EC EFTA Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters Lugano, 16 September 1988

Preamble

The High Contracting Parties to this Convention,

Anxious to strengthen in their territories the legal protection of persons therein established,

Considering that it is necessary for this purpose to determine the international jurisdiction of their courts, to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgements, authentic instruments and court settlements.

Aware of the links between them, which have been sanctioned in the economic field by the free trade agreements concluded between the European Economic Community and the States members of the European Free Trade Association,

Taking into account the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgements in civil and commercial matters, as amended to the Accession Conventions under the successive enlargements of the European Communities.

Persuaded that the extension of the principles of that Convention to the State parties to this instrument will strengthen legal and economic co-operation in Europe,

Desiring to ensure as uniform an interpretation as possible of this instrument,

Have in this spirit decided to conclude this Convention and Have agreed as follows:

Title I – Scope

Article 1

This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

The Convention shall not apply to

1. the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession

2. bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings

3. social security

4 arbitration.

Title II – Jurisdiction

Section 1 – General Provisions

Article 2

Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State.

Persons who are not nationals of the State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that state

Article 3

Persons domiciled in a Contracting State may be sued in the courts of another Contracting State only by virtue of the rules set out in Sections 2 to 6 of this Title.

In particular the following provisions shall not be applicable as against them:

– in Belgium: Article 15 of the civil code (Code civil – Burgerlijk Wetboek) and Article 638 of the judicial code (Code judiciaire – Gerechtelijk Wetboek),

– in Denmark: Article 246 (2) and (3) of the law on civil procedure (Lov om rettens pleje),

– in the Federal Republic of Germany: Article 23 of the code of civil procedure (Zivilprozessordnung),

– in Greece: Article 40 of the code of civil procedure [ greek text],

– in France: Articles 14 and 15 of the civil code (Code civil),

– in Ireland: the rules which enable jurisdiction to be founded on the document instituting the proceedings having been served on the defendant during this temporary presence in Ireland,

– in Iceland: Article 77 of the Civil Proceedings Act [icelandic text],

– in Italy: Articles 2 and 4, Nos 1 and 2 of the code of civil procedure (Codice di procedura civile),

– in Luxembourg: Articles 14 and 15 of the civil code (Code civil),

– in the Netherlands: Articles 126 (3) and 127 of the code of civil procedure (Wetboek van Burgerlijke Rechtsvordering),

– in Norway: Section 32 of the Civil Proceedings Act (tvistem䫳loven),

– in Austria: Article 99 of the Law on Court Jurisdiction (Jurisdiktionsnorm)

– in Portugal: Articles 65 (1) (c), 65 (2) and 65A (c) of the code of civil procedure (Codigo de Processo Civil) and Article 11 of the code of labour procedure (Codigo de Processo de Trabalho),

– in Switzerland: le for du lieu du sequestre/ Gerichtsstand des Arrestortes/foro del luogo del sequestro within the meaning of Article 4 of the loi federale sur le droit international prive/Bundesgesetz uber das internationale Privatrecht/legge federale sul diritto internazionale privato,

– in Finland: the second, third and fourth sentences of Section 1 of Chapter 10 of the Code of Judicial Procedure [finnish text],

– in Sweden: the first sentence of Section 3 of Chapter 10 of Code of Judicial Procedure (Ratteg䭧sbalken),

– in the United Kingdom: the rules which enable jurisdiction to be founded on:

(a) the document instituting the proceedings having been served on the defendant during his temporary presence in the United Kingdom

(b) the presence within the United Kingdom of property belonging to the defendant

(c) the seizure by the plaintiff of property situated in the United Kingdom.

Article 4

If the defendant is not domiciled in a Contracting State, the jurisdiction of the courts of each Contracting State shall, subject to the provisions of Article 16, be determined by the law of that State.

As against such a defendant, any person domiciled in a Contracting State may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in the second paragraph of Article 3, in the same way as the nationals of that State.

