Only proceedingsarising directly from the bankruptcy (1) and hencefalling within the scope of the Bankruptcy Conventionof the European Economic Community are excludedfrom the scope of the Convention (2).

Pending the conclusion of the separate C~nvention

covering bankruptcy, proceedings arising directly frombankruptcy will be governed by the legal rules currentlyin force, or by the conventions which already existbetween certain Contracting States, as provided inArticle 56 (3

C. Social Security

The Committee decided, like the Hague Conference (4to exclude social security from the scope of theConvention. The reasons were as follows.

In some countries, such as the Federal Republic ofGermany, social security is a matter of public law, and

) Benelux Treaty, Article 22 (4), and the report annexedthereto. The Convention between France and Belgium isinterpreted in the same way. See WESER, Convention

franco-belge 1899 in the Jurisclasseur de droitinternational , Vol. 591 , Nos 146 to 148.

e) A complete list of the proceedings involved will be given inthe Bankruptcy Convention of the European Economic

Community.) These are the Conventions between Belgium and France

between France and Italy, and between Belgium and theNetherlands unless the latter convention has beenabrogated by the Benelux Treaty on its entry into force.

) The Hague Conference on private international lawextraordinary session. Final Act, see Article 1 of theConvention.

in others it falls in the borderline area between privatelaw and public law.

In some States , litigation on social security matters fallswithin the jurisdiction of the ordinary courts, but in

others it falls within the jurisdiction of administrativetribunals; sometimes it lies within the jurisdiction both (5

The Committee was moreover anxious to allow currentwork within the EEC pursuant to Articles 51 , 117 and118 of the Treaty of Rome to develop independently,and to prevent any overlapping on matters of socialsecurity between the Convention and agreementsalready concluded, whether bilaterally or under theauspices of other international organizations such as theInternational Labour Organization or the Council Europe.

Social security has not in fact hitherto given rise

conflicts of jurisdiction, since judicial jurisdiction has

been taken as coinciding with legislative jurisdictionwhich is determined by Community regulations adoptedpursuant to Article 51 of the Treaty of Rome; however

the recovery of contributions due to social securitybodies still raises problems of enforcement. This mattershould therefore be the subject of a special agreementbetween the Six.

What is meant by social security?

Since this is a field which is in a state of constantdevelopment, it did not seem desirable to define itexpressly in the Convention, nor even to indicate in anannex what this concept covers, especially as Article117 of the Treaty of Rome states that one of theCommunity s objectives is the harmonization of socialsecurity systems.

Nevertheless, it should be pointed out that in the sixcountries benefits are paid in the circumstances listed inConvention No 102 of the International LabourOrganization on minimum standards of social security,

namely: medical care, sickness benefits, maternityallowances, invalidity benefits, old age and survivorspensions benefits for accidents at work andoccupational diseases family allowances andunemployment benefits (6). It may also be useful to refer

) f:tude de la physionomie actuelle de la securite sociale dansles pays de la CEE. Serie politique sociale 3 1962,Services des publications des Communautes europeennes.8058/l/IX/I96215.

) Tableaux comparatifs des regimes de securite socialeapplicables dans les f:tats membres des Communauteseuropeennes. Third edition, Services des publications des

Communautes europeennes 8122/l/VII/I964/5.

Official Journal of the European Communities

D. Arbitration

No C 59/13

to the definition given in Articles 1 (c) and 2 of CouncilRegulation No 3 on social security for migrant workerswhich, moreover, corresponds to that laid down inConvention No 102 of the ILO.

However, the litigation on social security which isexcluded from the scope of the Convention is confinedto disputes arising from relationships between theadministrative authorities concerned and employers oremployees. On the other hand, the Convention applicable when the authority concerned relies on aright of direct recourse against a third party responsiblefor injury or damage, or is subrogated as against a thirdparty to the rights of an injured party insured by itsince, in doing so, it is acting in accordance with theordinary legal rules (1

There are already many international agreements onarbitration. Arbitration is, of course, referred to inArticle 220 of the Treaty of Rome. Moreover, theCouncil of Europe has prepared a European Conventionproviding a uniform law on arbitration, and this willprobably be accompanied by a Protocol which willfacilitate the recognition and enforcement of arbitralawards to an even greater extent than the New YorkConvention. This is why it seemed preferable to excludearbitration. The Brussels Convention does not apply tothe recognition and enforcement of arbitral awards (seethe definition in Article 25); it does not apply for thepurpose of determining the jurisdiction of courts andtribunals in respect of litigation relating to arbitration

for example, proceedings to set aside an arbitralaward; and, finally, it does not apply to the recognitionof judgments given in such proceedings.

CHAPTER IV

JURISDICTION

A. GENERAL CONSIDERATIONS

1. Preliminary remarks

Underlying the Convention is the idea that the MemberStates of the European Economic Community wanted toset up a common market with characteristics similar tothose of a vast internal market. Everything possiblemust therefore be done not only to eliminate anyobstacles to the functioning of this market, but also topromote its development. From this point of view, theterritory of the Contracting States may be regarded asforming a single entity: it follows, for the purpose oflaying down rules on jurisdiction , that a very cleardistinction can be drawn between litigants who aredomiciled within the Community and those who arenot.

Starting from this basic concept, Title II of theConvention makes a fundamental distinctionparticular in Section 1 , between defendants who aredomiciled in a Contracting State and those who aredomiciled elsewhere.

1. If a person is domiciled in a Contracting State, hemust in general be sued in the courts of that State in

(1) See Michel Voirin, note under Casso 16. 2. 1965, Recueil

Dalloz 1965 , p. 723.

accordance with the rules of jurisdiction in force inthat State (Article 2).

2. If a person is domiciled in a Contracting State, hemay be sued in the courts of another ContractingState only if the courts of that State are competentby virtue of the Convention (Article 3).

3. If a person is not domiciled in a Contracting Statethat is, if he is domiciled outside the Community,the rules of jurisdiction in force in each ContractingState, including those regarded as exorbitant, areapplicable (Article 4).

The instances in which a person domiciled in aContracting State may be sued in the courts of anotherContracting State or must be so sued, in cases of

exclusive jurisdiction or prorogation of jurisdiction are set out in Sections 2 to 6. Section 7, entitledExamination as to jurisdiction. . . and admissibility , ismainly concerned with safeguarding the rights of thedefendant.

Section 8 concerns /is pendens and related actions. Thevery precise rules of this Section are intended to preventas far as possible conflicting judgments being given inrelation to the same dispute in different States.


Section 9 relates to provisional and protective measuresand provides that application for these may be made toany competent court of a Contracting State, even ifunder the Convention, that court does not havejurisdiction over the substance of the matter.

2. Rationale of the basic principles of Title II

The far-reaching nature of the Convention may at firstseem surprising. The rules of jurisdiction which it laysdown differ fundamentally from those of bilateralconventions which are based on direct jurisdiction (theConventions between France and Belgium , and betweenBelgium and the Netherlands, the Benelux Treaty, theConvention between France and Switzerland) and applynot only to nationals of the Contracting States but also

to any person, whatever his nationality, who domiciled in one of those States.

The radical nature of the Convention may not onlyevoke surprise but also give rise to the objection that theCommittee has gone beyond its terms of reference , sinceArticle 220 of the Treaty of Rome provides that Statesshould enter into negotiations with a view to securingfor the benefit of their nationals ' the simplification offormalities governing the recognition and enforcementof judgments. The obvious answer to this is that theextension of the scope of the Convention certainly doesnot represent a departure from the Treaty of Romeprovided the Convention ensures, for the benefit ofnationals , the simplification of formalities governing therecognition and enforcement of judgments. Too strictan interpretation of the Treaty of Rome wouldmoreover, have led to the Convention providing for therecognition and enforcement only of those judgmentsgiven in favour of nationals of the Contracting States.Such a limitation would have considerably reduced thescope of the Convention, which would in this regardhave been less effective than existing bilateralconventions.

There are several reasons for widening the scope of theConvention by extending in particular the rules ofjurisdiction under Title II to all persons , whatever theirnationality, who are domiciled in a Contracting State.

First, it would be a retrograde step if common rules ofjurisdiction were to be dependent on the nationality.the parties; the connecting factor in internationalprocedure is usually the domicile or residence of theparties (see, for example, Article 3 (1) and (2) of theHague Convention of 15 April 1958 concerning the

recognition and enforcement of decisions relating tomaintenance obligations towards children; the HagueConvention of 15 April 1958 on the jurisdiction of thecontractual forum in matters relating to theinternational sale of goods; Article 11 of the BeneluxTreaty; and Article 10 (1) of the Hague Convention onthe recognition and enforcement of foreign judgments incivil and commercial matters).

Next, the adoption of common rules based onnationality would have caused numerous difficulties inapplying the Convention. This method would havenecessitated the introduction of different rules ofjurisdiction depending on whether the litigationinvolved nationals of Contracting States , a national of aContracting State and a foreign national, or two foreignnationals.

In some situations the rules of jurisdiction of theConvention would have had to be applied; in others

national rules of jurisdiction. Under this system thecourt would, at the commencement of proceedingsautomatically have had to carry out an examination the nationality of the parties , and it is not difficult toimagine the practical problems involved in , for example,establishing the nationality of a defendant who hasfailed to enter an appearance.

If the Convention had adopted the nationality of theparties as a connecting factor, it might well have beennecessary to introduce a special provision to deal withthe relatively frequent cases of dual nationality.

The Convention would thus have had to solve manyproblems which do not strictly speaking fall within itsscope. Using nationality as a criterion would inevitablyhave led to a considerable increase in the effect of thoserules of jurisdiction which may be termed exorbitant.Thus, for example, a judgment given in France orLuxembourg on the basis of Article 14 of the Civil Codein an action between a national of France orLuxembourg and a national of a non-Member State ofthe Community would have had to be recognized andenforced in Germany even if the foreign national wasdomiciled in Germany and a generally recognizedjurisdiction, that of the defendant s domicile, thus

existed.

By ruling out the criterion of nationality, the Committeeis anxious not only to simplify the application of theConvention by giving it a unity which allows a uniforminterpretation, but also, in fairness, to allow foreignnationals domiciled in the Community, who areestablished there and who thereby contribute to its


economic activity and prosperity, to benefit from theprovisions of the Convention.

Moreover, the purpose of the Convention is also, by

establishing common rules of jurisdiction , to achieve, inrelations between the Six and in the field which it wasrequired to cover , a genuine legal systematization whichwill ensure the greatest possible degree of legalcertainty. To this end, the rules of jurisdiction codified

in Title II determine which State s courts are most

appropriate to assume jurisdiction, taking into accountall relevant matters; the approach here adopted meansthat the nationality of the parties is no longer ofimportance.

3. Determination of domicile

As already shown, the rules of jurisdiction are based onthe defendant's domicile. Determining that domicile istherefore a matter of the greatest importance.

The Committee was faced with numerous questionswhich proved difficult to resolve. Should theConvention include a common definition of domicile?Should domicile possibly be replaced by the concept ofhabitual residence? Should both domicile and habitualresidence be used? Should the term domicile bequalified?

1. Should the Convention include a common definitionof domicile?

The first point to note is that the concept ofdomicile is not defined in the Conventions betweenFrance and Belgium, Belgium and the NetherlandsGermany and Belgium, and Italy and Belgium , norin the Benelux Treaty.

It is , however, defined in the Conventions betweenFrance and Italy (Article 28), between Italy and theNetherlands (Article 11), and between Germany andItaly (Article 13); but these Conventions are allbased on indirect jurisdiction.

At first, the Committee thought of defining domicilein the Convention itself, but it finally rejected thiscourse of action. Such a definition would have fallenoutside the scope of the Convention , and properlybelongs in a uniform law (1). To define the concept

(1) The concept of domicile has been specified by theEuropean Committee for Legal Cooperation, set up by theCouncil of Europe, as one of the basic legal concepts whichshould be defined.

of domicile in international conventions might evenbe dangerous , as this could lead to a multiplicity ofdefinitions and so to inconsistency.

Moreover, such definitions run the risk of beingsuperseded by developments in national law.

2. Should domicile be replaced by habitual residence?

This course was similarly rejected. It was pointedout that the term 'habitual' was open to conflictinginterpretations, since the laws of some of theMember States provide that an entry in thepopulation registers is conclusive proof of habitualresidence.

The adoption of this course would, moreoverrepresent a divergence from that followed under thelaws of the Contracting States, the majority ofwhich use domicile as a basis of jurisdiction (2).

(2) BelgiumLaw of 25 March 1876 containing Title I of theIntroductory Book of the Code of Civil Procedure.

Article 39: Except in the case of amendments andexceptions provided for under the law, the court of the

defendant s domicile shall be the only court having juris-diction.

Judicial Code:Article 624: Except in cases where the law expresslydetermines the court having jurisdiction a plaintiff may,institute proceedings:

1. in the court of the domicile of the defendant or of oneof the defendants.

Federal Republic of GermanyCode of Civil Procedure, Article 13: A person shall ingeneral be subject to the jurisdiction of the courts of hisdomicile.

FranceCode of Civil Procedure, Article 59 (1): In actions personam the defendant shall be sued in the court of hisdomicile or, where he has no domicile or, in the court ofhis place of residence.

ItalyCode of Civil Procedure, Article 18: Except where the lawotherwise provides, the competent court shall be the courtfor the place where the defendant has his habitualresidence or his domicile or, where these are not knownthe court for the place where the defendant is resident.

LuxembourgArticle 59 of the Code of Civil Procedure corresponds toArticle 59 of the French Code of Civil Procedure.

NetherlandsCode of Civil Procedure, Article 126:1. In actions in personam or actions relating to movableproperty, the defendant shall be sued in the court of hisdomicile.


Adopting habitual residence as the sole criterionwould have raised new problems as regardsjurisdiction over persons whose domicile depends ormay depend on that of another person or on thelocation of an authority (e.g. minors or marriedwomen) .

Finally, in a treaty based on direct jurisdiction, it is

particularly important that jurisdiction should havesecure legal basis for the court seised of the

matter. The concept of domicile, while not withoutdrawbacks, does however introduce the idea of amore fixed and stable place of establishment on thepart of the defendant than does the concept of

habitual residence.

3. Should both domicile and habitual residence beadopted?

In a treaty based on direct jurisdiction , the inclusionof both criteria would result in the majordisadvantage that the number of competent courtswould be increased. If the domicile and the place ofhabitual residence happened to be in differentStates, national rules of jurisdiction of both theStates concerned would be applicable by virtue ofArticle 2 of the Convention, thus defeating theobject of the Convention. Moreover, the inclusionof both criteria could increase the number of casesof lis pendens and related actions. For these reasonsthe Committee preferred finally to adopt only theconcept of domicile.

4. Should the concept of domicile be qualified?

In view of the varied interpretations of the conceptof domicile, the Committee considered that the

implementation of the Convention would befacilitated by the inclusion of a provision specifyingthe law to be applied in determining domicile. Theabsence of such a provision might give rise to claimsand disclaimers of jurisdiction; the purpose ofArticle 52 is to avoid this.

Article 52 deals with three different situations:

(i) where the court of a Contracting State mustdetermine whether a person is domiciled in thatState;

(ii) where the court must determine whether aperson is domiciled in another ContractingState; and finally,

(iii) where the court must determine whether aperson s domicile depends on that of another

person or on the seat of an authority.

Article 52 does not deal with the case of a persondomiciled outside the Community. In this case thecourt seised of the matter must apply its rules ofprivate international law.

Nor does Article 52 attempt to resolve the conflictswhich might arise if a court seised of a matter ruledthat a defendant were to be considered as having hisdomicile in two other Contracting States, or in oneContracting State and a third country. According tothe basic principles of Title II the court, having

found that a person is domiciled in some otherContracting State, must, in order to determine itsown jurisdictiont apply the rules set out in Article 3and in Sections 2 to 6 of the Convention.

In most disputed cases it will be necessary todetermine where the defendant is domiciled.

However, when applying certain provisions of theConvention , in particular Article 5 (2) and the firstparagraph of Article 8 , the rules set out will be usedto determine the plaintiff' s domicile. For this reasonArticle 52 does not. specify either the defendant orthe plaintiff since, in the opinion of the Committeethe same provisions for determining domicile mustapply to both parties.

Under the first paragraph of Article 52, only the

internal law of the court seised of the matter candetermine whether a domicile exists in that State. Itfollows that, if there is a conflict between the lex

fori and the law of another Contracting State whendetermining the domicile of a party, the lex foriprevails. For example, if a defendant sued in aFrench court is domiciled both in France, because hehas his principal place of business there, and inBelgium, because his name is entered there in theofficial population registers, where the laws conflictthe French court must apply only French law. If it isestablished under that law that the defendant is infact domiciled in France, the court need take

other law into consideration. This is justified onvarious grounds. First, to take the example given, adefendant, by establishing his domicile in a givencountry, subjects himself to the law of that country.

Next, only if the lex fori prevails can the courtexamine whether it has jurisdiction; as theConvention requires it to do, in cases where thedefendant fails to enter an appearance (Article 20).

Where the courts of different Contracting States areproperly seised of a matter for example, the

Belgian court because it is the court for the placewhere the defendant's name is entered in thepopulation registers, and the French court because it


is the court for the place where he has his principalplace of business the conflict may be resolved byapplying the rules governing /is pendens or related

actions.

The second paragraph covers the case of adefendant who is not domiciled in the State whosecourts are seised of the matter. The court must thendetermine whether he is domiciled in another

Contracting State, and to do this the internal law ofthat other State must be applied.

This rule will be applied in particular where adefendant is sued in the courts of a Contracting

State in which he is not domiciled. If the jurisdictionof the court is contested, then, following the basicprinciples of Title II, whether or not the court hasjurisdiction will vary according to whether thedefendant is domiciled in another Contracting Stateor outside the Community. Thus, for example, a

person domiciled outside the Community mayproperly be sued in Belgium in the court for the

place where the contract was concluded (1) while aperson domiciled in another Contracting State andsued in the same court may refuse to accept itsjurisdiction , since Article 5 (1) of the Conventionprovides that only the courts for the place of

performance of the obligation in question have

jurisdiction. Thus if a defendant wishes to contestthe jurisdiction of the Belgian court, he mustestablish that he is domiciled in a Contracting State.

Under the second paragraph of Article 52 theBelgian court must, in order to determine whetherthe defendant is domiciled in another Contracting

State, apply the internal law of that State.

The Committee considered it both more equitableand more logical to apply the law of the State of thepurported domicile rather than the lex fori.

If a court, seised of a matter in which the defendantwas domiciled in another Contracting State, appliedits own law to determine the defendant s domicilethe defendant might under that law not be regarded

as being domiciled in the other Contracting Stateeven though under the law of that other State hewas in fact domiciled there. This solution becomesall the more untenable when one realises that a

) See Article 634 of the Judicial Code and Article 4 of theConvention.

person establishing his domicile in a ContractingState can obviously not be expected to considerwhether this domicile is regarded as such under aforeign law (2).

On the other hand, where the law of the State of thepurported domicile has two definitions ofdomicile (3), that of the Civil Code and that of theCode of Civil Procedure, the latter should obviouslybe used since the problem is one of jurisdiction.

The third principle laid down by Article 52 concernspersons such as minors or married women whosedomicile depends on that of another person or onthe seat of an authority.

Under this provision national law is applied twice.For example, the national law of a minor firstdetermines whether his domicile is dependent onthat of another person. If it is, the national law ofthe minor similarly determines where that domicileis situated (e.g. where his guardian is domiciled). Ifhowever, the domicile of the dependent person isunder his national law not dependent on that another person or on the seat of an authority, thefirst or second paragraph of Article 52 may beapplied to determine the domicile of the dependentperson. These two paragraphs also apply for thepurpose of determining the domicile from whichthat of the dependent person derives.

The members of the Committee were alive to thedifficulties which may arise in the event of dualnationality, and more especially in determining thedomicile of a married woman. For example, where aGerman woman marries a Frenchman an acquiresFrench nationality while retaining her German

(2) NIBOYET, Traite de droit international prive frans;aisV 01. VI, No 1723: ' It is submitted that domicile is notsystematically determined according to the lex fori butaccording to the law of the country where the domicile isalleged to be. French law alone can therefore determinewhether a person is domiciled in France; but whether aperson is domiciled in any particular foreign country is amatter, not for French law, but for the law of the countryconcerned. '

) Such might for example be the case in Belgium, where

Article 102 of the Civil Code provides that the domicile ofa Belgian in so far as the exercise of his civil rights isconcerned is where he has his principal establishment

while Article 36 of the Judicial Code provides that, for thepurpose of that Code, a person is deemed to be domiciledin the place where his name is entered in the officialpopulation registers.


nationality, her domicile under French law (1) is thatof her husband, whereas under Getman law she canhave a separate domicile, since German law nolonger provides that a married woman has thedomicile of her husband (2). In cases of this kindthe Committee considered that the usual rulesrelating to dual nationality should be applied. Thuseven if she has a separate domicile in Germany, thatperson may be sued in France in the court for thehusband' s domicile, since the French court mustapply French law. If, however, she is sued Germany in the court for the place of her owndomicile, the German court will apply German lawand declare that it has jurisdiction.

Finally, it should be made clear that the concept ofdomicile within the meaning of the Convention doesnot extend to the legal fiction of an address furservice of process.

B. COMMENTARY ON THE SECTIONS OF TITLE II

Section 1

General provisions

Section 1 sets out the main principles on which the rulesof jurisdicition laid down by the Convention arefounded: 1. the rule that a defendant domiciled in a Contracting

State is in general to be sued in the courts of thatState (Article 2);

2. the rule that a person domiciled in a ContractingState may in certain circumstances be sued in thecourts of another Contracting State (Article 3);

3. the rule that a person domiciled outside theCommunity is subject to all applicable nationalrules of jurisdiction (Article 4).

This Section also embodies the widely applied principleof equality of treatment (3), which is already enshrinedin Article 1 of the Convention between France and

(1) French Civil Code, Article 108: ' A married woman has nodomicile other than that of her husband.'

(2) BGB , Article 10 , repealed by the Gleichberechtigungsgesetz. (Law on equal rights of men and women in the field of civil

law) of..,t8 June 1957.

(3) WESER, Revue critique de droit international prive, 1960pp. 29-35.

Belgium of 8 July 1899, Article 1 of the Conventionbetween Belgium and the Netherlands of 28 March1925 and Article 1 of the Benelux Treaty of 24November 1961. Whilst this principle thus forms anintegral part of treaties based on direct jurisdiction, in

this Convention it also ensures implementation of themandatory rules of the Treaty of Rome. Article 7 ofthat Treaty lays down the principle ofnon-discrimination between nationals of Member Statesof the Community.

Specific provisions applying the general principle set outin Article 7 of the Treaty of Rome to the right ofestablishment are laid down in Article 52 et seq. of thatTreaty.

During the preparation of the General Programme onestablishment, the Economic and Social Committee ofthe European Communities drew particular attention tothis aspect of the problem by requesting that equality oftreatment as regards legal protection be achieved in fullas quickly as possible.

