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Private International Law

Introduction

Private international law is that part of the law of any State which comes into operation when a court is called upon to determine a suit containing a foreign element. Such a foreign element may exist, for instance, because a contract has been made or is to be performed in another State or because the recognition of a divorce obtained by persons domiciled abroad may arise. Because the courts of the other State may also be asked to exercise jurisdiction in the suit, or because the laws of that other State may be different to those of Ireland, in determining the proceedings before it, an Irish court may be confronted with a conflict of laws. Such conflicts are resolved by applying the rules of private international law.

To varying degrees the rules of private international law which have been developed in Ireland will be different to those developed in other States and indeed there are probably as many systems of private international law rules as there are States and therefore national legal systems.

The Hague Conference

The Hague Conference on Private International Law is an intergovernmental organisation based at The Hague which is charged with the progressive unification of the rules of private international law.

The Conference met for the first time in 1893 and became a permanent intergovernmental organisation in 1955. Since that time the Conference has adopted 35 Hague Conventions on matters ranging from the service of judicial documents and the taking of evidence abroad to child abduction and inter-country adoption.

Ireland has been an active member of the Conference since acceding to the Statute of the Hague Conference on 26 August 1955 and has supported the initiative of the Conference in seeking to expand the organisation's membership.

Pursuant to Article 6 of the Statute the Legal Division of the Department of Foreign Affairs & Trade has been designated as the National Organ in order to facilitate communication between Ireland, as a Member State of the Conference, and the Permanent Bureau. Pursuant to Article 9 of the Statute Ireland is represented at the Council of Diplomatic Representatives to the Conference by the Ambassador of Ireland at The Hague.

The Hague Conventions

In addition to the Statute of the Hague Conference Ireland is a state party to the following six Conventions elaborated under the auspices of the Hague Conference:

• Hague Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions done on 5 October 1961

Provision in law for the obligations assumed by the State pursuant to the 1961 Convention was made by Part VII of the Succession Act 1965 Ireland acceded to the Convention on 3 August 1967 and it entered into force with respect to the State on 2 October 1967.

Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents done on 5 October 1961

The Convention was signed on behalf of Ireland on 29 October 1996. Provision in law for the obligations assumed by the State pursuant to the Convention was made by the Superior Court Rules Amendment Nº 3 - Rules of the Superior Courts (Nº1) (Proof of Foreign Diplomatic, Consular and Public Documents) 1999. It was ratified on 8 January 1999 and entered into force with respect to the State on 9 March 1999. Upon ratification, pursuant to paragraph 1 of Article 6 of the Convention, Ireland designated the Consular Section of the Department of Foreign Affairs as the authority competent to issue the certificate known as the “apostille”. The requirement for legalisation of certain foreign public documents has been completely abolished as between Ireland and Denmark, Italy, France, Belgium, Cyprus and Latvia pursuant to the terms of the Convention Abolishing Legalisation of Documents in Member States of the European Communities which was done at Brussels on 25 May 1987.

Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done on 15 November 1965

The Convention was signed on behalf of Ireland on 20 October 1989. Provision in law for the obligations assumed by the State pursuant to the Convention was made by the Rules of the Superior Courts (Nº 3) 1994. It was ratified on 5 April 1994 and entered into force with respect to the State on 4 June 1994. The Master of the High Court (address: The Four Courts, Inns Quay, Dublin 7) has been designated as the Central Authority for Ireland in accordance with Article 2 of the Convention and, pursuant to Article 6, is the appropriate authority for completion of certificates in the form of the model annexed to the Convention. Upon ratification Ireland made the following declarations and objections:

Article 3: “The authority or judicial officer competent under the laws of Ireland for the purpose of Article 3 of the Convention are the Central Authority, a practising Solicitor, a County Registrar or a District Court Clerk.”

Article 15: “Pursuant to the second paragraph of Article 15 a Judge in Ireland may give judgment even if no certificate of service or delivery has been received, if the conditions set out in the second paragraph of Article 15 of the Convention are fulfilled.”

Article 10: “In accordance with the provision in Article 10 of the Convention the Government of Ireland objects to (i) the freedom under Article 10(b) of judicial officers, officials or other competent persons of the State of origin to effect service in Ireland of judicial documents directly through judicial officers, officials or other competent persons and (ii) the freedom under Article 10(c) of any person interested in a judicial proceeding to effect service in Ireland of judicial documents directly through judicial officers, officials or other competent persons, but this is not intended to preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in Ireland directly through a solicitor in Ireland.”

As envisaged by Article 11, arrangements for the direct transmission of requests for the service of documents to Central authorities have been made between Member States of the European Community. Council Regulation (EC) No 1393/2007 of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, which entered into force on 30 December 2007, has replaced as between the Member States of the Community  the arrangements provided for by the Hague Convention of 1965.

