Encyclopedia of Private International Law
Show Less

Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
Buy Book in Print
Show Summary Details
Limited access

Ireland

William Binchy

I. Sources and historical context of private international law in Ireland

1. Introduction

Irish private international law can best be understood in its wider historical context. From the late 12th century to the early part of the 20th century, Ireland was under conquest from England. The process of destruction of the indigenous social, political and legal orders was complex and gradual, with full political legal integration only between 1801 and 1921, after which 26 of the 32 counties of Ireland became independent, as a dominion of Britain. The remaining six counties remained part of the United Kingdom, designated as ‘Northern Ireland’. The present chapter deals only with the 26 counties, known (confusingly) at different times and in different contexts as the Irish Free State, Ireland, the Republic of Ireland, Eire and ‘the State’.

Elements of dominion status were gradually dismantled and a Constitution (of 1 July 1937, available at <www.irishstatutebook.ie/en/constitution>) was promulgated in 1937 which asserted full sovereignty. In 1972, the Constitution was amended to authorize Ireland’s joining of the EEC. Successive amendments over the following decades have facilitated further European institutional and constitutional initiatives.

Reflecting this history, the main features of Irish private international law were developed by the courts during the period of political union with Britain. In the years since Ireland attained independence, Irish courts have tended to cleave to British judicial precedents and scholarly writings, save in regard to those areas – notably family law – where Irish culture and →public policy differed sharply from Britain’s. With Ireland’s participation in Europe and changing social mores, these differences have largely evaporated.

The present system of private international law in Ireland involves the very substantial replacement of common law rules by measures from Europe. These measures include, most notably, the Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1), the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1) (→Brussels I (Convention and Regulation)), the →Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3), the →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1), the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)), the →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40), the Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L 7/1) and the Insolvency Regulation (Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, [2000] OJ L 160/1). These European measures do not always have the effect of completely replacing the national common law and statutory rules. Thus, for example, the common law and statutory rules relating to jurisdiction and recognition of foreign judgments continue to apply, to the extent that they have not been overtaken by the European measures. Similarly, the Insolvency Regulation has not completely overtaken the common law and statutory rules relating to bankruptcy (Supreme Court, In the Matter of Sean Dunne, a Bankrupt [2015] 2 ILRM 103).

2. Major legislation

There is no all-embracing statute dealing with private international law. Several statutes and regulations (referred to below) give effect in p. 1Ireland to the measures of European law relating to private international law.

3. Role of case-law

Case-law has played a dominant role in the development of Irish private international law outside the context of European-inspired measures. British case-law has had a very strong influence, not surprising during the period of political union between 1801 and 1921. In the decades since independence, Irish courts have continued to look primarily to Britain for guidance. Thus, for example, in its interpretation of key concepts of the Hague Child Abduction Convention of 1980 (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), the Irish Supreme Court has generally been willing to follow the changing interpretations of British courts. This judicial perception of the role of the Irish court as being to follow rather than lead is perhaps well captured by the statement of Finnegan J in the Supreme Court decision of Re Flightlease (Ireland) Ltd (in Voluntary Liquidation) [2012] 1 IR 722, 752:

In the area of conflicts of law it is desirable to await developments of a broad consensus before developing the common law . . .

4. Academic writings

In Re Flightlease (Ireland) Ltd (in Voluntary Liquidation) [2012] 1 IR 722, 757, O’Donnell J observed that private international law is ‘a field where the writings of academic authors ha[ve] a particular benefit’. Irish scholars have regularly been cited by the Irish courts; British scholarly works, notably Dicey, Morris and Collins on the Conflict of Laws and Cheshire, North and Fawcett’s Private International Law have also regularly been cited. The works of scholars of other common law jurisdictions are rarely discussed, and those of civil law jurisdictions very rarely indeed.

II. Connecting factors

There are several →connecting factors in Irish private international law, depending on the legal question to be resolved. In matters relating to →personal status or the ownership of property (→Property and proprietary rights), domicile (→Domicile, habitual residence and establishment) was formerly a very prominent connecting factor and still plays an important (though shrinking) role in relation to capacity to marry, annulment of →marriage, divorce, legal separation (→Divorce and personal separation) and →succession to estates of deceased persons. The central notion is that of a domicile of choice, consisting of residence in a particular place with the intention of continuing to reside there permanently or indefinitely. The central notion is complicated by concepts of a domicile of origin, acquired at birth, and a domicile of dependency of minors or mentally ill adults. Formerly, matters were even more complicated and controversial: the domicile of married women was characterized as a domicile of dependency, determined without any consent on their part by the domicile of their husbands. This category of domicile of dependency was abolished prospectively by section 1 of the Domicile and Recognition of Foreign Divorces Act 1986 (of 2 July 1986, No 24/1986) and retrospectively as breaching the equality provision (art 40(1)) in the Constitution by the Supreme Court decision of W v W [1993] 2 IR 476.

