SCHEDULE 1 continued
This Convention, drawn up in a single original in the Danish, Dutch, English, Finnish, French, German, Greek, Icelandic, Irish, Italian, Norwegian, Portuguese, Spanish and Swedish languages, all fourteen texts being equally authentic, shall be deposited in the archives of the Swiss Federal Council. The Swiss Federal Council shall transmit a certified copy to the Government of each State represented at the Diplomatic Conference of Lugano and to the Government of each acceding State.
The High Contracting Parties have agreed upon the following provisions, which shall be annexed to the Convention:
Any person domiciled in Luxembourg who is sued in a court of another Contracting State pursuant to Article 5(1) may refuse to submit to the jurisdiction of that court. If the defendant does not enter an appearance the court shall declare of its own motion that it has no jurisdiction.
An agreement conferring jurisdiction, within the meaning of Article 17, shall be valid with respect to a person domiciled in Luxembourg only if that person has expressly and specifically so agreed.
1 Switzerland reserves the right to declare, at the time of depositing its instrument of ratification, that a judgment given in another Contracting State shall be neither recognised nor enforced in Switzerland if the following conditions are met:
(a) the jurisdiction of the court which has given the judgment is based only on Article 5(1) of this Convention; and
(b) the defendant was domiciled in Switzerland at the time of the introduction of the proceedings; for the purposes of this Article, a company or other legal person is considered to be domiciled in Switzerland if it has its registered seat and the effective centre of activities in Switzerland; and
(c) the defendant raises an objection to the recognition or enforcement of the judgment in Switzerland, provided that he has not waived the benefit of the declaration foreseen under this paragraph.
2 This reservation shall not apply to the extent that at the time recognition or enforcement is sought a derogation has been granted from Article 59 of the Swiss Federal Constitution. The Swiss Government shall communicate such derogations to the signatory States and the acceding States.
3 This reservation shall cease to have effect on 31 December 1999. It may be withdrawn at any time.
Any Contracting State may, by declaration made at the time of signing or of deposit of its instrument of ratification or of accession, reserve the right, notwithstanding the provisions of Article 28, not to recognise and enforce judgments given in the other Contracting States if the jurisdiction of the court of the State of origin is based, pursuant to Article 16(1)(b), exclusively on the domicile of the defendant in the State of origin, and the property is situated in the territory of the State which entered the reservation.
Without prejudice to any more favourable provisions of national laws, persons domiciled in a Contracting State who are being prosecuted in the criminal courts of another Contracting State of which they are not nationals for an offence which was not intentionally committed may be defended by persons qualified to do so, even if they do not appear in person.
However, the court seised of the matter may order appearance in person; in the case of failure to appear, a judgment given in the civil action without the person concerned having had the opportunity to arrange for his defence need not be recognised or enforced in the other Contracting States.
In proceedings for the issue of an order for enforcement, no charge, duty or fee calculated by reference to the value of the matter in issue may be levied in the State in which enforcement is sought.
Judicial and extrajudicial documents drawn up in one Contracting State which have to be served on persons in another Contracting State shall be transmitted in accordance with the procedures laid down in the conventions and agreements concluded between the Contracting States.
Unless the State in which service is to take place objects by declaration to the Swiss Federal Council, such documents may also be sent by the appropriate public officers of the State in which the document has been drawn up directly to the appropriate public officers of the State in which the addressee is to be found. In this case the officer of the State of origin shall send a copy of the document to the officer of the State applied to who is competent to forward it to the addressee. The document shall be forwarded in the manner specified by the law of the State applied to. The forwarding shall be recorded by a certificate sent directly to the officer of the State of origin.
The jurisdiction specified in Articles 6(2) and 10 in actions on a warranty or guarantee or in any other third party proceedings may not be resorted to in the Federal Republic of Germany, in Spain, in Austria and in Switzerland. Any person domiciled in another Contracting State may be sued in the courts:
— of the Federal Republic of Germany, pursuant to Articles 68, 72, 73 and 74 of the code of civil procedure (Zivilprozeszordnung) concerning third-party notices,
— of Spain, pursuant to Article 1482 of the civil code,
— of Austria, pursuant to Article 21 of the code of civil procedure (Zivilprozeszordnung) concerning third-party notices,
— of Switzerland, pursuant to the appropriate provisions concerning third-party notices of the cantonal codes of civil procedure.