Article

The maxim actor sequitur forum rei' which expressesthe fact that law leans in favour of the defendant, iseven more relevant in the international sphere than it isin national law (4). It is more difficult, generallyspeaking, to defend oneself in the courts of a foreign

country than in those of another town in the country

where one is domiciled.

A defendant domiciled in a Contracting State need notnecessarily be sued in the court for the place where he isdomiciled or has his seat. He may be sued in any courtof the State where he is domiciled which has jurisdictionunder the law of that State.

As a result, if a defendant is sued in one of the courts ofthe State in which he is domiciled, the internal rules ofjurisdiction of that State are fully applicable. Here theConvention requires the application of the national lawof the court seised of the matter; the Conventiondetermines whether the courts of the State in questionhave jurisdiction, and the law of that State in turndetermines whether a particular court in that State hasjurisdiction. This solution seems equitable since it isusual for a defendant domiciled in a State to be subjectto the internal law of that State without it being

) See report by Professor FRAGIST AS Hague Conferenceon private international law preliminary doc. No 4May 1964, for the tenth session.


necessary for the Convention to provide special rules forhis protection. It is , moreover, an extremely practicalsolution because it means that in most cases the courtwill not have to take the Convention any further intoconsideration.

Defendants are usually sued in the courts of the State inwhich they are domiciled. This is true of proceedings inwhich there is no international element. It is also true ofproceedings with an international element in which , byapplication of the traditionally accepted maxim actorsequitur forum rei' the defendant is sued in the courtsof the State of his domicile. The Convention does nottherefore involve a general reversal of national rules ofjurisdiction nor of the practice of judges and lawyers. Infact, judges "nd lawyers will need to take account of thechanges effected by the Convention only in cases wherea defendant is sued in a court of a State where he is notdomiciled, or in one of the few cases in which theConvention has laid down common rules of exclusivejurisdiction.

The second paragraph of Article 2 embodies theprinciple of equality of treatment where a foreigner isdomiciled in the State of the forum. Such foreignerwhether he is defendant or plaintiff, is governed in thatState by the same rules of jurisdiction as its nationals, ormore precisely, as its nationals who are domiciled inthat State, where, as in Italy, the law of that Statedetermines the jurisdiction of its courts according towhether the national concerned is domiciled in itsterritory.

As a result, Article 52 of the Belgian Law of 25 March1876 will no longer be applicable as such to foreignersdomiciled in Belgium (1

The positive aspect of equality of treatment is set out inthe second paragraph of Article 4.

Article

Article 3 deals with those cases in which a defendantdomiciled in a Contracting State may be sued in anotherContracting State. This Article lays down the principlethat a defendant may be sued otherwise than in thecourts of the State where he is domiciled only in thecases expressly provided for in the Convention. The rulesets aside the rules of exorbitant jurisdiction in force in

(1) This Article provides, in particular, that foreigners who aredomiciled or resident in Belgium may be sued before acourt of the Kingdom either by a Belgian or by a foreigner.

each of the Contracting States. However, these rules ofjurisdiction are not totally excluded; they are excludedonly in respect of persons who are domiciled in anotherContracting State. Thus they remain in force withrespect to persons who are not domiciled within theCommunity.

The second paragraph of Article 3 prohibits theapplication of the most important and best known ofthe rules of exorbitant jurisdiction. While thisparagraph is not absolutely essential it will neverthelessfacilitate the application of certain provisions of theConvention (see , in particular, Article 59).

The following are the rules of exorbitant jurisdiction inquestion in each of the States concerned.

In Belgium

Articles 52, 52bis and 53 of the Law of 25 March 1876which govern territorial jurisdiction in actions broughtby Belgians (2) or by foreigners against foreigners beforeBelgian courts, and Article 15 of the Civil Code whichcorresponds to Article 15 of the French Civil Code.

In Germany

The nationality of the parties does not in general affectthe rules of jurisdiction. Article 23 of the Code of CivilProcedure lays down that, where no other Germancourt has jurisdiction, actions relating to property

instituted against a person who is not domiciled in thenational territory come under the jurisdiction of thecourt for the place where the property or subject of thedispute is situated.

German courts have in a number of cases given a veryliberal interpretation to this provision , thereby leadingsome authors to state that Article 23 ' can be likened toArticle 14 of the French Civil Code' (3

In France

1. Article 14 of the Civil Code provides that anyFrench plaintiff may sue a foreigner or anotherFrenchman in the French courts, even if there is no

(2) Repertoire pratique du droit beige, under ' competenceNo 17518 et seq. (see Judicial Code, Articles 635 , 637and 638).

) WESER, Revue critique de droit international prive, 1959

p.

636; ROSENBERG Lehrbuch des deutschenZivilprozeBrechts, ninth edition, paragraph 35 I 3.

No C 59/20Official Journal of the European Communities

In Luxembourgconnection between the cause of action and thosecourts.

2. Article 15 of the Civil Code provides that aFrenchman may always be sued in the French courtsby a Frenchman or by a foreigner, and can eveninsist on this.

Despite the fact that Articles 14 and 15 in terms referonly to contractual obligations, case law has extendedtheir scope beyond contractual obligations to all actionswhether or not relating to property rights. There arethus only two limitations to the general application ofArticles 14 and 15: French courts are never competentto hear either actions in rem concerning immovableproperty situated abroad or actions concernIngproceedings for enforcement which is to take place

abroad (1

In Italy

1. Article 2 of the Code of Civil Procedure providesthat an agreement to substitute for the jurisdictionof Italian courts the jurisdiction of a foreign courtor arbitral tribunal will be valid only in the case of

litigation between foreigners, or between a foreignerand an Italian citizen who is neither resident nordomiciled in Italy, and only if the agreement evidenced in writing.

2. (a) Under Article 4 (1) of the Code of CivilProcedure, a foreigner may be sued in an Italiancourt if he is resident or domiciled in Italy, or ifhe has an address for service there or has arepresentative who is authorized to bring legalproceedings in his name, or if he has acceptedItalian jurisdiction unless the proceedingsconcern immovable property situated abroad.

(b) Under Article 4 (2) of the Code of CivilProcedure, a foreigner may be sued in the courtsof the Italian Republic if the proceedingsconcern property situated in Italy, or successionto the estate of an Italian national, or anapplication for probate made in Italy, orobligations which arose in Italy or which mustbe performed there.

3. The interpretation given to Article 4 by Italian caselaw means that an Italian defendant may always besued in the Italian courts (2

) BA TIFFOL op. cit. No 684 et seq.

(2) MORELLI, Diritto processuale civile internazionale, pp.108- 112.

Articles 14 and 15 of the Civil Code correspond toArticles 14 and 15 of the French Civil Code.

Luxembourg case law applies the same principles ofinterpretation as French case law.

In the Netherlands

Article 126 (3) of the Code of Civil Procedure providesthat, in personal matters or matters concerning movableproperty, a defendant who has no known domicile orresidence in the Kingdom shall be sued in the court forthe domicile of the plaintiff. This provision applieswhether or not the plaintiff is a Netherlandsnational (3

Article 127 provides that a foreigner, even if he does notreside in the Netherlands , may be sued in a Netherlandscourt for the performance of obligations contracted

towards a Netherlander either in the Netherlands orabroad.

Article

Article 4 applies to all proceedings in which thedefendant is not domiciled in a Contracting State , andprovides that the rules of internal law remain in force.

This is justified on two grounds:

First, in order to ensure the free movement ofjudgments, this Article prevents refusal of recognition orenforcement of a judgment given on the basis of rules ofinternal law relating to jurisdiction. In the absence ofsuch a provision, a judgment debtor would be able toprevent execution being levied on his property simply

by transferring it to a Community country other thanthat in which judgment was given.

Secondly, this Article may perform a function in thecase of lis pendens. Thus, for example, if a French courtis seised of an action between a Frenchman and adefendant domiciled in America , and a German court is

) WESER, Revue critique de droit international prive, 1959632.


seised of the same matter on the basis of Article 23 ofthe Code of Civil Procedure, one of the two courts mustin the interests of the proper administration of justicedecline jurisdiction in favour of the other. This issuecannot be settled unless the jurisdiction of these courtsderives from the Convention.

In the absence of an article such as Article 4, there

would be no rule in the Convention expresslyrecognizing the jurisdiction of the French and Germancourts in a case of this kind.

The only exception to the application of the rules ofjurisdiction of internal law is the field of exclusivejurisdiction (ArtiCle 16) (1). The rules which grantexclusive jurisdiction to the courts of a State areapplicable whatever the domicile of the defendant.

However, the question arises why the Committee didnot extend the scope of the provision limiting theapplication of rules of exorbitant jurisdiction to includein particular nationals of Member States regardless oftheir place of domicile.

In other words , and to take another example based onArticle 14 of the French Civil Code, why will it still bepossible for a French plaintiff to sue in the Frenchcourts a foreigner, or even a national of a Member Stateof the Community, who is domiciled outside theCommunity?

The Committee thought that it would have beenunreasonable to prevent the rules of exorbitantjurisdiction from applying to persons includingCommunity nationals domiciled outside theCommunity. Thus, for example, a Belgian nationaldomiciled outside the Community might own assets inthe Netherlands. The Netherlands courts have jurisdiction in the matter since the Convention does notrecognize jurisdiction based on the presence of assetswithin a State. If Article 14 of the French Civil Codecould not be applied, a French plaintiff would have tosue the Belgian defendant in a court outside theCommunity, and the judgment could not be enforced inthe Netherlands if there were no enforcement treatybetween the Netherlands and the non-member State inwhich judgment was given.

This, moreover, was the solution adopted in theConventions between France and Belgium, and between

(1) The third paragraph of Article 8, which concernsjurisdiction in respect of insurers who are not domiciled inthe Community but have a branch or agency there, mayalso be regarded as an exception.

Belgium and the Netherlands, and in the BeneluxTreaty, which, however, take nationality as theircriterion (2).

The second paragraph of Article 4 of the Conventionconstitutes a positive statement of the principle of

equality of treatment already laid down in the secondparagraph of Article 2. An express provision wasconsidered necessary in order to avoid anyuncertainty (3). Under this provision, any persondomiciled in a Contracting State has the right, asplaintiff, to avail himself in that State of the same rulesof jurisdiction as a national of that State.

This principle had already been expressly laid down inthe Convention between France and Belgium of 8 July1899 (Article 1 (2)).

This positive aspect of the principle of equality oftreatment was regarded as complementing the right ofestablishment (Article 52 et seq. of the Treaty of Rome),the existence of which implies , as was stated in theGeneral Programme for the abolition of restrictions onfreedom of establishment of 18 December 1961 (4), thatany natural or legal person established in a MemberState should enjoy the same legal protection as anational of that State.

The provIsIOn is also justified on economic grounds.Since rules of exorbitant jurisdiction can still be invokedagainst foreigners domiciled outside the EuropeanEconomic Community, persons who are domiciled inthe Member State concerned and who thus contributeto the economic life of the Community should be ableto invoke such rules in the same way as the nationals ofthat State.

It may be thought surprISIng that the Conventionextends the ' privileges of jurisdiction ' in this way, sinceequality of treatment is granted in each of the States toall persons, whatever their nationality, who aredomiciled in that State.

(2) The Convention between France and Belgium is interpretedto mean that a Frenchman may not rely on Article 14 ofthe Civil Code to sue in France a Belgian domiciled in Bel-gium, but may do so to sue a Belgian domiciled abroad.BA TIFFOL, Traite elementaire de droit international priveNo 714.

(3) According to French case law on the Treaty of 9 February1842 between France and Denmark, a Danish nationalmay not rely on Article 14 of the French Civil Code.Official Journal of the European Communities15. 1. 1962, p. 36 et seq.


It should first be noted that such treatment is alreadygranted to foreigners in Belgium , the Federal Republicof Germany, Italy and the Netherlands , where the rulesof exorbitant jurisdiction may be invoked by foreignersas well as by nationals. The second paragraph of Article4 therefore merely brings into line with these laws theFrench and Luxembourg concepts , according to whichArticle 14 of the Civil Code constitutes a privilege ofnationality.

Secondly, the solution adopted in the Conventionfollows quite naturally from the fact that, for thereasons already given, the Convention uses domicile asthe criterion for determining jurisdiction. In this contextit must not be forgotten that it will no longer possible to invoke the privileges of jurisdiction againstpersons domiciled in the Community, although it willbe possible to invoke them against nationals of theCommunity countries who have established theirdomicile outside the territory of the Six.

Section 2

Special jurisdiction

Articles and

Articles 5 and 6 list the situations in which a defendantmay be sued in a Contracting State other than that ofhis domicile. The forums provided for in these Articlessupplement those which apply under Article 2. In the

case of proceedings for which a court is specificallyrecognized as having jurisdiction under these Articlesthe plaintiff may, at his option, bring the proceedings

either in that court or in the competent courts of theState in which the defendant is domiciled.

One problem which arose here was whether it shouldalways be possible to sue the defendant in one of thecourts provided for in these Articles, or whether thisshould be allowed only if the jurisdiction of that courtwas also recognized by the internal law of the Stateconcerned.

In other words, in the first case, jurisdiction wouldderive directly from the Convention and in the secondthere would need to be dual jurisdiction: that of theConvention and that of the internal law on localjurisdiction. Thus, for example, where Netherlands lawon jurisdiction does not recognize the court for theplace of performance of the obligation, can the plaintiffnevertheless sue the defendant before that court in the

Netherlands? In addition, would there be any obligationon the Netherlands to adapt its national laws in orderto give that court jurisdiction?

By adopting 'special' rules of jurisdiction , that is by

directly designating the competent court withoutreferring to the rules of jurisdiction in force 'in the Statewhere such a court might be situated, the Committeedecided that a plaintiff should always be able to sue adefendant in one of the forums provided for withouthaving to take the internal law of the State concernedinto consideration. Further, in laying down these rulesthe Committee intended to facilitate implementation ofthe Convention. By ratifying the Convention, theContracting States will avoid having to take any othermeasures to adapt their internal legislation to thecriteria laid down in Articles 5 and 6. The Conventionitself determines which court has jurisdiction.

Adoption of the ' special' rules of jurisdiction is alsojustified by the fact that there must be a closeconnecting factor between the dispute and the courtwith jurisdiction to resolve it. Thus , to take the exampleof the forum delicti commissi a person domiciled in aContracting State other than the Netherlands who hascaused an accident in The Hague may, under theConvention , be sued in a court in The Hague. Thisaccident cannot give other Netherlands courtsjurisdiction over the defendant. On this point there isthus a distinct difference between Article 2 and Articles5 and 6 , due to the fact that in Article 2 domicile is theconnecting factor.

Forum contractus (Article 5 (1)) including contractsof employment

There are great differences between the laws of the Sixin their attitude to the jurisdiction of the forumcontractus; in some countries this jurisdiction is notrecognized (the Netherlands, Luxembourg), while inothers it exists in varying degrees. Belgian lawrecognizes the jurisdiction of the courts for the placewhere the obligation arose, and also that of the courtsfor the place where the obligation has been or is to beperformed (1); Italian law recognizes only thejurisdiction of the courts for the place where theobligation arose and where it has been performed (2);German law in general recognizes only the jurisdictionof the courts for the place where the obligation has been

) Articles 41 and 52 of the Law of 25 March 1876 , Article624 of the Judicial Code.

(l) Articles 4 and 20 of the Code of Civil Procedure.


performed (1 ); and, finally. French law recognizes thejurisdiction of the forum contractus only to a limitedextent and subject to certain conditions e).

Some of the conventions concluded between the Sixreject this forum, while others accept it in varying

degrees. Article 2 (1) of the Convention between Franceand Belgium provides that, where a defendant is neitherdomiciled nor resident in France or Belgium , a Belgianor French plaintiff may institute proceedings in thecourts for the place where the obligation arose or whereit has been or is to be performed e).

Article 4 of the Convention between Belgium and theNetherlands provides that in civil or commercialmatters a plaintiff may bring a personal actionconcerning movable property in the courts for the placewhere the obligation arose or where it has been or is tobe performed.

In Article 3 (5) of the Convention between Belgium andGermany, jurisdiction is recognized where, in matters

relating to a contract, proceedings are instituted in acourt of the State where the obligation has been or is tobe performed.

Article 14 of the Convention between France and Italyprovides that if the action concerns a contract which isconsidered as a commercial matter by the law of the

country in which the action is brought, a French orItalian plaintiff may seise the courts of either of the twocountries in which the contract was concluded or is tobe performed.

The Convention between Belgium and Italy (Article 2(5)) recognizes jurisdiction where, in matters relatingto a contract, an action is brought before the courts ofthe State where the obligation arose, or where it hasbeen or should have been performed.

There are no provIsIOns on this subject in theConventions between Italy and the Netherlands,Germany and Italy, and Germany and the Netherlands.

Finally, the Benelux Treaty adopts Article 4 of theConvention between Belgium and the Netherlands, butincludes a Protocol which in Article 1 lays down that

) Articl~ 29 of the Code of Civil Procedure.(2) Articles 59 (3) and 420 of the Code of Civil Procedure.e) On the serious controversy to which this Article has given

rise, see WESER, Traite franco-belge du 8 juillet 1899.E:tude critique, p. 63 et seq. also Jurisclasseur de droitinternational , vol. 591 , Nos 42 and 45.

Article 4 shall not apply where Luxembourg concerned if the defendant is domiciled or resident inthe country of which he is a national (4

Article 5 (1) provides a compromIse between thevarious national laws.

The jurisdiction of the forum is, as in German lawlimited to matters relating to contract. It could havebeen restricted to commercial matters , but account mustbe taken of the fact that European integration will meanan increase in the number of contractual relationshipsentered into. To have confined it to commercial matterswould moreover have raised the problem ofclassification.

Only the jurisdiction of the forum solutionis has been

retained, that is to say the jurisdiction of the courts forthe place of performance of the obligation on which theclaim is based. The reasons for this are as follows.

The Committee considered that it would be unwise togive jurisdiction to a number of courts, and thuspossibly create conflicts of jurisdiction. A plaintiffalready has a choice , in matters relating to a contractbetween the competent courts of the State where thedefendant is domiciled, or, where there is more than onedefendant, the courts for the place where anyone ofthem is domiciled, or finally, the courts for the place ofperformance of the obligation in question.

If the Committee had adopted as wide-ranging a

provision as that of the Benelux Treaty, whichrecognizes also the jurisdiction of the courts for theplace where the obligation arose, this would haveinvolved very considerable changes for those Stateswhose laws do not recognize that forum, or do so onlywith certain restrictions.

There was also concern that acceptance of thejurisdiction of the courts for the place where theobligation arose might sanction , by indirect means, thejurisdiction of the forum of the plaintiff. To haveaccepted this forum would have created tremendousproblems of classification, in particular in the case ofcontracts concluded by parties who are absent.

The court for the place of performance of the obligationwill be useful in proceedings for the recovery of fees: thecreditor will have a choice between the courts of theState where the defendant is domiciled and the courts ofanother State within whose jurisdiction the services

) For the reasons for this limitation , see the report on thenegotiations.


were provided, particularly where, according to theappropriate law, the obligation to pay must beperformed where the services were provided. Thisforum can also be used where expert evidence orinquiries are required. The special position ofLuxembourg justified, as in the Benelux Treaty,the inclusion of a special provision in the Protocol(Article I).

Contracts of employment

In matters relating to contracts of employment in thebroadest sense of the term , the preliminary draft of theConvention contained a provision attributing exclusivejurisdiction to the courts of the Contracting State eitherin which the undertaking concerned was situated, or inwhich the work was to have been or had beenperformed. After prolonged consideration theCommittee decided not to insert in the Convention anyspecial provisions on jurisdiction in this field. Itsreasoning was as follows.

First, work is at present in progress within theCommission of the EEC to harmonize the provisions oflabour law in the Member States. It is desirable thatdisputes over contracts of employment should as far aspossible be brought before the courts of the State whoselaw governs the contract. The Committee therefore didnot think that rules of jurisdiction should be laid downwhich might not coincide with those which may later beadopted for determining the applicable law.

In order to lay down such rules of jurisdiction, the

Committee would have had to take into account notonly the different ways in which work can be carriedout abroad, but also the various categories of worker:wage-earning or salaried workers recruited abroad towork permanently for an undertaking, or thosetemporarily transferred abroad by an undertaking towork for it there; commercial agents , management, etc.Any attempt by the Committee to draw suchdistinctions might have provided a further hindrance tothe Commission s work.

Next, in most Member States of the Community theprinciple of freedom of contract still plays an importantpart; a rule of exclusive jurisdiction such as thatpreviously provided for in Article 16 would havenullified any agreements conferring jurisdiction.

The general rules of the Convention will therefore applyto contracts of employment. Thus , in litigation between

employers and employees, the following courts have

jurisdiction: the courts of the State where the defendantis domiciled (Article 2); the courts for the place ofperformance of the obligation, if that place is in a Stateother than that of the domicile of the defendant (Article

(1)); and any court on which the parties haveexpressly or impliedly agreed (Articles 17 and 18). Inthe case of proceedings based on a tort committed atwork (Article 2 Nos and of theArbeitsgerichtsgesetz), Article 5 (3), which provides forthe jurisdiction of the courts for the place where theharmful event occurred, could also apply. It seems thatthese rules will, for the time being, prove of greatervalue to the persons concerned than a provision similarto that of the former Article 16 (2), which could not bederogated from because it prohibited any agreementconferring jurisdiction.

The rules on the recognition and enforcement ofjudgments will probably ensure additional protectionfor employees. If the law of the State addressed had tobe applied to a contract of employment, the courts ofthat State, upon being seised of an application forrecognition or enforcement of a foreign judgmentwould, on the basis of Article 27 (1), which permitsrefusal of recognition (or enforcement) on grounds ofpublic policy in the State addressed, be able to refuse

the application if the court of the State of origin hadfailed to apply, or had misapplied, an essentialprovision of the law of the State addressed.

Once the work of the Commission in this field has beencompleted, it will always be possible to amend theprovisions of the Convention, either by means of anadditional Protocol , or by the drafting of a conventiongoverning the whole range of problems relating tocontracts of employment, which would, under Article

, prevail over the Convention.

Maintenance obligations (Article 5 (2))

Matters relating to maintenance are governed by theConvention.

The Convention is in a sense an extension of the HagueConvention of 15 April 1958 concerning therecognition and enforcement of decisions relating tomaintenance obligations in respect of children (1), since

(1) In force on 1. 9. 1966 between Belgium , France, Germany,Italy and the Netherlands.


it ensures the recognition and enforcement of judgmentsgranting maintenance to creditors other than childrenand also of the New York Convention of 20 June 1956on the recovery abroad of maintenance (1).

The Committee decided that jurisdiction should beconferred on the forum of the creditior, for the samereasons as the draftsmen of the Hague Convention (2).For one thing, a convention which did not recognize theforum of the maintenance creditor would be of onlylimited value, since the creditor would be obliged tobring the claim before the court having jurisdiction overthe defendant.