Habitual residence is a connecting factor of increasing prominence in Irish private international law, largely because of its widespread use in international measures that Ireland was obliged (or chose) to incorporate, such as the Brussels IIa Regulation, the Hague Child Abduction Convention and the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 32 ILM 1134).

Nationality has been used very rarely as a connecting factor in Irish private international law. A statutory instance is section 2 of the Marriages Act 1972 (of 20 December 1972, No 30/1972), conferring retrospective validation on marriages contracted by a small number of Irish nationals in religious ceremonies at Lourdes in ignorance of the necessity for a civil marriage under French law, the lex loci celebrationis. Nationality can still play a role in the exercise by an Irish court of jurisdiction in cases affecting the welfare of minors. In the High Court decision of F v G [2014] IEHC 152, para 94, Keane J observed:

The Court has jurisdiction to protect the rights and welfare of any child who is an Irish citizen (and who is not habitually resident in a contracting state to the 1996 [Hague] Convention [on the Protection of Children] or a Member State under p. 1Brussels II bis) . . . regardless of where he or she may be living or present at the time of the proceedings, although it is reasonable to do so only with caution or circumspection.

III. The constitutional dimension

The Irish Constitution does not expressly address the subject of private international law, save in the very particular context of marriage following a foreign divorce (see section VIII. below). There has nonetheless been some judicial discussion of the wider question. In ACW v Ireland [1994] 3 IR 232 (High Court), Keane J rejected an attack on the constitutional validity of the Child Abduction and Enforcement of Custody Orders Act 1991 (of 27 March 1991, No 6/1991), which gave effect in Irish law to the Hague Child Abduction Convention of 1980 (→Child abduction). Keane J referred to art 29(3) of the Constitution, in which Ireland ‘accepts the generally recognized principles of international law as its rule of conduct in its relations with other states’. He observed that the differences existing between the private international law rules of separate states had given rise to ‘injustice and inconvenience’; legislation implementing the provisions of the conventions promulgated by the →Hague Conference on Private International Law was ‘clearly in accordance with Ireland’s acceptance of the generally recognized principles of international law and in harmony with one of the aims of the Constitution, as stated in the Preamble, to establish concord with other nations’.

Keane J considered that arts 13 and 20 of the Convention afforded effective protection to the fundamental rights identified in arts 40–44 of the Constitution.

In the Supreme Court decision of Nottinghamshire County Council v B [2011] IESC 48, O’Donnell J made the clearest judicial analysis thus far of the relationship between the Constitution and the system of Irish private international law:

[T]‌he Irish Constitution is much more than simply a vehicle for the fundamental rights provisions. It regulates the relationship between the People and the State they created. It establishes the machinery of government and allocates responsibility between the different branches, and importantly for present purposes, it seeks to locate the State in an international context . . . it follows in my view, that any question of interaction between Irish law and events occurring abroad, and in particular events occurring pursuant to the law of another state, raises issues of constitutional dimensions . . . It is fundamental to the structure of the Irish Constitution that its principal focus of application is to persons within its jurisdiction. It follows from the approach of art 29 that the Constitution expects and recognizes the same essential structure in other states. Therefore, the application, for example, of French law to French citizens, or to those who by residence in France have obtained the protection of the French state, is to be expected, and it is only in rare cases that the Constitution would require a court to seek to inhibit the application of such law.

IV. Jurisdiction

After Ireland joined the EEC in 1972, it was necessary to adhere to the Brussels Convention of 1968 (→Brussels I (Convention and Regulation)). This was done through the Accession Convention on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (78/884/EEC: Convention of Accession of 9 October 1978 of the Kingdom of Denmark, of Ireland and of the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and enforcement of judgements in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, [1978] OJ L 304/01) and the Jurisdiction of Courts and Enforcement of Judgments Act 1988 (of 5 March 1988, No 3/1988). Ireland gave effect to the original Lugano Convention through the Jurisdiction of Courts and Enforcement of Judgments Act 1993 (of 30 May 1993, No 9/1993). The Jurisdiction of Courts and Enforcement of Judgments Act 1998 consolidated the earlier legislation.

The new →Lugano Convention of 2007, which entered into force for the EU, Denmark and Norway on 1 January 2010, was given effect in Ireland by the Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012 (No 7/2012) and was further facilitated by the Rules of the Superior Courts (Lugano Convention, Maintenance and Service) 2013 (SI 307/2013) and the District Court (Maintenance and Lugano Convention) Rules 2013 (SI 3011/2013). SI 307/2013 also facilitates the European Communities (Maintenance) Regulations (SI 274/2011), which give effect to the Council Maintenance Regulation.