Judgments given in the other Contracting States by virtue of Article 6(2) or Article 10 shall be recognised and enforced in the Federal Republic of Germany, in Spain, in Austria and in Switzerland in accordance with Title III. Any effects which judgments given in these States may have on third parties by application of the provisions in the preceding paragraph shall also be recognised in the other Contracting States.
In matters relating to maintenance, the expression “court” includes the Danish, Icelandic and Norwegian administrative authorities.
In civil and commercial matters, the expression “court” includes the Finnish ulosotonhaltija/överexekutor.
In proceedings involving a dispute between the master and a member of the crew of a sea-going ship registered in Denmark, in Greece, in Ireland, in Iceland, in Norway, in Portugal or in Sweden concerning remuneration or other conditions of service, a court in a Contracting State shall establish whether the diplomatic or consular officer responsible for the ship has been notified of the dispute. It shall stay the proceedings so long as he has not been notified. It shall of its own motion decline jurisdiction if the officer, having been duly notified, has exercised the powers accorded to him in the matter by a consular convention, or in the absence of such a convention has, within the time allowed, raised any objection to the exercise of such jurisdiction.
(None)
Without prejudice to the jurisdiction of the European Patent Office under the Convention on the grant of European patents, signed at Munich on 5 October 1973, the courts of each Contracting State shall have exclusive jurisdiction, regardless of domicile, in proceedings concerned with the registration or validity of any European patent granted for that State which is not a Community patent by virtue of the provision of Article 86 of the Convention for the European patent for the common market, signed at Luxembourg on 15 December 1975.
The Contracting States shall communicate to the Swiss Federal Council the text of any provisions of their laws which amend either those provisions of their laws mentioned in the Convention or the lists of courts specified in Section 2 of Title III.
The High Contracting Parties,
Having regard to Article 65 of this Convention,
Considering the substantial link between this Convention and the Brussels Convention,
Considering that the Court of Justice of the European Communities by virtue of the Protocol of 3 June 1971 has jurisdiction to give rulings on the interpretation of the provisions of the Brussels Convention,
Being aware of the rulings delivered by the Court of Justice of the European Communities on the interpretation of the Brussels Convention up to the time of signature of this Convention,
Considering that the negotiations which led to the conclusion of the Convention were based on the Brussels Convention in the light of these rulings,
Desiring to prevent, in full deference to the independence of the courts, divergent interpretations and to arrive at as uniform an interpretation as possible of the provisions of the Convention, and of these provisions and those of the Brussels Convention which are substantially reproduced in this Convention,
Have agreed as follows:
The courts of each Contracting State shall, when applying and interpreting the provisions of the Convention, pay due account to the principles laid down by any relevant decision delivered by courts of the other Contracting States concerning provisions of this Convention.
1 The Contracting Parties agree to set up a system of exchange of information concerning judgments delivered pursuant to this Convention as well as relevant judgments under the Brussels Convention. This system shall comprise:
— transmission to a central body by the competent authorities of judgments delivered by courts of last instance and the Court of Justice of the European Communities as well as judgments of particular importance which have become final and have been delivered pursuant to this Convention or the Brussels Convention,
— classification of these judgments by the central body including, as far as necessary, the drawing-up and publication of translations and abstracts,
— communication by the central body of the relevant documents to the competent national authorities of all signatories and acceding States to the Convention and to the Commission of the European Communities.
2 The central body is the Registrar of the Court of Justice of the European Communities.
1 A Standing Committee shall be set up for the purposes of this Protocol.
2 The Committee shall be composed of representatives appointed by each signatory and acceding State.
3 The European Communities (Commission, Court of Justice and General Secretariat of the Council) and the European Free Trade Association may attend the meetings as observers.
1 At the request of a Contracting Party, the depositary of the Convention shall convene meetings of the Committee for the purpose of exchanging views on the functioning of the Convention and in particular on:
— the development of the case-law as communicated under the first paragraph first indent of Article 2,
— the application of Article 57 of the Convention.
