1 Commentary by Arnaud Nuyts.
2 A Dickinson, ‘Provisional Measures in the “Brussels I” Review: Disturbing the Status Quo?’ (2010) J Priv Int L 6: 519, 521.
3 Commission Proposal, Art 31.
4 Council document 10027/12 ADD 1 [16 May 2012], draft Art 36; EP Final Report, Art 36.
5 Art 6(1). The issue of whether Art 31 of the 2001 Regulation applies when the defendant is domiciled in a third State is the subject of some discussions, eg M Pertegas, in Magnus & Mankowski, Art 31, –.
6 Case C-104/03, St Paul Dairy Industries NV v Unibel Exser BVBA  ECR I-3581. Recital (25) is discussed in further details in Section 1.X.5.C in this volume and in Section III.3 in this chapter.
7 Heidelberg Report, .
8 Heidelberg Report, .
9 Commission Report, –; Green Paper, .
10 Commission Proposal, Recital (25).
11 Art 2(a) (Section 2.II.1 in this volume).
13 12.13 below; also Section 2.II in this volume.
14 Commission Proposal, Art 31.
15 Eg what are the respective roles of the courts and of the parties in the coordination exercise? What means of communications are to be used? What is the meaning and the goal of the ‘proper coordination’ between the courts? Who has the final word if there is a disagreement between the two competing courts, including in respect of assets located on the territory of the local court?
16 Art 31 of the Commission Proposal attracted criticism from a number of Member States in the Working Party (Council document 12439/11 [5 July 2011], 2 and Council document 14711/11 [27 September 2011], 4. Other Member States suggested that it be moved to the section on provisional measures. It disappeared from later drafts (eg Council document 8396/12 [2 April 2012].
17 This aspect of the subject is discussed in the commentary to Art 2(a) in Section 2.II.1 in this volume.
18 Case C-391/95, Van Uden Maritime BV v Kommanditgesellschaft in Firma Deco-Line  ECR I-1709, ; Case C-99/96, Mietz v Intership Yachting Sneek BV  ECR I-2277, .
19 Commission Proposal, Art 35.
20 The ‘Lotus’ [France v Turkey], PCIJ Series A No 10.
21 Under English case law, provisional orders which produce their effect in personam, such as freezing injunctions, disclosure orders, or receivership orders, are not considered to raise any issue of public international law or international comity provided that the case has some appropriate connection with England, that the court did not purport to affect title to property abroad, and that the court did not seek to control the activities abroad of foreigners who were not subject to the personal jurisdiction of the English court (eg Masri v Consolidated Contractors International UK Ltd (No 2)  EWCA Civ 303,  QB 640, – (Lord Collins). But in Société Eram Shipping Co Ltd v Cie Internationale de Navigation  UKHL 30,  1 AC 260, the House of Lords held that a third-party debt order (formerly known as garnishee order), as a proprietary remedy which operates by way of attachment of the property, is inconsistent with the comity of the foreign court and infringes principles of international law if the debt is situated abroad. This decision implies that an order of this nature (operating under English law as a final measure of enforcement rather than a provisional measure) cannot be made in respect of a foreign situated debt even when the court has jurisdiction as to the substance of the matter. For recent scholarly discussion, see R Fentiman, International Commercial Litigation (Oxford: Oxford University Press, 2010), [18.03]–[18.04].
22 Van Uden (n 18), .
23 Van Uden (n 18), .
24 Case C-616/10, Solvay v Honeywell Fluorine Products Europe BV  ECLI:EU:C:2012:445, .
25 Case C-4/03, GAR Gesellschaft für Antriebstechnik mdH v Luk Lamellen- und Kupplungsbau Beteligungs KG  ECR I-6509.
26 Solvay v Honeywell (n 24), – (finding that there is no risk of conflicting decisions between the provisional decision taken by the court before which the interim proceedings have been brought and the decision to be taken on the substance by the court having jurisdiction under Art 24(4) of the 2001 Regulation).
27 Van Uden (n 18), .
28 Case 25/81, CHW v GJH  ECR 1189; Case 143/78, de Cavel I  ECR 1055, ; Case 120/79, de Cavel II  ECR 731; Van Uden (n 18), .
29 Van Uden (n 18), .
30 CHW v GJH (n 28); de Cavel I (n 28), .
31 Van Uden (n 18), .
33 Following the adoption of the Maintenance Regulation (No 4/2009), the matter of maintenance obligations arising from a family relationship, parentage, marriage, or affinity has been excluded from the scope of the 2001 Regulation (and from the Recast Regulation): see Art 1(2)(e).