If the Convention did not confer jurisdiction on theforum of the maintenance creditor, it would apply onlyin those situations where the defendant against whoman order had been made subsequently changedresidence , or where the defendant possessed property ina country other than that in which the order was made.

Moreover the court for the place of domicile of themaintenance creditor is in the best position to knowwhether the creditor is in need and to determine theextent of such need.

However, in order to align the Convention with theHague Convention Article 5 (2) also confersjurisdiction on the courts for the place of habitualresidence of the maintenance creditor. This alternative isjustified in relation to maintenance obligations since itenables in particular a wife deserted by her husband tosue him for payment of maintenance in the courts forthe place where she herself is habitually resident, ratherthan the place of her legal domicile.

The Convention also supplements the New YorkConvention of 20 June 1956 on the recovery abroad-maintenance. The latter is limited to providing that aforwarding authority will transmit to an intermediatebody any judgment already given in favour of amaintenance creditor, and that body will then have tobegin proceedings for enforcement or registration of thejudgment, or institute new proceedings altogether.

This Convention, by simplifying the formalitiesgoverning enforcement will thus facilitateimplementation of the New York Convention.

) In force on 1. 9. 1966 between Belgium , France, Germany,Italy and the Netherlands.

(2) Hague Conference on private international law, documentsfor the eighth session, p. 315.

As regards maintenance payments, the Committee didnot overlook the problems which might be raised bypreliminary issues (for example, the question ofaffiliation). However, it considered that these were notproperly problems of jurisdiction, and that anydifficulties should be considered in the chapter onrecognition and enforcement of judgments.

It was suggested that, in order to avoid conflictingjudgments, it might be desirable to provide that thecourt which had fixed the amount of a maintenancepayment should be the only court to have jurisdiction tovary it. The Committee did not think it necessary toadopt such a solution. This would have obliged partiesneither of whom had any further connection with theoriginal court, to bring proceedings before courts whichcould be very far away. Moreover, any judgment by asecond court, in order to vary that of the first courtwould have to be based on changed facts, and in thosecircumstances it could not be maintained that thejudgments were in conflict (3

Forum delicti commissi (Article 5 (3) and (4))

This jurisdiction is recognized by the national laws ofthe Member States with the exception of Luxembourgand the Netherlands , where it exists only in respect ofcollisions of ships and of road accidents.

The following are applicable in Belgium, Articles 41and 52 (3) of the Law of 1876 (4); in Germany, Article32 of the Code of Civil Procedure; in France, Article 59(12) of the Code of Civil Procedure and Article 21 ofthe Decree of 22 December 1958; and in Italy, Article20 of the Code of Civil Procedure.

This jurisdiction is incorporated in the bilateralconventions by the following provisions: Article 4 of theConvention between Belgium and the Netherlands andArticle 4 of the Benelux Treaty, which cover allobligations concerning movable property, whetherstatutory, contractual or non-contractual (5); Article 2(b) of the Convention between Belgium and Italy;Article 3 (1) (6) of the Convention between Germany

e) For a similar view, see the Hague Conference on privateinternational law, documents for the ninth session. Reporton the draft Convention concerning the recognition andenforcement of decisions relating to maintenanceobligations in respect of children, p. 321.

) Article 626 of the Judicial Code.) Report on the negotiations, p. 17.


nd Belgium; Article 15 of the Convention betweenFrance and Italy; Article 2 (4) of the Conventionbetween Germany and Italy; and Article 4 (1) (e) of theConvention between Germany and the Netherlands..

The fact that this jurisdiction is recognized under mostof the legal systems, and incorporated in the majority ofthe bilateral conventions , was a ground for including itin the Convention, especially in view of the highnumber of road accidents.

Article 5 (3) uses the expression ' the place where theharmful event occurred' . The Committee did not thinkit should specify whether that place is the place wherethe event which resulted in damage or injury occurredor whether it is the place where the damage or injurywas sustained. The Committee preferred to keep to aformula which has already been adopted by number oflegal systems (Germany, France).

Article 5 (4) provides that a civil claim may be broughtbefore a court seised of criminal proceedings; this is inorder to take into account the rules of jurisdiction laiddown by the various codes of criminal procedure. Acivil claim can thus always be brought, whatever thedomicile of the defendant, in the criminal court havingjurisdiction to entertain the criminal proceedings even ifthe place where the court sits (place of arrest, forexample) is not the same as that where the harmfulevent occurred.

jurisdiction based on a dispute arising out of theoperations of a branch agency or otherestablishment (Article 5 (5))

This jurisdiction exists in the bilateral conventionsalready concluded between the Contracting States: theConventions between Italy and Belgium (Article 2 (3)),between Belgium and Germany (Article 2 (1) (4)),between France and Belgium (Article 3 (2)), betweenFrance and Italy (Article 13), between Italy and theNetherlands (Article 2 (3)), and between Belgium andthe Netherlands (Article 5 (3)); the Benelux Treaty(Article 5 (4)); and the Conventions between Germanyand the Netherlands (Article 4 (1) (d)), and betweenGermany and Italy (Article 2 (3)).

This provision concerns only defendants domiciled in aContracting State (Article 5), that is , companies or firmshaving their seat in one Contracting State and having abranch, agency or other establishment in anotherContracting State. Companies or firms which have theirseat outside the Community but have a branch , etc. in a

Contracting State are governed by Article 4, even as

regards disputes relating to the activities of theirbranches, but without prejudice to the provisions of

Article 8 relating to insurance.

More than one defendant (Article 6 (1))

Where there is more than one defendant, the courts forthe place where anyone of the defendants is domiciledare recognized as having jurisdiction. This jurisdictionis provided for in the internal law of Belgium (1France (2), Italy (3), Luxembourg (4) and the Nether-lands (5

It is not in general provided for in German law. Wherean action must be brought in Germany against anumber of defendants and there is no jurisdiction towhich they are all subject, the court having jurisdictionmay, subject to certain conditions , be designated by thesuperior court which is next above it (Article 36 (3) ofthe German Code of Civil Procedure).

This jurisdiction is also provided for in the Conventionsbetween Italy and the Netherlands (Article 2 (1)),between Italy and Belgium (Article 2 (1)), betweenFrance and Italy (Article 11 (2)), and between Germanyand Italy (Article 2 (1)). However, under the latterConvention, jurisdiction depends on the existence of aprocedural requirement that the various defendants bejoined.

It follows from the text of the Convention that, wherethere are several defendants domiciled in differentContracting States, the plaintiff can at his option suethem all in the courts for the place where anyone ofthem is domiciled.

In order for this rule to be applicable there must be aconnection between the claims made against each of thedefendants, as for example in the case of jointdebtors (h ). It follows that action cannot be broughtsolely with the object of ousting the jurisdiction of thecourts of the State in which the defendant isdomiciled (1).

) Articles 39 and 52 (10) of the Law of 25 March 1876 , andArticle 624 of the Judicial Code.

(2) Article 59 (4) of the Code of Civil Procedure.(3) Article 33 of the Code of Civil Procedure.

) Article 59 (2) of the Code of Civil Procedure.) Article 126 (7) of the Code of Civil Proct"dure.) MOREL, Traite elementaire de procedure civile , No 264.

C) Casso fran~aise 1924 , D.P. 1925, Vol. 13.


Jurisdiction derived from the domicile of one of thedefendants was adopted by the Committee because itmakes it possible to obviate the handing down in theContracting States of judgments which areirreconcilable with one another.

Actions on a warranty or guarantee, third party

proceedings, counterclaims.

(a) Actions on a warranty or guarantee (Article 6 (2))

An action on a warranty or guarantee brought against athird party by the defendant in an action for thepurpose of being indemnified against the consequencesof that action, is available in Belgian (1), French (2),Italian (3), Luxembourg (4 ) and Netherlands (5) law.

The proceeding which corresponds to an action on awarranty or guarantee in Germany is governed byArticles 72 , 73 and 74 and Article 68 of the Code ofCivil Procedure.

A party who in any proceedings considers that, if he isunsuccessful , he has a right of recourse on a warrantyor guarantee against a third party, may join that thirdparty in the proceedings (Article 72) (Streitverkundung

litis denunciatio

The notice joining the third party must be served onthat party and a copy must be sent to the other party(Article 73). No judgment can be given as regards thethird party, but the judgment given in the originalproceedings is binding in the sense that the substance ofthe judgment cannot be contested in the subsequentaction which the defendant may bring against the thirdparty (Article 68). Under the German Code of CivilProcedure the defendant can exercise his right of

recourse against the third party only in separateproceedings.

Actions on a warranty or guarantee are governed by the

bilateral Conventions between Belgium and Germany(Article 3 (10)), between France and Belgium (Article 4(2)), between Belgium and the Netherlands (Article 6(2)), between Italy and the Netherlands (Article 2 (4)),between Belgium and Italy (Article 2 (10)), and betweenGermany and the Netherlands (Article 4 (1) (c)), andalso by the Benelux Treaty (Article 6 (3)).

) Articles 50 and 52 of the Law of 25 March 1876, Article181 of the Code of Civil Procedure.

(l) Articles 59 (10) and 181 to 185 of the Code of CivilProcedure.

(3) Articles 32 and 36 of the Code of Civil Procedure.) Articles 59 (8) and 181 to 185 of the Code of Civil

Procedure.) Article 126 (14) of the Code of Civil Procedure.

This jurisdiction is, in the opinion of the Committee , ofconsiderable importance in commercial dealings , as canbe seen from the following example: A Germanexporter delivers goods to Belgium and the Belgianimporter resells them. The purchaser sues the importerfor damages in the court for the place of his domicilefor example in Brussels. The Belgian importer has aright of recourse against the German exporter andconsequently brings an action for breach of warranty

against that exporter in the court in Brussels, since ithas jurisdiction over the original action. The jurisdictionover the action on the warranty is allowed by the Con-vention although the warrantor is domiciled in Ger-

many, since this is in the interests of the proper adminis-tration of justice.

However, under Article 17, the court seised of toriginal action will not have jurisdiction over the actionon the warranty where the warrantor and thebeneficiary of the warranty have agreed to conferjurisdiction on another court provided that theagreement covers actions on the warranty.

Moreover, the court seised of the original action willnot have jurisdiction over an action on the warranty ifthe original proceedings were instituted solely with theobject of ousting the jurisdiction of the courts of theState in which the warrantor is domiciled (6

The special position of German law is covered byArticle V of the Protocol.

Under this provision, the jurisdiction specified in Article6 (2) in actions on a warranty or guarantee may not beresorted to in the Federal Republic of Germany, but anyperson domiciled in another Contracting State may besummoned before the German courts on the basis ofArticles 72 to 74 of the Code of Civil Procedure.

Judgments given against a guarantor or warrantor inthe other Contracting States will be recognized andenforced in Germany.

Judgments given in Germany pursuant to Articles 72 to74 will have the same effect in the other ContractingStates as in Germany.

Thus, for example, a guarantor or warrantor domiciledin France can be sued in the German court havingjurisdiction over the original action. The German law

) See Article 181 of the Belgian , French and LuxembourgCode of Civil Procedure, and Article 74 of the NetherlandsCode of Civil Procedure.


judgment given in Germany affects only the parties tothe action , but it can be invoked against the guarantoror warrantor. Where the beneficiary of the guarantee orwarranty proceeds agaist the guarantor or warrantor inthe competent French courts , he will be able to applyfor recognition of the German judgment, and it will nolonger be possible to re-examine that judgment as to themerits.

It is clear that, following the principles which apply toenforcement, a judgment given in an action on aguarantee or warranty will have no effects in the Statein which enforcement is sought other than those whichit had in the country of origin.

This principle, which already applied under theConventions between Germany and Belgium (Article 3(10)) and between Germany and the Netherlands(Article 4 (1) (i)), is thus incorporated in the provisiongoverning relations between the Federal Republic ofGermany and the other Member States of the Com-munity.

(b) Third party proceedings

While a third party warranty or guarantee necessarilyinvolves the intervention of an outsider, it seemed

preferable to make separate provision for guarantors orwarrantors and for other third parties. The simplestdefinition of third party proceedings is to be found inArticles 15 and 16 of the Belgian Judicial Code, whichprovides that:

Third party proceedings are those in which a thirdparty is joined as a party to the action.

They are intended either to safeguard the interestsof the third party or of one of the parties to theaction , or to enable judgment to be entered againsta party, or to allow an order to be made for thepurpose of giving effect to a guarantee or warranty(Article 15).

The third party s intervention is voluntary where heappears in order to defend his interests.

It is not voluntary where the third party is sued inthe course of the proceedings by one or more of theparties (Article 16).

(c) Counterclaims (Article 6 (3))

The bilateral. conventions on enforcement all recognizejurisdiction over counterclaims: see the Conventionbetween Belgium and Germany (Article 3 (1) (10))(counterclaims); the Convention between Italy andBelgium (Article 2 (1) (10)) (dependent counterclaims);

the Convention between France and Belgiul1l (Article 4(2)) (counterclaims); the Convention between Belgiumand the Netherlands (Article 6) (counterclaims, thirdparty proceedings and interlocutory proceedings); theConvention between France and Italy (Article 18)(claims for compensation, interlocutory or dependentproceedings, counterclaims); the Convention betweenItaly and the Netherlands (Article 2 (4)) dependentproceedings, counterclaims); "the Convention betweenGermany and Italy (Article 2 (5)) (counterclaims); theBenelux Treaty (Article 6) (counterclaims, third partyproceedings and interlocutory proceedings); and theConvention between Germany and the Netherlands(Article 4 (1) (i)) (counterclaims and actions on awarranty or guarantee).

It has been made clear that in order to establish thisjurisdiction the counterclaim must be related to theoriginal claim. Since the concept of related actions is notrecognized in all the legal systems, the provision inquestion, following the draft Belgian Judicial Codestates that the counterclaim must arise from thecontract or from the facts on which the original claimwas based.

Sections 3 to 5

Insurance , instalment sales, exclusive jurisdiction

General remarks

In each . of the six Contracting States, the rules ofterritorial jurisdiction are not as a rule part of publicpolicy and it is therefore permissible for the parties toagree on a different jurisdiction.

There are , however, exceptions to this principle: certainrules of jurisdiction are mandatory or form part ofpublic policy, either in order to further the efficientadministration of justice by reducing the number ofjurisdictions and concentrating certain forms oflitigation in a single forum, or else out of socialconsiderations for the protection of certain categories ofpersons , such as insured persons or buyers of goods oninstalment credit terms.

In view of the Convention s structure and objectives , itwas necessary to deal with this matter under theConvention. Failure to take account of the problemraised by these rules of jurisdiction might not only havecaused recognition and enforcement to be refused incertain cases on grounds of public policy, which wouldbe contrary to the principle of free movement ofjudgments, but also result, indirectly, in generalre-examination of the jurisdiction of the court of theState of origin.

Serveral solutions were open to the Committee.


The first is found in many bilateral Conventions, andenables the court of the State in which recognition orenforcement is sought to refuse to recognize thejurisdiction of the court of the State of origin where, inthe former State, there are ' rules attributing exclusivejurisdiction to the courts of that State in the proceedingswhich led to the judgment ' (l).

This system would have been unsatisfactory not onlybecause it gives rise to the objections already set outabove, but because it would have introduced into theConvention an element of insecurity incompatible withits basic principles. It is no solution to the problem, andonly postpones the difficulties , deferring them until therecognition and enforcement stage.

Another possible solution would have been a generalclause like that contained in the Convention betweenBelgium and the Netherlands or the Bendux Treaty(Article 5 (1)), which takes into consideration theinternal law of the Contracting States (l). Such a clausecould however, lead to difficulties of interpretationsince the court of the State of origin must, where itsjurisdiction is contested, apply the internal law of theState which claims to have exclusive jurisdiction.

Moreover, while such a solution might be acceptable ina Treaty between three States, it would be much moredifficult to incorporate it in a Convention between sixStates where it is not always possible to determine inadvance the State or States in which recognition orenforcement may be sought.

A third solution would have been to draw up a list the individual jurisdictions which would be exclusiveand which would thus be binding on all the ContractingStates. Such a list would answer the need of the partiesfor information regarding the legal position , allow the

(1) Convention between Germany and Belgium, Article 3 (2);

Convention between Italy and the Netherlands (end ofArticle 2); Convention between Italy and Belgium (end ofArticle 2).

(2) Article 5 (1) of the Convention between Belgium and theNetherlands reads as follows: 'Where a domicile conferringjurisdiction has been chosen in one of the two countries forthe enforcement of an instrument, the courts for the placeof domicile chosen shall have exclusive jurisdiction overlitigation relating to that instrument, save for exceptionsand modifications enacted or to be enacted under thenational law of one of the two States or by internationalagreement.'

court to give judgment on the basis of a definitecommon rule , remove any element of uncertainty andensure a balance between the parties to contractual

arrangements.

The considerations underlying the various provisions ofthe Convention are ~omplex. Sections 3 and 4, for

example , concerning insurance and instalment sales andloans, are dictated by social considerations and areaimed in particular at preventing abuses which couldresult from the terms of contracts in standard form.

Section 5 (Article 16) contains a list of situations inwhich the courts of a Contracting State areacknowledged as having exclusive jurisdiction, since theproper administration of justice requires that actionsshould be brought before the courts of a single State.

The Convention deals with the two categoriesdifferently. The first category has been placed in anintermediate position between the general rules ofjurisdiction and the rules which are wholly exclusive.

The following system adopted:

1. For matters falling within Section 3 and 4 there isno single jurisdiction. A choice, albeit a limited oneexists between the courts of different ContractingStates where the plantiff is a protected person, that, a policy-holder, a buyer or a borrower. In

matters falling under exclusive jurisdictionspursuant to Section 5, the parties have no choicebetween the courts of serveral Contracting States.

2. The parties may, in certain circumstances, derogatefrom the provisions of Sections 3 and 4 (Articles 12

, and 18). The provisions of Section 5 may nothowever, be derogated from, either by an agreementconferring jurisdiction (second paragraph ofArticle 17) or by an implied submission to thejurisdiction (Article 18).

3. The rules in Section 3 and 4 are applicable onlywhere the defendant is domiciled in a ContractingState, whereas those in Section 5 apply regardless ofdomicile.

However, contravention of the provisions of Sections 3and 4, as well as of those of Section 5 , constitutes a

ground for refusing recognition and enforcement(Articles 28 and 34).


Section 3

Jurisdiction in matters relating to insurance

Rules of exclusive or special jurisdiction relating to

insurance exist in France (Article 3 of the Law of July 1930 concerning contracts of insurance), inBelgium (Law of 20 May 1920 , added as Article 43 bisto the Law of 25 March 1876 on jurisdiction), inGermany (~ 48 of the Gesetz iiber denVersicherungsvertrag (Law on contracts of insurance)),and in Italy (Article 1903 (2) of the Civil Code , Article124 of the Consolidated Law on private insurance). InLuxembourg, the Law of 16 May 1891 on contracts ofinsurance does not include any provision onjurisdiction. This is due to the small size of the GrandDuchy, which comprises only two judicialarrondissements. However, the Law of 16 May 1891concerning the supervision of insurance matters governsjurisdiction in regard to foreign insurance companies.This Law requires an insurer resident abroad who istransacting insurance business in the Grand Duchy toappoint a general representative domiciled Luxembourg who will represent him there judicially andextrajudicially. This representative must give an addressfor service of process in the judicial arrondissement inwhich he is not domiciled. Either the domicile of thegeneral representative or his address for service foundsjurisdiction in respect of actions arising from contractsof insurance. In the Netherlands, there are no specialprovisions concerning the jurisdiction of the courts insurance matters. As regards foreign life-assurancecompanies, the Netherlands Law of 22 December 1922recognizes rules analogous to those of the LuxembourgLaw of 16 May 1891. The rules are approximately thesame in Germany.

Section 3 was drawn up in cooperation with theEuropean Insurance Committee.

The provisions of this Section may be summarized asfollows: in matters relating to insurance, actions againstan insurer domiciled in a Contracting State may bebrought in the following courts , i.e. either:

(i) In the courts of the State where he is domiciled(Article 8), or, subject to certain conditions , in thecourts for the place where he has a branch (Articles7 and 8); or

(ii) (a) in the courts for the place where thepolicy-holder is domiciled (Article 8);

(b) in the courts of the State where one of theinsurers is domiciled, if two or more insurersare the defendants (Article 8);

(c) in the courts for the place where the agent whoacted as intermediary in the making of thecontract of insurance has his domicile , if thereis provision for such jurisdiction under the lawof the court seised of the matter (Article 8);

(d) 1. in respect of liability insurance, the insurermay in addition be sued:(1) in the courts for the place where the

harmful event occurred (Articles 9 and10),

(2) as a third party, in the court seised of

the action brought by the injured partyagainst the insured if, under its ownlaw, that court has jurisdiction in thethird party proceedings (Article 10);

2. in respect of insurance of immovableproperty, the insurer may in addition besued in the courts for the place where theharmful event occurred. The same appliesif movable and immovable property arecovered by the same insurance policy andboth are adversely affected by the samecontingency (Article 9).

Where an insurer is the plaintiff, he may in generalbring an action only in the courts of the State in whichthe defendant is domiciled , irrespective of whether thelatter is the policy-holder, the insured or a beneficiary.

Agreements conferring jurisdiction which depart fromthese rules have no legal force if they were entered intobefore the dispute arose (Article 12).

Article

Article 7 specifies that jurisdiction in matters relating toinsurance is governed solely by Section 3 of Title II.

Specific exceptions are made by the references toArticles 4 and 5 (5), which concern respectivelydefendants domiciled outside the Community anddisputes arising out of the operations of a branch

agency or other establishment.

It follows from the first of these exceptions thatjurisdiction is determined by the law of the court seisedof the matter including the rules of exorbitantjurisdiction, where the defendant, whether he is theinsurer or the policy-holder, is domiciled outside theCommunity. However, as an exception to the generalrules of the Convention, an insurer domiciled outside

the Community who has a branch or an agency in a


Contracting State is, in disputes relating to theoperations of the branch or agency, deemed to bedomiciled in that State. This exception, which contained in the last paragraph of Article 8, wasadopted because foreign insurance companies canestablish branches or agencies in other States only byputting up guarantees which in practice place them inthe same position as national companies. However, theexception applies only to branches or agencies , i.when the foreign company is represented by a personable to conclude contracts with third parties on behalfof the company.

The second exception again relates to branches oragencies, and also to other establishments, which, asappears from the reference back to Article 5 (5), dependfrom a company whose seat is in a Contracting State.The result is that such a company may be sued in thecourts for the place in which the branch, agency or

establishment is situated, in all disputes arising out oftheir operations.

Article

Article 8 lays down general rules of jurisdiction inproceedings instituted against an insurer in mattersrelating to insurance.

