Last Updated June 10, 2019

Law and Practice

Contributed By Walkers

Authors



Walkers is a global firm with ten substantive offices around the world. Its transactions often involve Cayman Islands, British Virgin Islands, Bermuda, Jersey and/or Guernsey legal matters, and it provides an integrated service to clients across its offices, legal systems and time zones. The finance and capital markets group in Ireland comprises a team of 23, including two listing agents. The group also includes four tax-advisers (including two tax partners) who support a number of practice areas and 16 dedicated capital markets fee-earners who spend the vast majority of their time advising on debt capital markets activity. In addition, the team works with asset finance, corporate, real estate and investment funds teams on multi-disciplinary, cross-border mandates. It is one of the largest dedicated debt capital markets teams in Ireland. The firm was a founding member of the Irish Debt Securities Association (IDSA) and sits on the Executive Council and Legal, Tax, CSP and Listing Sub-committees.

Council Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations ("Rome I") has force of law in Ireland. Accordingly, an express choice of governing law by the parties to the transaction documents to govern the contractual obligations which are within the scope of Rome I will, upon proof of the relevant provisions of the relevant laws, be upheld by the courts of Ireland, except if and to the extent that the relevant provisions of the relevant governing law are not determinable to the satisfaction of the Irish courts.

Council Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations ("Rome II") also has force of law in Ireland. 

There have been no cases where the choice of a foreign governing law and/or jurisdiction has not been recognised by the courts in Ireland.

European Judgments

Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Brussels I Recast") has force of law in Ireland and, provided neither Articles 45 nor 46 of the Brussels I Recast is applicable and, subject to compliance with the procedures set out in Brussels I Recast, any judgment in relation to a document governed by the law of a EU Member State coming within the scope of Brussels I Recast and obtained in that Member State would be recognised and enforced in Ireland without retrial or examination of the merits of the case.

Council Regulation (EC) No 805/2004 of 21 April 2004 on creating a European Enforcement Order for uncontested claims (as amended) (the "EEO Regulation") has force of law in Ireland.  Provided that certain provisions of the EEO Regulation are not applicable and subject to compliance with the procedures set out in the EEO Regulation and the European Communities (European Enforcement Order) Regulations 2005 (SI No 648 of 2005) (as amended), a judgment, or part thereof obtained in an EU Member State and certified in that EU Member State as a European Enforcement Order for the purpose of the EEO Regulation would be recognised and enforced in Ireland. The EEO Regulation does not apply to arbitration proceedings.

Hague Convention and Lugano Convention

The Convention of 30 June 2005 on Choice of Court Agreement ("Hague Convention on Choice of Court Awards") has force of law in Ireland. This will be relevant in the context of enforcement of judgments given by a court in Mexico or Singapore. Ireland is a signatory to the convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters signed on 30 October 2007 and concluded on behalf of the European Union pursuant to Council Decision 2009/430/EC and the protocols and annexes thereto (the "Lugano Convention") will be relevant in the context of judgments given by a court in Norway, Switzerland or Iceland.

Foreign Judgments

In any proceedings taken in Ireland for the enforcement of a judgment obtained against an issuer in the courts of a foreign country (other than the EU, Norway, Switzerland, Iceland, Mexico and Singapore) (the "Foreign Judgment") the Foreign Judgment should be recognised and enforced by the courts of Ireland.

To enforce such a Foreign Judgment in Ireland, it would be necessary to obtain an order of the Irish courts. Such order should be granted on proper proof of the Foreign Judgment without any re-trial or examination of the merits of the case subject to the following qualifications:

  • that the foreign court had jurisdiction, according to the laws of Ireland;
  • that the Foreign Judgment was not obtained by fraud;
  • that the Foreign Judgment and enforcement thereof is not contrary to public policy, natural or constitutional justice as understood in Irish law or constitutes the enforcement of a judgment of a penal or revenue nature;
  • that the Foreign Judgment is final and conclusive;
  • that the Foreign Judgment is for a definite sum of money;
  • that the procedural rules of the court giving the Foreign Judgment have been observed; and
  • that the Foreign Judgment did not consist of, or include, a sum for multiple damages nor was granted on the basis of a fine or other penalty.

Arbitration Awards

The following are given force of law in Ireland subject to and in accordance with the provisions of the Arbitration Act, 2010 (the "2010 Act"):

the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, with amendments as adopted by that Commission on 7 July 2006);

  • Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958;
  • Convention on the execution of Foreign Arbitral Awards done at Geneva on 26 September 1927;
  • Protocol on Arbitration Clauses opened at Geneva on 24 September 1923; and
  • Convention on the Settlement of Investment Disputes between States and Nationals of Other States opened for signature in Washington on 18 March 1965, (together the "Arbitration Conventions").

