Enforcement Of Foreign Judgments In Ireland: Irish Court Of Appeal Update


The Irish Court of Appeal recently upheld the decision of the High Court in Albaniabeg Ambient Shpk v Enel SpA and Enelpower SpA 1 confirming that jurisdiction for the purposes of proceedings seeking to enforce a foreign judgment pursuant to Order 11 of the Rules of the Superior Courts ('Order 11') should not be exercised in favour of a plaintiff unless it can show it is likely that some practical benefit would accrue to the applicant.

  1. Background

    1.1 Kalivac Project and cooperation agreement

    In 1997, BEG S.p.A. ('BEG'), an Italian company, sought and obtained a concession for the construction and operation of a hydroelectric power plant in the Kalivac region of Albania (the 'Kalivac Project') from the Republic of Albania. During the period in which BEG was endeavouring to obtain this concession, the Respondents (respectively 'Enel' and 'Enelpower') allegedly expressed their interest in purchasing electricity generated by the power plant and the right to supply it to consumers in Italy.

    The Respondents agreed to work with BEG to carry out certain preliminary steps with regard to the Kalivac Project as a precursor to any decision to invest. In 1999, Enel entered into a preliminary cooperation agreement with BEG for a seven month period. In 2000, Enelpower, which replaced Enel, entered into a final cooperation agreement (the 'Agreement') with BEG for a new seven-month term.

    1.2 Arbitration and Italian proceedings

    Subsequent to the entry into force of the Agreement, it was alleged that the Respondents undermined the completion of the power plant by various acts and omissions which were intended to delay and disrupt its construction. It was also alleged by BEG that the Respondents entered into direct competition with it in Albania in breach of an exclusivity agreement between the parties. BEG then brought arbitration proceedings in Italy against the Respondents alleging breach of the cooperation agreement.

    All of the Italian bodies to which BEG referred the case - an arbitral tribunal in Rome (2002), the Rome District Court (2003), the Rome Criminal Court (2005), the Rome Court of Appeal (2009) and the Supreme Court of Italy (2010) - rejected BEG's claim, and found no breach of contract or impropriety in the conduct of the arbitration had occurred.

    1.3 Proceedings in Albania

    The grievances were pursued afresh in the Tirana District Court of Albania where damages were claimed for, inter alia, tort and unfair competition by Albaniabeg Ambient Shpk ('Albaniabeg'), BEG's Albanian subsidiary. In March 2009 the Tirana District Court awarded BEG's Albaniabeg damages against the Defendants for unfair competition and tort. The amount of the judgment was not (for the most part, save the damages allegedly due for 2004) set by the court, but had been calculated in accordance with a formula devised by a court-appointed group of experts. This judgment (the 'Albanian judgment') was upheld on appeal. The ultimate quantum of damages being pursued against the Respondents as part of these enforcement proceedings in respect of the Albanian judgment was calculated by the Albaniabeg as being €433,091,870.00 (a sum equivalent to approximately 5% of the gross domestic product of Albania at that time). On appeal, the Tirana Court of Appeals affirmed the judgment in its entirety. The judgment was in turn appealed by the Respondents to the Albanian Supreme Court, but on 7 March 2011 that Court affirmed the judgment. The Respondents subsequently applied to the Supreme Court requesting it to reconsider its judgment. This application was again refused.

    Albaniabeg subsequently attempted to seek enforcement of the Albanian Judgment in a number of other jurisdictions, namely New York, the Netherlands, France, Luxembourg and Ireland.

  2. Legal grounds for enforcement of non-EU/ EFTA judgment

    Since Albania is neither an EU Member State nor a member of the European Free Trade Association ('EFTA'), the grounds for refusing jurisdiction and enforcement in Ireland are broader than would otherwise apply under the Brussels Regulation (EU) No 1215/ 2012 (recast) (the 'Recast Regulation') and the Lugano Convention.2 The application to enforce a judgment rendered by a court of that State is therefore governed by the provisions of Order 11 and standard common law principles.

    2.1 Jurisdiction pursuant to Order 11 of the Rules of the Superior Court

    The High Court held that, whilst Order 11...

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