First, the courts of the State where the insurer isdomiciled have jurisdiction. This provision determinesonly general jurisdiction , namely the jurisdiction of thecourts of the State where the insurer is domiciled. EachState must then apply its internal law to determinewhich court has jurisdiction. However, if the insurer issued outside the State in which he is domiciled, theproceedings must be instituted in specificallydetermined court, in accordance with the principlesalready adopted in Article 5.

Secondly, an action may be brought in a State otherthan that in which the insurer is domiciled, in the courtsfor the place where the policy-holder is domiciled.Policy-holder ' is to be taken to mean the other party tothe contract of insurance. Where the insured or thebeneficiary is not the same person as the policy-holdertheir place of domicile is not taken into consideration.As was noted in particular by the European InsuranceCommittee , the insurer, as a supplier of services , entersinto a business relationship with the other contractingparty (the policy-holder). Because of their direct contactit is right and proper that the insurer can be sued in thecourts for the place where the policy-holder

domiciled. But it would be unreasonable to expect theinsurer to appear in the court of the insured or of abeneficiary, since. he will not necessarily know theirexact domicile at lhe time when the cause of actionarIses.

The domicile of the policy-holder which is relevant hereis the domicile existing at the time when the proceedingsare instituted.

Thirdly, if two or more insurers are defendants in thesame action , they may be sued in the courts of the Statewhere anyone of them is domiciled. This provision isidentical to that in Article 6 (1), which does not applyhere since the Section relating to insurance appliesindependently of the rest of the Convention.

Furthermore, an insurer may be sued in a State otherthan that in which he is domiciled, in the courts for theplace where the agent who acted as intermediary in themaking of the contract of insurance is domiciled, butsubject to two conditions: first, that the domicile of theagent who acted as intermediary is menti~ned in theinsurance policy or proposal, and, secondly, that the

law of the court seised of the matter recognizes thisjurisdiction. It is not recognized in Belgium or in Francealthough it is in Germany (1) and in Italy (Article 1903of the Civil Code). The reference to the insuranceproposal takes account of the usual practice inGermany. Insurance companies there in general usedata-processing systems, so that the place of the agencyoften appears in the policy only in the form of a numberreferring back to the insurance proposal. The insuranceproposal, within the meaning of the Convention, meansof course, the final proposal which forms the basis ofthe contract.

The expression ' the agent, who acted as intermediary inthe making of the contract of insurance ' includes bothan agent through whom the contract was directlyconcluded between the company and the policy-holderand also an agent who negotiated the contract toconclusion on behalf of the company. The significance

) ~ 48 of the Gesetz iiber den Versicherungsvertrag:1. If an insurance agent has acted as intermediary in themaking of the contract, or has concluded the contract, thenin actions against the insurer arising out of the insurancecontract the court for the place where, at the time when thecontract was negotiated through the agent or concluded

the agent had his agency or, in the absence of an agency,has domicile, shall have jurisdiction.2. The jurisdiction defined in paragraph 1 may not beexcluded by agreement.'


of the last paragraph of ArticleS is made clear in thecommentary on Article 7.

Article

Article 9 allows an insurer to be sued in a State otherthan that in which he is domiciled in the courts for theplace where the harmful event occurred, but without

prejudice to the application of Article 12 (3). Thisjurisdiction applies only in respect of liability insuranceand insurance of immovable property. It extends tomovable property in cases where a building and themovable property it contains are covered by the sameinsurance policy. This also applies if the movables arecovered by an endorsement to the policy covering theimmovable property.

Article

Article 10 contains rules of special jurisdiction forliability insurance cases. This provision is of particularimportance in relation to road accidents.

Under the first paragraph of Article 10, in an action

brought by the injured party against the insured, thelatter may join the insurer as a third party if the courtseised of the matter has jurisdiction in such a case underits own law. This is not possible in the Federal Republicof Germany (1).

The problem arose whether consolidation of the twoactions should be allowed even where the insurer andthe insured are both domiciled in the same State, whichit must be assumed for the purposes of this argument, isdifferent from the State of the court seised of the matter.For example, where an accident is caused in France by aGerman domiciled in Germany who is insured with - aGerman company, should third party proceedingswhich are recognized under French law, be possible

even though the litigation concerns a contract ofinsurance between a German insured person and aGerman insurer? As it is subject to German law, shouldthis contract not be litigated in a German court? Thecontractual relationship between the insurer and thepolicy-holder would then fall outside the scope of theproceedings relating to personal liability.

While acknowledging the relevance of this question, theCommittee was of the opinion that it would be unwiseto introduce rules of jurisdiction which would departfrom national laws and which could also jeopardize the

) See Article V of the Protocol.

system in force following the introduction of the green

card (2).

The compromise solution adopted by the Committee isto reduce the scope of the first paragraph of Article 10by inserting, under Article 12 (3), a provision that, if thepolicy-holder and the insurer are both domiciled in thesame Contracting State , when the contract is concludedthey may agree to confer jurisdiction on the courts ofthat State. Such an agreement must not, however, becontrary to the law of that State.

Under the second paragraph of Article 10 the insurermay also, in respect of liability insurance, be sueddirectly by the injured party (3) outside the State inwhich he is domiciled in any court which , under Articles7 to 9, has jurisdiction over actions brought by thepolicy-holder against the insurer.

Where, however, under the first paragraph of Article 8the court for the place where the policy-holder isdomiciled has jurisdiction, there is no provision givingjurisdiction to the court for the place where the injuredparty is domiciled. The phrase 'where such directactions are permitted' has been used specifically toinclude the conflict of laws rules of the court seised ofthe matter (4

Under the last paragraph of Article 10 , the insurer mayjoin the policy-holder or the insured as parties to the

action brought against him by the injured party. In theinterests of the proper administration of justice, it mustbe possible for the actions to be brought in the samecourt in order to prevent different courts from givingjudgments which are irreconcilable. This procedure willin addition protect the insurer against fraud (5

) Insurance against civil liability in respect of motor vehiclesis compulsory in all Community countries except Italy.Belgium: Law of 1 July 1956.France: Law of 27 February 1958 , Decree of 7 January1959.Germany: Law of 7 November 1939.Luxembourg: Law of 10 June 1932, ImplementingRegulations of 28 October 1932 and 24 December 1932.Netherlands: Law of 30 May 1963 , Decree of 23 June

1964.(3) Direct actions are recognized under Belgian , French and

Luxembourg law. Under German and Netherlands lawthey are recognized only with regard to compulsoryinsurance against civil liability in respect of motor vehicles.

) The rules of conflict must be used to decide whether thelaw to be applied is the law of the place where the harmfulevent occurred , the law governing the contract of insuranceor the lex fori.

) J. W AUTIER, L' assurance automobile obligatoire, Brussels1947.


Article

Article 11 relates to actions brought by the insureragainst the policy-holder, the insured or a beneficiary.

The courts of the State in which the defendant isdomiciled when the proceedings are instituted haveexclusive jurisdiction.

Again, this is a provIsIOn dealing with internationaljurisdiction; local jurisdiction within each State will bedetermined by the internal law of that State.

Article 11 does not apply where the defendant isdomiciled outside a Contracting State, that is to say,outside the Community. In such cases Article 4 applies.

The second paragraph corresponds to the provisions ofArticle 6 (3).

Article

Article 12 relates to agreements conferring jurisdiction.Agreements concluded before a dispute arises will haveno legal force if they are contrary to the rules ofjurisdiction laid down in the Convention.

The purpose of this Article is to prevent the parties fromlimiting the choice offered by this Convention to thepolicy-holder, and to prevent the insurer from avoidingthe restrictions imposed under Article 11.

A number of exceptions are, however, permitted. Aftera dispute has arisen , that is to say 'as soon as the partiesdisagree on a specific point and legal proceedings areimminent or contemplated' (1 ), the parties completelyregain their freedom.

Certain agreements conferring jurisdiction which wereconcluded before the dispute arose are also permissible.First, there are those made to the advantage of thepolicy-holder, the insured or a beneficiary, which allowthem to bring proceedings in courts other than thosespecified in the preceding Articles.

Certain other agreements conferring jurisdiction areallowed under Article 12 (3), but only in the strictlydefined circumstances therein specified which have beenexplained in the commentary on Article 10.

) BRAAS , Precis de procedure civile, Vol. I , No 795.

Section 4

Jurisdiction in matters relating to instalment sales andloans

This Section relates to the sale of goods where the priceis payable in a series of instalments, and to the sale ofgoods where the sale is contractually linked to a loan(Abzahlungsgeschafte). The rules here adopted aresimilar to those applicable in the national law of severalof the Member States and, like them, stem from a desireto protect certain categories of persons. Article 13provides that this Section applies independently of therest of the Convention and, like Article 7, withoutprejudice to the provisions of Articles 4 and 5 (5).

Article 14 determines the rules of jurisdiction.

In actions against a seller or a lender, proceedings maybe instituted by the buyer or borrower either in thecourts of the State in which the defendant is domiciledor in the courts of the State in which the buyer orborrower is domiciled.

Actions by a seller or a lender may in general bebrought only in the courts for the place where the buyeror borrower is domiciled when the proceedings areinstituted.

The third paragraph relatingcorresponds to Article 6 (3).

counterclaims,

Article 15, which relates to agreements conferringjurisdiction, contains under (3) a provision analogous tothat of Article 12 (3), but for different reasons. Inactions brought by a seller Of a lender, it is ratherdifficult to determine jurisdiction where the buyer borrower establishes himself abroad after the contracthas been concluded. To protect these persons, they

should ideally be sued only in the courts of the Statewhere they have established their new domicile. Forreasons of equity the Committee has however providedthat where a seller and a buyer, or a lender and aborrower, are both domiciled or at least habituallyresident in the same State when the contract isconcluded, they may confer on the courts of that Statejurisdiction over all disputes arising out of the contracton condition that such agreements are not contrary tothe law of that State.

The criterion of habitual residence allows agreementsconferring jurisdiction to be concluded even where abuyer or borrower remains domiciled in a Contracting


State other than that in which he is resident. It followsfor example, that a seller or lender need not sue thedefendant abroad in the courts of the State in which thedefendant is domiciled, if when the proceedings areinstituted, the defendant is still resident in the State inwhich the contract was concluded.

Section 5

Exclusive jurisdiction

Article

Article 16 lists the circumstances in which the six Statesrecognize that the courts of one of them have exclusivejurisdiction. The matters referred to in this Article willnormally be the subject of exclusive jurisdiction only ifthey constitute the principal subject-matter of theproceedings of which the court is to be seised.

The provisions of Article 16 on jurisdiction may not bedeparted from either by an agreement purporting toconfer jurisdiction on the courts of another ContractingState, or by an implied submission to the jurisdiction(Articles 17 and 18). Any court of a State other than theState whose courts have exclusive jurisdiction mustdeclare of its own motion that it has no jurisdiction(Article 19). Failure to observe these rules constitutes aground for refusal of recognition or enforcement(Articles 28 and 34).

These rules, which take as their criterion thesubject-matter of the action, are applicable regardless ofthe domicile or nationality of the parties. In view of thereasons for laying down rules of exclusive jurisdictionit was necessary to provide for their general applicationeven in respect of defendants domiciled outside theCommunity. Thus, for example, a Belgian court willnot, on the basis of Article 53 of the Law of 1876 or ofArticle 637 of the draft Judicial Code, which in actionsagainst foreigners recognize the jurisdiction of thecourts of the plaintiff, have jurisdiction in proceedingsbetween a Belgian and a person domiciled, for examplein Argentina, if the proceedings concern immovableproperty situated in Germany. Only the German courtswill have jurisdiction.

Immovable property

Under Article 16 (1), only the courts of the ContractingState in which the immovable property is situated havejurisdiction in proceedings concerning rights in rem

or tenancies of, immovable property.

The importance of matters relating to immovableproperty had already been taken into consideration bythe authors of the Treaty of Rome since, under Article54 (3) (c) of that Treaty, the Commission and theCouncil must enable ' a national of one Member State toacquire and use land and buildings situated in theterritory of another Member State , in so far as this doesnot conflict with the principles laid down in Article 39(2) relating to agricultural policy.

The problems which the Committee faced in thisconnection did not in fact relate to the recognition andenforcement of judgments, since these questions are

governed by the provisions of the conventions alreadyconcluded between Member States, all of which applyin civil and commercial matters , including immovableproperty, but rather to the choice of rules ofjurisdiction.

The laws of all the Member States include in this respectspecial rules of jurisdiction (1) which generallyspeaking, have been incorporated in the bilateralconventions, whether they are based on direct (2) orindirect (3) jurisdiction.

However, the rules laid down in the Convention differfrom those in the bilateral agreements in that theConvention lays down rules of exclusive jurisdiction.The Convention follows in this respect the Treatybetween France and Germany settling the question ofthe Saar, Article 49 of which provides that the courts 'the country in which the immovable property is situatedshall have exclusive jurisdiction in all disputes regardingthe possession or ownership of such property and in alldisputes regarding rights in rem in such property

As in that Treaty, the exclusive jurisdiction establishedby Article 16 (1) applies only in international relations;the internal rules of jurisdiction in force in each of theStates are thus not affected.

In other words , the Convention prohibits the courts ofone Contracting State from assuming jurisdiction in

) Belgium: Article 8 of the Law of 25 March 1876 , amendedby the Arrete royal of 3 January 1935; Article 52 of theLaw of 1876; Federal Republic of Germany, Article 24 ofthe Code of Civil Procedure; France, Article 59 (5) of theCode of Civil Procedure; Italy, Articles 4 and 21 of theCode of Civil Procedure; Luxembourg, Article 59 (3) and(4) of the Code of Civil Procedure; Netherlands, Article

126 (8) of the Code of Civil Procedure.

(l) Convention between Belgium and the Netherlands (Article10).

(3) Conventions between Germany and Belgium (Article 10);between France and Italy (Article 16); between Italy andthe Netherlands (Article 2 (6)); between Germany and Italy(Article 2 (7)); between Belgium and Italy (Article 2 (8));and between Germany and the Netherlands (Article 4(1) (f)).


disputes relating to immovable property situated inanother Contracting State; it does not, in the State inwhich the immov~ble property is situated, preventcourts other than that for the place where the propertyis situated from having jurisdiction in such disputes ifthe jurisdiction of those other courts is recognized the law of that State.

number of considerations led the Committee toprovide a rule of exclusive jurisdiction in this matter. Inthe Federal Republic of Germany and in Italy, the courtfor the place where the immovable property is situatedhas exclusive jurisdiction, this being considered a matterof public policy. It follows that, in the absence of a ruleof exclusive jurisdiction , judgments given in other Statesby courts whose jurisdiction might have been derivedfrom other provisions of the Convention (the court ofthe defendant s domicile, or an agreed forum) could

have been neither recognized nor enforced in Germanyor Italy.

Such a system would have been contrary to the principleof ' free movement of judgments

The Committee was all the more inclined to extend tointernational relations the rules of jurisdiction in force

in the Federal Republic of Germany and in Italy, since itconsidered that to do so was in the interests of theproper administration of justice. This type of disputeoften entails checks, enquiries and expert examinationswhich have to be made on the spot. Moreover, thematter is often governed in part by customary practiceswhich are not generally known except in the courts ofthe place, or possibly of the country, where theimmovable property is situated. Finally, the systemadopted also takes into account the need to makeentries in land registers located where the property issituated.

The wording adopted covers not only all disputesconcerning rights in rem in immovable property, butalso those relating to tenancies of such property. Thiswill include tenancies of dwellings and of premises forprofessional or commercial use, and agriculturalholdings. In providing for the courts of the State inwhich the property is situated to have jurisdiction regards tenancies in immovable property, theCommittee intended to cover disputes between landlordand tenant over the existence or interpretation oftenancy agreements, compensation for damage causedby the tenant, eviction , etc. The rule was not intendedby the Committee to apply to proceedings concerned

only with the recovery of rent, since such proceedingscan be considered to relate to a subject-matter which isquite distinct from the rented property itself.

The adoption of this provision was dictated by the factthat tenancies of immovable property are usuallygoverned by special legislation which, in view of itscomplexity, should preferably be applied only by thecourts of the country in which it is in force. Moreoverseveral States provide for exclusive jurisdiction in suchproceedings, which is usually conferred on specialtribunals.

Companies and associations of natural or legal persons

Article 16 (2) provides that the courts of the State inwhich a company or other legal person, or anassociatio~ of natural or legal persons , has its seat, haveexclusive jurisdiction in proceedings which are

substance concerned either with the validity of the

constitution, the nullity or the dissolution of thecompany, legal person or association, or with thedecisions of its organs.

It is important, in the interests of legal certainty, toavoid conflicting judgments being given as regards theexistence of a company or association or as regards thevalidity of the decisions of its organs. For this reason, itis obviously preferable that all proceedings should takeplace in the courts of the State in which the company orassociation has its seat. It is in that State thatinformation about the company or association will havebeen notified and made public. Moreover, the ruleadopted will more often than not result in theapplication of the traditional maxim actor sequitur

forum rei' Such jurisdiction is recognized in particularin German law and, as regards non-profit makingorganizations , in Luxembourg law.

Public registers

Article 16 (3) lays down that the courts of the State inwhich a public register is kept have exclusivejurisdiction in proceedings relating to the validity or

effects of entries in that register.

This provision does not require a lengthy commentary.It correspond to the provisions which appear in theinternal laws of most of the Contracting States; it coversin particular entries in land registers, land charges

registers and commercial registers.


Patents

Article 16 (4) applies to proceedings concerned with theregistration or validity of patents, trade marks, designsor other similar rights , such as those which protect fruitand vegetable varieties, and which are required to bedeposited or registered.

A draft convention has been drawn up by the EECcountries relating to patent law. The draft includes rulesof jurisdiction for the Community patent, but it will notapply to national patents, which thus fall within thescope of the Judgments Convention.

Since the grant of a national patent is an exercise of

national sovereignty, Article 16 (4) of the JudgmentsConvention provides for exclusive jurisdiction inproceedings concerned with the validity of patents.

Other actions, including those for infringement ofpatents, are governed by the general rules of theConvention.

The expression 'the deposit or registration has beenapplied for ' takes into account internal laws which , likeGerman law, make the grant of a patent subject to theresults of an examination. Thus, for example, Germancourts will have exclusive jurisdiction in the case of anapplication to the competent authorities for a patent tobe granted where, during the examination of theapplication, a dispute arises over the rights relating to

the grant of that patent.

The phrase 'is under the terms of an internationalconvention deemed to have taken place' refers to thesystem introduced by the Madrid Agreement of 14 April1891 concerning international registration of trademarks, revised at Brussels on 14 December 1900, atWashington on 2 June 1911 , at The Hague on 6November 1925 and at London on 2 June 1934 , andalso to the Hague Arrangement of 6 November 1925for the international registration of industrial designs

revised at London on 2 June 1934. Under this systemthe deposit of a trade mark, design or model at theInternational Office in Berne through the registry of thecountry of origin has the same effect in the otherContracting States as if that trade mark, design ormodel had been directly registered there. Thus where atrade mark is deposited at the International Office atthe request of the German authorities , the French courtswill have exclusive jurisdiction in disputes relating, forexample, to whether the mark should be deemed tohave been registered in France.

Enforcement of judgments

Article 16 (5) provides that the courts of the State inwhich a judgment has been or is to be enforced haveexclusive jurisdiction in proceedings concerned with theenforcement of that judgment.

What meaning is to be given to the expressionproceedings concerned with the enforcement ofjudgments

It means those proceedings which can arise fromrecourse to force , constraint or distraint on movable orimmovable property in order to ensure the effectiveimplementation of judgments and authenticinstruments ' (1).

Problems arising out of such proceedings come withinthe exclusive jurisdiction of the courts for the place of

enforcement.

Provisions of this kind appear in the internal law ofmany Member States (l).

Section 6

Prorogation of jurisdiction

This sec~ion includes Article 17, on jurisdiction byconsent, and Article 18 , which concerns jurisdictionimplied from submission.

Article

Jurisdiction deriving from agreements conferringjurisdiction is already a feature of all the Conventionsconcluded between Member States of the Community,whether the rules of jurisdiction are direct or indirect:see the Convention between France and Belgium(Article 3), and between Belgium and the Netherlands(Article 5); the Benelux Treaty (Article 5); the

) BRAAS , Precis de procedure civile, Vol. I, No 808.e) See LEREBOURS-PIGEONNItRE, Droit international

prive, seventh edition, p. 9; LOUSSOUARN, No 411:French courts have exclusive jurisdiction over measures forenforcement which is to take place in France (preventivemeasures, distress levied on a tenant s chattels, writs of

attachment and applications for enforcement of a foreignjudgment); over distraint levied on immovable or movableproperty, and over proceedings concerned with the validityof measures for enforcement.


Convention between France and Italy (Article 12),between Germany and Italy (Article 2 (2)), betweenItaly and the Netherlands (Article 2 (2)), between Italyand Belgium (Article 2 (1) (2)), between Germany andBelgium (Article 3 (2)), and between Germany and theNetherlands (Article 4 (1) (b)).

This jurisdiction is also the subject of internationalconventions , namely the Hague Convention of 15 April1958 on the jurisdiction of the contractual forum inmatters relating to the international sale of goods , andthe Hague Convention of 25 November 1965 on thechoice of court (1

It is unnecessary to stress the importance of thisjurisdiction, particularly in commercial relations.

However, although agreement was readily reached onthe basic principle of including such a jurisdiction in theConvention the Committee spent much time indrafting Article 17.

Like the draftsmen of the Convention between Germanyand Belgium, the report of which may usefully bequoted, the Committee s first concern was 'not toimpede commercial practice, yet at the same time tocancel out the effects of clauses in contracts whichmight go unread. Such clauses will therefore be takeninto consideration only if they are the subject of anagreement, and this implies the consent of all theparties. Thus, clauses in printed forms for businesscorrespondence or in invoices will have no legal force ifthey are not agreed to by the party against whom theyoperate.

The Committee was further of the opinion that, in orderto ensure legal certainty, the formal requirementsapplicable to agreements conferring jurisdiction shouldbe expressly prescribed, but that ' excessive formalitywhich is incompatible with commercial practice' (2)

should be avoided.

In this respect, the version adopted is similar to that ofthe Convention between Germany and Belgium, whichwas itself based on the rules of the Hague Convention

(1) By 1 September 1966 neither of these Conventions hadentered into force.

(2) Hague Conference on private international law, documentsof the eighth session. FRfDERICQ, Report on the work ofthe Second Committee, p. 303.

of 15 April 1958 , in that a clause conferring jurisdictionis valid only if it is in writing, or if at least one of theparties has confirmed in writing an oral agreement (3

Since there must be true agreement between the partiesto confer jurisdiction, the court cannot necessarilydeduce from a document in writing adduced by theparty seeking to rely on it that there was an oralagreement. The special position of the Grandy Duchy ofLuxembourg in this matter necessitated an additionalrestriction which is contained in the second paragraphof Article I of the Protocol.

