The Application Of Provisional Measures In The European Judicial Region

The application of provisional measures in the European level mainly depends on the Art.35 of Brussels I Regulation.It states “Application may be made to the courts of a Contracting State for such provisional,including protective,measures as may be available under the law of that State,even if,under this Regulation,the courts of another Contracting State have jurisdiction as to the substance of the matter.” This Regulation do not provide any further rules for the application of provisional measures.So,provisional measures based on the Art.35 of Brussels I Regulation face these difficulties: the definition of “provisional,including protective measures”,jurisdiction of provisional measures and the recognition and enforcement of provisional measures in other member states.The definition of provisional measures is the precondition of the provisional measures.Provisional measures which can be applied by the Art.35 must fall within the scope of Regulation.Due to the diversity of provisional measures in different countries and the diversity of European languages,it is difficult for the Regulation to uniform provisional measures.Therefore,the European Court of Justice(ECJ)has tried to define the provisional measures under the Art.35 of Brussels I Regulation.In its case law,ECJ has analyzed the real nature of the provisional measures,and developed uniform rules that can be universally applied.In the Reichert,the ECJ explained that Art.35 covers measures “which,in matters within the scope of the Regulation,are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case.Through the preliminary interpretation of the nature of provisional measures,the uniform criteria for the definition of Provisional Measures under the Brussels Regulation: From the aspect of the nature,the provisional measures should be examined by the nature of both "provisional" and "protective".From the aspect of the function,the provisional measures which can be used as the instrument can't replace the final judgment.From the aspect of the common value,provisional measures must be conformed with the concept of justice.The jurisdiction is the basis of the provisional measures.Art.35 of Brussels I Regulation confers a court that have no jurisdiction over the substance of the matter the right to order provisional measures by exercising special jurisdiction over provisional measures.The special jurisdiction over provisional measures is independent of the jurisdiction over the substance of the matter.Before the litigation or in the arbitration proceeding,the court may order provisional measures in accordance with the special jurisdiction of provisional measures,applying the rules of domestic jurisdiction of member States.Art.35 of the Regulation provides a flexible application scheme of the special jurisdiction of provisional measures,which can be exercised with limitation of the rules of parallel proceeding,exclusive jurisdiction and excessive jurisdiction in the Regulations,if it can be in line with the limitation of “the real connecting”.Recognition and enforcement are the result of the application of provisional measures.Brussels I Regulation distinguishes the recognition and enforcement of Provisional Measures by the difference of jurisdictions.Where provisional,including protective,measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter,the effect of such measures should be confined,under this Regulation,to the territory of that Member State.Where provisional,including protective,measures are ordered by a court having jurisdiction as to the substance of the matter,their free circulation should be ensured under this Regulation.However,provisional,including protective,measures which were ordered by such a court without the defendant being summoned to appear should not be recognized and enforced under this Regulation unless the judgment containing the measure is served on the defendant prior to enforcement.Also,if such recognition is manifestly contrary to public policy(ordre public)in the Member State addressed public policy and provisional measures order which is irreconcilable with an order given between the same parties in the Member State addressed,the recognition of an order shall be refused.