Section 2 – Special jurisdiction

Article 5

A person domiciled in a Contracting State may, in another Contracting State, be sued:

1. in matters relating to a contract, in the courts for the place of performance of the obligation in question

2. in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties

3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred

4. as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seised of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings

5. as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated

6. in his capacity as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Contracting State in which the trust is domiciled

(a) has been arrested to secure such payment, or

(b)could have been so arrested, but bail or other security has been given

Article 6

A person domiciled in a Contracting State may also be sued:

1. where he is one of a number of defendants, in the courts for the place where any one of them is domiciled

2. as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case

3. on a counterclaim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending

4. in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the Contracting State in which the property is situated.

Article 6A

Where by virtue of this Convention a court of a Contracting State has jurisdiction in actions relating to liability arising from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that State, shall also have jurisdiction over claims for limitation of such liability.

Section 3 – Jurisdiction in matters relating to insurance

Article 7

In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to the provisions of Articles 4 and 5 (5).

Article 8

An insurer domiciled in a Contracting State may be sued:

1. in the courts of the State where he is domiciled. or

2. in another Contracting State, in the courts for the place where the policy-holder is domiciled, or

3. if he is a co-insurer, in the courts of a Contracting State in which proceedings are brought against the leading insurer.

An insurer who is not domiciled in a Contracting State but has a branch, agency or other establishment in one of the Contracting States shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

Article 9

In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.

Article 10

In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.

The provisions of Articles 7, 8 and 9 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.

If the law governing such direct actions provides that the policy-holder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.

Article 11

Without prejudice to the provisions of the third paragraph of Article 10, an insurer may bring proceedings only in the courts of the Contracting State in which the defendant is domiciled, irrespective of whether he is the policy-holder, the insured or a beneficiary.

The provisions of this Section shall not affect the right to bring a counterclaim in the court in which, in accordance with the Section, the original claim is pending.

Article 12

The provisions of this Section may be departed from only by an agreement on jurisdiction:

1. which is entered into after the dispute has arisen, or

2. which allows the policy-holder. the insured or a beneficiary to bring proceedings in courts other than those indicated in this Section, or

3. which is concluded between a policy-holder and an insurer, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Contracting State, and which has the effect of conferring jurisdiction on the courts of that State even if the harmful event were to occur abroad, provided that such an agreement is not contrary to the law of that State, or

4. which is concluded with a policy-holder who is not domiciled in a Contracting State, except in so far as the insurance is compulsory or relates to immovable property in a Contracting State, or

5. which relates to a contract of insurance in so far as it covers one or more of the risks set out in Article 12A.

Article 12A

The following are the risks referred to in Article 12 (5):

1. any loss of or damage to

(a) sea-going ships, installations situated off-shore or on the high seas, or aircraft, arising from perils which relate to their use for commercial purposes,

(b) goods in transit other that passengers’ baggage where the transit consists of or includes carriage by such ships or aircraft

2. any liability, other than for bodily injury to passengers or loss of or damage to their baggage,

(a) arising out of the use or operation of ships, installations or aircraft as referred to in (1) (a) above in so far as the law of the Contracting State in which such aircraft are registered does not prohibit agreements on jurisdiction regarding insurance of such risks,

(b) for loss or damage caused by goods in transit as described in (1) (b) above

3. any financial loss connected with the use or operation of ships, installations or aircraft as referred to in (1) (a) above, in particular loss of freight or charter-hire

4. any risk or interest connected with any of those referred to in (1) to (3) above.

Section 4 – Jurisdiction over consumer contracts

Article 13

In proceedings concerning a contract concluded by a person for a purpose which can be regarded as being outside his trade or profession, hereinafter called the consumer, jurisdiction shall be determined by this Section, without prejudice to the provisions of Articles 4 and 5 (5), if it is:

1. a contract for the sale of goods on instalment credit terms, or

2. a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods, or

3. any other contract for the supply of goods or a contract for the supply of services, and

(a) in the State of the consumer’s domicile the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and

(b) the consumer took in that State the steps necessary for the conclusion of the contract.

Where a consumer enters into a contract with a party who is not domiciled in a Contracting State but has a branch, agency or other establishment in one of the Contracting States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

This Section shall not apply to contracts of transport.

Article 14

A consumer may bring proceedings against the other party to a contract either in the courts of the Contracting State in which that party is domiciled or in the courts of the Contracting State in which he is himself domiciled.