The question of how much weight is to be attached tothe written document was left open by the Committee.In certain countries, a document in writing will berequired only as evidence of the existence of the

agreement; in others, however, it will go to the validityof the agreement.

Like the Conventions between Belgium and theNetherlands and between France and Belgium , and alsothe Benelux Treaty and the Hague Convention, the firstparagraph of Article 17 provides that the court agreedon by the parties shall have exclusive jurisdiction. Thissolution is essential to avoid different courts from beingproperly seised of the matter and giving conflicting or atleast differing judgments. In order to meet practicalrealities, the first paragraph of Article 17 also coversspecifically cases of agreement that a particular court ina Contracting State or the courts of a Contracting Stateare to have jurisdiction, and is similar in this to the1958 Hague Convention. As Professor Batiffol pointedout in his report on that Convention, an agreement

conferring jurisdiction generally on the courts of aContracting State 'may have no legal effect if, in theabsence of any connecting factor between thecontractual situation and the State whose courts havebeen agreed on as having jurisdiction , the law of thatState provides no way of determining which court canor should be seised of the matter' (4). But as Batiffolremarks, this is a matter which the parties shouldconsider at the appropriate time.

The first paragraph of Article 17 applies only if at leastone of the parties is domiciled in a Contracting State. Itdoes not apply where two parties who are domiciled inthe same Contracting State have agreed that a court that State shall have jurisdiction , since the Convention

(3) Hague Conference on private international law, Final Actof the tenth session. Convention on the choice of courtArticle 4.

) Hague Conference on private international law, documentsof the eighth session , p. 305.


under the general principle laid down in the preambledetermines only the international jurisdiction of courts(see Commentary, Chapter III, Section 1 , Internationallegal relationships).

Article 17 applies where the agreement conferringjurisdiction was made either between a persondomiciled in one Contracting State and a persondomiciled in another Contracting State, or between aperson domiciled in a Contracting State and a persondomiciled outside the Community, if the agreementconfers jurisdiction on the courts of a Contracting State;it also applies where two persons domiciled in oneContracting State agree that a particular court ofanother Contracting State shall have jurisdiction.

The second paragraph of Article 17 provides thatagreements conferring jurisdiction shall have no legalforce if they are contrary to the provisions of Article 12(insurance) or Article 15 (instalment sales), or if thecourts whose jurisdiction they purport to exclude haveexclusive jurisdiction by virtue of Article 16.

The intention behind the Convention is to obviate casesof refusal of recognition and enforcement on the basisof Articles 28 and 34, and so, as already stated, topromote the free movement of judgments.

The third paragraph of Article 17 provides that if theagreement conferring jurisdiction was concluded for thebenefit of only one of the contracting parties, that partyshall retain the right to bring proceedings in any othercourt which has jurisdiction (1). Agreements conferringjurisdiction cannot of course affect the substantivejurisdiction of the courts.

Article

Article 18 governs jurisdiction implied from submission.If a defendant domiciled in a Contracting State is suedin a court of another Contracting State which does nothave jurisdiction under the Convention, two situations

may arise: the defendant may either, as he is entitled to, plead that the court has no jurisdiction under the

Convention, in which case the court must declare that itdoes not have jurisdiction; or he may elect not to raisethis plea, and enter an appearance. In the latter case, thecourt will have jurisdiction.

) See also the Conventions between France and Belgium

Article 3 , between France and Italy, Article 2 , and betweenBelgium and the Netherlands, Article 5 and the BeneluxTreaty, Article 5.

Unlike the case of conventions based on indirectjurisdiction, the defendant may, by virtue of theConvention, rely on its provisions in the court seised ofthe proceedings and plead lack of jurisdiction. It will benecessary to refer to the rules of procedure in force inthe State of the court seised of the proceedings in orderto determine the point in time up to which thedefendant will be allowed to raise this plea, and to

determine the legal meaning of the term ' appearance

Moreover, by conferring jurisdiction on a court incircumstances where the defendant does not contest thatcourt's jurisdiction , the Convention extends the scope ofTitle II and avoids any uncertainty. The mainconsequence of this rule is that if a defendant domiciledin a Contracting State is, notwithstanding the provisionsof the second paragraph of Article 3 , sued in anotherContracting State on the basis of a rule of exorbitant

jurisdiction, for example in France on the basis ofArticle 14 of the Civil Code, the court will havejurisdiction if this is not contested. The only cases inwhich a court must declare that it has no jurisdictionand where jurisdiction by submission will not beallowed are those in which the courts of another Statehave exclusive jurisdiction by virtue of Article 16.

Section 7

Examination as to jurisdiction and admissibility

Article

As has already been stated (page 8), a court must of itsown motion examine whether it has jurisdiction. Article19 emphasizes that the court must of its own motiondeclare that it has no jurisdiction if it is seised of amatter in which the courts of another Contracting State

. have exclusive jurisdiction by virtue of Article 16.

This rule is essential since the exclusive jurisdictions areconceived to be matters of public policy which cannotbe departed from by the free choice of the parties.Moreover, it corresponds to Article 171 of the FrenchCode of Civil Procedure, by virtue of which territorialjurisdiction is automatically examined where the partiesare not permitted to reach a settlement (2).

If this Article deserves particular attention, it is mainlybecause, in order that the general rules of jurisdiction

) The same is true in the Federal Republic of Germany: seeROSENBERG, op. cit. paragraph 38 (I) (3).


are observed, it grants wide powers to the court seisedof the proceedings, since that court will of its ownmotion have to examine whether it has jurisdiction.

The words 'principally concerned' have the effect thatthe court is not obliged to declare of its own motionthat it has no jurisdiction if an issue which comes withinthe exclusive jurisdiction of another court is raised onlyas a preliminary or incidental matter.

Article

Article 20 is one of the most important Articles in theConvention: it applies where the defendant does notenter an appearance; here the court must of its ownmotion examine whether it has jurisdiction under theConvention. If it finds no basis for jurisdiction, the

court must declare that it has no jurisdiction. It isobvious that the court is under the same obligation evenwhere there is no basis for exclusive jurisdiction. Failureon the part of the defendant to enter an appearance isnot equivalent to a submission to the jurisdiction. It isnot sufficient for the court to accept the submissions ofthe plaintiff as regards jurisdiction; the court must itselfensure that tp.e plaintiff proves that it has internationaljurisdiction (1

The object of this provision is to ensure that in cases offailure to enter an appearance the court giving judgmentdoes so only if it has jurisdiction, and so to safeguardthe defendant as fully as possible in the originalproceedings. The rule adopted is derived from Article37 (2) of the Italian Code of Civil Procedure, by virtueof which the court must of its own motion examinewhether it has jurisdiction where the defendant is aforeigner and does not enter an appearance.

The second paragraph of Article 20 is also designed tosafeguard the rights of the defendant, by recognizing theinternational importance of the service of judicialdocuments. The service of judicial documents abroadalthough governed differently in each of the MemberStates, can broadly be separated into two main systems.The German system is based on the cooperation of thepublic authorities of the place of residence of theaddressee which have jurisdiction to deliver to him acopy of the instrument. A German court cannot ingeneral give judgment in default of appearance unless itreceives conclusive evidence that the instrument has

) BOLOW op. cit.

been delivered to the addressee (2 e). The systemcontrasts with those in force in Belgium, France, Italy,

Luxembourg and the Netherlands (4), all of which arecharacterized by the 'desire to localize in the territory ofthe State of the forum all the formalities connected withthe judicial document whose addressee residesabroad' (5).

Under the laws of these countries, service is properlyeffected, and causes time to begin to run, without therebeing any need to establish that the documentinstituting the proceedings has actually been served onits addressee. It is not impossible in these circumstancesthat, in some cases, a defendant may have judgmententered against him in default of appearance withouthaving any knowledge of the action.

The Hague Convention of 1 March 1954 on civilprocedure, to which the six Member States are party,does not solve the difficulties which arise under suchlegislation.

The Committee also tried to solve the problems arisingwhen service is effected late, bearing in mind that theaim of the Convention is to promote, so far as possiblethe free movement of judgments.

The search for a solution was obviously helped by thedrafting at the tenth session of the Hague Conferenceon private international law of the Convention on theservice abroad of judicial and extrajudicial documentsin civil or commercial matters , which was opened forsignature on 15 November 1965. This is the reason whythe solution adopted in the second paragraph of Article20 is only transitional.

This provision summarizes Article 15 of the HagueConvention, which is in fact derived from Article 20 ofthis present Convention since the work of theCommittee served as a basis for discussion at themeetings of the Special Commission which wasestablished by the Hague Conference and which drewup the preliminary draft which was submitted fordiscussion at the tenth session.

e) RIGAUX , La signification des actes judiciaires a I'etranger.Revue critique de droit international prive, p. 448 et seq.

(3) See German Code of Civil Procedure, Article 335 (1) (2)and Article 202.

(~) Belgium: Code of Civil Procedure, Article 69bis, andJudgment of the Cour de cassation of 4 March 1954.Revue des huissiers de Belgique, May-June 1954, p. 15.

France: Code of Civil Procedure, Article 69 (10), asinterpreted by the French Cour de cassation. See Revuecritique de droit international prive, No 1 , January-March1961 , p. 174 et seq.

Italy: Code of Civil Procedure, Articles 142 and 143.Luxembourg: Arrete-Ioi of 1 April 1814.Netherlands: Code of Civil Procedure, Article 4 (8).

) RIGAUX , id. , p. 454.


Under the second paragraph of Article 20, where adefendant domiciled in one Contracting State is sued inthe courts of another State and does not enter anappearance, the court must stay the proceedings so longas it is not shown that the defendant has been able toreceive the document instituting the proceedings insufficient time to enable him to arrange for his defenceor that all necessary steps have been taken to this end.

This provIsIOn is based on the old Article 8 of theNetherlands Law of 12 June 1909 , Stb No 141 (1).

The second paragraph of Article 20 requires first thatnotification of the proceedings has been given to theparty who has not entered an appearance , that is eitherto him in person or at his domicile, and secondly that ithas been delivered in sufficient time to enable thedefendant to arrange for his defence. It does not requirethat the defendant should actually have been notified insufficient time. The defendant must be responsible forany delay caused by his own negligence or by that of hisrelations or servants. The critical time is thus the time atwhich service was properly effected, and not the time atwhich the defendant received actual knowledge of theinstitution of proceedings.

The question of ' sufficient time' is obviously a questionof fact for the discretion of the court seised of thematter.

The court may give judgment in default against adefendant if it is shown that ' all necessary steps havebeen taken ' for him actually to have received insufficient time the document instituting the proceedings.

This means that a court will be able to give judgment indefault against a defendant even if no affidavit can beproduced to confirm service on the defendant of thedocument instituting the proceedings, provided it isshown that all the necessary approaches have beenmade to the competent authorities of the State in whichthe defendant is domiciled in order to reach him insufficient time. Where necessary, it must also be shownthat 'all the investigations required by good conscience

(1) This Article reads as follows: 'Where the defendant doesnot enter an appearance, the court may not give judgmentin default if the plaintiff does not show that the defendantreceived the writ of summons. The plaintiff may ask for anew date to be fixed for the hearing.'

and good faith have been undertaken to discover thedefendant ' (2).

As already stated, the second paragraph of Article 20 isonly a transitional provision. Under the third paragraphof that Article, where the State of the forum and theState in which the document had to be transmitted haveboth ratified the new Hague Convention, the court

seised of the matter will no longer apply the secondparagraph of Article 20 but will be exclusively boundby Article 15 of the Hague Convention. Thus anypossibility of conflict between Article 15 of the HagueConvention and the second paragraph of Article 20 ofthe EEC Judgments Convention is resolved in favour ofthe Hague Convention.

The Committee also considered it important to ensurecertainty and speed in the transmission of judicialdocuments. In order to achieve this, it considered as apossible solution the transmission of such documents byregistered post. However, it did not adopt this systemfor, although it meets the requirement of speed, it doesnot offer all the necessary safeguards from the point ofview of certainty. In the end the Committee adopted thesystem which is set out in Article IV of the Protocol.

This Article simply adds a new method of transmissionto those already provided for by the Hague Conventionof 1 March 1954 on civil procedure, or by theagreements concluded between the Contracting States inapplication of that Convention. It correspondsmoreover, to the facility provided for by Article 10 (b)of the new Hague Convention.

Under the system adopted in the Protocol , documentscan be transmitted by public officers in one ContractingState directly to their colleagues in another ContractingState, who will deliver them to the addressee in personor to his domicile.

According to the assurances which were given to theCommittee by representative of the 'Unioninternationale des huissiers de justice et d' officiersjudiciaires , it will be easy for a public officer in onecountry to correspond with the appropriate publicofficer in another country. In case of difficulty it wouldmoreover be possible for the officer in the State inwhich judgment was given to invoke the assistance ofthe national associations of public officers, or on thecentral office of the 'Union' which has its headquartersin Paris.

(2) Cour d' appel de POITIERS , 9. 7. 1959 (Gazette du Palais,1959.11. 183); d. GAVALDA, Revue critique de droitinternational prive, 1960 , No 1 , p. 174.


In the opinion of the Committee these arrangementsmeet the requirements of speed and certainty. Directcommunication between public officers allows aconsiderable gain in time by avoiding any recourse tointermediary bodies such as Ministries for ForeignAffairs , Ministries of Justice or prosecutors ' offices.

Certainty is further guaranteed since if, for example , theaddress is incomplete or inaccurate, the officer in the

State in which service is to be effected may well be ableto undertake investigations in order to find theaddressee.

As for the linguistic difficulties which could arise in thecontext of a grouping of the six countries , these couldbe overcome by attaching to the instrument a summaryin the language of the addressee.

Like Article 10 (b) of the Hague Convention, Article IVof the Protocol allows a Contracting State to object tothis method of transmission.

Section 8

Lis pendens related actions

Article

As there may be several concurrent internationaljurisdictions, and the courts of different States mayproperly be seised of a matter (see in particular Articles2 and 5), it appeared to be necessary to regulate thequestion of /is pendens. By virtue of Article 21 , thecourts of a Contracting State must decline jurisdictionif necessary of their own motion, where proceedingsinvolving the same cause of action and between thesame parties are already pending in a court of anotherState. In cases of lis pendens the court is therefore

obliged to decline jurisdiction, either on the applicationof one of the parties, or of its own motion, since this

will facilitate the proper administration of justice withinthe Community. A court will not always have toexamine of. its own motion whether the sameproceedings are pending in the courts of anothercountry, but only when the circumstances are such as tolead the court to belive that this may be the case.

Instead of declining jurisdiction , the court which subsequently seised of a matter may, however, stay its

proceedings if the jurisdiction of the court first seised iscontested. This rule was introduced so that the partieswould not have to institute new proceedings if, forexample, the court first seised of the matter were todecline jurisdiction. The risk of unnecessary disclaimersof jurisdiction is thereby avoided.

Jurisdiction is declined in favour of the court first seisedof the matter. The Committee decided that there was noneed to specify in the text the point in time from whichthe proceedings should be considered to be pending,

and left this question to be settled by the internal law ofeach Contracting State.

Article

The solution offered by this Article to t~e problem ofrelated actions differs in several respects from thatadopted to regulate the question of /is pendens,

although it also serves to avoid the risk of conflictingjudgments and thus to facilitate the properadministration of justice in the Community.

Where actions are related, the first duty of the court isto stay its proceedings. The proceedings must, howeverbe pending at the same level of adjudication, forotherwise the object of the proceedings would bedifferent and one of the parties might be deprived of astep in the heirarchy of the courts.

Furthermore, to avoid disclaimers of jurisdiction, the

court may decline jurisdiction only if it appears that thecourt first seised has jurisdiction over both actions, thatis to say, in addition, only if that court has notjurisdiction over the second action. The court maydecline jurisdiction only on the application of one of theparties, and only if the law of the court first seisedpermits the consolidation of related actions which arepending in different courts. This last condition takesinto account the specific problems of German andItalian law. In German law, consolidation is in generalpermitted only if both actions are pending in the samecourt. In Italian law, the constitution does not permit acourt to decide whether it will hear an action itself orrefer it to another court. It will , however, always bepossible for a German or Italian court which issubsequently seised of a matter to stay its proceedings.


Finally, since the expression ' related actions ' does nothave the same meaning in all the Member States, thethird paragraph of Article 22 provides a definition. Thisis based on the new ~lgian Judicial Code (Article 30).

The Convention does not regulate the procedure for theconsolidation of related actions. This is a questionwhich is left to the internal laws of the individual States.

Article

This Article deals with a situation which will occur onlyvery rarely, namely where an action comes within theexclusive jurisdiction of several courts. To avoidconflicts of jurisdiction, any court other than the courtfirst seised of the action is required under Article 21 orArticle 22 to decline jurisdiction in favour of that court.

Section 9

Provisional and protective measures

Article

Article 24 provides that application may be made to thecourts of a Contracting State for such provisionalmeasures, including protective measures, as may available under the internal law of that Stateirrespective of which court has jurisdiction as to thesubstance of the case. A corresponding provision will befound in nearly all the enforcement conventions (1).

In each State, application may therefore be made to thecompetent courts for provisional or protective measuresto be imposed or suspended, or for rulings on thevalidity of such measures, without regard to the rules ofjurisdiction laid down in the Convention.

As regards the measures which may be taken, referenceshould be made to the internal law of the countryconcerned.

CHAPTER V

RECOGNITION AND ENFORCEMENT

A. GENERAL CONSIDERATIONS

As a result of the safeguards granted to the defendant inthe original proceedings , Title III of the Convention isvery liberal on the question of recognition andenforcement. As already stated, it seeks to facilitate asfar as possible the free movement of judgments, andshould be interpreted in this spirit. This liberalapproach is evidenced in Title III first by a reduction inthe number of grounds which can operate to prevent therecognition and enforcement of judgments andsecondly, by the simplification of the enforcementprocedure which will be common to the six countries.

It will be recalled that Article 1, which governs thewhole of the Convention, provides that the Conventionshall apply in civil and commercial matters whatever thenature of the court or tribunal. It follows thatjudgments given in a Contracting State in civil commercial matters by criminal courts or administrative tribunals must be recognized andenforced in the other Contracting States. Under Article

, the Convention applies to any judgment, whateverthe judgment may be called. It also applies to writs ofexecution (Vollstreckungsbefehl , Article 699 of theGerman Code of Civil Procedure) (2) and to thedetermination of costs (Kostenfestsetzungsbeschlug des

Urkundsbeamten, Article 104 of the German Code ofCivil Procedure) which, in the Federal Republic, aredecisions of the registrar acting as an officer of thecourt. In decisions based on Article 104 of the GermanCode of Civil Procedure, the CQsts are determined inaccordance with a schedule laid down by law and onthe basis of the judgment of the court deciding on thesubstance of the matter (3 ). In the event of a dispute asto the registrar s decision, a fully constituted courtdecides the issue.

(1) Benelux Treaty and Convention between Belgium and theNetherlands (Article 8); Convention between Germany andBelgium (Article 15 (2)); between France and Belgium(Article 9); between Italy and Belgium (Article 14);between Italy and the Netherlands (Article 10); betweenFrance and Italy (Article 32); and between Germany andthe Netherlands (Article 18 (2)).

(2) The Vollstreckungsbefehl is issued hy the court registrar.(3) See also Article 18 (2) of the Hague Convention of

March 1954 on Civil Procedure.


It follows from Article 1 that Title III cannot be invokedfor the recognition and enforcement of judgments givenon matters excluded from the scope of the Convention(status and legal capacity of persons, rules governingrights in property arising out of matrimonialrelationship, wills and succession , bankruptcy and othersimilar proceedings, social security, and arbitrationincluding arbitral awards).

On the other hand, Title III applies to any judgmentgiven by a court or tribunal of a Contracting State inthose civil and commercial matters which fall within thescope of the Convention , whether or not the parties aredomiciled within the Community and whatever theirnationality.

B. COMMENTARY ON THE SECTIONS

Section 1

Recognition

Article

Recognition must have the result of conferring judgments the authority and effectiveness accorded tothem in the State in which they were given.

The words res judicata which appear in a number ofconventions have expressly been omitted sincejudgments given in interlocutory proceedings and parte may be recognized, and these do not always havethe force of res judicata. Under the rules laid down inArticle 26:

1. judgments are to be recognized automatically;

2. in the event of a dispute, if recognition is itself theprincipal issue, the procedure for enforcementprovided for in the Convention may be applied;

3. if the outcome of proceedings depends on thedetermination of an incidental question ofrecognition the court entertaining thoseproceedings has jurisdiction on the question ofrecognition.

The first of these rules lays down the principle thatjudgments are to be recognized; recognition is to be

accorded without the need for recourse to any priorspecial procedure. It is thus automatic, and does notrequire a judicial decision in the State in whichrecognition is sought to enable the party in whosefavour judgment has been given to invoke thatjudgment against any party concerned, for example an'administrative authority, in the same way as a judgmentgiven in that State. This provision means that certainlegal provisions which in some countries , such as Italy,make the recognition of a foreign judgment subject to aspecial procedure (dichiarazione di efficacia) will beabolished. The Italian delegation stated that it was ableto concur in this solution since the scope of theConvention was limited to matters relating to propertyrights.

Furthermore, this system is the opposite of that adoptedin numerous conventions , according to which foreignjudgments are recognized only if they fulfil a certainnumber of conditions. Under Article 26 there is 'presumption in favour of recognition, which can be

rebutted only if one of the grounds for refusal listed inArticle 27 is present.

The second rule concerns the case where the recognitionof a judgment is itself the point at issue, there being noother proceedings involved and no question ofenforcement. For example, a negotiable instrument isdeclared invalid in Italy by reason of fraud. Thenegotiable instrument is presented to a bank in Belgium.Reliance is placed on the Italian judgment. The bank isfaced with two contradictory instruments. The Italianjudgment would normally have to be recognized, but itmay be that one of the grounds for refusal set out inArticle 27 applies. In the event of a dispute it is hardlythe task of the bank to decide on the grounds forrefusal, and in particular on the scope of Belgianinternational public policy . The second rule of Article

26 offers a solution in cases of this kind. It allows theparty seeking recognition to make use of the simplifiedprocedure provided by the Convention for enforcement

of the judgment. There is thus unification at the stage ofrecognition not only of the legal or administrativeprocedures which govern this matter in a number ofStates, but also in those countries which, like Belgiumdo not allow actions for a declaration that a judgment isnot to be recognized. Only the party seeking recognition

may make use of this simplified procedure, which wasevolved solely to promote the enforcement ofjudgments, and hence their recognition. It wouldmoreover be difficult to apply the procedure laid downif the party opposing recognition could also availhimself of it; the latter will have to submit his claims inaccordance with the ordinary rules of the internal lawof the State in which recognition is sought.


The third rule concerns the case where recognition of ajudgment is raised as an incidental question in thecourse of other proceedings. To simplify matters, theCommittee provided that the court entertaining theprincipal proceedings shall also have jurisdiction on thequestion of recognition.

