1. Lawrence, Collins, Essays in International Litigation and the Conflict of Laws (1994), pp.10–15.Google Scholar

2. It must not be thought that protective remedies are measures available only to parties who raise actions. For example, in many legal systems the defendant may apply for an order whereby the plaintiff has to take steps to ensure payment of costs in the event of his losing the action. In principle there is nothing to prevent a defendant to an action seeking a provisional or protective measure under Art.24 of the Brussels Convention.

3. Zuckerman, A., “Interlocutory Remedies in Quest of Procedural Fairness” (1993) 56 M.L.R. 325.Google Scholar

4. See e.g. Operation of the Brussels and Lugano Conventions (Consultation Paper issued by the Lord Chancellor's Department and the Scottish Courts Administration, 04 1997), esp. pp.32–35Google Scholar; Towards Greater Efficiency in Obtaining and Enforcing Judgments in the European Union (Commission Communication to the Council and the European Parliament, 26 11 1997), esp. pp.13–15Google Scholar. For a useful discussion see Beaumont, P. R., “A United Kingdom Perspective on the Proposed Hague Judgments Convention” (1998) 24 Brooklyn J. Int. L. 75.Google Scholar

5. See Hague Conference on Private International Law, Preliminary Document No.7 of April 1997, para. 126; Preliminary Document No.8 of November 1997, paras.62–64; Preliminary Document No.9 of July 1998, para. 115. For discussion see Beaumont, ibid.

6. In Case C-391/95, Van Uden Maritime BV v. Kommanditgesellschaft in Firma Deco-Line, Peter Determann KG, judgment of the ECJ, 17 Nov. 1998.

7. The wording of Art.24 of the Lugano Convention is identical. The terms of Art.24 have remained unchanged by any of the accession treaties.

8. See e.g. Case 34/82, Peters v. ZNAV [1983] E.C.R. 987Google Scholar; Case C-26/91, Handle v. TMCS [1992] E.C.R. 1–3967Google Scholar; Case 189/87, Kalfelis v. Bankhaus Schroder Munchmeyer Hengst & Co. [1988] E.C.R. 5565Google Scholar; Case C-68/93, Shevill v. Presse Alliance SA [1995] E.C.R. 1–415Google Scholar; Case C-364/93, Marinari v. Lloyds Bank plc (Zubaidi Trading Co. intervening) [1995] E.C.R. 1–2719.Google Scholar

9. Case 129/83, Zelger v. Salinitri (No.2) [1984] E.C.R. 2397.Google Scholar

10. See e.g. Collins, op. cit. supra n.1, at pp.5, 37–39Google Scholar; Matthews, P., “Provisional and Protective Measures in England and Ireland at Common Law and Under the Conventions: A Comparative Survey” (1995) 14 Civil Justice Q. 190, 198–199.Google Scholar

11. Macphail, , Sheriff Court Practice (2nd edn, 1998), pp.357–360.Google Scholar

12. Matthews, op. cit. supra n.10, at pp.197–198Google Scholar; Collins, op. cit. supra n.l, at p.37.Google Scholar

13. Case 33/78, Somafer v. Saar-Ferngus AG [1978] E.C.R. 2183Google Scholar; Case 9/87, Arcado SPRL v. Haviland SA [1988] E.C.R. 1539; Kalfelis, supra n.8.Google Scholar

14. Hogan, G., “The Judgments Convention and Mareva Injunctions in the United Kingdom and Ireland” (1989) 14 E.L.Rev. 191, 197–200.Google Scholar

15. (1979) O.J. C59/1, 42, section 9.Google Scholar

16. (1979) O.J. C59/71, 126, para.183. Schlosser also notes (p.134, para.221) in discussing Art.39 that the Convention does not guarantee specific measures of enforcement, or the procedure used to obtain them (e.g. application to the court, or a huisser or similar institution).Google Scholar

17. The Evrigemis and Kerameus Report notes that jurisdiction to grant a provisional, including protective, measure is in principle separate from jurisdiction in the substantive action but does not pursue the implications of this distinction (1986) O.J. C298/a, 3. The Cruz, Real and Jenard Report contains no discussion of Art.24 (1990) O.JGoogle Scholar. C189/35, 38, nor does the Jenard and Moller Report on the Lugano Convention (1990) O.J. C189/57, 61.Google Scholar

