Keywords
Summary

Keywords

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1. Convention on Jurisdiction and the Enforcement of Judgments - Special jurisdiction - Jurisdiction "in matters relating to tort, delict or quasi-delict" - Concept - "Action paulienne" - Not included

(Convention of 27 September 1968, Art.5(3))

2. Convention on Jurisdiction and the Enforcement of Judgments - Exclusive jurisdiction - "Proceedings concerned with the enforcement of judgments" - Concept - Disputes regarding the action of authorities responsible for enforcement - "Action paulienne" - Not included

(Convention of 27 September 1968, Art.16(5))

3. Convention on Jurisdiction and the Enforcement of Judgments - Jurisdiction to adopt provisional or protective measures - Concept of provisional or protective measures - Measures seeking to maintain a factual or legal situation pending a decision on the substance of the matter - "Action paulienne" - Not included

(Convention of 27 September 1968, Art. 24)

Summary

1. An action provided for by national law, such as the so-called "action paulienne" in French law, the purpose of which is not to have the debtor ordered to make good the damage he has caused his creditor by fraudulent conduct, but to render ineffective, as against his creditor, the disposition which the debtor has made, cannot be regarded as a claim seeking to establish the liability of a defendant in the sense in which it is understood in Article 5(3) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Such an action therefore does not come within the scope of that provision.

2. Article 16(5) of the Convention confers exclusive jurisdiction on the courts of the place in which the judgment has been or is to be enforced to deal with proceedings which may arise from recourse to force, constraint or distraint on movable or immovable property in order to ensure the effective implementation of judgments.

An action such as the action paulienne, by which the creditor seeks to obtain the revocation with regard to himself of the transaction whereby the debtor has effected a disposition in fraud of the creditor' s rights and which therefore seeks to protect whatever security the creditor may have with a view to a subsequent enforcement of the obligation of his debtor, is not intended to obtain a decision in such proceedings and does not therefore come within the scope of that provision.

3. Provisional or protective measures within the meaning of Article 24 must be understood as being measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter.

Whilst an action such as the action paulienne enables the creditor' s security to be protected by preventing the dissipation of his debtor' s assets, its purpose is that the court may vary the legal situation of the assets of the debtor and that of the beneficiary of the disposition effected by the debtor, and it cannot be described as a provisional or protective measure.