It will immediately be noticed that two conditionswhich are frequently inserted in enforcement treaties arenot referred to in the Convention: it is not necessarythat the foreign judgment should have become resjudicata (1), and the jurisdiction of the court which gavethe original judgment does not have to be verified bythe court of the State in which the recognition is soughtunless the matter in question falls within the scope ofSections 3 , 4 or 5 of Title II.

Article

Public policy

Recognition may be refused if it is contrary to publicpolicy in the State in which the recognition is sought. Inthe opinion of the Committee this clause ought tooperate only in exceptional cases. As has already beenshown in the commentary on Article 4 , public policy isnot to be invoked as a ground for refusing to recognizea judgment given by a court of a Contracting Statewhich has based its jurisdiction over a defendantdomiciled outside the Community on a provision of itsinternal law, such as the provisions listed in the secondparagraph of Article 3 (Article 14 of the French CivilCode , etc.).

Furthermore, it follows from the last paragraph ofArticle 27 that public policy is not to be used as ameans of justifying refusal of recognition on thegrounds that the foreign court applied a law other thanthat laid down by the rules of private international lawof the court in which the recognition is sought.

The wording of the public policy provision is similar tothat adopted in the most recent conventions (2), in that

(1) The condition of res judicata is required by theConventions between Germany and Italy, France and Italy,and Italy and the Netherlands. It is not required in theConventions between Belgium and the NetherlandsBelgium and Italy, Germany and Belgium and Germanyand the Netherlands, in the Benelux Treaty, or in theapplication of the Convention between France andBelgium , in spite of the wording of this last Convention(Article 11 (2)).

(l) Conventions between Germany and Belgium, Italy and

Belgium; Hague Convention on the recognition andenforcement of foreign judgments in civil and commercialmatters.

it is made clear that there are grounds for refusal , not ofthe foreign judgment itself, but if recognition of it iscontrary to public policy in the State in which the

recognition is sought. It is no part of the duty of thecourt seised of the matter to give an opinion as towhether the foreign judgment is , or is not, compatiblewith the public policy of its country. Indeed, this mightbe taken as criticism of the judgment. Its duty is ratherto verify whether recognition of the judgment would becontrary to public policy.

Safeguarding the rights of the defendant

Where judgment is given in default of appearance,recognition must be refused if the defendant was notduly served with the document which instituted theproceedings in sufficient time to enable him to arrangefor his defence. Where judgment is given abroad indefault of appearance, the Convention affords thedefendant double protection.

First, the document must have been duly served. In thisconnection reference must be made to the internal lawof the State in which the judgment was given, and to theinternational conventions on the service abroad ofjudicial instruments. Thus, for example, a German courtin which recognition of a Belgian judgment given indefault of appearance against a person who is Germany is sought could , on the basis of the Agreementbetween Belgium and Germany of 25 April 1959 , whichwas entered into to simplify application of the HagueConvention of 1 March 1954 on civil procedure, refuserecognition if the document instituting the proceedingswas sent from Belgium to Germany by registered postsince the Federal Republic of Germany does not permitthis method of transmitting documents.

Secondly, even where service has been duly effected,recognition can be refused if the court in whichrecognition is sought considers that the document wasnot served in sufficient time to enable the defendant toarrange for his defence.

Looking at the second paragraph of Article 20, whichlays down that the court of the State in which judgmentis given must stay the proceedings if the documentinstituting the proceedings was not served on thedefendant in sufficient time, it might be assumed thatArticle 27 (2) would apply only in exceptional cases. Itmust not be forgotten, however, that the second


paragraph of Article 20 requires the court of the State inwhich judgment is given to stay proceedings only wherethe defendant is domiciled in another Contracting State.

Incompatibility with a judgment already given inthe State in which recognition is sought

There can be no doubt that the rule of law in a Statewould be disturbed if it were possible to take advantageof two conflicting judgments (1).

The case where a foreign judgment is irreconcilable witha judgment given by a national court is, in the existingconventions, either treated as a matter of publicpolicy (2), as in the Convention between France andBelgium, the Benelux Treaty and the Conventionbetween Belgium , and Germany, or is regulated by aspecial provision.

In the OpInIOn of the Committee, to treat this as a

matter of public policy would involve the danger thatthe concept of public policy would be interpreted toowidely. Furthermore, the Italian courts have consistentlyheld that foreign judgments whose recognition is soughtin Italy and which conflict with an Italian judgment donot fall within the scope of public policy. This is whythe enforcement conventions concluded by Italy alwayscontain two provisions, one referring to public policy,which serves the purpose of providing a safeguard inexceptional cases, and the other whereby the judgmentmust not conflict with an Italian judgment alreadygiven, or be prejudicial to proceedings pending in anItalian court (3).

There are also several other conventions which containclause providing for refusal of recognition of a

judgment which conflicts with another judgmentalready given by the courts of the State in which

recognition is sought.

(1) NIBOYET, Traite de droit international prive fran'raisParis 1949 , Vol. VI, No 2028.

(2) BA TIFFOL, Traite elementaire de droit international priveParis 1959, No 761: ' ... any judgment which irreconcilable with a French judgment previously given iscontrary to public policy. This rule holds good even if thejudgment is not final' (Civ. 23 March 1936, Sirey1936. 1.175 , R. 1937-198); Riezler op. cit. pp. 521 and

547.(3) Conventions between Germany and Italy, Article 4;

between France and Italy, Article 1 (5); between Belgiumand Italy, Article 1 (4); and between the Netherlands andItaly, Article 1 (3).

In certain conventions, the judgment given in the Statein which recognition is sought has to have become resjudicata ), in others it is sufficient for the judgment tobe final and conclusive at that stage of procedure (5and finally there are some which do not regulate thepoint (6

The Committee preferred a form of wording which doesnot decide whether the judgment should have becomeres ju dicata or should merely be final and conclusive

and left this question to the discretion of the court inwhich recognition is sought.

The Committee also considered that, for refusal ofrecognition, it would be sufficient if the judgmentwhose recognition was sought were irreconcilable witha judgment given between the same parties in the Statein which recognition was sought. It is therefore notnecessary for the same cause of action to be involved.Thus, for example, a French court in which recognitionof a Belgian judgment awarding damages for failure toperform a contract is sought will be able to refuserecognition if a French court has already givenjudgment in a dispute between the same partiesdeclaring that the contract was invalid.

The form of words used also covers the situationreferred to in Article 5 (3) (c) of the Hague Conventionon the recognition and enforcement of foreignjudgments, under which recognition may be refused ifthe proceedings which gave rise to the judgment whoserecognition is sought have already resulted in ajudgment which was given in a third State and whichwould be entitled to recognition and enforcement underthe law of the State in which recognition is sought.

It is to be anticipated that the application of theprovisions of Title II regarding lis pendens and relatedactions will greatly reduce the number of irreconcilablejudgments.

) Hague Convention on the jurisdiction of the contractualforum in matters relating to the international sales of

goods , Article 5 (3).

) Conventions between France and the United KingdomArticle 3 (1) (a); between the United Kingdom andBelgium, Article 3 (1) (a); between France and Germany onthe Saar, Article 30 (I) (d); between Austria and Belgiumon maintenance, Article 2 (2) (b); between Austria andBelgium (general), Article 2 (2) (b).

) Hague Convention of 15 April 1958 concerning therecognition and enforcement of decisions relating tomaintenance obligations towards children, Article 2 (4),and the Conventions concluded by Italy. HagueConvention on the recognition and enforcement of foreignjudgments in civil and commercial matters (Article 5).

No C 59/46

PRELIMINARY QUESTIONS


Recognition is not to be refused on the sole ground thatthe court which gave the original judgment applied alaw other than that which would have been applicableunder the rules of private international law of the Statein which recognition is sought. However theConvention makes an exception for preliminaryquestions regarding the status or legal capacity of

natural persons, rules governing rights in property

arising out of a matrimonial relationship, wills andsuccession, unless the same result would have beenreached by the application of the rules of privateinternational law of the State in which recognition issought.

The Convention between Belgium and Germanycontains a rule which is similar, but confined to caseswhere the judgment concerns a national of the State inwhich it is sought to give effect to that judgment. It ispointed out in the report of the negotiators of that

Convention that this exception is justified by the factthat States reserve to themselves the right to regulate thestatus of their nationals. The wording used is similar tothat of Article 7 of the Hague Convention on therecognition and enforcement of foreign judgments incivil and commercial matters.

Article

The very strict rules of jurisdiction laid down in Title IIand the safeguards granted in Article 20 to defendantswho do not enter an appearance , make it possible todispense with any review, by the court in whichrecognition or enforcement is sought, of the jurisdictionof the court in which the original judgment was given.

The absence of any review of the substance of the caseimplies complete confidence in the court of the State in

which judgment was given; it is similarly to be assumed, that that court correctly applied the rules of jurisdictionof the Convention. The absence of any review as

whether the court in which the judgment was given hadjurisdiction avoids the possibility that an alleged failure

to comply with those rules might again be raised as anissue at the enforcement stage. The only exceptionsconcern, first, the matters for which Title II lays downspecial rules of jurisdiction (insurance, instalment salesand loans) or exclusive rules, and which , as has beenshown, are in the six countries either of a bindingcharacter or matters of public policy, and, secondly, thecase provided for in Article 59; reference should bemade to the commentary on that Article.

The second paragraph contains a provIsIOn which isalready included in a number of conventions(Convention between Germany and Belgium; HagueConvention Article 9) and avoids recourse totime-wasting duplication in the exceptional cases wherere-examination of the jurisdiction of the court of originis permitted.

The last paragraph of Article 28 specifies that the rulesof jurisdiction are not matters of public policy withinthe meaning of Article 27; in other words, public policyis not to be used as a means of justifying a review of thejurisdiction of the court of origin (1). This again reflectsthe Committee s desire to limit so far as possible the

concept of public policy.

REVIEW AS TO SUBSTANCE

Article

It is obviously an essential provlSlon of enforcementconventions that foreign judgments must not reviewed.

The court of a State in which recognition of a foreignjudgment is sought is not to examine the correctness ofthat judgment; ' it may not substitute its own discretionfor that of the foreign court (2) nor refuse recognition ' ifit considers that a point of fact or of law has beenwrongly decided (3

STA OF PROCEEDINGS

Article

Article 30 postulates the following situation: a partymay, in the course of litigation, wish to plead ajudgment which has been given in another ContractingState but has not yet become res judicata. In order to

remedy the inconvenience which would result if suchjudgment were reversed, Article 30 allows the court tostay the proceedings upon the principal issue of which it

(1) For a similar provision, see Article 13 (2) of the BeneluxTreaty.

(l) P. GRAULICH, Principes de droit international prive.Conflits de lois. Conflits de juridictions. No 254.

e) BA TIFFOL , Traite elementaire de droit international priveNo 763.


is seised, until the foreign judgment whose recognitionis sought has become res judicata in the State in which itwas gIven.

This power does not prevent the court from examining,before staying the proceedings, whether the foreignjudgment fulfils the conditions for recognition laiddown in Article 27.

Section 2

Enforcement

(a) Preliminary remarks

As has already been shown the Committeeendeavoured to give the Convention a progressive andpragmatic character by means of rules of jurisdictionwhich break new ground as compared with theenforcement conventions concluded hitherto.

This means, of course, that at the enforcement stagesolutions must be found which follow from the rules ofjurisdiction.

The progress achieved by Title II of the Conventionwould be rendered nugatory if a party seekingenforcement in a Contracting State of a judgment givenin his favour were impeded by procedural obstacles.

The aim of Title II of the Convention is to strengthenthe role of the court of the State in which the judgmentwas given. It must not be forgotten that that court

must declare that it does not have jurisdiction ' if thereare rules of exclusive jurisdiction which give jurisdictionto the courts of another State (Article 19); the courtmust also declare that it does not have jurisdiction, in

cases where the defendant does not enter anappearance, if its jurisdiction is not derived from theConvention (first paragraph of Article 20).

Moreover, the court must stay the proceedings in theabsence of proof that the defendant has been able to

arrange for his defence (second paragraph of Article20).

This role, as set out in Title II, is thus of prImeimportance.

If follows that the intervention of the court in whichenforcement is sought is more limited than is usualunder enforcement conventions. That court has inpractice only two points to examine: public policy and

whether the defendant has had the opportunity ofdefending himself. The other reasons for refusal conflicting judgments, preliminary questions , review ofjurisdiction in relation to certain specific topics - canin fact, be regarded as akin to public policy. Since

moreover, the Convention is confined to mattersrelating to property rights, public policy will only veryseldom have any part to perfom.

This limitation on the powers of the court in whichenforcement is sought led to a simplification of theenforcement procedure. Furthermore, as "the position ofthe defendant in the original proceedings is wellprotected it is proper that the applicant forenforcement be enabled to proceed rapidly with all thenecessary formalities in the State in which enforcementis sought, that he be free to act without prior warningand that enforcement be obtained without unnecessary

complications.

The Committee discussed the enforcement procedure atlength before adopting it. There were severalpossibilities open to it: reference back to national lawsbut subject to certain rules of the Convention, ordinarycontentious procedure, summary contentious procedureor ex parte application.

Each of these solutions had its advantages anddisadvantages. The Committee finally adopted a systemfor the whole Community based on ex parteapplication. This rapid and simple procedure will applyin all six States.

This uniform solution has the advantage of creating aproper balance as between the various provisions of theConvention: uniform rules of jurisdiction in the sixcountries and identical procedures for enforcement.

(b) Conditions for enforcement

As has been shown, the Convention is based on theprinciple that a foreign judgment is presumed to be inorder. It must, in principle, be possible to enforce it inthe State in which enforcement is sought. Enforcementcan be refused only if there is a ground for refusingrecognition (1). The foreign judgment must, however , beenforceable in the State in which it was given in order tobe enforceable in the State in which enforcement issought.

(1) On the disadvantages resulting from a difference betweenthe conditions for recognition and for enforcement, see

RIGAUX op. cit. p. 207 , No 39.


If a judgment from which an appeal still lies or againstwhich an appeal has been lodged in the State in which itwas given cannot be provisionally enforced in thatState, it cannot be enforced in the State in whichenforcement is sought. It is an essential requirement ofthe instrument whose enforcement is sought that itshould be enforceable in the State in which it originates.As Niboyet points out, there is no reason for granting toa foreign judgment rights which it does not have in thecountry in which it was given (1).

Under no circumstances may a foreign judgment bereviewed as to its substance (Article 34).

(c) Enforcement procedure

Before examInIng the Articles of the section onenforcement it seems appropriate to give on outline ofthe procedure which will be applicable in the six States.

1. The application, accompanied by the documentsrequired under Articles 46 and 47, must besubmitted to the authority specified in Article 32.The procedure for making the application governed by the law of the State in whichenforcement is sought.

The applicant must give an address for service ofprocess or appoint a representative ad litem in the

jurisdiction of the court applied to.

2. The court applied to must give its decision withoutdelay, and is not able to summon the other party. Atthis stage no contentious proceedings are allowed.

The application may be refused only for one of thereasons specified in Articles 27 and 28.

3. If enforcement is authorized:

(a) the party against whom enforcement is soughtmay appeal against the decision within onemonth of service of the decision (Article 36);

(b) the appeal must be lodged, in accordance withthe rules governing procedure in contentiousmatters, with the court specified in Article 37;

) NIBOYET, Droit international prive franc;:ais. Vol VINo 1974.

(c) if an appeal has been lodged against the foreignjudgment in the State in which it was given, or ifthe time for such an appeal has not yet expiredthe court seised of the appeal against thedecision authorizing enforcement may stay theproceedings or make enforcement conditional onthe provision of security (Article 38);

(d) the judgment given on the appeal against thedecision authorizing enforcement may not contested by an ordinary appeal. It may becontested only by an appeal in cassation (l)(Article 37);

(e) during the time specified for an appeal againstthe decision authorizing enforcement theapplicant may take only protective measures; thedecision authorizing enforcement carries withit the power to proceed to such measures(Article 39).

4. If enforcement is refused:

(a) the applicant may appeal to the court specifiedin Article 40;

(b) the procedure before that court is contentious,the other party being summoned to appear(Article 40);

(c) the judgment given on this appeal may becontested only by an appeal in cassation (7)

(Article 41).

Article

Under this Article 'a judgment given in a ContractingState and enforceable in that State shall be enforced inanother Contracting State when, on the application ofany interested party, the order for its enforcement hasbeen issued there

As can be seen, this provision is almost identical withthat contained in the European Convention providing auniform law on arbitration (3). The Committee did, in

fact, take the view that judgments given in one

) In the Federal Republic of Germany by Rechtsbeschwerde

. .

(3) European Convention providing a uniform law onarbitration, Strasbourg, 20 January 1966. Article 29 ofAnnex I: 'An arbitral award may be enforced only when itcan no longer be contested before arbitrators and when anenforcement formula has been apposed to it by the

competent authority on the application of the interestedparty.'


Contracting State should be enforceable in any other

Contracting State as easily as arbitral awards.

The legal systems of the Member States are alreadyfamiliar with authorization of enforcement by means ofan enforcement order. This is so , for example, in thecase of judgments and decisions given by the EuropeanCommunity institutions (Article 92 of the ECSC Treaty,Article 192 of the EEC Treaty, Article 164 of theEuratom Treaty). It is also true of judgments anddecisions falling within the scope of the MannheimConvention (1

The Convention of 30 August 1962 between Germanyand the Netherlands also provides that judgments givenin one of the two States are to be enforced in the otherif enforcement is authorized by means of enforcement order.

A rule similar to that in Article 31 , that is to sayan

parte procedure, was contained in the Franco-GermanTreaty on the Saar of 27 October 1956. Business circlesin the Saar have said that the rule has proved entirelysatisfactory.

About 80% of enforcement proceedings have beensuccessfully completed by means of the first ex parte

written phase of the procedure. In the majority of cases

judgment debtors have refrained from contesting theproceedings by means of an appeal. This is easilyexplained by the fact that cases of refusal ofenforcement are exceptional, and the risk of having tobear the costs of the proceedings restrains the judgmentdebtor, unless he feels certain of winning his case.

Article 31 does not purport to determine whether it isthe judgment given in the State of origin, or the decisionauthorizing the issue of the enforcement order , which isenforceable in the State in which enforcement is sought.

The expression 'on the application of any interestedparty' implies that any person who is entitled to thebenefit of the judgment in the State in which it wasgiven has the right to apply for an order for itsenforcement.

Article

Article 32 specifies the authority in each of theContracting States to which the application must besubmitted and which will have jurisdiction. It was

(1) Revised Convention for the Navigation of the Rhine signedat Mannheim on 17 October 1868.

considered to be in the interests of the parties that eachrelevant authority be indicated in the Convention itself.

The court to which local jurisdiction is given is that forthe place of domicile of the party against whomenforcement is sought, or, if that party is not domiciledin the State in which enforcement is sought, the courtfor the place of enforcement, that is, where thejudgment debtor has assets. The jurisdiction of the courtfor the place of enforcement is thus of minorimportance.

The provision requiring applications to be submitted tothe court for the place where the judgment debtor isdomiciled was included for the following reason. It isquite possible that in the State in whi~h enforcement issought the judgment debtor may possess propertysituated in the jurisdiction of different courts. Ifjurisdiction had been given only to the court for theplace of enforcement, a choice between several courtswould have been open to the applicant. Thus . anapplicant who was unsuccessful in one court could,instead of availing himself of the methods of appealprovided for in the Convention, have applied to anothercourt which would not necessarily have come to thesame decision as the first court, and this without theknowledge of the other party, since the procedure is

parte.

Article

Under Article 33, the procedure and formalities formaking the application are to be governed by the law ofthe State in which enforcement is sought.

Reference must therefore be made to the national lawsfor the particulars which the application must containthe number of copies which must be submitted to thecourt, the authority to which the application must besubmitted, also, where necessary, the language in whichit must be drawn up, and whether a lawyer should beinstructed to appear.

The provisions to which reference must be made are thefollowing:

Belgium:

The matter will be governed by the Judicial Code (seeArticles 1025 and 1027);

Federal Republic of Germany, Netherlands and Italy:The question will be governed by the law implementingthe Convention;

France:Code of Civil Procedure, Article 1040;


Luxembourg:A lawyer must be instructed in accordance with thegeneral law under which no one can officially,addressthe court except through an avoue. Article 856 orArticle 512 of the Code of Civil Procedure is generallyinvoked in support of this proposition.

The application must be accompanied by the documentsrequired to be produced under Articles 46 and 47.

In the view of the Committee, if the applicant does notproduce the required documents, enforcement shouldnot be refused, but the court may stay the proceedingsand allow the applicant time to produce the documents.If the documents produced are not sufficient and thecourt cannot obtain sufficient information, it mayrefuse to entertain the application.

Finally, the applicant must, in accordance with the lawof the State in which enforcement is sought, either givean address for service of process or appoint arepresentative ad litem within the area of jurisdiction ofthe court applied to. This provision is important in tworespects: first for communicating to the applicant thedecision given on the application (Article 35), andsecondly in case the party against whom enforcement issought wishes to appeal , since such an appeal must belodged 'in accordance with the rules governingprocedure in contentious matters ' (Article 37).

The respondent must therefore summon the applicant toappear; the furnishing of an address for service or the

appointment of a representative enables the summons tobe served rapidly, in accordance with the law of thecountry in which enforcement is sought, without risk oferror and without all the hazards connected with theservice of legal documents abroad. It will in fact usuallyhappen that the applicant is domiciled outside the Statein which enforcement is sought.

The appointment of a representative ad litem has been

provided for because the furnishing of an address forservice is unknown in German law.

The two methods will, of course, produce the sameresult.

Article

Article 34 provides that the court applied to shall giveits decision without delay; 'the party against whomenforcement is sought shall not at this stage of theproceedings be entitled to make any submissions on theapplication.

The Committee considered but rejected the idea ofimposing on the court to which application is made afixed period for giving its decision. Such a time limit isunknown in judicial practice, and there would in anycase be no way of enforcing it.

The Convention does not allow the court to whichapplication is made to ask the respondent to makesubmissions, even in exceptional cases. Such apossibility would have meant that the proceedings werenot fully ex parte. Certain courts might be inclined tohear the respondent, which would in fact result in theex parte procedure systematically becoming inter partes.Moreover, there would be a reduction in the element ofsurprise which is nec~ssary in an enforcement procedureif the respondent is not to have the opportunity

withdrawing his assets from any measure ofenforcement.

The rights of the respondent are safeguarded, since hecan institute contentious proceedings by appealingagainst the decision authorizing enforcement.

As has beed shown above, the application may berefused only for one of the reasons specified in Articles

27 and 28, and the foreign judgment may not reviewed as to its substance. Consequently, fresh claimswhich have not been submitted to the foreign court areinadmissible; the court seised of the application mayauthorize or refuse enforcement, but it cannot alter theforeign judgment.

The court may, however, refuse the application if itdoes not satisfy the requirements of Articles 32 and 33.

