INTRODUCTION

At first glance, it would seem that fifty years have passed and that the regime of provisional and protective measures has remained entirely unchanged in European law. The central provision on this matter in the Brussels I Regulation Recast (Article 35) is drafted in nearly identical terms as the corresponding provision of the 2001 Regulation (Article 31), which itself borrowed from the 1968 Brussels Convention (Article 24). It is a very short provision which gives the power to the courts of any Member State to grant provisional measures under their own law ‘even if the courts of another Member State have jurisdiction as to the substance of the matter’. On its terms, the provision appears to be a very straightforward rule of delegation to domestic law for anything related to the granting of provisional measures.

Yet, beyond this appearance of simplicity lies one of the most complex matters of the Brussels regime, which is the subject of a very rich jurisprudence and of a sophisticated legal system which has evolved over time, including in the Recast Regulation.

There are three main factors that have elevated the strategic importance of this matter over time. Firstly, in modern commercial litigation, provisional measures have oft en an important practical impact on the parties and their dispute. When at the outset of a commercial contract dispute, a party obtains an asset freezing injunction, or the provisional attachment of assets, this may place the other party in an impossible practical situation which may force a settlement. Likewise, when the party alleging an IP infringement is able to obtain an interim injunction preventing the marketing of products which are alleged to be infringing the IP rights, this will give this party the upper hand throughout the process. Provisional measures are oft en outcome determinative.

Secondly, there has been a development in the practice of several Member States to grant cross-border provisional measures, namely measures that affect persons and assets situated in the territory of other States. The English courts have played an active role in the development of these types of measures, starting with world-wide freezing injunctions and moving over the years to other crossborder in personam measures, such as disclosure orders, receivership orders and search orders.