ENFORCEMENT OF JUDGMENTS 2021 - IRELAND JON LEGORBURU, MARK O'SHAUGHNESSY, MONA COSTELLOE AND ROBERT MCDERMOTT BYRNEWALLACE LLP
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Definitive global law guides offering comparative analysis from top-ranked lawyers Enforcement of Judgments 2021 Ireland Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott ByrneWallace LLP practiceguides.chambers.com
Trends and Developments IRELAND
Trends and Developments
Contributed by:
Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe
and Robert McDermott
ByrneWallace LLP see p.26
Executive Summary Separately, the uncertainty caused by Brexit
Membership of the EU provides a legislative in relation to the enforcement of judgments
framework that facilitates the enforcement of has meant that certain businesses have been
national judgments across the EU. This provides increasingly turning to arbitration as an alter-
EU businesses with contractual certainty when native method of resolving international dis-
trading with businesses in other member states putes. The Convention on the Recognition and
as they know that if they obtain a judgment, it will Enforcement of Foreign Arbitral Awards (the
be enforceable across the EU. Ireland’s largest “New York Convention”) provides a reliable
trading partner, the UK, is no longer part of the enforcement regime of arbitral awards in the EU
EU following Brexit. This now means that it is member states. Due to the fact that arbitration is
more difficult to enforce an Irish judgment in the not regulated by EU law, Brexit does not affect
UK, and similarly more difficult to enforce a UK the recognition and enforcement of UK arbitral
judgment in Ireland. awards in EU member states or EU member
state awards in the UK, which makes arbitration
However, Brexit also creates opportunities for a more attractive approach when the dispute
Ireland and it is well positioned to benefit from involves UK businesses.
this uncertainty and to become an international
hub for dispute resolution. Ireland is now the Outlined below are the key procedural issues
largest common law jurisdiction in the EU. Ire- arising from Brexit and the international conven-
land is also the only English-speaking member tions that now operate to cover the enforcement
state. of Irish judgments in the UK and UK judgments
in Ireland.
Common law is favoured by many international
companies, particularly US companies, for pan- Post-Brexit Issues and Enforcing UK
European corporate contracts. This provides Judgments in Ireland
Dublin with a significant opportunity to become The UK formally left the EU once the post-Brexit
the go-to destination for the resolution of cross- transition period expired on 31 December 2020.
border disputes. The Irish Commercial Court This means that the EU’s legal framework no
already provides the ideal fast-track framework longer applies within the UK. As a result, the
favoured for the resolution of disputes by inter- enforcement of new Irish and other EU member
national businesses. A significant added advan- state judgments in the UK will be governed by
tage of litigating these disputes in Ireland, as the Hague Convention and domestic UK law.
opposed to in the UK post-Brexit, is that mem-
bership of the EU provides a legislative frame- The Withdrawal Agreement
work for the seamless issuing of proceedings The British government and the EU ratified the
and enforcement of judgments against other Withdrawal Agreement, which came into force
entities across the EU. in February 2020. The Withdrawal Agreement
established the terms of the UK’s withdrawal
22
IRELAND Trends and Developments
Contributed by: Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott,
ByrneWallace LLP
from the EU, in accordance with Article 50 of the and enforcement of UK judgments on or after
Treaty of the European Union. The Withdrawal 31 December 2020 in the courts of EU member
Agreement also addressed some separation states. Similarly, parties will no longer have the
issues, including a wind-down on ongoing pro- benefit of direct recognition and enforcement of
cedures related to police and judicial co-opera- EU judgments in the UK.