Article

Article 35 provides that the appropriate officer of thecourt shall without delay bring the decision given on theapplication to the notice of the applicant in accordancewith the procedure laid down by the law of the State inwhich enforcement is sought. It is important that theapplicant be informed of the decision taken. Thisdemonstrates the value of an address for service or ofthe appointment of a representative ad " litemparticularly where the applicant is domiciled abroad.

The manner in which the decision is communicated tothe applicant will be a matter for the national law of theState in which enforcement is sought, irrespective ofwhether enforcement is authorized or refused.

Article


Article

No C 59/51

If enforcement is authorized, the decision must benotified to the party against whom enforcement hasbeen granted. That party may appeal against thedecision from the time it is served on him. As regardsthe period within which an appeal may be lodged andthe moment from which it begins to run, Article 36makes a distinction between the following situations:

(a) if the party is domiciled in the State in which thedecision was given, the period is one month; themoment from which time begins to run determined by the law of that State, from which

there is no reason to derogate;

(b) if the party is domiciled in another Contracting

State, the period is two months, and runs from thedate when the decision was served, either on him inperson or at his residence (1).

In France and the Netherlands , the day of deliveryto the prosecutor office is not counted forpurposes of computation of time. In Belgium, theday of delivery to the postal authorities is notcounted (Article 40 of the Judicial Code), nor is theday on which an instrument is dispatched by aBelgian Consul to a foreign authority (l).

The purpose of this rule, which derogates fromsome national laws, is to protect the respondent andto prevent his being deprived of a remedy becausehe had not been informed of the decision insufficient time to contest it.

No extension of time may be granted on account ofdistance, as the time allowed is sufficient to enablethe party concerned to contest the decision, if he isso minded;

(c) if the party is domiciled outside the Community, theperiod within which an appeal may be lodged runsfrom the date when the decision is served or isdeemed to have been served according to the law ofthe State in which the decision was given. In thiscase the period of one month may be extended onaccount of distance in accordance with the law of

that State.

Computation of time is governed by the internal lawof the State in which the decision was given.

(1) Service on a party at his residence means delivering theinstrument to a person who is present and empowered bylaw to receive a copy of the instrument or, if there is nosuch person , to a competent authority.

(l) Belgian Court of Cassation, 4 March 1954; Revue deshuissiers de Belgique, May to June 1954, p. 15.

Article 37 specifies for each country the court withwhich an appeal can be lodged.

In that court the proceedings are contentious.Accordingly it is incumbent upon the person againstwhom enforcement has been authorized to summon theother party to appear.

'the court seised of the appeal will have to examinewhether it was properly lodged and will have to decideupon the merits of the appeal, taking account of theadditional information supplied by the appellant. It willtherefore be open to the appellant to establish, in the

case of a judgment originally given in default ofappearance, that the rights of the defendant weredisregarded, or that a judgment has already been givenin a dispute between the same parties in the State inwhich enforcement is sought which is irreconcilablewith the foreign judgment. The appellant may alsoplead Article 38 if he has lodged an appeal against thejudgment whose enforcement is sought in the State inwhich it was given.

It is no part of the duty of the court with which theappeal against the decision authorizing enforcement islodged to review the foreign judgment as to itssubstance. This would be contrary to the spirit of theConvention. The appellant could , however, effectivelyadduce grounds which arose after the foreign judgmentwas given. For example, he may establish that he hassince discharged the debt. As Batiffol points outsuch grounds are admissible In enforcementproceedings e) (4

The second paragraph of Article 37 provides that thejudgment given on the appeal may be contested only byan appeal in cassation and not by any other form ofappeal or review.

This rule was requisite for the following reasons. First,the grounds for refusing enforcement are very limitedand involve public policy . in the State in whichenforcement is sought. No useful purpose is served byfurther argument on this concept. Next, the situation isdifferent from that in which purely national proceedingsare involved. The proceedings on the merits of the caseitself have already taken place in the State in which thejudgment was given, and the Convention in no way

) BA TIFFOL op. cit., p. 863 , note 57.) For the Federal Republic of Germany, see Article 767 ofthe Code of Civil Procedure; see also

BAUMBACH-LAUTERBACH ZivilprozeBordnung,paragraph 723 , note 1.


interferes with the rights of appeal. It is true that theConvention applies to judgments which are enforceableonly provisionally, but in this case the court with whichthe appeal is lodged may, as provided in Article 38 , staythe proceedings. An excessive number of avenues ofappeal might be used by the losing party purely as

delaying tactics , and this would constitute an obstacleto the free movement of judgments which is the objectof the Convention.

Since appeals in cassation are unknown in the FederalRepublic of Germany, it has been provided, in order toestablish a certain parity amongst the ContractingStates that an appeal on point of law(Rechtsbeschwerde) shall lie against a judgment of theCourt of Appeal (Oberlandesgericht).

Article

Article 38 covers cases where an ordinary appeal hasbeen lodged against the judgment in the State in whichthat judgment was given, and also cases where theperiod within which such an appeal may be lodged hasnot yet expired. The court with which the appealagainst enforcement under the first paragraph of Article37 is lodged may either stay the proceedings, authorizeenforcement, make enforcement conditional on theprovision of such security as it thinks fit, or specify thetime within which the defendant must lodge his appeal.

This provIsIOn originates in the Convention between

Germany and Belgium (Article 10), and its ' object is toprotect the judgment debtor against any loss whichcould result from the enforcement of a judgment whichhas not yet become res judicata and may amended' (1).

Article 38 deals only with judgments whichnotwithstanding that they may be appealed against, areenforceable in the State in which they were given.

Only the court seised of the appeal has the power tostay the proceedings , and such a stay can be grantedonly on the application of the party against whomenforcement is sought. This is because that party doesnot appear at the first stage of the proceedings andcannot be required to do so.

(1) Convention between Germany and Belgium. See Report ofthe negotiators.

Article

Article 39 contains two very important rules. First itprovides that during the time specified for the lodgingof an appeal the applicant for enforcement may take noenforcement measures other than protective measures

namely those available under the law of the State inwhich enforcement is sought. Similarly, if an appeal hasactually been lodged, this rule applies until the appealhas been determined. Secondly it provides that the

decision authorizing enforcement carries with it thepower to proceed to any such protective measures.Article 39 also allows the judgment creditor in certainStates, for example in the Federal Republic of Germany,to initiate the first phase of the enforcement of theforeign instrument. The object of this provision is toensure at the enforcement stage a balance between therights and interests of the parties concerned , in order toavoid either of them suffering any loss as a result of theoperation of the rules of procedure.

On the one hand, an applicant who , in consequence of aforeign judgment, is in possession of an enforceableinstrument, must be able to take quickly all measuresnecessary to prevent the judgment debtor fromremoving the assets on which execution is to be levied.This is made possible by the ex parte procedure and bythe provision in Article 39 that the decision authorizingenforcement carries with it the power to proceed such protective measures. The power arisesautomatically. Even in those States whose law requiresproof that the case calls for prompt action or that thereis any risk in delay the applicant will not have toestablish that either of those elements is present; powerto proceed to protective measures is not a matter for thediscretion of the court.

On the other hand, the fact that the enforcementprocedure is ex parte makes it essential that noirreversible measures of execution can be taken againstthe defendant. The latter may be in a position toestablish that there are grounds for refusal ofenforcement; he may, for example , be able to show thatthe question of public policy was not examined insufficient detail. To safeguard his rights it accordinglyappeared to be necessary to delay enforcement, which isusually carried out by sequestration of the movable andimmovable property of the defendant, until the end ofthe time specified for appeal (see Article 36) or, if anappeal is actually lodged, until it has been determined.In other words, this is a counterbalance to the ex parte

procedure; the effect of the decision authorizingenforcement given pursuant to Article 31 is limited inthat during the time specified for an appeal, or if anappeal has been lodged, no enforcement measures canbe taken on the basis of that decision against the assetsof the judgment debtor.

Articles 40 and


These Articles relate to the case where an applicationfor enforcement is refused.

Article 40 provides that the applicant may appeal to theappeal court which has jurisdiction in the State in whichenforcement is sought.

The Committee did not think it necessary that theConvention should fix the period within which appealswould have to be lodged. If the applicant has had hisapplication refused, it is for him to give notice of appealwithin such time as he considers suitable. He will haveregard, no doubt, to the length of time it will take himto assemble all the relevant documents.

Upon appeal the proceedings are contentious , since theparty against whom enforcement is sought is summonedto appear. The inter partes procedure is necessary inorder to avoid numerous appeals. If the procedure onappeal had remained ex parte it would have beenessential to provide for additional proceedings to enablethe defendant to make his submissions if the appellatecourt were to reverse the decision at first instance andauthorize enforcement. The Committee wished to avoida plethora of appeals. Moreover, the dismissal of theapplication reverses the presumption of validity of theforeign judgment.

The summoning of the party against whom enforcementis sought is to be effected in manner prescribed by thenational laws.

The appellate court can give judgment only if thejudgment debtor has in fact been given an opportunityto make his submissions. The object of this provision isto protect the rights of the defendant and to mitigate thedisadvantages which result from certain systems ofserving instruments abroad. These disadvantages are allthe more serious in that a party against whomenforcement is sought and who is not notified in time toarrange for his defence no longer has any judicialremedy against the judgment given on the appeal otherthan by way of an appeal in cassation , and then only tothe extent that this is allowed by the law of the State inwhich enforcement is sought (Article 41).

Because of the safeguards contained in Article 40Article 41 provides that the judgment given on theappeal may not be contested by an ordinary appeal, butonly by an appeal in cassation. The reason why aspecial form of appeal (Rechtsbeschwerde) is providedfor in the Federal Republic of Germany has alreadybeen explained (Article 37).

The procedure for the forms of appeal provided for inArticles 40 and 41 is to be determined by the nationallaws which may, where necessary, prescribe time limits.

Article

Article 42 covers two different situations.

The first paragraph of Article 42 empowers the court ofthe State in which enforcement is sought to authorizeenforcement in respect of certain matters dealt with in ajudgment and to refuse it in respect of others (1). Asexplained in the report annexed to the Benelux Treaty,which contains a similar provision

, '

this discretion

exists in all cases where a judgment deals with separateand independent heads of claim, and the decision on

some of these is contrary to the public policy of thecountry in which enforcement is sought, while thedecision on others is not.

The second paragraph of Article 42 allows an applicantto request the partial enforcement of a judgment, and hypothesi allows the court addressed to grant such a

request. As mentioned in the report on the BeneluxTreaty, ' it is possible that the applicant for enforcementhimself wants only partial enforcement, e. g. where thejudgment whose enforcement is sought orders thepayment of a sum of money, part of which has beenpaid since the judgment was given.' (2).

As is made clear in the Conventions between Germanyand Belgium, and between Belgium and Italy, whichcontain similar provisions, the applicant may exercisethis option whether the judgment covers one or severalheads of claim.

Article

Article 43 relates to judgments which order a periodicpayment by way of penalty. Some enforcementconventions contain a clause on this subject (seeBenelux Treaty, Article 14; Convention betweenGermany and the Netherlands , Article 7).

(1) See Benelux Treaty (Articles 14 (4)); the Conventionsbetween France and Italy (Article 3); between Italy and theNetherlands (Article 3); between Germany and Belgium(Article 11); between Belgium and Italy (Article 10) andbetween Germany and the Netherlands (Article 12).

(2) See also the Conventions between Germany and Belgium(Article 11) and between Belgium and Italy (Article 10).


It follows from the wording adopted that judgmentsgiven in a Contracting State which order the payment ofa sum of money for each day of delay, with theintention of getting the judgment debtor to fulfil his

obligations, will be enforced in another Contracting

State only if the amount of the payment has been finallydetermined by the courts of the State in which judgmentwas gIven.

Article

Article 44 deals with legal aid.

A number of enforcement conventions deal with thismatter (1).

The provisions adopted by the Committee supplementsthe Hague Convention of 1 March 1954 on civilprocedure, which has been ratified by the six States, sothat a party who has been granted legal aid in the Statein which judgment was given also qualifiesautomatically for legal aid in the State in which

enforcement is sought, but only as regards the issuing ofthe order for enforcement. Thus the automaticextension of legal aid achieved by the Convention doesnot apply in relation to enforcement measures or to

proceedings arising from the exercise of rights ofappeal.

The reasoning underlying Article 44 is as follows.

First, as maintenance obligations fall within the scope ofthe Convention consideration was given to thehumanitarian issues which were the basis for a similarprovision in the 1958 Hague Convention.

Above all it must not be forgotten that if a needyapplicant were obliged, before making his applicationfor enforcement, to institute in the State in whichenforcement is sought proceedings for recognition of thedecision granting him legal aid in the State in which thejudgment was given, he would be in a less favourableposition than other applicants. He would in particularnot have the advantage of the rapidity of the procedureand the element of surprise which Title III is designed toafford to any party seeking the enforcement of a foreignjudgment.

It is moreover because of this consideration that theautomatic extension of legal aid has been limited to the

) Hague Convention of 15 April 1958 concerning therecognition and enforcement of decisions relating tomaintenance obligations towards children (Article 9);Conventions between Italy and the Netherlands (Article 6)and between Germany and the Netherlands (Article 15).

procedure for issuing the order for enforcement, and

has not been extended to the proceedings on appeal.Once these proceedings have been set in motion, the

applicant for enforcement, or, in case of appeal, the

respondent, may, in accordance with the 1954 HagueConvention, take the necessary steps, in the State inwhich enforcement is sought, to obtain legal 'aid, in thesame way as nationals of that State.

Under Article 47 (2) an applicant must, on making hisapplication, produce documents showing that he is receipt of legal aid in the State in which judgment wasgIven.

Article

This Article deals with security for costs. A similar ruleis included in the Hague Convention of 1 March 1954but as regards the obligation to provide security itexempts only nationals of the Contracting States whoare also domiciled in one of those States (Article 17).

Under Article 45, any party, irrespective of nationality

or domicile, who seeks enforcement in one ContractingState of a judgment given in another Contracting Statemay do so without providing security. The twoconditions nationality and domicile prescribed bythe 1954 Convention do not apply.

The Committee considered that the provision of securityin relation to proceedings for the issuing of an order forenforcement was unnecessary.

As regards the proceedings which take place in the Statein which judgment was given, the Committee did notconsider it necessary to depart from the rules of the1954 Convention.

Section 3

Common provisions

This Section deals with the documents which must be

produced when application is made for the recognitionor enforcement of a judgment.

Article 46 applies to both recognition and enforcement.Article 47 applies only to applications for enforcement.It should be noted that at the recognition stage there isno reason to require production of the documentsreferred to in Article 47.


Article 47 (1) provides for the production of documentswhich establish that the judgment is enforceable in theState in which it was given. The requirement that thejudgment be, in law, enforceable in that State applies

only in relation to its enforcement (not to itsrecognition) abroad. (Article 31).

Article 47 (2), which relates to documents showing thatthe applicant is receiving legal aid in the State in whichjudgment was given is also relevant only enforcement proceedings. The documents are in factintended to enable a party receiving legal aid in the

State in which judgment was given to qualify for itautomatically in the proceedings relating to the issue ofthe order for enforcement (Article 44). Howeverrecognition requires no special procedure (Article 26). Ifrecognition were itself the principal issue in an actionArticle 44 and, consequently, Article 47 (2) wouldapply, since Article 26 refers to Sections 2 and 3 Title III.

Under Article 46 (1), a copy of the judgment whichsatisfies the conditions necessary to establish itsauthenticity must be produced, whether it is recognitionor enforcement which is sought.

This provision is found in all enforcement treaties anddoes not require any special comment. The authenticityof a judgment will be established in accordance with themaxim locus regit actum; it is therefore the law of theplace where the judgment was given which prescribesthe conditions which the copy of the judgment mustsatisfy in order to be valid (1).

Under Article 46 (2), if the judgment was given indefault, a document which establishes that the party indefault was served with the document instituting theproceedings must also be produced.

The court in which recognition or enforcement is soughtmust, if the foreign judgment was given in default, be ina position to verify that the defendant s right to defendhimself was safeguarded.

Article 47 provides that the following documents mustbe produced:

(1) WESER: Traite franco-belge du 8 juillet 1899. f:tudecritique No 247.

(a) documents which establish that the judgment isenforceable according to the law of the State in

which it was given. This does not mean that aseparate document certifying that the judgment hasbecome enforceable in that State is necessarilyrequired. Thus in France

, '

provisionalenforceability' would be deduced from an expressreference to it in judgments given pursuant to Article135a of the Code of Civil Procedure. Decisionsgiven in summary proceedings will be provisionallyenforceable (Article 809 of the Code of CivilProcedure); and so will decisions in ex parteproceedings (Article 54 of the Decree of 30 March1808). But whether other judgments are enforceablecan be determined only when the date on which theywere given has been considered in relation to thedate on which they were served and the timeallowed for lodging an appeal (2).

Documents which establish that the judgment hasbeen served will also have to be produced, sincesome judgments may be enforceable andconsequently fall within the scope of theConvention even if they have not been served on theother party. However, before enforcement can beapplied for, that party must at least have beeninformed of the judgment given against him andalso have had the opportunity to satisfy thejudgment voluntarily;

(b) where appropriate, a document showing, inaccordance with the law of the State in which thejudgment was given , that the applicant is in receiptof legal aid in that State.

Article

In order to avoid unnecessary formalities, this Article

authorizes the court to allow time for the applicant toproduce the documentary evidence proving service ofthe document instituting the proceedings, requiredunder Article 46 (2), and the documentary evidenceshowing that the applicant was in receipt of legal aid inthe State in which judgment was given (Article 47 (2)).

(2) Belgium: Judicial Code: see Article 1029 for decisions in

parte proceedings, Article 1039 for decisions in summaryproceedings , and Articles 1398 and 1496 for judgments.Federal Republic of Germany: Vollstreckungsklausel' Under Article 725 of the Code of Civil Procedure, theorder for enforcement is worded as follows:This copy of the judgment shall be given to . . . (name ofthe party) for the purpose of enforcement.' This order mustbe added at the end of the copy of the judgment and mustbe signed by the appropriate officer of the court and sealedwith the seal of the court.Luxembourg: see Articles 135 , 136 and 137 of the Code ofCivil Procedure, Article 164 for judgments in default,Article 439 for Commercial Courts (tribunaux decommerce) and Article 5 of the Law of 23 March 1893 summary jurisdiction.Netherlands: see Articles 339 , 350, 430 and 433 of theCode of Civil Procedure, also Articles 82 and 85 of thatCode.


The court may dispense with the production of thesedocuments by the applicant (the Committee had inmind the case where the documents had been destroyed)if it considers that it has sufficient information before itfrom other evidence.

The second paragraph relates to the translation of thedocuments to be produced. Again with the object ofsimplifying the procedure, it is here provided that thetranslation may be certified by a person qualified ' to so in anyone of the Contracting States.

CHAPTER VI

Article

This Article provides that legalization or other likeformality is not necessary as regards the documents tobe produced and, in particular, that the certificateprovided for in the Hague Convention of 5 October1961 abolishing the requirement of legalization forforeign public documents is not required. The sameapplies to the document whereby an applicant appointsa representative, perhaps a lawyer, to act for him inproceedings for the issue of an order for enforcement.

AUTHENTIC INSTRUMENTS AND COURT SEITLEMENTS

Article

In drawing up rules for the enforcement of authenticinstruments, the Committee has broken no new ground.Similar provisions are, in fact, contained in theConventions already concluded by the six States (1),with the sole exception of the Convention betweenGermany and Italy.

Since Article 1 governs the whole Convention, Article

50 applies only to authentic instruments which havebeen drawn up or registered in matters falling withinthe scope of the Convention.

In order that an authentic instrument which has been

drawn up or registered in one Contracting State may bethe subject of an order for enforcement issued inanother Contracting State, three conditions must besatisfied:

(a) the instrument must be enforceable in the State inwhich it was drawn up or registered;

(b) it must satisfy the conditions necessary to establishits authenticity in that State;

(1) Conventions between France and Belgium (Article 16);between Belgium and the Netherlands (Article 16); BeneluxTreaty (Article 18); Conventions between Germany andBelgium (Article 14); between Italy and Belgium (Article13); between Germany and the Netherlands (Article 16);between Italy and the Netherlands (Article 8); and betweenFrance and Italy (Article 6).

(c) its enforcement must not be contrary to public

policy in the State in which enforcement is sought.

The provisions of Section 3 of Title III are applicable asappropriate. It follows in particular that no legalizationor similar formality is required.

Article

A provision covering court settlements was considerednecessary on account of the German and Netherlandslegal systems (2), under German and Netherlands lawsettlements approved by a court in the course ofproceedings are enforceable without further formality(Article 794 (1) of the German Code of Civil Procedureand Article 19 of the Netherlands Code of CivilProcedure).

The Convention, like the Convention between Germanyand Belgium, makes court settlements subject to the

same rules as authentic instruments, since both arecontractual in nature. Enforcement can therefore be

refused only if it is contrary to public policy in the Statein which it is sought.

(2) See the Conventions between Germany and Belgium(Article 14 (1)); between Germany and the Netherlands(Article 16); between Germany and Italy (Article 9); andthe Hague Convention on the choice of court (Article 10).


CHAPTER VII

GENERAL PROVISIONS

Article

As regards the determination of domicile (Article 52),reference should be made to Chapter IV (A) (3) whichdeals with the matter.

Article

Article 53 provides that, for the purposes of thisConvention , the seat of a company or other legal personor association of natural or legal persons shall betreated as its domicile.

The Convention does not define what is meant by theseat of a legal person or of a company or association ofnatural or legal persons any more than it definesdomicile.

In determining the location of the seat, the court willapply its rules of private international law. TheCommittee did not think it possible to particularize theconcept of seat in any other way, and considered that itcould not be achieved by making a reference to Article

, in view of the different approaches which thevarious Member States of the Community adopt in thismatter. Moreover, the Committee did not wish

encroach upon the work on company law which is nowbeing carried out within the Community.

It did not excape the attention of the Committee thatthe application of Article 16 . (2) of the Conventioncould raise certain difficulties. This would be the casefor example , where a court in one State ordered thedissolution of a company whose seat was in that State

and application was then made for recognition of thatorder in another State under whose law the location ofthe company s seat was determined by its statutes, ifwhen so determined, it was in that other State. In theopinion of the Committee, the court of the State inwhich recognition were sought would be entitled, underthe first paragraph of Article 28 , to refuse recognition

on the ground that the courts of that State had exclusivejurisdiction.

Article 53 does not deal with the preliminary questionof the recognition of companies or other legal personsor associations of natural or legal persons; this must beresolved either by national law or by the HagueConvention of 1 June 1956 on the red~gnition of thelegal personality of companies, firms , associations andfoundations (l), pending the entry into force of theConvention which is at present being prepared withinthe EEC on the basis of Article 220 of the Treaty ofRome.