2 The Committee, in the light of these exchanges, may also examine the appropriateness of starting on particular topics a revision of the Convention and make recommendations.
The High Contracting Parties have agreed as follows:
1 For the purposes of the Convention, provisions which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments and which are, or will be, contained in acts of the institutions of the European Communities shall be treated in the same way as the conventions referred to in paragraph 1 of Article 57.
2 If one Contracting State is of the opinion that a provision contained in an act of the institutions of the European Communities is incompatible with the Convention, the Contracting States shall promptly consider amending the Convention pursuant to Article 66, without prejudice to the procedure established by Protocol No. 2.
Section 3.
1 The words “Brussels Conventions” shall be substituted for the word “Conventions” wherever occurring in section 2 (the Conventions to have the force of law) and section 3 (interpretation of the Conventions).
2 In section 4(1) (enforcement of judgments other than maintenance orders) and section 5(1) (recognition and enforcement of maintenance orders) after the words “an application under Article 31” there shall be inserted the words “of the 1968 Convention or of the Lugano Convention”.
3 In section 6 (appeals under Article 37, second paragraph and Article 41)—
(a) in subsection (1), after the words “referred to” there shall be inserted the words “in the 1968 Convention and the Lugano Convention”; and
(b) in subsection (3), after the words “referred to” there shall be inserted the words “in each of those Conventions”.
4 In section 9 (provisions supplementary to Title VII of the 1968 Convention) in subsection (1)—
(a) after the words “Title VII of the 1968 Convention” there shall be inserted the words “and, apart from Article 54B, of Title VII of the Lugano Convention”; and
(b) for the words “that convention” there shall be substituted the words “the Convention in question”.
5 In section 10 (allocation within UK of jurisdiction in proceedings with respect to trusts and consumer contracts in respect of which the 1968 Convention confers jurisdiction on UK courts generally) in subsection (1), after the words “the 1968 Convention” there shall be inserted the words “or the Lugano Convention”.
6 In section 11 (proof and admissibility of certain judgments and related documents for the purposes of the 1968 Convention) in subsection (1), after the words “For the purposes of the 1968 Convention” there shall be inserted the words “and the Lugano Convention”.
7 In section 12 (provision for issue of copies of, and certificates in connection with, UK judgments for purposes of the 1968 Convention) after the words “the 1968 Convention” there shall be inserted the words “or the Lugano Convention”.
8 In section 13 (modifications to cover authentic instruments and court settlements) in subsection (1)—
(a) after the words “the 1968 Convention” in paragraph (a) there shall be inserted the words “or the Lugano Convention”;
(b) after the words “Title IV of the 1968 Convention” there shall be inserted the words “or, as the case may be, Title IV of the Lugano Convention”; and
(c) for the words “that Convention” there shall be substituted the words “the Convention in question”.
9 In section 14 (modifications consequential on revision of the Conventions)—
(a) for the words “any of the Conventions”, wherever occurring in subsections (1) and (3), there shall be substituted the words “the Lugano Convention or any of the Brussels Conventions”; and
(b) in subsection (1), after the words “any revision connected with the accession to” there shall be inserted the words “the Lugano Convention or”.
10 In section 15 (interpretation of Part I)—
(a) in subsection (1), in the definition of “maintenance order”, after the words “maintenance judgment within the meaning of the 1968 Convention” there shall be inserted the words “or, as the case may be, the Lugano Convention”; and
(b) in subsection (3), after the words “authorised or required by the 1968 Convention” there shall be inserted the words “the Lugano Convention”.
11 In section 16 (allocation within UK of jurisdiction in certain civil proceedings)—
(a) in paragraph (a) of subsection (1), for the words “the Convention” there shall be substituted the words “that or any other Convention”;
(b) in paragraph (b) of that subsection, after the words “Article 16” there shall be inserted the words “of the 1968 Convention”; and
(c) in subsection (4), after the words “subject to the 1968 Convention” there shall be inserted the words “and the Lugano Convention”.