tion in criminal matters, and other administrative
and judicial procedures. During the post-Brexit The UK’s application to accede to the Lugano
transition period, most EU legislation continued Convention
to apply in the UK in the same manner as it did The Lugano Convention is an international trea-
before 31 January 2020. The Withdrawal Agree- ty, commonly described as the “Double Conven-
ment amended the European Union (Withdrawal) tion Treaty”, which regulates both international
Act 2018 (EUWA) to save the effect of most of the jurisdiction (ie, the question of whether a court
European Communities Act 1972 (as amended) is competent to hear a cross-border case) and
for the duration of the transition period, and cre- the recognition and enforcement of foreign judg-
ated a new body of retained EU law (in modified ments in civil and commercial matters between
form) at the end of the transition period, instead EU and European Free Trade Association (EFTA)
of on 31 January 2020. states. The Lugano Convention has a similar
framework to the Brussels Recast Regulation
The EU and the UK used the post-Brexit transi- and, in effect, provides for relatively similar rec-
tion period to negotiate the EU–UK Trade and ognition and enforcement procedures between
Cooperation Agreement, which provides for signatory states as currently apply under the
preferential arrangements in various areas, but Brussels Recast Regulation as between EU
which is silent on the topic of judicial co-opera- member states.
tion in civil and commercial matters.
In April 2020, the UK applied to accede to the
In addition, the Court of Justice of the European Lugano Convention in its own right. The UK was
Union (CJEU) continued to have jurisdiction in previously a party to the Convention by virtue of
the UK, and most references to EU member its membership of the EU. To become a party
states in EU law included the UK. Under EU law, to the Lugano Convention, the UK would need
issues of enforcement and jurisdiction in mem- unanimous agreement from the other contract-
ber states are governed by Regulation (EU) No ing parties to the Convention; ie, the EU, Den-
1215/2012 (the “Brussels Recast Regulation”), mark (in its own right), Iceland, Switzerland and
which ensures that parties’ contractual choice of Norway (EFTA states). While the non-EU parties
jurisdiction is enforced and that judgments from have approved the UK’s application, on 4 May
member states are recognisable and enforce- 2021 the European Commission formally com-
able across the EU. By virtue of its membership municated to the European Parliament and the
with the EU, the UK was governed by the Brus- Council of the European Union that it opposes
sels Recast Regulation, and the legal services the UK’s application to accede to the Conven-
sector in the UK gained significant benefits by tion. This was somewhat of a surprise as it had
facilitating the UK to be the venue for legal dis- been anticipated that the UK would be allowed
putes. However, now that the UK has left the to accede, thus resolving the majority of the rec-
EU, the Brussels Recast Regulation no longer ognition and enforcement issues arising post–
applies in matters with a UK dimension. This Brexit.
means that there is no automatic recognition
23
Trends and Developments IRELAND
Contributed by: Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott,
ByrneWallace LLP
The European Commission notes that although should provide the framework for future co-
the Lugano Convention is open to accession operation between the EU and the UK in the field
by “any other State” upon invitation from the of civil judicial co-operation.
Depositary, and also upon unanimous agree-
ment of the contracting parties, it is not aimed The UK’s reliance on international regimes
at all third countries. There is no third country With the exit of the UK from the EU, the Brussels
other than EFTA/European Economic Agree- Recast Regulation no longer applies to the UK.
ment countries party to the Convention. Since Consequently, in the absence of an agreement
January 2021, the UK is a third country with an between the UK and EU on judicial co-operation
“ordinary” free trade agreement facilitating trade and enforcement of judgments, businesses are
but not including any fundamental freedoms likely to experience significant disruptions to
and policies of the internal market. On the other cross-border litigation with a UK dimension.