35 Dickinson, ‘Provisional Measures’ (n 2), 521.
36 Dickinson, ‘Provisional Measures’ (n 2), 521.
37 Cf Pertegas, in Magnus & Mankowski, Art 31, .
38 The CJEU has noted that the prohibition in what is now Art 5(2) to rely on the rules of exorbitant jurisdiction ‘does not apply to the special regime provided for by Art ’: Van Uden (n 18), .
39 These are the three classical exorbitant bases of jurisdiction that can be found in domestic law.
40 Case C-261/90, Reichert and Kockler v Dresdner Bank AG  ECR I-2149, .
41 Pertegas, in Magnus & Mankowski, Art 31, .
42 Masri v Consolidated Contractors (No 2), (n 21), , where the Court of Appeal ruled that post-judgment orders that operate in personam for the purpose of assisting in the enforcement of the judgment, such as freezing orders, disclosure orders, or receivership orders, can be characterized as provisional measures under what is now Art 35 because the relief that is sought is intended to safeguard the rights which have been vindicated in the judgment on the substance. The characterization of a post-judgment freezing injunction as a provisional measure under Art 35 has also been upheld by the French Cour de cassation in the Stolzenberg case: Cass Civ, 1 30 June 2004  D.2743;  Rev Crit DIP 815.
43 J Normand, ‘Les mesures provisoires en droit comparé’,  Annales de droits de Louvain 265; G de Leval, La jurisprudence du Code judiciaire commentée—La compétence (Bruges: la Charte, 2011), –.
44 Van Uden (n 18), .
45 These circumstances include eg the admission of liability by the defendant, the rendering of a judgment for damages still to be assessed, and the fact that the court is satisfied that the claimant would obtain a judgment for a substantial amount of money (CPR 25.7(1)(a)–(c)).
46 In Belgium, Cass, 4 November 2003,  RRD 52; J Englebert, ‘Le référé judiciaire: principes et questions de procédure’ in J Englebert and M H Bolarbah (eds), Le référé judiciaire (Bruxelles: éditions du Conférence du Jeune Barreau de Bruxelles, 2003), . Compare with the situation in France, where the applicant must only establish that the obligation to pay the sum of money cannot be seriously contested, without the condition of urgency: Art 809(2) of the Code of Civil Procedure (nouveau Code de procédure civile); J Vincent and S Guinchard, Procédure civile (26th edn, Paris: Dalloz, 2001), .
47 The application of this condition is discussed in legal writing. See Pertegas, in Magnus & Mankowski, Art 31, –. In Case C-80/00, Italian Leather SpA v WECO Polstermöbel GmbH & Co  ECR I-4995, the CJEU noted the diverging national procedural rules on the condition of urgency but did not rule on the possible existence of an autonomous condition of urgency for the application of Art 35.
48 Case 125/79, Bernard Denilauler v SNC Couchet Frères  ECR I-1553, .
49 Denilauler (n 48), .
50 Van Uden (n 18), .
51 Van Uden (n 18), ; also Mietz (n 18), .
52 There is some confusion in legal writing as to the purpose of the requirement. Eg Heidelberg Report, , noting that ‘nobody has been able so far to explain how a payment order could ever be restricted to specific assets of the defendant located or to be located [within a certain territory]. It seems that adhering to this requirement completely disregards the context of payment orders given in référé provsion or in kort geding proceedings.’; Layton & Mercer, [23.014], who consider that the condition is designed to ensure that assets on the territory constitute a resource from which the claimant can be temporarily satisfied pending the outcome of his claim. It is suggested that the better view, considering that the requirement is part of the CJEU’s analysis of the condition of reversibility of the order, is that the applicant must demonstrate, in principle, that the order for payment can be executed on assets (to be) located within the territory of the forum State so that such assets remain as security for the defendant in the event that he is ultimately successful. See also Dickinson, ‘Provisional Measures’ (n 2), , who notes that ‘the ECJ’s test in Van Uden makes sense if the interim payment is to be from a specific fund or from the disposal of specific assets, or if the court may impose a condition that the order is not to be enforced outside of the jurisdiction, but not otherwise’.
53 Layton & Mercer, [23.014], who note that the practice in respect of English freezing orders granted on the application of a claimant outside the jurisdiction, requiring security for the cross-undertaking in damages, may need to be extended to any case where an interim order (including a freezing order) is made on the basis of Art 31.