Article 53 refers to companies or other legal personsand to associations of natural or legal persons; to speakonly of legal persons would have been insufficient, sincethis expression would not have covered certain types ofcompany, such as the ' offene Handelsgesellschaft' underGerman law, which are not legal persons. Similarly, itwould not have been sufficient to speak only ofcompanies, since certain bodies, such as associationsand foundations , would then not have been covered bythis Convention.

e) Ratified on 20 April 1966 by Belgium, France and theNetherlands.

CHAPTER VIII

TRANSITIONAL PROVISIONS

Article

As a general rule, enforcement treaties have noretroactive effect (1), in order ' not to alter a state of

) Conventions between France and Belgium (Article 19);between Belgium and the Netherlands (Article 27);between Germany and Belgium (Article 17); betweenGermany and Italy (Article 18); between Germany and theNetherlands (Article 20); between Italy and Belgium

(Article 17); and between Italy and the Netherlands(Article 16).

affairs which has been reached on the basis of legalrelations other than those created between the twoStates as ' a result of the introduction of theConvention ' (2).

So far as the author is aware only the Benelux Treatyapplies to judgments given before its entry into force.

(z) See Report of the negotiators of the Convention betweenGermany and Belgium.


A solution as radical as that of the Benelux Treaty didnot seem acceptable. In the first place, the conditionswhich a judgment must fulfil in order to be recognizedand enforced are much stricter under the BeneluxTreaty (Article 13) than under the EEC Convention.Secondly, the ease with which recognition andenforcement can be granted under the EEC Conventionis balanced by the provisions of Title II which safeguardthe interests of the defendant. In particular, thoseprovisions have made it possible, at the stage ofrecognition or enforcement, to dispense with any reviewof the jurisdiction of the court of origin (Article 28).But, of course, a defendant in the State in whichjudgment was originally given will be able to rely onthese protective provisions only when the Conventionhas entered into force. Only then will he be able toinvoke the Convention to plead lack of jurisdiction.

Although Article 54 was not modelled on the BeneluxTreaty, its effect is not very different.

The rules adopted are as follows:

1. The Convention applies to proceedings which areinstituted and in which, therefore, judgment isgiven after the entry into force of theConvention.

2. The Convention does not apply if the proceedingswere instituted and judgment given before the entryinto force of the Convention.

3. The Convention does apply, but subject to certainreservations , to judgments given after its entry intoforce in proceedings instituted before its entry intoforce.

In this case, the court of the State addressed may reviewthe jurisdiction of the court of origin, since the

CHAPTER IX

defendant originally had no opportunity to contest thatjurisdiction in that court on the basis of the Convention.

Enforcement will be authorized if the jurisdiction of thecourt of origin:

(i) either was based on a rule which accords with oneof the rules of jurisdiction in the Convention; forexample, if the defendant was domiciled in theState in which the judgment was given;

(ii) or was based on a multilateral or bilateralconvention in force between the State of origin andthe State addressed. Thus if, for example, an actionrelating to a contract were brought in a Germancourt, the judgment given could be recognized andenforced in Belgium if the obligation had been was to be performed in the Federal Republic sincethe jurisdiction of the German court would founded on Article 3 (1) (5) of the Conventionbetween Germany and Belgium.

If the jurisdiction of the court of origin is founded onone of those bases, the judgment must be recognizedand enforced, provided of course that there is noground for refusal under Article 27 or 28,. Recognitionwill be accorded without any special procedure beingrequired (Article 26); enforcement will be authorized inaccordance with the rules of Section 2 of Title III , that isto say, on ex parte application.

It follows from Article 54, which provides that theConvention applies only to legal proceedings institutedafter its entry into force, that the Convention will haveno effect on proceedings in progress at the time of itsentry into force. If, for example, before the entry intoforce of the Convention , proceedings were instituted inFrance in accordance with Article 14 of the Civil Codeagainst a person domiciled in another Contracting Statethat person could not plead the Convention for the

purpose of contesting the jurisdiction of the Frenchcourt.

RELATIONSHIP TO OTHER INTERNATIONAL CONVENTIONS

Title VII deals with the relationship between theConvention and other international instruments

governing jurisdiction , recognition and the enforcementof judgments. It covers the following matters:


1. the relationship between the Convention and thebilateral agreements already in force betweencertain Member States of the Community (Article55 and 56) (1):

2. the relationship between the Convention and thoseinternational agreements which, in relation toparticlar matters, govern or will govern

jurisdiction and the recognition or enforcement ofjudgments (Article 57);

3. the relationship between the Convention and theConvention of 15 June 1869 between France and

Switzerland which is the only enforcementconvention concluded between a Member State ofthe EEC and a non-member State to contain rules ofdirect jurisdiction (Article 58);

4. the relationship between the Convention and anyother instruments , whether bilateral or multilateralwhich may in the future govern the recognition andenforcement of judgments (Article 59).

It was not thought necessary to regulate the relationshipbetween the Convention and the bilateral conventionsalready concluded between Member States of the EECand non-member States since, with the exception of theConvention between France and Switzerland, suchconventions all contain rules of indirect jurisdiction.There is, therefore, no conflict between thoseconventions and the rules of jurisdiction laid down inTitle II of the Convention. Recognition and enforcementwould seem to raise no problem , since judgments givenin those non-member States must be recognized inaccordance' with the provisions of the bilateralconventions.

Articles 55 and

Article 55 contains a list of the Conventions which willbe superseded on the entry into force of the EECConvention. This will , however, be subject to:

1. the provisions of the second paragraph of Article, as explained in the commentary on that Article;

2. the provisions of the first paragraph of Article 56the consequence of which is that these conventionswill continue to have effect in relation to matters towhich the EEC Convention does not apply (statuslegal capacity etc.

) Mention has been made of the Benelux Treaty although , asit has not been ratified by Luxembourg, it has not yetentered into force; this is to avoid any conflict between theConvention and that Treaty should it enter into force.

3. the provisions of the second paragraph of Article 56concerning the recognition and enforcement ofjudgments given before the EEC Convention entersinto force. Thus a judgment given in France beforethe EEC Convention enters into force and to whichby virtue of Article 54 this Convention wouldtherefore not apply, could be recognized andenforced in Italy after the entry into force of theEEC Convention under the terms of the Conventionof 3 June 1930 between France and Italy. Withoutsuch a rule, judgments given before the Conventionenters into force could be recognized and enforcedonly in accordance with the general law, and thiswould in several Contracting States involve thepossibility of a review of the substance of thejudgment, which would unquestionably be retrograde step.

Article

The Member States of the Community, or some ofthem, are already parties to numerous internationalagreements which, in relation to particular mattersgovern jurisdiction or the recognition or enforcement ofjudgments. Those agreements include the following:

1. The revised Convention for the navigation of theRhine signed at Mannheim on 17 October1868 (2);

2. The International Convention for the unificationof certain rules relating to international carriage byair, and Additional Protocol, signt!d at Warsaw on12 October 1929 (3

3. The International Convention on certain rulesconcerning civil jurisdiction in matters of collisionsigned at Brussels on 10 May 1952 (4

4. The International Convention relating to the arrestof sea-going ships, signed at Brussels on 10 May1952 (5

5. The Convention on damage caused by foreignaircraft to third parties on the surface, signed at

Rome on 7 October 1952 (6

(2) These Conventions have been ratified by the followingMember States of the European Economic Community (listdrawn up on 15 September 1966): Belgium, the Federal

Republic of Germany, France and the Netherlands.e) Belgium , the Federal Republic of Germany, France, Italy,

Luxembourg and the Netherlands.) Belgium and France.

) Belgium and France.

) Belgium and Luxembo~rg.


6. The International Convention concerning thecarriage of goods by rail (CIM), and Annexes,signed at Berne on 25 October 1952 (l);

7. The International Convention concerning thecarriage of passengers and luggage by rail (CIV)and Annexes , signed at Berne on 25 October1952 (2);

8. The Agreement on German external debts , signedat London on 27 February 1953 (2);

9. The Convention on civil procedure concluded atThe Hague on 1 March 1954 (3

10. The Convention on the contract for theInternational carriage of goods by road (CMR)and Protocol of Signature, signed at Geneva on

19 May 1956 (3

11. The Convention concerning the recognition andenforcement of decisions relating to maintenanceobligations in respect of children , concluded at TheHague on 15 April 1958 (4

12. The Convention on the jurisdictioncontractual forum in matters relatinginternational sale of goods, concluded

Hague on 15 April 1958 (5

of theto theat The

13. The Convention on third party liability in the fieldof nuclear energy, signed at Paris on 29 July1960 (6a), and the Additional Protocol, signed atParis on 28 January 1964 (6b), the SupplementaryConvention to the Paris Convention of 29 July1960 , and Annex , signed at Brussels on 31 January1963 (6 C), and Additional Protocol to theSupplementary Convention signed at Paris on 28January 1964 (6d).

14. The Convention on the liability of operators ofnuclear ships, and Additional Protocol, signed at

Brussels on 25 May 1962 (7);

15. The Convention of 27 October 1956 between theGrand Duchy of Luxembourg, the FederalRepublic of Germany and the French Republic onthe canalization of the Moselle (8

) Belgium, the Federal Republic of Germany, France

Luxembourg and the Netherlands.(l) Belgium, the Federal Republic of Germany, France

Luxembourg and the Netherlands.(3) The six States.) Belgium, the Federal Republic of Germany, France, Italy

and the Netherlands.) Italy. (Ii" (a) and (b) France and Belgium; (c) and (d) France.

) Not ratified,(8) Ratified by the three States concerned.

The structure of these agreements varies considerably.Some of them govern only jurisdiction , like the WarsawConvention of 12 October 1929 for the unification certain rules relating to international carriage by air, orare based on indirect jurisdiction, like the HagueConvention of 15 April 1958 concerning therecognition and enforcement of decisions relating tomaintenance obligations in respect of children, or

contain rules of direct or even exclusive jurisdictionsuch as the International Convention of 25 October1952 concerning the carriage of goods by rail (CIM),which lays down in Article 43 (5) that actions arisingfrom the contract of carriage may be brought only inthe courts of the State to which the defendant railwaybelongs.

The approach adopted by the Committee means thatagreements relating to particular matters prevail overthe Convention. It follows that, where those agreementslay down rules of direct or exclusive jurisdiction, thecourt of the State of origin will have to apply those rulesto the exclusion of any others; where they containprovisions concerning the conditions governing therecognition and enforcement of judgments given inmatters to which the agreements apply, only thoseconditions need be satisfied, so that the enforcementprocedure set up by the EEC Convention will not applyto those judgments.

The Committee adopted this approach in view of thefact that the Member States of the Community, whenthey entered into these agreements, had for the most

part contracted obligations towards non-Member Stateswhich should not be modified without the consent ofthose States.

Moreover, the following points must be borne in mind:

1. The rules of jurisdiction laid down in theseagreements have been dictated by particularconsiderations relating to the matters of which theytreat, e. g. the flag or port of registration of a vesselin the maritime conventions; the criterion ofdomicile is not often used to establish jurisdiction insuch agreements.

2. The EEC Convention lays down that judgments arein principle to be recognized, whereas agreementsrelating to particular matters usually subject the

recognition and enforcement of judgments to acertain number of conditions. These conditions maywell differ from the grounds for refusal set out inArticles 27 and 28; moreover they usually include a


requirement, which the Convention has droppedthat the court of origin had jurisdiction.

3. The simplified enforcement procedure laid down bythe Convention is the counterpart of Title II, theprovisions of which will not necessarily have to beobserved where the court of the State of origin hasto apply another convention. Consequently, whereagreements relating to particular matters refer forthe enforcement procedure back to the ordinary lawof the State in which enforcement is sought, it isthat law which must be applied. There is , howevernothing to prevent a national legislature fromsubstituting the Convention procedure for itsordinary civil procedure for the enforcement ofjudgments given in application of agreementsgoverning particular matters.

Article

This Article deals only with certain problems . ofjurisdiction raised by the Convention of 15 June 1869between France and Switzerland.

Under Article 1 of that Convention, a Swiss nationaldomiciled in France may sue in the French courts aFrench national domiciled in a third State.

This option, granted by that Convention to Swissnationals domiciled in France, might, in the absence ofArticle 58 , conflict with the EEC Convention, accordingto which a defendant domiciled in a Contracting Statemay be sued in the courts of another Contracting Stateonly in certain defined situations, and in any case noton the basis of rules of exorbitant jurisdiction such asthose of Article 14 of the French Civil Code.

Under Article 58 , a Swiss national domiciled in Francecan exercise the option which the Convention betweenFrance and Switzerland grants him to sue in France aFrenchman domiciled in another Contracting Statewithout there being any conflict with the EECConvention , since the jurisdiction of the French Courtwill be recognized under the terms of Article 58. As aresult of this provision, the rights secured by Swissnationals domiciled in France are safeguarded, and

France can continue to honour the obligations which ithas entered into with respect to Switzerland. This is , of

course, only an option which is granted to Swissnationals , and there is nothing to prevent them frommaking use of the other provisions of the EECConvention.

Article

It will be recalled that under Article 3 of theConvention , what are known as the rules of ' exorbitantjurisdiction are no longer to be applied in cases wherethe defendant is domiciled in the Community, but thatunder Article 4 they are still fully applicable where thedefendant is domiciled outside the Community, and

that, in such cases , judgments given by a court whosejurisdiction derives from those rules are to recognized and enforced in the other Contracting States.

It must first be stressed that Article 59 does not reducethe effect of Article 4 of the Convention , for the latterArticle does not prevent a State , in an agreement with athird State, from renouncing its rules of exorbitant

jurisdiction either in whole or only in certain cases, forexample, if the defendant is a national of that thirdState or if he is domiciled in that State. Each State partyto the EEC Convention remains quite free to concludeagreements of this type with third States , just as it is freeto amend the provisions of its legislation which containrules of exorbitant jurisdiction; Article 4 of theConvention imposes no common rule, but merely refersback to the internal law of each State.

The only objective of Article 59 is to lessen the effectswithin the Community, of judgments given on the basisof rules of exorbitant jurisdiction. Under the combinedeffect of Articles 59 and 28 , recognition or enforcementof a judgment given in a State party to the Conventioncan be refused in any other Contracting State:

1. where the jurisdiction of the court of origin couldonly be based on one of the rules of exorbitant

jurisdiction specified in the second paragraph ofArticle 3. It would therefore be no ground forrefusal that the court of origin founded itsjurisdiction on one of those rules, if it could equallywell have founded its jurisdiction on otherprovisions of its law. For example , a judgment givenin France on the basis of Article 14 of the CivilCode could be recognized and enforced if thelitigation related to a contract which was to beperformed in France;


2. where a convention on the recognition andenforcement of judgments exists between the Stateaddressed and a third State, under the terms of

which judgments given in any other State on thebasis of a rule of exorbitant jurisdiction will beneither recognized nor enforced where thedefendant was domiciled or habitually resident inthe third State. Belgium would thus not be obligedto recognize or enforce a judgment given in Franceagainst a person domiciled or habitually resident inNorway where the jurisdiction of the French courtsover that person could be based only on Article 14of the Civil Code since a convention betweenBelgium and Norway exists under which those twocountries undertook not to recognize or enforce

such judgments. Article 59 includes a reference not

CHAPTER X

only to the defendant's domicile but also to hishabitual residence, since in many non-memberStates this criterion is in practice equivalent to theconcept of domicile as this is understood in theMember States of the Community (see also Article10 (1)) of the Hague Convention on the recognition

, and enforcement of foreign judgments in civil andcommercial matters).

As regards the recognition and enforcement ofjudgments. Article 59 thus opens the way towardsregulating the relations between the Member States ofthe EEC and other States, in particular the increasingnumber which are members of the Hague Conference.This seemed to justify a slight encroachment on theprinciple of free movement of judgments.

FINAL PROVISIONS

Articles 60 to 62 and 64 to

These Articles give rise to no particular comment.

Article

Article 63 deals with the accession of new ' MemberStates to the European Economic Community.

It is desirable, in the opinion of the Committee, that, inorder to be able to fulfil the obligations laid down inArticle 220 of the Treaty establishing the EuropeanEconomic Community, such States should accede to theConvention. The legal systems of such States mighthowever, prevent the acceptance of the Convention as it

stands, and negotiations might be necessary. If suchwere the case, any agreement concluded between the Sixand a new Member State should not depart from thebasic principles of the Convention. That is why Article63 provides that the Convention must be taken as abasis for the negotiations , which should be concernedonly with such adjustments as are essential for the newMember State to be able to accede to the Convention.

The negotiations with that State would not necessarilyhave to precede its admission to the Community.

Since the adjustments would be the subject of a specialagreement between the Six and the new Member State,it follows from the second paragraph of Article 63 thatthese negotiations could not be used as an opportunityfor the Six to reopen debate on the Convention.

CHAPTER XI

PROTOCOL

Article I

Article I of the Protocol takes account of the specialposition of the Grand Duchy of Luxembourg. It

provides that any person domiciled in Luxembourg whois sued in a court of another Contracting State pursuantto Article 5 (1) (which provides , in matters relating to acontract, that the courts for the place of performance of


the obligation shall have jurisdiction), may refuse thejurisdiction of those courts. A similar reservation isincluded in the Benelux Treaty (Protocol , Article I), andit is justified by the particular nature of the economicrelations between Belgium and Luxembourg, inconsequence of which the greater part of the contractualobligations between persons resident in the twocountries are performed or are to be performed Belgium. It follows from Article 5 (1) that a plaintiffdomiciled in Belgium could in most cases bring anaction in the Belgian courts.

Another characteristic of Luxembourg economicrelations is that a large number of the contractsconcluded by persons resident in Luxembourg areinternational contracts. In view of this, it was clearlynecessary that agreements conferring jurisdiction whichcould be invoked against persons domiciled inLuxembourg should be subject to stricter conditionsthan those of Article 17. The text adopted is based onthat of the Benelux Treaty (Article 5 (3)).

Article

Article II of the Protocol also has its OrIgIn in theBenelux Treaty. The latter applies inter alia

judgments given in civil matters by criminal courts , andthus puts an end to a controversy between Belgium andthe Netherlands on the interpretation of the 1925Convention between Belgium and the Netherlands. Asthe report annexed to the Treaty explains (1), the

reluctance of the Netherlands authorities to enforcejudgments given by foreign criminal courts in civilclaims is due to the fact that a Netherlander charged

with a punishable offence committed in foreigncountry may be obliged to appear in person before theforeign criminal court in order to defend himself even inrelation to the civil claim, although the Netherlands

does not extradite its nationals. This objection is lesspertinent than would appear at first sight under certainsystems of law, and in particular in France , Belgium andLuxembourg, the judgment in a criminal case has theforce of res judicata in any subsequent civil action.

In view of this, the subsequent civil action broughtagainst a Netherlander convicted of a criminal offencewill inevitably go against him. It is therefore essentialthat he should be able to conduct his defence' during thecriminal stage of the proceedings.

(1) Benelux Treaty: see the commentary on Article 13 andArticle II of the Protocol.

For this reason the Convention, like the Benelux Treaty,provides (see the Protocol) that a person domiciled in aContracting State may arrange for his defence in thecriminal courts of any other Contracting State.

Under Article II of the Protocol, that person will enjoythis right even if he does not appear in person and evenif the code of criminal procedure of the State in questiondoes not allow him to be represented. However, if thecourt seised of the matter should specifically orderappearance in person , the judgment given without theperson concerned having had the opportunity toarrange for his defence, because he did not appear inperson, need not be recognized or enforced in the otherContracting States.

This right is, however, accorded by Article II of theProtocol only to persons who are prosecuted for anoffence which was not intentionally committed; thisincludes road accidents.

Article III

This Article is also based on the Benelux Treaty (ArticleIII of the Protocol).

It abolishes the levying, in the State in whichenforcement is sought, of any charge, duty or fee whichis calculated by reference to the value of the matter inissue , and seeks to remedy the distortion resulting fromthe fact that enforcement gives rise to the levying offixed fees in certain countries and proportional fees inothers.

This Article is not concerned with lawyers ' fees.

In the opinion of the Committee , while it was desirableto abolish proportional fees on enforcement, there wasno reason to suppress the fixed charges , duties and feeswhich are payable , even under the internal laws of theContracting States , whenever certain procedural acts areperformed, and which in some respects can be regardedas fees charged for services rendered to the parties.

Article IV

(See the commentary on Article 20 (2) page 66 et seq.)


Article VI

provisions of the laws mentioned in the Convention as might happen in the case of the provisions specifiedin the second paragraph of Article 3 or affect the

courts listed in Section 2 of Title III. Information onthese matters must be passed to the Secretary General ofthe Council of the European Communities to enablehim, in accordance with Article 64 (e), to flotify theother Contracting States.

Article V

(See the commentary on Article 6 (2), page 27 et seq.

This Article relates to the case where legislativeamendments to national laws affect either the

ANNEX

Committee of experts who drafted the Convention on jurisdiction and the enforcement of judgments

civil and commercial matters

CHAIRMAN

Professor A. Bulow Staatssekretar a. D. im Bundesministerium derJustiz der Bundesrepublik Deutschland

Belgium

Mr P. JenardChairman of the Working Party Directeur au ministere des affaires etrangeres et du

commerce exterieur

Mr H. Meuleman

Mr M. Rouserez

Directeur general au ministere de la justice

Magistrat delegue au ministere de la justice

Mr Ch. van Reepinghen (t)

Mr E. Krings

Commissaire royal a la reforme judiciaire

Commissaire royal a la reforme judiciaire

Professor R. van der Elst Avocat, professeur a l' universite libre de Bruxelles

Germany

Mr H. Arnold Ministerialrat im Bundesministerium der Justiz

France

Mr J. Baudoin Sous-directeur des affaires civiles et du sceau Ministere de la justice

Premier vice-president du tribunal de grandeinstance de la Seine

Mr P. Bellet

Mr Y. Cotte Chef de bureau 'Droit europeen et international' -Ministere de la justice

Italy

Professor L. Marmo (t)

Mr Caldarera

Consigliere di Corte di cassazione Ministero digrazia e giustizia

Consigliere di Corte di cassazione addetto alservizio del contenzioso diplomatico del ministerodegli affari esteri

Mr G. di Blasi Magistrato, ministero degli affari esteri

Consigliere di Corte d' appello , ministero di grazia egiustizia

Professor R. Miccio


Luxembourg

Mr A. Huss

Mr F. Goerens

eth erlands

Mr Th. van Sasse van Y sselt

Mr C. W. Dubbink

Observers

Benelux Committee on the unification of law

Mrs M. Weser

Procureur general d'Etat

A vocat general

Directeur, Afdelingschef bij het ministerie vanjustitie

Raadsheer in de Hoge raad der Nederlanden

Member of the Committee

Hague Conference on private international law

Mr M. H. van Hoogstraten Secretary-General to the Conference

Mr G. Droz

Commission of the European Economic Community

- Directorate-General for Competition

Mr W. Hauschild

Miss M. Van Es

First Secretary to the Permanent Bureau of theConference

Head of Division

Member of Division