The Brussels I Regulation (recast) applies in Ireland. The European Communities (Civil and p. 1Commercial Judgments) Regulations 2015 (SI 6/2015), which came into effect on 10 January 2015, set out the effects of the Regulation on domestic legislation and make the necessary provision for the good administration of the Regulation in Ireland.

Article 10(1) of SI 6/2015 provides that, for the purposes of the Brussels I Regulation (recast), a person is domiciled in the state or another state (not being a Member State) if ordinarily resident there; a person is domiciled in a place in the state if domiciled in the state and ordinarily resident or carrying on a profession, business or occupation in that place. A →trust is domiciled in the state if the law of the state is the system of law with which the trust has its closest and most real connection. The expression ‘ordinarily resident’ is not defined. It appears that it should be understood in the ordinary sense of those words in light of the general intention or objective of the Regulation: High Court, Deutsche Bank v Murtagh [1995] 2 IR 122, 128 (Costello P).

Irish courts, most recently in In re Dunne (a Bankrupt) [2013] IEHC 583, have been happy to endorse Lord Buckmaster’s view, expressed in Lysaght v Inland Revenue Commissioners [1928] AC 234, that:

‘[O]‌rdinarily resident’ means . . . no more than that the residence is not casual and uncertain, but that the person held to reside does so in the ordinary course of his life.

Outside the scope of the European measures relating to jurisdiction, the well-established rules of common law, supplemented by Order 11 of the Rules of the Superior Courts, continue to apply. Jurisdiction may be thus be exercised on the basis of: (i) service of process within the jurisdiction (even where the defendant’s presence is brief and fortuitous); (ii) submission to the jurisdiction of the Irish courts, by agreement, entering an unconditional appearance to the proceedings or instructing a solicitor to accept service; or (iii) service of the proceedings (or, where the defendant is not an Irish national, notice of the proceedings) out of the jurisdiction under Order 11 of the Rules of the Superior Courts.

Order 11 requires the making of an order by the court authorizing service out of the jurisdiction. A long closed list of 19 categories of proceedings is set out in the Order. Application is made ex parte, grounded on an affidavit. When determining whether to authorize service, the court, in the interests of international →comity, must examine the application ‘with care and circumspection’: Supreme Court, Analog Devices BV v Zurich Insurance Co [2002] 1 IR 272, 281 (per Fennelly J). The applicant has the burden of establishing that Ireland is the forum conveniens: Analog Devices BV v Zurich Insurance Co [2002] 1 IR 272, 288.

Among the 19 categories, the most frequently invoked are those relating to tort, contract and →injunctions, as well as cases where the defendant is domiciled or ordinarily resident in the state or the party sought to be served is a ‘necessary and proper party’ to an action properly brought against another party duly served within the jurisdiction.

V. Foreign judgments

Outside the context of the Brussels I Regulation (recast), the Brussels Convention and the →Lugano Convention, foreign judgments are only recognized and enforced by Irish courts in limited circumstances. Judgments in personam must be for a liquidated sum, final and conclusive, and must be made by a court of competent jurisdiction, determined by Irish rules of private international law. In Re Flightlease (Ireland) Ltd (in Voluntary Liquidation) [2012] 1 IR 722, the Irish Supreme Court declined to follow the lead of the Supreme Court of Canada in Beals v Saldanha [2003] 3 SCR 416, affording recognition there was a ‘a real and substantial connection’ between the matters in dispute and the court of the foreign state where judgment was delivered. Finnegan J noted that Canada was alone in common law jurisdictions in applying such a test; adopting a radical change, with potential to have a retrospective effect, might ‘work an injustice’. It was better that ‘the matter be dealt with in comprehensive legislation rather than by piecemeal development of the law’. The Court endorsed the four rules for recognition and enforcement of foreign judgments in personam set out in Lord Collins of Mapesbury and others (eds), Dicey, Morris and Collins on the Conflict of Laws (14th edn, Sweet & Maxwell 2006) rule 36: where the judgment debtor: (i) was, at the time of the institution of the proceedings, present in the foreign country; (ii) was claimant (or counterclaimant) in the foreign proceedings; (iii) had submitted to the jurisdiction of the foreign court by appearing in the proceedings; and (iv) had, before the commencement of the proceedings, agreed to submit to the jurisdiction of the foreign court.

VI. p. 1Companies

Under art 63(1) of the Brussels I Regulation (recast), a company is domiciled in each of the places where it has its statutory seat, central administration or principal place of business. ‘Statutory seat’ for Ireland (and the →United Kingdom) means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place (art 63(2)).

