Albaniabeg Ambient Sh.p.k. v Enel S.p.A. & Enelpower S.p.A

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Gerard Hogan
Judgment Date26 Feb 2018
Neutral Citation[2018] IECA 46
Docket NumberNeutral Citation Number: [2018] IECA 46

[2018] IECA 46

THE COURT OF APPEAL

Hogan J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Neutral Citation Number: [2018] IECA 46

Record No. 2017/143

BETWEEN/
ALBANIABEG AMBIENT Sh.p.k.
APPLICANT / PLAINTIFF
- AND -
ENEL S.p.A.

AND

ENELPOWER S.p.A
RESPONDENTS / DEFENDANTS

Jurisdiction – Practical benefit – Enforcement proceedings – Plaintiff seeking liberty to serve out of the jurisdiction to seek to enforce a judgment of an Albanian court in the jurisdiction against the defendants – Whether the plaintiff stood to gain practical benefits if enforcement proceedings were to be commenced within the jurisdiction

Facts: The High Court (McDermott J), on the 8th March 2016, refused to grant the plaintiff, Albaniabeg Ambient Sh.p.k., liberty to serve out of the jurisdiction to seek to enforce a judgment of an Albanian court in the jurisdiction against the two defendants, ENEL S.p.A. and ENEL Power S.p.A. McDermott J refused that application on the basis that the defendants had no assets within the jurisdiction and were not likely to have such assets in the near future, hence the plaintiff did not stand to gain any practical benefits if enforcement proceedings were to be commenced within the jurisdiction. Albaniabeg appealed to the Court of Appeal against that decision.

Held by Hogan J that: 1) there is no ex ante rule which requires the presence of assets within the jurisdiction before leave to commence enforcements proceedings under Ord. 11, r. 1(q) of the Rules of the Superior Courts can be granted; 2) The plaintiff, as the beneficiary of an unsatisfied final judgment from the Albanian courts, demonstrated the existence of a good arguable case prior to obtaining leave; 3) the plaintiff could not show some prospect of securing a material benefit as there were no assets of the defendants in Ireland and there was no evidence to demonstrate that there was such a reasonable prospect or possibility that there would ever be any assets of the defendants in Ireland; 4) while the court may well have a jurisdiction to grant leave for Ord. 11, r. 1(q) purposes where the sole purpose of the application is to ensure the imprimatur of the foreign judgment by an Irish court, even if there is no actual material benefit, cases of this kind are likely to remain unusual, even exceptional and leave should not normally be granted in such cases where enforcement proceedings have already been determined or are pending in other third country jurisdictions; 5) the proceedings had no connection with Ireland and enforcement proceedings would require the Irish courts to embark upon complex and potentially lengthy and costs enforcement proceedings without any obvious material benefit to the plaintiff, however indirect or prospective; 6) the judgment creditor had not shown that enforcement proceedings in the State would be conveniens in the sense of showing that such proceedings would be suitable or appropriate for the jurisdiction to determine.

Hogan J held that he would dismiss the appeal and affirm the decision of the High Court.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 26th day of February 2018
1

This appeal from the judgment of McDermott J. in the High Court presents a difficult and complex point of private international law concerning the enforcement of foreign judgments outside of the context of the Brussels/Lugano system and which, to date, at least, has not been frequently explored by our courts. McDermott J. delivered his judgment on the 8th March 2006: see Albaniabeg Ambient Sh.p.k. v. ENEL S.p.A. [2016] IEHC 139.

2

In that judgment McDermott J. refused to grant the plaintiff, Albaniabeg Ambient Sh.p.k. (‘Albaniabeg’), liberty to serve out of the jurisdiction to seek to enforce a judgment of an Albanian court in this jurisdiction against the two defendants, ENEL S.p.A. and ENEL Power S.p.A. (‘ENEL’). McDermott J. refused that application on the basis that the defendants had no assets within the jurisdiction and were not likely to have such assets in the near future. As the judge concluded that the plaintiff did not stand to gain any practical benefits if enforcement proceedings were to be commenced within this jurisdiction, he refused to grant them leave to serve such proceedings out of the jurisdiction on the defendants. Albaniabeg has accordingly appealed to this Court against that decision.

3

It is next necessary to set out the background to this application. The plaintiff is an Albanian company which is engaged in the supply of energy and related services. Its parent company is, however, a major Italian corporation, BEG S.p.A. The defendants are both Italian companies, and the second company is a subsidiary of the first. ENEL is in fact a well known major Italian multi-national energy company with a global reach and an annual income of some €80bn. Save where the context otherwise requires, I shall for convenience refer to the defendants as ENEL.

