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Provisional Measures in the "Brussels I" Review: Disturbing the Status Quo?

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Abstract:

The ECJ, in its decisions in Van Uden (Case C-391/95) and Mietz (Case C-99/96) delivered in the late 1990s, recognised Art 24 of the Brussels Convention (provisional, including protective, measures) as an anomalous provisions whose propensity to disturb the jurisdictional scheme established by the Convention needed to be curtailed. In light of that case law, and the restrictions placed by the ECJ on the application of Art 24, it is perhaps surprising that Art 24 emerged intact from the process of conversion of the Convention into a Community legislative instrument, being carried forward into Art 31 of the Brussels I Regulation. In the author's submission, the reform of Art 31 is now long overdue and should be one of the objectives of the current review of the Regulation.

Against this background, this article considers the treatment of provisional measures in, first, the case law of the ECJ concerning Art 24 of the Brussels Convention; secondly, the Pocar Report on the Lugano II Convention; thirdly, the Heidelberg Report on the functioning of the Brussels I Regulation; fourthly, the Commission's Report and Green Paper on the review of the Brussels I Regulation; and fifthly, by way of a comparison, the Brussels II bis Regulation and the ECJ's case law on that Regulation. It considers the issues raised by Art 31 in its present form and presents possible solutions to those issues, before considering the future development of provisional measures in the European Union beyond the Brussels I review.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/174410410794046323

Publication date: December 1, 2010

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