Hague Convention on the Civil Aspects of International Child Abduction done on 25 October 1980

The Convention was signed on behalf of Ireland on 23 May 1990 and by the provisions of the Child Abduction and Enforcement of Custody Orders Act 1991 was given the force of law in the State. It was ratified on 16 July 1991 and entered into force with respect to Ireland on 1 October 1991. Pursuant to Section 4 of the Act of 1991 the Minister for Foreign Affairs is empowered to declare by order which are the contracting States to the Convention. In accordance with paragraph 1 of Article 6 of the Convention, the Minister for Justice, Equality and Law Reform has been designated as the Central Authority of Ireland

Department of Justice and Equality
Bishop’s Square                                           
Redmond Hill
Dublin 8
Tel + 353 1 4790200
Fax:  + 353-1 4790201
E Mail: child_abduct_inbox@justice.ie

Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, done on 29 May 1993 

The Convention was ratified by Ireland on 28 July 2010, and it entered into force with respect to Ireland on 1 November 2010.  The Convention is given the force of law in Irish law under section 9 of the Adoption Act 2010, which was commenced on 1 November 2010. The Adoption Authority of Ireland is the competent national authority for the purposes of the Convention.

Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, done on 19 October 1996

The Convention was ratified by Ireland on 30 September 2010 and entered into force with respect to Ireland on 1 January 2011. The Convention is given the force of law in Irish law under section 2 of the Protection of Children (Hague Convention) Act 2000, which was commenced on 1 January 2011. The Convention is broad in scope, covering a wide range of civil measures of protection concerning children, from orders concerning parental responsibility and contact to public measures of protection or care, and from matters of representation to the protection of children’s property.

The Central Authority for International Child Protection is:
Department of Justice and Law Reform
Bishop’s Square
Redmond’s Hill
Dublin 2
Phone: + 353 1 479-0200
Fax: + 353 1 479-0201
e-mail: internationalchildprotect@justice.ie
 

The Hague Conference on Private International Law

The Hague Conference on Private International Law contains a comprehensive guide to the operation of the Convention and to related matters.

Law Reform Commission Reports on the Hague Conventions

The Law Reform Commission of Ireland has produced a number of reports on Conventions of the Hague Conference and these, together with its reports on other aspects of Conflicts of Laws, may be accessed on its website.

UNIDROIT

The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental organisation with its headquarters in Rome.  UNIDROIT was established in 1926 to examine ways of harmonising and coordinating the private law of States and to prepare gradually for the adoption by the various States of uniform rules of private law.  To this end it- 

  • Prepares drafts of laws and conventions with the object of establishing uniform internal law;
  • Prepares drafts of agreements with a view to facilitating international relations in the field of private law;
  • Undertakes studies in comparative private law;
  • Takes an interest in projects already undertaken in any of these fields by other institutions with which it may maintain relations as necessary;
  • Organises conferences and publishes works which the Institute considers worthy of wide circulation. 

UNIDROIT is an international body responsible to the participating Governments. It is established on the basis of a multilateral agreement, the UNIDROIT Statute. Sixty-one Governments, including the Irish Government, participate in UNIDROIT.  Ireland has been an active participant in UNIDROIT since becoming a member on 16 April 1940.   Unidroit has an essentially three-tiered structure, made up of a Secretariat, a Governing Council and a General Assembly.

The organs of UNIDROIT are:

  • a General Assembly
  • a President;
  • a Governing Council;
  • a Permanent Committee;
  • an Administrative Tribunal;
  • a Secretariat. 

The main functions of the Governing Council of UNIDROIT are to draw up its work programme, to approve the annual report on its activities and to draw up a draft budget and forward it for approval to the General Assembly.  

Any participating Government, as well as any international institution of an official nature, is entitled to set before the Governing Council proposals for the study of questions relating to the unification, harmonisation or coordination of private law.  Also, any international institution or association, the purpose of which is the study of legal questions, may put before the Governing Council suggestions concerning studies to be undertaken.  Following the completion of the study of questions in which it has engaged, the Governing Council shall, if appropriate, approve any preliminary drafts to be submitted to Governments. 

The Irish Government contributes to the annual budget of UNIDROIT. 

Our Legal Division is the designated national authority in Ireland for the purposes of facilitating communication between Ireland and UNIDROIT. 

UNIDROIT Conventions

Ireland is a state party to the following Convention and Protocol which were elaborated under the auspices of UNIDROIT: 

The purpose of the above Convention and Protocol is to provide a uniform international legal framework to facilitate asset-based financing of aircraft, aircraft engines and helicopters.  The International Interests in Mobile Equipment (Cape Town) Convention Act, 2005 (No 15 of 2005) was enacted to give effect in Ireland to the above Convention and Protocol.   

A key part of the system set up under the Cape Town Convention and Protocol is the establishment of an International Registry of Mobile Assets.  Aviareto, a joint venture between SITA SC and the Irish Government, has a contract with the International Civil Aviation Authority (ICAO) to establish and operate the International Registry as required by the Cape Town Convention and Protocol.