12 The words “Brussels or Lugano Contracting State” shall be substituted for the words “Contracting State” wherever occurring in each of the following provisions, that is to say—
(a) in subsections (1)(a) and (3)(a) of section 25 (interim relief in England and Wales or Northern Ireland in the absence of substantive proceedings);
(b) in subsections (2)(a) and (3)(a) and (d) of section 27 (which makes for Scotland similar provision to that made by section 25 for England and Wales); and
(c) in section 28 (application of section 1 of the [1972 c. 59.] Administration of Justice (Scotland) Act 1972);
and, in section 25(1)(b), for the words “the Convention” there shall be substituted the words “that or any other Convention”.
13 In section 30 (proceedings in England and Wales or Northern Ireland for torts to immovable property) in subsection (2), after the words “subject to the 1968 Convention” there shall be inserted the words “and the Lugano Convention”.
14 In section 32 (overseas judgments given in proceedings brought in breach of agreement for settlement of disputes) in subsection (4) (saving for judgments required to be recognised or enforced in UK under the 1968 Convention etc) in paragraph (a), after the words “under the 1968 Convention” there shall be inserted the words “or the Lugano Convention”.
15 In section 33 (certain steps not to amount to submission to the jurisdiction of an overseas court) in subsection (2) (saving for judgments required to be recognised or enforced in England and Wales or Northern Ireland under the 1968 Convention) after the words “under the 1968 Convention” there shall be inserted the words “or the Lugano Convention”.
16 In section 41 (determination of domicile of individuals for the purposes of the 1968 Convention etc) in subsection (1), after the words “for the purposes of the 1968 Convention” there shall be inserted the words “the Lugano Convention”.
17 In section 42 (domicile and seat of corporation or association) in subsection (2)(a), after the words “for the purposes of the 1968 Convention” there shall be inserted the words “or, as the case may be, the Lugano Convention”.
18 In section 43 (seat of corporation or association for purposes of Article 16(2) and related provisions) in subsection (1)(a), after the words “Article 16(2)” there shall be inserted the words “of the 1968 Convention or of the Lugano Convention”.
19 (1) In section 44 (persons deemed to be domiciled in UK for certain purposes) in subsection (1)—
(a) in paragraph (a) (which provides that the section applies to proceedings within Section 3 of Title II of the 1968 Convention) after the words “the 1968 Convention” there shall be inserted the words “or Section 3 of Title II of the Lugano Convention”; and
(b) in paragraph (b) (proceedings within Section 2 of that Title) for the words “that Title” there shall be substituted the words “Title II of either of those Conventions”.
(2) In subsection (2) of that section, after the words “is deemed for the purposes of the 1968 Convention” there shall be inserted the words “or, as the case may be, of the Lugano Convention”.
20 In section 45 (domicile of trusts) in subsection (1), after the words “for the purposes of the 1968 Convention” there shall be inserted the words “the Lugano Convention”.
21 (1) In section 46 (domicile and seat of the Crown) in subsection (2)(a), after the words “for the purposes of the 1968 Convention” there shall be inserted the words “and the Lugano Convention” and for the words “(in which” there shall be substituted the words “(in each of which”.
(2) In subsection (4) of that section (Order in Council with respect to seat of the Crown) after the words “for the purposes of the 1968 Convention” there shall be inserted the words “the Lugano Convention”.
22 In section 47 (modifications occasioned by decisions of the European Court as to meaning or effect of the Conventions) for the word “Conventions”, wherever occurring, there shall be substituted the words “Brussels Conventions”.
23 In section 48 (matters for which rules of court may provide)—
(a) in subsection (1), for the words “or the Conventions” there shall be substituted the words “the Lugano Convention or the Brussels Conventions”; and
(b) in subsection (3), for the words “the Conventions” there shall be substituted the words “the Lugano Convention, the Brussels Conventions”.
24 In section 49 (saving for powers to stay, sist, strike out or dismiss proceedings where to do so is not inconsistent with the 1968 Convention) after the words “the 1968 Convention” there shall be inserted the words “or, as the case may be, the Lugano Convention”.
25 In section 50 (general interpretation) the following definitions shall be inserted at the appropriate places—
““Brussels Contracting State” has the meaning given by section 1(3)”;
““the Brussels Conventions” has the meaning given by section 1(1)”;
““Lugano Contracting State” has the meaning given by section 1(3)”;
““the Lugano Convention” has the meaning given by section 1(1)”; and the entry relating to “the Conventions” is hereby repealed.”