4

The present application arises from an application brought by ENEL on the 10th November 2014 pursuant to Ord. 12, r. 26 seeking to have set aside an Order of the High Court (Hedigan J.) of the 21st July 2014 granting the plaintiff liberty to serve proceedings outside the jurisdiction pursuant to the provisions of Ord. 11, r. 1(q). ENEL also seeks an order dismissing the proceedings on the grounds that the Court does not have jurisdiction or ought not to assume jurisdiction to hear and determine them. The order of Hedigan J. granting the plaintiff liberty to serve out of the jurisdiction was made ex parte.

The background to the application
5

The background to this application is a decidedly unusual one. The plaintiff seeks to enforce in this jurisdiction the judgment of the Tirana District Court of Albania delivered on 24th March 2009 against the defendants in the amount of some €433m.. The defendants (and moving party) resist this application saying that they as have no assets within this jurisdiction and are most unlikely to have such assets, this Court should not lend its assistance to what is (they say) a fruitless and oppressive application. How, then, did this application come about?

6

Sometime in 1996 the plaintiff's parent company (at the time the Italian company BEG S.p.A.)(‘BEG’) sought and obtained a concession for the construction and operation of a hydroelectric power plant in the Kalivac region of Albania. During the period in which BEG was endeavouring to obtain this concession, the defendants allegedly expressed their interest in purchasing electricity generated by the power plant and the right to supply it to consumers in Italy. A final cooperation agreement was concluded between BEG and ENEL in February 2000. This agreement provided, inter alia, that the parties would establish a special purpose vehicle, Albaniabeg, (namely, the plaintiff company) for the purpose of implementing the terms of the concession.

7

Subsequent to the entry into force of this agreement, ENEL, it is alleged, undermined the completion of the power plant by various acts and omissions which were intended to delay and disrupt its construction. The plaintiff also claimed that ENEL entered into direct competition with it in Albania in breach of an exclusivity agreement between the plaintiff and defendants. It is said that as a result the project was not completed in 2003 as originally envisaged. The plaintiff then issued proceedings in the Tirana District Court in which damages were claimed for, inter alia, tort and unfair competition. It appears that ENEL submitted to the jurisdiction of that Court.

8

Following submissions of the parties, the Tirana District Court delivered what is said to be a final and conclusive judgment on the 24th March 2009. It ordered that the defendants pay to the plaintiff (i) the sum of €25,188,500.00 in damages for tort and unfair competition for the period prior to 2005 and (ii) a sum to be calculated on a formula devised by a Court-appointed panel of experts which would form part of the final judgment of the Court for damages for tort and unfair competition for the years 2005 to 2011. On the application of this formula the sum calculated by the panel in damages for those years amounted to €407,903,370.00. The total sum in damages awarded by the Tirana District Court amounted to €433,091,870.

9

ENEL then appealed against this judgment to the Tirana Court of Appeals. On the 28th April 2010, the Tirana Court of Appeals affirmed the judgment of the Tirana District Court in its entirety. This judgment was in turn appealed by ENEL to the Albanian Supreme Court, but on the 7th March 2011 that Court affirmed the judgment. ENEL subsequently applied to the Supreme Court requesting it to reconsider its judgment. This application was refused on the 17th June 2011. It does not appear to be disputed that this judgment has not been discharged by ENEL, despite repeated demands for payment.

10

ENEL then applied to the European Court of Human Rights in September 2011 claiming that the judgment in the Albanian Courts had been obtained by the plaintiff in breach of the defendants' rights under the Convention. This application was rejected on the 22nd May 2014, apparently on the basis that not all domestic remedies had been exhausted.

The Italian proceedings
11

This, however, is not entirely the full story, since to understand the full context of the Albaniabeg proceedings in this jurisdiction, it is next necessary to detail the Italian proceedings concerning the parties. In November 2000 BEG commenced arbitration proceedings against ENEL Power before a Tribunal of the Chamber of Commerce in Rome claiming contractual damages for a purported breach of the 2000 cooperation agreement. In December 2002 the Tribunal ruled in favour of ENEL Power and it found that the cooperation agreement had not been breached. Appeals were brought by BEG to the Rome Court of Appeals in 2009 and...

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  • Microsoft Ireland Operations Ltd v Arabic Computer Systems
    • Ireland
    • High Court
    • 30 October 2020
    ...Morrice [2012] 1 IR 804 ( “ Cornec”) and on the judgment of Hogan J. for the Court of Appeal in Albaniabeg Ambient Sh.p.k. v. Enel S.p.A. [2018] IECA 46 ( “ Albaniabeg”). The defendants submitted, therefore, that the legal burden of demonstrating that leave was properly granted by the High ......

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