Under art 24(2) of the Brussels I Regulation (recast), in proceedings having as their object the validity of the constitution, the nullity or the dissolution of →companies or the validity of the decisions of their organs, the courts of the Member State in which the company has its seat have exclusive jurisdiction. In order to determine that seat, the court applies its own rules of private international law.

For the purposes of the Brussels and Lugano Conventions, the seat of a company (‘corporation or association’) is treated as its domicile (s 15(1) of the Jurisdiction of Courts and Enforcement of Judgments Act 1998). A company has its seat in the state if it was incorporated or formed under the law of the state or its central management and control is exercised in the state (s 15(1) and Part III of the Ninth Schedule of the 1998 Act).

Part IX of the Companies Act 1963 (of 23 December 1963, No 33/1963) contains a number of provisions relating to registration with the Companies Registration Office of companies incorporated outside the state which establish a place of business within the state, and the requirements for delivering accounts to the Registrar of Companies. The setting up of a branch in the state by a foreign company is regulated by the European Communities (Branch Disclosure) Regulations 1993 (SI 395/1993), giving effect in Ireland to Council Directive 89/666/EEC (Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State, [1989] OJ L 395/36).

A company, incorporated outside the state, which has an established place of business in the state must notify the Registrar of Companies of the creation of charges on property in the state, as well as the registration of judgment mortgages or the appointment of receivers in respect of such property (s 111 of the Companies Act 1963). Section 99 of the 1963 Act requires companies to deliver to the Registrar of Companies particulars of charges that the company has created. This obligation applies to ‘a charge of land, wherever situated . . .’ (s 99(1)(d)). Whether this extends to charges on other property outside the state is unclear; other, unhappily drafted, sub-sections of s 99 (sub-sections (3)–(5)) seem consistent only with such extension.

VII. Marriage

Under long-established choice-of-law rules for determining the validity of →marriage in Irish private international law, matters of form are determined by the lex loci celebrationis and matters of substance by the respective leges domicilii of the parties. As has been noted in section II. above, the failure by some Irish nationals to have adverted to the requirement of civil formalities for marriage under French law when marrying in religious ceremonies at Lourdes led to a statutory retrospective validation of these marriages (s 2 of the Marriages Act 1972). The validity of proxy marriages, being a matter of form, is determined by the lex loci celebrationis: Hamza v Minister for Justice, Equality and Law Reform [2013] IESC 9 (Supreme Court). The doctrine of common law marriage, developed by British courts to accommodate situations of insuperable difficulty for parties in complying with the formal requirements of the law of a foreign country (→Formal requirements and validity), has recently been afforded only tentative support by the Supreme Court: Hassan v Minister for Justice, Equality and Law Reform [2013] IESC 8.

The Thirty-Fourth Amendment to the Constitution, passed by 62 per cent of the electorate at a national referendum on 22 May 2015, authorizes →same-sex marriage. Article 41(4) of the Constitution provides that: ‘Marriage may be contracted in accordance with law by two persons without distinction as to their sex.’ The government promised to introduce legislation in late 2015 following this constitutional change. It may be anticipated that such legislation will address private international law aspects. Until then, it might be considered that the common law rules relating to capacity to marry would apply, under which the leges domicilii of the parties would determine their capacity to marry. However, p. 1it may be that the courts would regard the constitutional change as requiring an extension of these rules beyond domicile. That the Constitution might have such an effect on private international law rules is indicated by two High Court decisions of Dunne J under the previous constitutional dispensation, when marriage connoted a union between a man and a woman. In Zappone v Attorney General [2008] 2 IR 417 (High Court), Dunne J held that the Constitution did not embrace same-sex marriage. She was not called on to address the private international law aspects, but her analysis of the constitutional issue was not congenial to affording recognition to foreign same-sex marriages. This reading of Dunne J’s judgment is supported by her later judgment in H v A [2010] IEHC 497 on the impact of the constitutional understanding of marriage on private international law rules relating to polygamy. In essence, Dunne J regarded that constitutional understanding as being so clear and all-embracing as to foreclose the possibility that the rules of private international law could afford recognition to a polygamous marriage. As a result of the Thirty-Fourth Amendment, it may be argued that the embrace of same-sex marriage is so intense as to require broad rules for recognizing such a union contracted outside Ireland, extending beyond a domiciliary nexus.