18. Case C-261/90, [1992] E.C.R. 1–2149.Google Scholar

19. The independent basis of characterisation of a provisional, including protective, measure for the purposes of Art.24 was made in argument by the European Commission in CHW v. GJH, infra n.20, at p.1195.Google Scholar

20. Case 25/81, [1982] E.C.R. 1189.Google Scholar

21. Case 143/78, De Cavel v. De Cavel (No.1) [1979] E.C.R. 1055.Google Scholar

22. See also Case 120/79, De Cavel v. De Cavel (No.2) [1980] E.C.R. 731, which reached the same conclusion as regards an interlocutory order for payment of maintenance during the divorce action.Google Scholar

23. I.e. rights in property arising out of a matrimonial relationship.

24. Van Uden, supra n.6, at paras 37–39.

25. De Cavel (No.1), supra n.21, at p.1067; De Cavel (No. 2), supra n.22, at 740.Google Scholar

26. CHW, supra n.20, at p.1194.Google Scholar

27. Idem, p.1204.

28. Van Uden, supra n.6, at paras.19–25, 28–34.

29. Case 125/79, [1980] E.C.R. 1553.Google Scholar

30. In De Cavel (No.1), supra n.21, a similar sort of order was made.

31. Van Uden, supra n.6, at paras.39–47.

32. Case 258/83, [1984] 3 E.C.R. 3971, 3980.Google Scholar

33. This applies to the Brussels Convention itself, the 1971 Protocol on the ECJ, and the various accession treaties. The texts of these various conventions are set out in Schedules to the 1982 Act.

34. Sched.4 to the 1982 Act contains a modified version of the Brussels Convention as amended in respect of inter-UK jurisdiction. Where the provisions of an article in Sched.4 are identical to those of the Brussels Convention (as is the case with the respective versions of Art.24), the courts in the UK are in effect under a duty to apply the caselaw of the ECJ in questions of interpretation of Sched.4: Kleinwort Benson Ltd v. Glasgow City Council [1997] 4 All E.R. 641, 646, 660, 667.Google Scholar

35. Siskina (Cargo Owners) v. Distos Cia Naviera SA (The Siskina) [1977] 3 All E.R. 803.Google Scholar

36. As amended by para.12 of Sched.2 to the Civil Jurisdiction and Judgments Act 1991 (c.12). It should be noted that s.25 also applies in relation to proceedings which have been or are to be commenced in a part of the UK other than that in which the High Court exercises jurisdiction.Google Scholar

37. S.25(3)(c) of the 1982 Act (which allows for the extension of s.25(1) measures to arbitration proceedings) was repealed by S.107(2) of the Arbitration Act 1996 with effect from 31 1997 1997. However, by a combination of ss.2 and 44(3) of that Act certain forms of interim relief can now be granted in support of foreign arbitration proceedings.Google Scholar

38. S.I. 1997/302. This effectively reversed the decision in Mercedes Benz AG v. Leiduck [1996] A.C. 284Google Scholar. For discussion see Capper, D., “The Trans-Jurisdictional effects of Mareva Injunctions” (1996) 15 Civil Justice Q. 211Google Scholar. The important effect of the extended power provided by this Order in relation to interim relief in the context of international insolvency litigation has been noted by Smart, P. St J., “Insolvency Proceedings and the Civil Jurisdiction and Judgments Act 1982” (1998) 18 Civil Justice Q. 149.Google Scholar

39. Lenon, A., “Mareva Injunctions in Support of Foreign Proceedings” (1997) New L.J. 1234, 1234Google Scholar. See also Practice and Procedure (1997) 16 Civil Justice Q. 185.Google Scholar

