The Treaty of Amsterdam, signed on 2 October 1997 and in force since 1 May 1999, will make important changes to the external powers and procedures of the European Union.

The definition of provisional and protective measures and the scope of Article 24 of the 1968 Brussels Convention were matters addressed by the European Court in Case C–391/95, Van Uden Maritime BV v. KG in Firma-Decoline. The plaintiff was seeking interim payment under a contract even though the dispute over payment had been referred to arbitration. As an initial issue the European Court noted that the existence of arbitral proceedings on the merits did not take the dispute over provisional measures out of the scope of the Convention. The subject-matter of the dispute, which was determinative in establishing the applicability of the Convention, was payment under a contract for the provision of services. The existence of an arbitration agreement was, nevertheless, found relevant by the Court. The Court noted that normally a national court with jurisdiction to hear the merits of a case would also have jurisdiction to hear any application for provisional or protective measures. Where the proceedings had validly been referred to arbitration, however, no national court would have jurisdiction to hear the merits of the case under the Convention. Article 24 was then the only basis on which a court might assume jurisdiction to grant provisional measures.

That question remains open following Case C–99/96 Mietz v. Intership Yachting Sneek BV16 a more recent decision that raises some similar issues but continues to confine its attention to interim payments. The applicant was appealing against a German order for enforcement of a Dutch judgment ordering interim payment in kort geding proceedings. The applicant argued that the underlying contract was covered by the special provisions on consumer contracts in Articles 13 et seq. of the Brussels Convention. Therefore failure to observe the rules of jurisdiction in Articles 13 et seq. was a ground for non-recognition of the Dutch judgment. The contract was for the sale of a luxury yacht, to be paid for in five instalments during its period of construction and trial. A written contract was signed in the Netherlands, but the applicant alleged for the first time in the German proceedings that the contract was negotiated at a boat show in Germany and an oral contract was made there.

A number of issues relating to the finality of arbitration awards in the face of arguments based on public and fraud were addressed by the Court of Appeal in Westacre Investments Inc. v. Jugoimport—SDRP Holding Co. Ltd.20 The claimant had obtained an arbitration award in its favour in Switzerland which it was seeking to enforce in England. The dispute referred to arbitration concerned a claim for payment of commission. The commission was due under a contract through which the claimant assisted the defendant to obtain a contract for the supply of military equipment to Kuwait. It was alleged in the English proceedings that this contract was invalid since the commission payment in fact amounted to a bribe to a member of the Kuwaiti government. The issue of bribery had been raised before the Swiss arbitral tribunal, but the majority of the tribunal found that they were not required to investigate this issue if the parties led no evidence to prove that it had taken place. The contract between the parties was therefore found valid and binding. An appeal to the Swiss Federal Tribunal was lodged by the defendant for an annulment of the arbitral award. The Federal Tribunal concluded that the nature of its competence to review arbitral proceedings required it to base its decision on the facts found by the Tribunal. It therefore confirmed the award. The defendants then tried to raise the same bribery issue in the enforcement proceedings in England.

The Treaty of Amsterdam entered into force on 1 May 1999. In the exercise of its new competences under Title IV of the EC Treaty as amended, the Commission has transformed the Convention on Service of Documents into a draft Directive, and the Brussels II Convention into a draft Regulation, both of which are currently going through the Community legislative procedure. The renegotiated text of Brussels I has also been transformed into a draft Regulation, but the possibility of further amendment is mooted.