Proceedings may be brought against a consumer by the other party to the contract only in the courts of the Contracting State in which the consumer is domiciled.

These provisions shall not affect the right to bring a counterclaim in the court in which, in accordance with this Section, the original claim is pending.

Article 15

The provisions of this Section may be departed from only by an agreement:

1. which is entered into after the dispute has arisen, or

2. which allows the consumer to bring proceedings in courts other than those indicated in this Section, or

3. which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Contracting State, and which confers jurisdiction on the courts of that State, provided that such an agreement is not contrary to the law of that State

Section 5 – Exclusive jurisdiction

Article 16

The following courts shall have exclusive jurisdiction, regardless of domicile:

1.

(a) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Contracting State in which the property is situated:

(b) however, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Contracting State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and neither party is domiciled in the Contracting State in which the property is situated

2. in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the decisions of their organs, the courts of the Contracting State in which the company, legal person or association has its seat

3. in proceedings which have as their object the validity of entries in public registers, the courts of the Contracting State in which the register is kept

4. in proceedings concerned with the registration or validity of patents, trade marks, designs or other similar rights required to be deposited or registered, the courts of the Contracting State in which the deposit or registration has been applied for, has taken place or is under the terms of an international convention deemed to have taken place

5. in proceedings concerned with the enforcement of judgements, the courts of the Contracting State in which the judgement has been or is to be enforced.

Section 6 – Prorogation of jurisdiction

Article 17

1. If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction. Such an agreement conferring jurisdiction shall be either:

(a) in writing or evidenced in writing, or

(b) in a form which accords with practices which the parties have established between themselves, or

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

Where such an agreement is concluded by parties, none of whom is domiciled in a Contracting State, the courts of other Contracting States shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.

2. The court or courts of a Contracting State on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.

3. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to the provisions of Articles 12 or 15, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 16.

4. If an agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.

5. In matters relating to individual contracts of employment an agreement conferring jurisdiction shall have legal force only if it is entered into after the dispute has arisen.

Article 18

Apart from jurisdiction derived from other provisions of this Convention, a court of a Contracting State before whom a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 16.

Section 7 – Examination as to jurisdiction and admissibility

Article 19

Where a court of a Contracting State is seised of a claim which is principally concerned with a matter over which the courts of another Contracting State have exclusive jurisdiction by virtue of Article 16, it shall declare of its own motion that it has no jurisdiction.

Article 20

Where a defendant domiciled in one Contracting State is sued in a court of another Contracting State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Convention.

The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.

The provisions of the foregoing paragraph shall be replaced by those of Article 15 of the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, if the document instituting the proceedings or notice thereof had to be transmitted abroad in accordance with that Convention

Section 8 – Lis Pendens – related actions

Article 21

Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.

Article 22

Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may while the actions are pending at first instance, stay its proceedings.

A court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions.

For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgements resulting from separate proceedings.

Article 23

Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court.

Section 9 – Provisional, including protective, measures

Article 24

Application may be made to the courts of a Contracting State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another Contracting State have jurisdiction as to the substance of the matter.

Title III – Recognition and Enforcement

Article 25

For the purposes of this Convention, judgement means any judgement given by a court or tribunal of a Contracting State, whatever the judgement may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.

Section 1 – Recognition

Article 26

A judgement given in a Contracting State shall be recognised in the other Contracting States without any special procedure being required.

Any interested party who raises the recognition of a judgement as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Title, apply for a decision that the judgement be recognised.

If the outcome of proceedings in a court of a Contracting State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.

Article 27

A judgement shall not be recognised:

1. if such recognition is contrary to public policy in the State in which recognition is sought

2. where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence

3. if the judgement is irreconcilable with a judgement given in a dispute between the same parties in the State in which recognition is sought

4. if the court of the State of origin, in order to arrive at its judgement, has decided a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession in a way that conflicts with a rule of the private international law of the State in which the recognition is sought, unless the same result would have been reached by the application of the rules of private international law of that State

5. if the judgement is irreconcilable with an earlier judgement given in a non-contracting State involving the same cause of action and between the same parties, provided that this latter judgement fulfils the conditions necessary for its recognition in the State addressed.

