The Court of Appeal has dismissed an appeal by Albanian company Albaniabeg Ambient Sh.p.k. over its attempt to enforce a €433,091,870 Albanian judgment against Italian energy companies ENEL S.p.A. and ENEL Power S.p.A. in Ireland.
In a judgment delivered on 26 February 2018, Mr Justice Gerard Hogan agreed with the High Court’s refusal to let Albaniabeg serve its enforcement proceedings outside Ireland. The court affirmed that decision. It did not determine whether the Albanian judgment was enforceable on its merits in Ireland.
The judgment arose from an application to set aside an earlier ex parte order granting permission to serve proceedings abroad. The High Court had refused that permission after finding no assets of the defendants in Ireland and no reasonable prospect of such assets coming here. The Court of Appeal said the company that obtained an ex parte order carried the burden of showing it had been properly granted.
The Albanian judgment followed a dispute over a proposed hydroelectric power project in Albania. Albaniabeg claimed ENEL had disrupted the project and competed in breach of an exclusivity agreement. Those were allegations in the underlying dispute. The Tirana District Court ordered damages of €25,188,500 for the period before 2005 and a further €407,903,370 for 2005 to 2011, calculated using a court-appointed panel’s formula. Albanian appeal courts affirmed the judgment, which the Irish judgment described as unpaid.
The Court of Appeal held that there is no rule requiring a judgment debtor to have assets in Ireland before leave to serve enforcement proceedings abroad can be granted. It also agreed that Albaniabeg had a good arguable case to seek enforcement, given the final Albanian judgment. But it said a claimant would generally need to show some prospect of a material benefit, including an indirect or future benefit. The court found no evidence of a reasonable prospect that ENEL would have assets in Ireland.
Albaniabeg relied on ENEL securities listed on the Irish Stock Exchange and an Irish branch of a separate ENEL group company. The court accepted the High Court’s assessment that the bond proceeds were not received in Ireland and that the branch’s connection arose from a short-term Wexford contract, with payments due to an Italian bank account. The separate group company was not a defendant.
The court also considered the cost and convenience of proceedings. It noted that enforcement had been pursued in New York, the Netherlands, France and Luxembourg, and that an Irish hearing could involve evidence about the Albanian and Italian proceedings, witnesses travelling from those countries, and a lengthy, costly process. As the dispute had no connection with Ireland and no clear practical benefit was shown, the court dismissed the appeal and affirmed the High Court decision.