- Elgar European Law series
Chapter 9: Provisional measures and taking evidence
In this Chapter, we shall focus on Article 35 (ex Article 31) of the Brussels I Regulation, which enables a court of a Member State which lacks substantive jurisdiction to order provisional measures in support of substantive proceedings in another Member State. We shall also examine EC Regulation 1206/2001, under which a court of a Member State may request a court of another Member State to take evidence for use by the requesting court. Article 35 of the revised version of the Brussels I Regulation enables application to be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if the courts of another Member State have jurisdiction as to the substance of the matter. This provision confers an additional jurisdiction, limited to provisional measures. In any event, as the European Court made clear in Van Uden v Deco-Line and Mietz v Intership Yachting Sneek, a court which has substantive jurisdiction under Articles 4 and 7–26 (ex Articles 2 and 5–24) also has jurisdiction to order any provisional or protective measures which may prove necessary. In Morgan v Primacom Cooke J held that this applies even where the court has stayed its substantive proceedings under Article 29(1) (ex Article 27(1)), while awaiting a decision on jurisdiction from a previously seised court of another Member State; but not where the court has declined jurisdiction under Article 29(3) (ex Article 27(2)) in favour of the court first seised.
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