Article 28

Moreover, a judgement shall not be recognised if it conflicts with the provisions of Sections 3. 4 or 5 of Title II or in a case provided for in Article 59.

A judgement may furthermore be refused recognition in any case provided for in Article 54B (3) or 57 (4).

In its examination of the grounds of jurisdiction referred to in the foregoing paragraphs, the court or authority applied to shall be bound by the findings of fact on which the court of the State of origin based its jurisdiction.

Subject to the provisions of the first and second paragraphs, the jurisdiction of the court of the State of origin may not be reviewed

Article 29

Under no circumstances may a foreign judgement be reviewed as to its substance.

Article 30

A court of a Contracting State in which recognition is sought of a judgement given in another Contracting State may stay the proceedings if an ordinary appeal against the judgement has been lodged.

A court of a Contracting State in which recognition is sought of a judgement given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the State of origin by reason of an appeal.

Section 2 – Enforcement

Article 31

A judgement given in a Contracting State and enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, it has been declared enforceable there.

However, in the United Kingdom, such a judgement shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 32

1. The application shall be submitted:

– in Belgium, to the tribunal de premiere instance or rechtbank van eerste aanleg,

– in Denmark, to the byret, in the Federal Republic of Germany, to the presiding judge of a chamber of the Landgericht,

– in Greece, to the [greek text],

– in Spain, to the Juzgado de Primera Instancia,

– in France, to the presiding judge of the tribunal de grande instance,

– in Ireland, to the High Court,

– in Iceland, to the heradsdomari,

– in Italy, to the corte d’appello,

– in Luxembourg, to the presiding judge of the tribunal d’arrondissement,

– in the Netherlands, to the presiding judge of the arrondissementsrechtbank,

– in Norway, to the herredsrett or byrett as namsrett,

– in Austria, to the Landesgericht or the Kreisgericht,

– in Portugal, to the Tribunal Judicial de Circulo,

– in Switzerland:

(a) in respect of judgements ordering the payment of a sum of money, to the juge de la mainlevee/Rechtsoffnungs- richter/giudice competente a pronunciare sul rigetto dell’ opposizione, within the framework of the procedure governed by Article 80 and 81 of the loi federale sur la poursuite pour dettes et la faillite/Bundesgesetz uber Schuldbetreibung und KonkursAegge federale sulla esecuzione e sul fallimento,

(b) in respect of judgements ordering a performance other than the payment of a sum of money, to the juge cantonal d’exequatur competent/zustandiger kantonaler Vollstreckungsrichter/ giudice cantonale competente a pronunciare l’exequatur,

– in Finland, to the ulosotonhaltija/overexekutor,

– in Sweden, to the Svea hovratt,

– in the United Kingdom:

(a) in England and Wales, to the High Court of Justice, or in the case of a maintenance judgement to the Magistrates’ Court on transmission by the Secretary of State

(b) in Scotland, to the Court of Session, or in the case of a maintenance judgement to the Sheriff Court on transmission by the Secretary of State

(c) in Northern Ireland, to the High Court of Justice, in the case of a maintenance judgement to the Magistrates’ Court on transmission by the Secretary of State.

2. The jurisdiction of local courts shall be determined by reference to the place of domicile of the party against whom enforcement is sought. If he is not domiciled in the State in which enforcement is sought, it shall be determined by reference to the place of enforcement.

Article 33

The procedure for making the application shall be governed by the law of the State in which enforcement is sought.

The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.

The documents referred to in Articles 46 and 47 shall be attached to the application.

Article 34

The court applied to shall give its decision without delay

The application may be refused only for one of the reasons specified in Articles 27 and 28.

Under no circumstances may the foreign judgement be reviewed as to its substance.

Article 35

The appropriate officer of the court shall without delay bring the decision given on the application to the notice of the applicant in accordance with the procedure laid down by the law of the State in which enforcement is sought.

Article 36

If enforcement is authorised, the party against whom enforcement is sought may appeal against the decision within one month of service thereof.

If that party is domiciled in a Contracting State other than that in which the decision authorising enforcement was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.

