Lloyd's Maritime and Commercial Law Quarterly
Arbitration and interim measures: in the twilight of the Brussels Convention
Georgios C.Petrochilos *
The drafters of the 1968 Convention on Jurisdiction and Enforcement1
(the “Convention” or the “Brussels Convention”), in their unifying quest of the bases of jurisdiction and rules of enforcement, have made two deliberate choices of abstention that are striking in their generality. First, Art. 1(4) excludes arbitration as a general category of dispute resolution. This is in sharp contrast to the exclusion of certain classes
of disputes by the same provision. Secondly, the jurisdiction of national courts to be seised of requests for, and order, provisional (“interim”) and protective (or conservatory) measures (collectively “interim measures”) is unfettered and preserved by the Convention in Art. 24. At first sight, no effort to unify or harmonize interim measures jurisdiction is thus attempted by the Convention, save by way of endorsing such bases of jurisdiction as may already exist under the various national laws.
Two recent judgments shed light on those two areas of the Brussels Convention. In Van Uden Maritime
v. Deco-Line Line
2
it was held that interim measures ordered in support of arbitration proceedings may be covered by the Convention, while in Mietz
v. Intership Yachting Sneek
3
the European Court of Justice (“ECJ”) reaffirmed and clarified a ruling made in the first judgment that not all measures classified as provisional and protective under national law qualify as such under the Convention. The combined effect of the two preliminary rulings4
is to widen the scope of Art. 24 vis-à-vis
the nature of the original proceedings but to restrict it vis-à-vis
the nature of the protection sought in the national court by an application for interim measures. This will have an impact both on the assumption of original jurisdiction and the enforcement rules under the Convention.
* Trinity College, Oxford. The author is greatly indebted to Adrian Briggs of St Edmund Hall, Oxford for his comments on earlier drafts of this paper.
1. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels, 27 September 1968) [1998] O.J. L27/1–27 (consolidated text). See also Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Lugano, 16 September 1988) [1988] O.J. L319/9–48. See Civil Jurisdiction and Judgments Act 1982 (as amended), Scheds 1, 3.
2. Van Uden Maritime BV, trading as Van Uden Africa Line
v. Kommanditgesellschaft in Firma Deco-Line and Another (Case C-391/95)
[1999] 2 W.L.R. 1181; [1999] All E.R. (EC) 258.
3. Hans-Hermann Mietz
v. Intership Yachting Sneek BV (Case C-99/96)
Judgment of 27 April 1999.
4. The cases were referred to the court under the Protocol on the Interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Luxembourg, 3 June 1971) [1998] O.J. C27/28 (consolidated version). See Civil Jurisdiction and Judgments Act 1982 (as amended), Sched. 2.
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