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (of 19 July 2010, No 24/2010) had established a new system of civil partnership and attaches a range of rights and responsibilities, broadly similar to those of marriage, to same-sex civil partners. Section 5(1) empowers the Minister for Justice and Law Reform, by Order, to declare that relationships entered into in foreign states are to be recognized as civil partnerships if they are: (i) exclusive in nature; (ii) permanent, subject to dissolution by a court; (iii) registered under the foreign law; and (iv) have rights and obligations comparable to a civil partnership under Irish law. The name ascribed to the foreign relationship by the lex loci celebrationis is not decisive once the relationship has these characteristics. Thus, foreign same-sex marriages can be recognized not as marriages, but as civil partnerships. To date, 57 such foreign civil partnerships have been recognized by Ministerial Order (the Civil Partnership (Regulation of Registered Foreign Relationships) Order 2010 (SI 649/ 2010); the Civil Partnership (Regulation of Registered Foreign Relationships) Order 2011 (SI 642/ 2011); the Civil Partnership (Regulation of Registered Foreign Relationships) Order 2012 (SI 505/ 2012); and the Civil Partnership (Regulation of Registered Foreign Relationships) Order 2012 (SI 490/ 2013)). A French PACS is not recognized as the relationship may be dissolved without recourse to the courts. Clearly, this legislation will have to be amended in the light of the Thirty-Fourth Amendment to the Constitution.

The recognition to be afforded to polygamous marriages in Irish private international law is the subject of lively judicial debate. As has been noted above, in H v A [2010] IEHC 497 (High Court), Dunne J held that, in the light of the constitutional understanding of marriage, recognition should not be afforded to a polygamous marriage validly contracted in the Lebanon by Lebanese domiciliaries. The marriage in question was ‘actually’ as opposed to ‘potentially’ polygamous, in that there had been a second marriage, in contrast to the position where a marriage, while contracted in polygamous form, has not (yet) been followed by a second marriage. Dunne J did not rest her decision on this distinction. Other judges, however, attach importance to it, recognizing potentially polygamous marriages where it seems clear that they would not recognize actually polygamous marriages (Hamza v Minister for Justice, Equality and Law Reform [2010] IEHC 427 (High Court); M v F [2011] IEHC 415). The particular context in which recognition has thus been afforded to potentially polygamous marriages is that relating to the rights of refugees and family reunification, and it may be that, as the common law develops, distinctions as to recognition will be drawn, based on the particular context in which the question – matrimonial →remedies, the status of children or family property, for example – arises.

VIII. Divorce

Irish private international law rules on divorce reflect an historical opposition in Irish constitutional and domestic law to dissolution of marriage (→Divorce and personal separation). The Constitution of 1937 prohibited the enactment of any legislation providing for divorce and buttressed this prohibition with a private international law rule, still in operation, of formidable obscurity. Under art 41(3)(3):

p. 1No person whose marriage has been dissolved under the civil law of any other state but is a subsisting marriage under the law for the time being in force in the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party of the marriage so dissolved.

This provision might reasonably be interpreted as relating only to the question of capacity to remarry, but has been judicially construed as confirming that the Constitution does not have the effect of preventing recognition to foreign divorces that would, in the absence of the provision, be entitled to recognition under the Irish rules of private international law.

The constitutional prohibition on divorce legislation was removed in 1995 by a constitutional amendment authorizing divorce on the basis of four years’ separation.

Section 39(1) of the Family Law (Divorce) Act 1996 (of 27 November 1996, No 33/1996) enables a court to grant a divorce decree where either of the spouses is domiciled in the state or has been ordinarily resident in the state for the past year. The applicable law is the →lex fori.

The Domicile and Recognition of Foreign Divorces Act 1986 affords recognition to foreign divorces obtained in the country of domicile of either spouse (s 5(1)) or recognized by the lex (or leges) domicilii of both of them (s 5(4)). Regarding divorces obtained in the →United Kingdom, recognition is also afforded to a divorce obtained in one constituent part (Scotland, for example) where either spouse is domiciled in any other part (England and Wales, for example) (s 5(3)). The Act prospectively abolishes the wife’s domicile of dependency on her husband’s domicile (s 1). The Supreme Court in W v W [1993] 2 IR 476 held that the old doctrine of a wife’s domicile of dependency, determined by her husband’s domicile, violated the Constitution’s equality provision (art 40(1)) and that recognition should be afforded retrospectively to divorces obtained in the country of domicile of either spouse during the period from 1937 to the date that the 1986 Act came into force.

There has for several years been a judicial debate as to whether the statutory grounds for recognition of foreign divorces, contained in the 1986 Act, are capable of judicial supplementation. One approach would recognize foreign divorces, whenever granted, obtained on the basis of one year’s ordinary residence, thus mirroring a jurisdictional ground prescribed by s 39(1) of the 1996 Act (McG v DW [2000] 1 IR 96); another would completely deny such recognition (MEC v JAC [2001] 2 IR 399); a third would afford such recognition, but only to those divorces granted before the 1986 Act came into force: (DT v FL [2002] 2 ILRM 152). In MH v GH [2015] 1 ILRM 453, the Supreme Court, by a four-to-one majority, held that the common law rules should not be extended to recognize divorces obtained abroad before the 1986 Act had come into force on the basis of the residence of a spouse. The majority made plain its view that the legislature should introduce a law to such effect. O’Donnell J’s dissenting judgment was based squarely on the favor divortii norm, as well as the desideratum of avoiding limping marriages; Clarke J, one of the majority, responded: ‘Limping marriages do create problems. But so also do springing divorces. Legislation is the answer.’