Article 37

1. An appeal against the decision authorising enforcement shall be lodged in accordance with the rules governing procedure in contentious matters:

– in Belgium, with the tribunal de premiere instance or rechtbank van eerste aanleg,

– in Denmark, with the landsret,

– in the Federal Republic of Germany, with the Oberlandsgericht,

– in Greece, with the [greek text]

– in Spain, with the Audiencia Provincial

– in France, with the cour d’appel,

– in Ireland, with the High Court,

– in Iceland, with the heradsdomari

– in Italy, with the corte d’appello,

– in Luxembourg, with the Cour superieure de justice sitting as a court of civil appeal,

– in the Netherlands, with the arrondissementsrechtbank,

– in Norway, with the lagmannsrett,

– in Austria, with the Landesgericht or the Kreisgericht,

– in Portugal, with the Tribunal da Relacao,

– in Switzerland, with the tribunal cantonallKantonsgericht/ tribunale cantonale,

– in Finland, with the hovioikeus/hovratt,

– in Sweden, with the Svea hovratt,

– in the United Kingdom:

(a) in England and Wales, with the High Court of Justice, or in the case of a maintenance judgement with the Magistrates’ Court,

(b) in Scotland, with the Court of Session, or in the case of a maintenance judgement with the Sheriff Court,

(c) in Northern Ireland, with the High Court of Justice, or in the case of a maintenance judgement with the Magistrates’ Court.

2. The judgement given on the appeal may be contested only:

– in Belgium, Greece, Spain, France, Italy, Luxembourg and

– in the Netherlands, by an appeal in cassation,

– in Denmark, by an appeal to the h�eret, with the leave of the Minister of Justice,

– in the Federal Republic of Germany, by a Rechtsbe schwerde,

– in Ireland, by an appeal on Court,

– in Iceland, by an appeal to the H岴irettur,

– in Norway, by an appeal (kj履m䪠or anke) to the H�eretts Kj履m䫳utvalg or H�erett,

– in Austria, in the case of an appeal, by a Revisionsrekurs and, in the case of opposition proceedings, by a Berufung with the possibility of a Revision,

– in Portugal, by an appeal on a point of law,

– in Switzerland, by a recours de droit public devant le tribunal federal/staatsrechtliche Beschwerde beim Bundes gericht/ricorso di diritto pubblico davanti al tribunale federale,

– in Finland, by an appeal to the korkein oikeus/hogsta domstolen,

– in Sweden, by an appeal to the hogsta domstolen,

– in the United Kingdom, by a single further appeal on a point of law point of law to the Supreme

Article 38

The court with which the appeal under the first paragraph of Article 37 is lodged may, on the application of the appellant, stay the proceedings if an ordinary appeal has been lodged against the judgement in the State of origin or if the time for such an appeal has not yet expired

Where the judgement was given in Ireland or the United Kingdom, any form of appeal available in the State of origin shall be treated as an ordinary appeal for the purposes of the first paragraph.

The court may also make enforcement conditional on the provision of such security as it shall determine.

Article 39

During the time specified for an appeal pursuant to Article 36 and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures taken against the property of the party against whom enforcement is sought.

The decision authorising enforcement shall carry with it the power to proceed to any such protective measures.

Article 40

1. If the application for enforcement is refused, the applicant may appeal:

– in Belgium, to the cour d’appel or hof van beroep,

– in Denmark, to the landsret,

– in the Federal Republic of Germany, to the Oberlandes- gericht,

– in Greece, to the [greek text]

– in Spain, to the Audiencia Provincial,

– in France, to the cour d’appel,

– in Ireland, to the High Court,

– in Iceland, to the heradsdomari,

– in Italy, to the corte d’appello,

– in Luxembourg, to the Cour superieure de justice sitting as a court of civil appeal,

– in the Netherlands, to the gerechtshof,

– in Norway, to the lagmannsrett,

– in Austria, to the Landesgericht or the Kreisgericht,

– in Portugal, to the Tribunal da Relacao

– in Switzerland, to the tribunal cantonal/ Kantonsgericht/ tribunale cantonale,

– in Finland, to the hovioikeus/hovratt,

– in Sweden, to the Svea hovratt,

– in the United Kingdom:

(a) in England and Wales, to the High Court of Justice, or in the case of a maintenance judgement to the Magistrates’ Court,

(b) in Scotland, to the Court of Session, or in the case of a maintenance judgement to the Sheriff Court,

(c) in Northern Ireland, to the High Court of Justice, or in the case of a maintenance judgement to the Magistrates’ Court.