hand, the Lugano Convention is based on a high
level of mutual trust and reciprocity among the Furthermore, given that it currently appears that
contracting parties and represents an essential the UK may be refused accession to the Lugano
feature of a common area of justice that corre- Convention, the UK will have to rely on other
sponds with the high degree of economic inter- international regimes in order to have judgments
relation based on the applicability of the four recognised and enforced; for example, the
freedoms of EU law. Hague Convention, to which the UK is a party in
its own right. However, while the Hague Conven-
On 4 May 2021, the European Commission tion assists in ensuring jurisdiction clauses are
issued its Communication (the “Communica- followed and enables the enforcement of judg-
tion”) in respect of the UK’s application, and ments within contracting states, there are some
held that the European Council should block the limitations within the Hague Convention in rela-
accession of the UK to the Lugano Convention. tion to non-exclusive jurisdiction clauses, and
However, the Communication is non-binding, it has a much narrower scope than the Recast
and the ultimate decision lies with the major- Regulation and the Lugano Convention. Also,
ity of EU member states acting through the EU while the UK intends to apply to the Hague Con-
Council. If it is not approved, Ireland will look to vention in relation to exclusive jurisdiction claus-
the Hague Convention or common law rules to es, the European Commission has indicated its
determine the recognition and enforceability of belief that the Hague Convention will only apply
UK judgments. to exclusive English jurisdiction clauses agreed
from 1 January 2021.
The Communication provides that the EU’s long-
standing approach is that the appropriate frame- The issue of enforcement of judgments in the
work to promote co-operation with third coun- UK and Ireland is one of the many issues arising
tries in the field of judicial co-operation is the post-Brexit. Until now, the cross-border recog-
Hague Convention. The Communication further nition and enforcement of judgments between
states that, as the UK is a third party without a Ireland and the UK has been governed by the
special link to the internal market, the Commis- Brussels Recast Regulation. The common law
sion considers that there is no reason to depart rules both in the UK and in Ireland allow for the
from the general approach to third countries in enforcement of foreign judgments in the courts
respect of the UK. As a consequence, the Com- of the deciding jurisdiction. However, under
mission concludes that the Hague Convention common law, there are additional requirements
24
IRELAND Trends and Developments
Contributed by: Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott,
ByrneWallace LLP
to be met, and the scope is narrower than that continues to be governed by the Arbitration Act
of the Brussels Recast Regulation. For example, 1996, and the Arbitration (Scotland) Act 2010,
for a foreign judgment to be enforceable in com- whereas international arbitration proceedings
mon law: will continue to be governed by the New York
Convention.
• the judgment must be for a sum of money;
• the judgment must be final and conclusive; Regardless of the post-Brexit implications on
and litigation in the UK, arbitration is an appealing
• the judgment must have been given by a option to commercial parties, for reasons of flex-
court with the jurisdiction to do so. ibility, ease of enforcement of arbitral awards,
party autonomy and privacy, and the limited
Furthermore, should a party seek to enforce an grounds of appealing the arbitral process. How-
Irish judgment in the UK (or vice versa), parties ever, in the post-Brexit arena, commercial parties
must commence fresh proceedings to apply for have been increasingly turning to arbitration as
the recognition and enforcement of a judgment. an alternative method of resolving international
Essentially, this will mean that in order to enforce disputes. The New York Convention provides a
an Irish judgment in the UK, a separate set of reliable enforcement regime of arbitral awards in
proceedings will now have to be issued in the the EU member states, which makes arbitration a
UK in order to enforce it. In turn, this will increase more attractive alternative to litigation. The New
legal costs, and will also increase the length of York Convention also requires that contracting
time taken overall to enforce a judgment. Parties states treat arbitration agreements as final and
can rely on the Hague Convention to enforce an valid, and recognise and enforce foreign arbitral
Irish judgment in the UK, or a UK judgment in awards. Currently, the New York Convention has
Ireland. However, this can only be done where 165 contracting state parties, including the 27
the judgment is given on foot of an agreement EU member states, which means that arbitral
that contains an exclusive choice of court agree- awards can be enforced almost universally.
ment that falls within the Hague Convention, and
therefore will not apply to all judgments. Businesses trading in the EU and the UK need
to give consideration to the dispute resolution
Arbitration as an alternative in the UK mechanisms in their contractual documentation,
Whether the UK’s litigation landscape will be particularly now, due to the possible enforce-
heavily disrupted going forward will largely ment barriers arising post-Brexit. In this regard,
depend on the UK’s application to accede to the the inclusion of arbitration clauses may provide
Lugano Convention. Due to the fact that arbi- more certainty for parties in respect of choice of
tration is not regulated by EU legislation, it has law and choice of seat in UK/EU disputes. Such
remained largely unaffected by Brexit; it does clauses will also provide additional certainty
not affect the recognition and enforcement of UK in that arbitral awards will be recognised and
arbitral awards in EU member states or EU mem- enforced universally.