As regards divorces obtained in the EU, the →Brussels IIa Regulation applies. The jurisdictional grounds specified in art 3 of the Regulation include two dealing with the position in Ireland (and the United Kingdom): (i) that the applicant is habitually resident in Ireland, having resided there for the previous six months and has his or her domicile there; and (ii) that both spouses have an Irish domicile. The European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005 (SI 112/2005) set out the effect on Irish domestic legislation of the Brussels IIa Regulation.

Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation ((Rome III Regulation), [2010] OJ L 343/10; →Rome III Regulation (divorce)) does not apply to Ireland. It was considered that the potential dissonance between the liberal philosophy of the measure and the constitutionally ordained restrictions on the grounds for divorce might prove politically problematic.

IX. Parental responsibility

Matters relating to parental responsibility are determined in accordance with the Brussels IIa Regulation, the Hague Child Protection Convention of 1996 (Hague Convention of 19 October 1996 on jurisdiction, applicable law, p. 1recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391), ratified by Ireland on 30 September 2010 and in force in Ireland since 1 January 2011 (Protection of Children (Hague Convention) Act 2000 (Commencement) Order 2010 (SI 650/2010)), the Hague Child Abduction Convention of 1980 and the European Child Custody Convention of 1980 (European Convention 20 May 1980 on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, 1496 UNTS 37), both of which were incorporated into Irish domestic law by the Child Abduction and Enforcement of Court Orders Act 1991. Cases falling outside the scope of these Conventions continue to be determined by principles of private international law developed by the Irish courts relating to jurisdiction (F v G [2014] IEHC 152).

The Supreme Court decision in Nottinghamshire County Council v B [2011] IESC 48, already mentioned in section III. above, involves an important interpretation of art 20 of the Hague Child Abduction Convention, which provides that the return of the child under the provisions of art 12 may be refused if this would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms. O’Donnell J observed that:

[A]‌ difference in the legal regime, and even a constitutional difference, will not itself suffice to trigger Article 20 . . . it is . . . conceivable that what is proposed is proximate, and perhaps even a certain consequence of the order of return, but yet is not so offensive to the values of the Irish Constitution that it can be said that return is not permitted by the Constitution. In other words, a return has to satisfy both tests before a court would be justified in concluding that return was not permitted. It must be said that the feared consequence is so closely linked to the order for return and is itself so offensive to the Constitution that return cannot be permitted.

X. Adoption

Ireland has ratified the Hague Convention on Protection of Children and Cooperation in Respect of the Hague Adoption Convention. The Adoption Act 2010 (of 14 July 2010, No 21/2010), as amended by the Children and Family Relationships Act 2015 (of 6 April 2015, No 9/2015), gives effect to the Convention in Ireland. Section 9 of the 2010 Act provides that the Convention has the force of law in Ireland. The Irish Central Authority, designated by s 66(1) of that Act, is the Adoption Authority of Ireland. Some of its functions may be delegated to the Health Service Executive or another accredited body.

Where Ireland is the receiving state and the child has been transferred from his or her state of origin and placed with prospective adopters habitually resident in Ireland, the Adoption Authority of Ireland may make an adoption order if it is satisfied that art 4 of the Convention has been complied with.

Adoptions effected outside the state before the establishment day (1 November 2010), conforming to the definition of ‘foreign adoption’ in section 1 of the Adoption Act 1991 (of 30 May 1991, No 14/1991) and certified by the state of adoption as having been lawfully effected, are recognized as valid, unless they are contrary to →public policy (s 57(2) of the 2010 Act).

XI. Maintenance obligations

The European Communities (Maintenance) Regulations 2011 (SI 274/2011) give effect in Ireland to the European Maintenance Regulation of 2011. The Minister for Justice and Equality has been designated as the Central Authority for the State for the purposes of the Maintenance Regulation.

XII. Succession and inheritance

The principle of scission continues to apply to Irish private international law rules of →succession to estates of deceased persons. Generally, the lex domicilii of the deceased at the time of his or her death governs succession to movable property (→Property and proprietary rights), while the lex situs determines succession to →immovable property.

