Harmonization of Laws
- Elgar European Law series
Chapter 9: Provisional Measures
PROVISIONAL MEASURES UNDER THE BRUSSELS I REGULATION Article 31 of the Brussels I Regulation1 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 under the Regulation 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 2 and Mietz v Intership Yachting Sneek,3 a court which has substantive jurisdiction under Articles 2 and 5–24 also has jurisdiction to order any provisional or protective measures which may prove necessary. In J P Morgan Europe Ltd v Primacom AG 4 Cooke J held that this applies even where the court has stayed its substantive proceedings under 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 27(2) in favour of the court first seised. The power to order provisional measures conferred by Article 31 is not limited to cases where the defendant is domiciled in another Member State. It applies in any situation where the court from which provisional relief is requested lacks jurisdiction to determine the merits of the dispute by reason of any provision of Chapter II; for example because another Member State has exclusive jurisdiction under Articles 22...
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