ber state awards in the UK. In the UK, arbitration
25Trends and Developments IRELAND
Contributed by: Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott,
ByrneWallace LLP
ByrneWallace LLP is one of Ireland’s leading is composed of expert problem solvers skilled
full-service law firms, with a team of close to in managing disputes within court or through al-
300 professionals that includes 45 experienced ternative dispute resolution. As one of Ireland’s
partners. A forward-thinking Irish law firm, it fo- largest litigation teams, it has the capacity and
cuses on securing the best possible outcomes breadth of expertise to advise across all key
for clients and is dedicated to the protection industry sectors, handling complex and high-
and promotion of clients’ interests through the profile litigation and large-scale enforcement
provision of expert legal services. The award- projects, both within and outside Ireland.
winning Litigation and Dispute Resolution team
AUTHORS
Jon Legorburu is the head of Mark O’Shaughnessy is a
the Litigation and Dispute partner in the Litigation and
Resolution Department at Dispute Resolution Department
ByrneWallace LLP and is one of at ByrneWallace LLP and is
Ireland’s leading public sector experienced in advising
and commercial litigation domestic and international
lawyers. He is also one of Ireland’s foremost organisations on complex disputes, with a
practitioners in the areas of regulatory particular focus on corporate disputes, and
investigations, and corporate and white-collar contentious intellectual property and insurance
crime, responsible for anchoring large-scale matters in the education, health, life science
project-based investigations and legal and TMT sectors. Mark has significant
proceedings in the financial services, health arbitration experience and is a member of the
and insurance sectors. Jon advises clients on recently formed Ireland Chapter of the AIDA
litigation and dispute resolution matters as well Reinsurance and Insurance Arbitration Society.
as high-profile, strategic and organisational Mark was also appointed by the European
matters, which often involve the delivery of Commission, in March 2021, as a member of
mission-critical advice involving a number of its Expert Group against SLAPP (Strategic
cross-cutting legal specialisms. Lawsuits Against Public Participation).
26IRELAND Trends and Developments
Contributed by: Jon Legorburu, Mark O’Shaughnessy, Mona Costelloe and Robert McDermott,
ByrneWallace LLP
Mona Costelloe is a partner in Robert McDermott is a senior
the Litigation and Dispute associate in the Litigation and
Resolution Department at Dispute Resolution Department
ByrneWallace LLP and is at ByrneWallace LLP and has
regarded as a leading litigator. wide-ranging commercial
She advises on a wide range of litigation experience acting for
complex litigation and regulatory enforcement private, corporate and public sector clients,
matters, including financial services litigation, litigating breach of contract claims,
administrative law, contentious regulatory shareholders’ disputes, construction law
issues, EU law challenges, property disputes disputes, Irish and European competition law
and contract claims. She regularly advises on disputes, and professional indemnity claims.
the recognition and enforcement of foreign Robert has extensive experience in all aspects
judgments. Her clients include some of of discovery matters and project management
Ireland’s largest public and private sector of large-scale e-discovery. Robert has a proven
entities, including multinational retailers, track record of advising public sector bodies in
international property development companies relation to a variety of contentious and non-
and large public sector bodies. Mona has also contentious matters, with a primary focus to
acted in a number of proceedings before the insulate such public bodies from successful
CJEU. challenge.
ByrneWallace LLP
88 Harcourt Street
Dublin 2
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DX18
Dublin
Ireland
Tel: +353 1 691 5000
Fax: +353 1 691 5010
Email: info@byrnewallace.com
Web: www.byrnewallace.com
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