The Irish courts have no jurisdiction to determine succession to an estate of a deceased person unless there is a properly constituted representative of the estate before the court. Under section 29 of the Succession Act 1965 (of 22 December 1965, No 27/1965), the High Court has jurisdiction to make a grant of representation in respect of a deceased person, notwithstanding that the deceased left no estate in the state. The court has discretion as to whether it will in fact exercise this jurisdiction in any particular case; it might hesitate before doing so in cases where there are no assets within the state p. 1and the deceased was not domiciled in the state, though it will be sensitive to the needs of foreign courts in this context. In cases where there are assets within the jurisdiction, the court may exercise jurisdiction even where these consist exclusively of movable property.

Ireland, →Denmark and the →United Kingdom have opted out of the EU Regulation on Succession Law (Succession Regulation, Regulation (EC) No 650/2012 of the European Parliament and of the Council 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation (succession)). This has created legal uncertainties as to how the Regulation is to be harmonized with the private international law rules of those states that have opted out, which the Regulation makes only a limited attempt to resolve.

XIII. Tort

Jurisdiction relating to tort claims under the Brussels I Regulation (recast) is determined by art 7(2). Claims falling outside the remit of European jurisdictional rules are dealt with under the common law rules, supplemented by Order 11 of the Rules of the Superior Courts. Thus, jurisdiction may be based on service of process on the defendant within the jurisdiction, submission by the defendant to the jurisdiction of the courts or an order of the court permitting service outside the jurisdiction under Order 11, rule 1(f) of the Rules of the Superior Courts where the action is founded on a tort ‘committed within the jurisdiction’.

In Grehan v Medical Incorporated [1986] IR 528, the Supreme Court, inspired by the Court of Justice’s approach in Case C-21/76 Handelskwekerij GJ Bier BV v Mines de Potasses d’Alsace SA [1976] ECR 1735, was willing to apply a liberal test to determine whether the alleged tort had been committed within the jurisdiction; it would suffice if ‘any significant element’ of the commission of the tort occurred within the state. The Supreme Court emphasized that the judicial role in determining whether to order service out of the jurisdiction was not a ‘mechanical’ task. Walsh J stated:

The court therefore should interpret the rule in the light of a broad policy and in the light of its choice of law implications. If more than one possible interpretation of the rule is available, the one which serves to encourage the operation of sensible choice of law rules should be followed rather than one which would tend to frustrate them.

Choice of law in tort claims has largely been dealt with by the Rome II Regulation, which applies to Ireland, but claims for defamation remain unaffected by the Regulation. It is not an easy task to identify with any certainty the Irish choice-of-law rules for defamation. Under the traditional British rule laid down in Phillips v Eyre LR 6 QB 1 (1870), a plaintiff, in respect of a tort committed outside the country, must show that the wrongful conduct was civilly actionable both in the country where it occurred and under the lex fori. In Grehan v Medical Incorporated, Walsh J severely criticized of the rule in Phillips v Eyre, describing it as having ‘nothing to recommend it because it is capable of producing quite arbitrary decisions and it is a mixture of parochialism and a vehicle for being, in some cases, unduly generous to the plaintiff and, in others, unduly harsh’. In his view, so far as choice of law in →torts cases was concerned, ‘the Irish Courts should be sufficiently flexible to be capable of responding to the individual issues presented in each case and to the social and economic dimensions of applying any particular choice of law rule in the proceedings in question’.

Later Irish decisions, in the very few instances in which choice-of-law issues in tort have been considered, have not responded to Walsh J’s invitation and have preferred to continue to cleave to the rule in Phillips v Eyre. This might not be thought to matter greatly in the context of defamation, as the practical effect of the Court of Justice in Case C-68/93 Fiona Shevill, Ixora Trading Inc, Chequepoint SARL und Chequepoint International Ltd v Presse Alliance SA [1995] ECR I-450 is that plaintiffs will in most cases tend to sue in the country where the most damage to their reputation occurred. If that is Ireland, then the rule from British times is that Irish law will be applied as the lex fori.

XIV. Intellectual property

In 1925, four years after attaining independence, the Irish Free State acceded to the International Convention for the Protection of Industrial Property (Paris Convention p. 1for the Protection of Industrial Property, 20 March 1883, with later amendments, 828 UNTS 305) of 1883. The Patents Act 1992 (of 27 February 1992, No 1/1992) (as amended) elaborates on the provisions of the Paris Convention and on the European Patent Convention (Convention on the Grant of European Patents (European Patent Convention) of 5 October 1973 as revised by the Act revising Article 63 EPC of 17 December 1991 and the Act revising the EPC of 29 November 2000), which was ratified by Ireland on 1 May 1992 and which came effect in Ireland on 1 August 1992. Ireland ratified the Patent Co-operation Treaty with effect from 1 August 1992. It also ratified the Agreement on Trade-Related Aspects of Intellectual Property Rights (→TRIPS, Agreement of 15 April 1994 on Trade-Related Aspects of Intellectual Property Rights, 1869 UNTS 299) on 15 November 1994. It also acceded to the Trademark Law Treaty on 13 July 1999.