Assuming the arbitration award of an arbitrator of a foreign arbitration body (a "Foreign Arbitration Award") comes within the scope of the Arbitration Conventions, and that the country in which the arbitration award will be made is a contracting state to and has implemented into its domestic law the relevant Arbitration Conventions, subject to the 2010 Act and the terms of the relevant Arbitration Conventions, a Foreign Arbitration Award should be recognised, accepted and enforced by the courts of Ireland without any re-trial or examination of the merits of such award.

See 9.3 Enforceability of Foreign Judgments and Arbitration Awards.

In accordance with the provisions of Irish Company law, where an Irish company creates security over certain classes of assets, the company is required to file a Form C1 with the Registrar of Companies containing particulars of the security created under the security document within 21 days after the date of creation of such security by the company. There are five classes of assets which are excluded from the requirement to register namely:

(a)       cash;

(b)       money credited to an account of a financial institution, or any other deposits;

(c)       shares, bonds or debt instruments;

(d)       units in collective investment undertakings or money market instruments; or

(e)       claims and rights (such as dividends or interest) in respect of anything referred to in any of paragraph (b) to (d).

Under Section 1001 of the Taxes Consolidation Act 1997 (as amended), the holder of a fixed charge over the book debts of a company may be required by notice from the Revenue Commissioners of Ireland to pay to them sums equivalent to those which the holder receives from the company following such notification, in payment of amounts due in respect of unpaid pay as you earn ("PAYE") tax, value-added tax (“VAT”) or local property tax ("LPT") due to the Revenue Commissioners of Ireland by the company.  Where the holder of the security has informed the Revenue Commissioners of Ireland of the creation of security within 21 days of the date of its creation, the holder’s liability is limited to the lower of (i) such outstanding PAYE, VAT or LPT of the company arising after the issue of the notice in question from the Revenue Commissioners of Ireland, and (ii) the amount which the holder receives from the company following such notification. Notices of assignment will also be required in the context of assignments by way of security.

There are other specific perfection requirements in respect of assets which have their lex situs in Ireland, including, by way of example, Irish real property. In order to perfect security over Irish real estate created by an Irish company, it will be necessary, in addition to the submission of a Form C1 with the Irish Companies Registration Office, to register the security with the Property Registration Authority of Ireland. Other asset classes which have their own specific perfection requirements include ships, aircraft and trade marks.

If a party to a document or the transactions contemplated thereby or to any transfer, or payment in respect of a document or the debt securities is controlled by or otherwise connected with a person (or is itself) resident in, incorporated in or constituted under the laws of a country which is the subject of any financial restrictions arising from orders made by  the United Nations, the European Union and/or the Minister for Finance under the Financial Transfers Act 1992, the European Communities Acts 1972 to 2012, the Criminal Justice (Terrorist Offences) Act 2005, the Criminal Justice (Money Laundering) Acts 2010 to 2018 and/or the relevant European Union Regulations having direct effect in Ireland, or is otherwise the target of any such sanctions, then obligations to that party under the relevant document or debt securities in respect of the relevant transfer or payment may be unenforceable or void.

For completeness, we note that Ireland observes EU and UN financial sanctions, which may impact transactions relating to sanctioned companies, individuals or jurisdictions.

Any entity that offers 'investment services' (eg, placing activities) in respect of financial instruments, such as bonds, will need to be authorised under (or relying on an appropriate exemption from) MiFID II in respect of this activity. 

Walkers Global

The Exchange,
George's Dock, IFSC,
Dublin 1,
Ireland

+353 1 470 6600

+353 1 470 6601

info@walkersglobal.com www.walkersglobal.com
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Authors



Walkers is a global firm with ten substantive offices around the world. Its transactions often involve Cayman Islands, British Virgin Islands, Bermuda, Jersey and/or Guernsey legal matters, and it provides an integrated service to clients across its offices, legal systems and time zones. The finance and capital markets group in Ireland comprises a team of 23, including two listing agents. The group also includes four tax-advisers (including two tax partners) who support a number of practice areas and 16 dedicated capital markets fee-earners who spend the vast majority of their time advising on debt capital markets activity. In addition, the team works with asset finance, corporate, real estate and investment funds teams on multi-disciplinary, cross-border mandates. It is one of the largest dedicated debt capital markets teams in Ireland. The firm was a founding member of the Irish Debt Securities Association (IDSA) and sits on the Executive Council and Legal, Tax, CSP and Listing Sub-committees.

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