2. The party against whom enforcement is sought shall be summoned to appear before the appellate court. If he fails to appear, the provisions of the second and third paragraphs of Article 20 shall apply even where he is not domiciled in any of the Contracting States.

Article 41

A judgement given on an appeal provided for in Article 40 may be contested only:

– in Belgium, Greece, Spain, France, Italy, Luxembourg and in the Netherlands, by an appeal in cassation,

– in Denmark, by an appeal to the h�eret with the leave of the Minister of Justice,

– in the Federal Republic of Germany, by a Rechtsbeschwerde,

– in Ireland, by an appeal on a point of law to the Supreme Court,

– in Iceland, by an appeal to the H岴irettur,

– in Norway, by an appeal (kj履m䪠or anke) to the H�eretts kj履m䫳utvalg or H�erett,

– in Austria, by a Revisionsrekurs,

– in Portugal, by an appeal on a point of law,

– in Switzerland, by a recurs de droit public devant le tribunal federal/staatsrechtliche Beschwerde beim Bundesgericht/recorso di diritto pubblico davanti al tribunale federale,

– in Finland, by an appeal to the korkein oikeus/hogsta domstolen,

– in Sweden, by an appeal to the hogsta domstolen,

– in the United Kingdom, by a single further appeal on a point of law.

Article 42

Where a foreign judgement has been given in respect of several matters and enforcement cannot be authorised for all of them, the court shall authorise enforcement for one or more of them.

An applicant may request partial enforcement of a judgement.

Article 43

A foreign judgement which orders a periodic payment by way of a penalty shall be enforceable in the State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the State of origin.

Article 44

An applicant who in the State of origin, has benefited from complete or partial legal

However, an applicant who requests the enforcement of a decision given by an administrative authority in Denmark or Iceland in respect of a maintenance order may, in the State addressed, claim the benefits referred to in the first paragraph if he presents a statement from, respectively, the Danish Ministry of Justice or the Icelandic Ministry of Justice to the effect that he fulfils the economic requirements to qualify for the grant of complete or partial legal aid or exemption from costs or expenses.

Article 45

No security, bond or deposit, however described, shall be required of a party who in one Contracting State applies for enforcement of a judgement given in another Contracting State on the ground that he is a foreign national or that he is not domiciled or resident in the State in which enforcement is sought.

Section 3 – Common provisions

Article 46

A party seeking recognition or applying for enforcement of a judgement shall produce:

1. a copy of the judgement which satisfies the conditions necessary to establish its authenticity

2. in the case of a judgement given in default, the original or a certified true copy of the document which establishes that the party in default was served with the document instituting the Proceedings or with an equivalent document.

Article 47

A party applying for enforcement shall also produce:

1. documents which establish that, according to the law of the State of origin, the judgement is enforceable and has been served

2. where appropriate, a document showing that the applicant is in receipt of legal aid in the State of origin.

Article 48

If the documents specified in Article 46 (2) and Article 47 (2) are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production.

If the court so requires, a translation of the document shall be produced

Article 49

No legalisation or other similar formality shall be required in respect of the documents referred to in Articles 46 or 47 or the second paragraph of Article 48, or in respect of a document appointing a representative ad litem.

Title IV – Authentic Instruments and Court Settlements

Article 50

A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State shall, in another Contracting State, be declared enforceable there, on application made in accordance with the procedures provided for in Article 31 et seq. The application may be refused only if enforcement of the instrument is contrary to public policy in the State addressed.

The instrument produced must satisfy the conditions necessary to establish its authenticity in the State of origin.

The provisions of Section 3 of Title III shall apply as appropriate.

Article 51

A settlement which has been approved by a court in the course of proceedings and is enforceable in the State in which it was concluded shall be enforceable in the State addressed under the same conditions as authentic instruments

Title V – General Provisions

Article 52

In order to determine whether a party is domiciled in the Contracting State whose courts are seised of a matter, the Court shall apply its internal law.

If a party is not domiciled in the State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Contracting State, the court shall apply the law of that State.