40. O'Malley, S. and Layton, A., European Civil Practice (1989).Google Scholar

41. Rose, N. (Ed.), Pre-Emptive Remedies in Europe (1992).Google Scholar

42. See O'Malley, and Layton, , op. cit. supra n.40, at p.1448.Google Scholar

43. [1989] 1 All E.R. 456.Google Scholar

44. Idem, p.463. Nonetheless the “requirement” to provide provisional, including protective, remedies, under Art.24 has been doubted by Collins, , op. cit. supra n.1, at p.37.Google Scholar

45. [1991] 4 All E.R. 458, 468.Google Scholar

46. The name is derived from the relief granted in Mareva Compania Naviera SA v. International Bulk Carriers SA [1975] 2 Lloyd's Rep. 509. Its statutory basis is now founded in the Supreme Court Act 1981, s.37(3).Google Scholar

47. Rasu Maritima SA v. Perusahaan Pertambangan Miniyak Dan Gas Bumi Negara (The Pentamina) [1978] Q.B. 644.Google Scholar

48. Third Chandris Shipping Corp. v. Unimarine SA [1979] 2 All E.R. 972Google Scholar. Furthermore, the plaintiff must give an undertaking in damages in case either he fails on the merits of the action or the injunction turns out to be unjustified (ibid).

49. American Cyanamid Co. v. Ethicon Ltd [1975] A.C. 396.Google Scholar

50. see Collins, L., “The Territorial Reach of Mareva Injunctions” (1989) 105 L.Q.R. 262Google Scholar; Zuckerman, A., “Mareva Injunctions and Security for Judgment in a Framework of Interlocutory Remedies” (1993) 109 L.Q.R. 432Google Scholar; Capper, D., “Worldwide Mareva Injunctions” (1991)54 M.L.R. 329Google Scholar; Kaye, P., “Extraterritorial Mareva Orders and the Relevance of Enforceability” (1990) 9 Civil Justice Q. 12.Google Scholar

51. This point is discussed in the articles cited in the preceding footnote.

52. Babanaft International Co. SA v. Bassatne [1989] 1 All E.R. 433Google Scholar; Duvalier, supra n.43; Derby & Co. Ltd v. Weldon (No.1) [1989] 1 All E.R. 469Google Scholar and Derby & Co. Ltd v. Weldon (Nos.3 and 4) [1990] 2 Ch. 65.Google Scholar

53. [1989] 1 All E.R. 433.Google Scholar

54. The same principles apply to the exercise of jurisdiction in relation to a pre-trial worldwide injunction, according to Kerr LJ at idem, pp.441 and 447. In addition Kerr LJ suggested that a Mareva injunction covering assets abroad should provide that it does not affect third parties except to the extent that the order is enforced by the courts of the State in which the defendant's assets are located; idem, pp.441–442 and 447.

55. These principles were applied in Derby & Co. Ltd and Others v. Weldon and Others (No. 1), supra n.52. tt should be noted that this principle of enforceability may allow a distinction to be drawn between s.25 cases which fall within Art.24 and s.25 cases which do not.

56. See Rosseel NV v. Oriental Commercial Shipping (UK) Limited [1990] 3 All E.R. 545.Google Scholar

57. Babanaft, supra n.52, at pp.442–445.Google Scholar

58. Supra n.29.

59. See Kaye, op. cit supra n.50, at pp.14–16.Google Scholar

60. [1989] 1 All E.R. 456.Google Scholar

61. Idem, pp.466–461.

62. Idem, p.467.

63. [1990] 1 All E.R. 469, 473. See also Rosseel, supra n.56. Neither of these cases was brought under s.35.Google Scholar

64. Duvalier, supra n.60, at p.466.Google Scholar

65. Collins, op. cit. supra n.1, at pp.87–88.Google Scholar

66. See Denilauer v. Couchet Frères [1980] E.C.R. 1553.Google Scholar

67. [1977] 3 All E.R. 718.Google Scholar

68. [1990] 3 All E.R. 545.Google Scholar

69. [1997] 3 All E.R. 724.Google Scholar

70. Lenon, op. cit. supra n.39, at p.1236.Google Scholar

71. Collins, op. cit. supra n.1, at p.98.Google Scholar

72. [1997] 3 All E.R. 45.Google Scholar

73. Idem, p.62.

74. Idem.

75. Ibid.

76. [1998] F.S.R. 222.Google Scholar

77. E.g. Coin Controls, supra n.72.

78. See Société Nationale Industrielle Aérospatiale v. Lee Kui Jak and Another [1987] 1 A.C. 871.Google Scholar

79. Report of the Scottish Committee on Jurisdiction and Enforcement (Chairman Lord Maxwell; HMSO, Edinburgh, 1980). A similar body examined the impact of the Convention on English law but its report was never made public.Google Scholar