Ireland has not yet ratified the Singapore Treaty on the Law of Trademarks (signed at Singapore on 27 March 2006), which came into force on 16 March 2009. The Irish Department of Enterprise, Trade and Innovation published a Preparatory Impact Analysis of the Singapore Treaty on the Law of Trademarks in July 2010, expressing as its preferred option that Ireland proceed with ratification. Ireland became a member of the Protocol to the Madrid Agreement Concerning the International Registration of Marks (Madrid Agreement of 14 April 1891 concerning the international registration of marks, available at <www.wipo.int/treaties/en/text.jsp?file_id=283530>) on 19 October 2001 (Trade Marks (Madrid Protocol) Regulations 2001 (SI 346/ 2001)).

It had been necessary in 1992 to amend the Constitution by national referendum in order for Ireland to ratify the Community Patent Convention. Article 29(4)(6) of the Constitution, inserted by that amendment, provides the necessary constitutional authorization.

In Merck & Co Inc v GD Searle & Co [2001] 2 ILRM 363, McCracken J exercised his discretion to grant a stay on proceedings in the Irish High Court seeking revocation of an Irish patent derived from a European patent which was the subject of European Patent Office opposition proceedings.

XV. Arbitration

The Arbitration Act 2010 (of 8 March 2010, No 1/2010), which came into force on 8 June 2010, gives effect to the UNCITRAL Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17) (→Arbitration, (UNCITRAL) Model Law) and provides a uniform regime for domestic and international arbitration. The Act also deals with a number of matters on which the Model Law is silent. The parties are empowered to deal with costs issues relating to the arbitration (s 21) and interest awards (s 18). Arbitrators are given →immunity from suit in respect of the discharge of their functions (s 22).

Ireland is a party to the New York Convention (Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3), the Geneva Convention of 1927 (Geneva Convention on the Execution of Foreign Arbitral Awards, of 26 September 1927, 92 LNTS 301) and the Geneva Protocol (Protocol on Arbitration Clauses, of 24 September 1923, Geneva, 27 LNTS 157) (→Arbitration, recognition of awards). Section 24 of the 2010 Act (re-enacting earlier laws) provides that these international instruments are to have the force of law in the state. Section 25 (also re-enacting earlier laws) gives effect to the relevant provisions of the ICSID Convention of 1965 (Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965, 575 UNTS 159).

Literature

  • William Binchy, Irish Conflicts of Law (Butterworths 1988);

  • Patricia Brazil, ‘Recent Developments Concerning Transfer of Child Care Proceedings under Brussels II Revised’ (2014) 51 I.J. 181;

  • William Duncan, ‘Foreign Divorces Obtained on the Basis of Residence and the Doctrine of Estoppel’ (1975) 9 I.J. 59;

  • William Duncan, ‘Collusive Foreign Divorces – How to Have Your Cake and Eat it’ (1981) D.U.LJ. 17;

  • Máiréad Enright, ‘Preferring the Stranger? Towards an Irish Approach to Muslim Divorce Practice’ (2013) 49 I.J. 65;

  • Liz Heffernan, ‘Rome II: Implications for p. 1Irish Tort Litigation’ in John Ahern and William Binchy (eds), The Rome II Regulation Governing Non-contractual Obligations: A New International Litigation Regime (Martinus Nijhoff 2009) 257 ff;

  • Geraldine Hickey, ‘Irish Private International Law’ (1978) 42 RabelsZ 268;

  • David Kenny, ‘Goshawk Dedicated v Life Receivables Ireland: Jurisdiction, Lis Alibi Pendens, and the Problematic Use of the Brussels Regime’ (2009) 12 Trinity College Law Review 1;

  • David Kenny, ‘Re Flightlease: The Real and Substantial Connection Test for Recognition and Enforcement of Foreign Judgments Fails to Take Flight in Ireland’ (2014) 63 ICLQ 197;

  • R McNamara and Frank Martin, ‘Brussels Calling: The Unstoppable Europeanisation of Irish Family Law’ (2006) 3 I.J.F.L. 8;

  • Peter North, The Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (North-Holland 1977);

  • Maire Ni Shuilleabhain, Cross-Border Divorce Law Brussels II Bis (OUP 2010);

  • Maire Ni Shuilleabhain, ‘Marriage, Divorce and Stagnation in the Irish Conflict of Laws’ (2014) 51 I.J. 68;

  • Michelle Smith De Bruin, Transnational Litigation: Jurisdiction and Procedure (Round Hall 2008);

  • Bríd Nic Suibhne, ‘Intercountry Adoption: Intersecting Forces of Globalisation and International Law’ (2010) I.J.F.L. 39.