Article 53

For the purposes of this Convention, the seat of a company or other legal person or association of natural or legal persons shall be treated as its domicile. However, in order to determine that seat, the court shall apply its rules of private international law.

In order to determine whether a trust is domiciled in the Contracting State whose courts are seised of the matter, the court shall apply its rules of private international law.

Title VI – Transnational Provisions

Article 54

The provisions of this Convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force in the State of origin and, where recognition or enforcement of a judgement or authentic instrument is sought, in the State addressed.

However, judgements given after the date of entry into force of this Convention between the State of origin and the State addressed in proceedings instituted before that date shall be recognised and enforced in accordance with the provisions of Title III if jurisdiction was founded upon rules which accorded with those provided for either in Title II of this Convention or in a convention concluded between the State of origin and the State addressed which was in force when the proceedings were instituted.

If the parties to a dispute concerning a contract had agreed in writing before the entry into force of this Convention that the contract was to be governed by the law of Ireland or of a part of the United Kingdom, the courts of Ireland or of that part of the United Kingdom shall retain the right to exercise jurisdiction in the dispute.

Article 54A

For a period of three years from the entry into force of this Convention for Denmark, Greece, Ireland, Iceland, Norway, Finland and Sweden, respectively, jurisdiction in maritime matters shall be determined in these States not only in accordance with the provisions of Title II, but also in accordance with the provisions of paragraphs 1 to 7 following. However, upon the entry into force of the International Convention relating to the arrest of sea-going ships, signed at Brussels on 10 May 1952, for one of these States, these provisions shall cease to have effect for that State.

1. A person who is domiciled in a Contracting State may be sued in the courts of one of the States mentioned above in respect of a maritime claim if the ship to which the claim relates or any other ship owned by him has been arrested by judicial process within the territory of the latter State to secure the claim, or could have been so arrested there but bail or other security has been given, and either:

(a) the claimant is domiciled in the latter State, or

(b) the claim arose in the latter State, or

(c) the claim concerns the voyage during which the arrest was made or could have been made, or

(d) the claim arises out of a collision or out of damage caused by a ship to another ship or to goods or persons on board either ship, either by the execution or non-execution of a manoeuvre or by the non-observance of regulations, or

(e) the claim is for salvage, or

(f) the claim is in respect of a mortgage or hypothecation of the ship arrested.

2. A claimant may arrest either the particular ship to which the maritime claim relates, or any other ship which is owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship. However, only the particular ship to which the maritime claim relates may be arrested in respect of the maritime claims set out in (5) (o), (p) or (q) of this Article.

3. Ships shall be deemed to be in the same ownership when all the shares therein are owned by the same person or persons.

4. When in the case of a charter by demise of a ship the charterer alone is liable in respect of a maritime claim relating to that ship, the claimant may arrest that ship or any other ship owned by the charterer, but no other ship owned by the owner may be arrested in respect of such claim. The same shall apply to any case in which a person other than the owner of a ship is liable in respect of a maritime claim relating to that ship.

5. The expression maritime claim means a claim arising out of one or more of the following:

(a) damage caused by any ship either in collision or otherwise

(b) loss of life or personal injury caused by any ship or occurring in connection with the operation on any ship

(c) salvage

(d)agreement relating to the use or hire of any ship whether by charterparty or other wise

(e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise

(f) loss of or damage to goods including baggage carried in any ship

(g) general average

(h) bottomry

(i) towage

(j) pilotage

(k) goods or materials wherever supplied to a ship for her operation or maintenance

(l) construction, repair or equipment of any ship or dock charges and dues

(m) wages of masters, officers or crew

(n) master’s disbursements, including disbursements made by shippers, charterers or agents on behalf of a ship or her owner

(o) dispute as to the title to or ownership of any ship

(p) disputes between co-owners of any ship as to the ownership, possession, employment or earnings of that ship

(q) the mortgage or hypothecation of any ship.

6. In Denmark, the expression “arrest” shall be deemed as regards the maritime claims referred to in (5) (o) and (p) of this Article, to include a “forbud”, where that is the only procedure allowed in respect of such a claim under Articles 646 to 653 of the law on civil procedure (lov om rettens pleje).