80. Idem, paras.5.234–5.236.

81. Maher, G. and Cusine, D. J., The Law and Practice of Diligence (1990), pp.116–117Google Scholar; Scottish Law Commission Report: Diligence on the Dependence and Admiralty Arrest-ments (Scot. Law Com. No.164 (1998)), pp.196–197.Google Scholar

82. 1982 Act, s.27(1)(a).Google Scholar

83. In internal Scots law the distinction between forms of property is between moveable and heritable property, which broadly corresponds to but is not identical to the conflicts distinction between moveable and immoveable property.

84. 1982 Act, s.27(1)(b). A crucial and remarkable feature of the provisional remedies of arrestment and inhibition is that they are granted to pursuers who raise an action seeking payment of money as now due, as of right and without any judicial scrutiny or supervision. For critical consideration of the present Scots law see Maher, G., “Diligence on the Dependence: Principles for Reform” (1996) Juridical Rev. 188. The Scottish Law Commission has recently recommended changes to this part of the law (see op. cit. supra n.81).Google Scholar

85. As originally enacted s.27 remedies could be granted only where the principal action had been or, in the case of interim interdict, was about to be raised in another contracting State or elsewhere in the UK and the subject of the action fell within the scope of the Convention. However, these limitations were removed by S.I. 1997/2780. For discussion of some of the problems arising from these changes, see Maher, G., “Provisional and Protective Measures in Respect of Foreign Proceedings” 1998 S.L.T. (News) 225.Google Scholar

86. In its original form s.28 extended only to actions within the scope of the Convention brought in another contracting State or elsewhere in the UK. These restrictions were removed by S.I. 1997/2780.

87. Maxwell Report, supra n.79, at paras.5.248–5.252.

88. Court of Session Act 1988, s.46 deriving from Court of Session Act 1868, s.89.

89. See Maersk & Co. Ltd v. National Union of Seamen 1988 S.L.T. 828Google Scholar; Stirling Shipping Co. Ltd v. National Union of Seamen 1988 S.L.T. 832Google Scholar; Five Oaks Properties Ltd v. Granite House Ltd 1994 S.C.L.R. 740.Google Scholar

90. See e.g. Church Commissioners for England v. Abbey National plc 1994 S.L.T. 959Google Scholar; Retail Park Investments Ltd v. Royal Bank of Scotland plc 1995 S.L.T. 1156Google Scholar; Millar & Bryce Ltd v. Keeper of the Registers of Scotland 1997 S.L.T. 1000.Google Scholar

91. 1990 S.L.T. 746.Google Scholar

92. Idem, p.748J.

93. 1989 S.L.T. 204.Google Scholar

94. The requirement that a pursuer has a “colourable” case to justify the use of arrestment in the dependence of an action was first stated in West Cumberland Farmers Ltd v. Ellon Hinengo Ltd 1988 S.L.T. 294Google Scholar, a decision relied on and followed in Clipper Shipping, ibid. However, in West Cumberland Farmers no reference was made to authorities for the general principle in Scots law that there is no requirement as to the substance of a case before warrant for arrestment or inhibition may be granted.

95. Outer House 17 03 1988, noted in 1988 G.W.D. 9–370.Google Scholar

96. 1995 S.L.T. 559.Google Scholar

97. 1990 S.L.T. 213.Google Scholar

98. Indeed the Court appears to have based its jurisdiction on jurisdiction rules which treated the application for interdict as an independent, substantive action: see idem, pp.215C, 219D. It does not appear from the report that the action was raised by way of a s.27 petition.

99. 1998 S.C.L.R. 475.Google Scholar

100. 1995 S.L.T. 972.Google Scholar