Keywords
Summary

Keywords

Convention on jurisdiction and the enforcement of judgments ° Recognition and enforcement ° Grounds for refusal ° Defendant who is not properly served with or notified of the document instituting proceedings in sufficient time and who fails to appear ° Definition of "in default of appearance" ° Defendant unaware of proceedings initiated against him and represented by a lawyer without his authority ° Included ° Remedy available in the State in which judgment was given, allowing it to be contested on the ground of lack of representation ° Not material

(Convention of 27 September 1968, Art. 27(2))

Summary

Where proceedings are initiated against a person without his knowledge and a lawyer appears before the court first seised on his behalf but without his authority, such a person is quite powerless to defend himself and must be regarded as a defendant in default of appearance, within the meaning of Article 27(2) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, even if the proceedings before the court first seised became, in point of form, proceedings inter partes. That conclusion is not affected by the fact that the defendant may apply to have the judgment in question annulled on the ground of lack of representation, since the proper time for a defendant to have an opportunity to defend himself is the time at which proceedings are commenced.

Article 27(2) of the Convention therefore applies to judgments given against a defendant who was not duly served with, or notified of, the document instituting proceedings in sufficient time and who was not validly represented during those proceedings, albeit the judgments given were not given in default of appearance because someone purporting to represent the defendant appeared before the court first seised.