54 See the very subtle analysis of A Huet,  JDI 96; Gaudemet-Tallon, .
55 As to the relationship between the Recast Regulation and the Evidence Regulation, see Section 1.X.5.C in this volume.
56 St Paul Dairy (n 6), [final para].
57 E Pataut  Rev Crit DIP 742, .
58 Case C-170/11, Lippens v Kortekaas  ECLI:EU:C:2012:540.
59 Case C-332/11, ProRail BV v Xpedys NV  ECLI:EU:C:2013:87.
60 Unless the carrying out of the measure affects the power of the Member State in which it takes place: ProRail (n 59), . This restriction has been construed narrowly by the English Court of Appeal in the joint cases of Secretary of State for Health v Servier Laboratories Ltd and National Grid Electricity Transmission Plc v ABB Ltd  EWCA Civ 1234. For a critical analysis of this jurisprudence, see A Nuyts ‘Les arrêts Lippens et ProRail: retour sur l’exclusivité de la réglementation européenne de collecte des preuves’,  Journal des tribunaux 557.
61 A proposal to introduce wording to this effect into what is now Art 35 was advanced, but rejected, in the Council Working Party during the recasting process (Council document 67915/12 [24 February 2012], draft Art 36 (‘insofar as a real connecting link exists between the subject-matter of the measures sought and the territorial jurisdiction of the Member State of the court before which those measures are sought’).
62 Van Uden (n 18), .
63 H Boularbah, ‘Les mesures provisoires en droit commercial international: développements récents au regard des Conventions de Bruxelles et de Lugano’  Revue de droit commercial 604, 607; Dickinson, ‘Provisional Measures’ (n 2), 547–8; C Heinze ‘Choice of Court Agreements, Coordination of Proceedings and Provisional Measures in the Reform of the Brussels I Regulation’ (2010) Rabels Z 74: 581, 609; Heidelberg Report, –; Layton & Mercer, [23.017]; Gaudemet-Tallon, ; Fentiman, International Commercial Litigation (n 21), [1.85]–[1.86].
64 This approach seems to have been adopted by the English Court of Appeal (Lord Collins) in Masri v Consolidated Contractors (No 2) (n 21). The Court held that there was in that case a sufficient connecting link between the subject matter of the measures and the territorial jurisdiction of the UK ‘because of the in personam nature of the relief and the court’s personal jurisdiction over [the defendant]’. See also Dicey & Morris, [8.031].
65 In most languages, the first word in the expression ‘real connecting link’ is the literal translation of ‘real’ (in French ‘réel’, in German ‘reale’, in Dutch ‘reële’), but in the Italian language the word used is ‘effettivo’, which denotes the condition of effectiveness of the connection, and not necessarily the requirement of a connection with a ‘thing’.
66 Banco Nacional de Commercio Exterior SNC v Empresa de Telecommunicaciones de Cuba SA  EWCA Civ 622,  1 WLR 1936.
67 Cf Masri v Consolidated Contractors (No 2) (n 21), discussed in n 64 above.
68 Cass, 11 December 2001, Virgin Atlantic Airways v GIE Airbus Industries,  Rev Crit DIP 371, note H Muir Watt.
69 Unless the order is for an interim payment, which triggers the application of the specific requirement that the order can only concern assets (to be) located within the territory of the forum State: see above.
70 It is not enough to show that the parties, the dispute, or the case as a whole has or have a real connecting link with the forum State. Van Uden requires that a connection be established between the subject matter of the measure itself and the forum State. This aspect of Van Uden is sometimes overlooked in case law. For instance, the condition is not acknowledged in Masri v Consolidated Contractors (No 2) (n 39).
71 Pertegas, in Magnus & Mankowski, Art 31, .
72 Heidelberg Report, –; Dickinson, ‘Provisional Measures’ (n 2), 547.
73 Dickinson, ‘Provisional Measures’ (n 2), 550.
74 This is the case at least for non-compliance with an injunction directed at a person mandating or prohibiting specific acts.
75 It remains to be seen whether the new system of direct execution (without exequatur) under the Recast Regulation can be used in relation to a decision which determines the amount of the payment due by way of penalty (astreinte) pursuant to Art 55 of the Regulation (Section 13.V.5 in this volume) when the penalty has been applied for the non-compliance with a cross-border provisional order.