Keywords
Summary

Keywords

1 Convention on Jurisdiction and the Enforcement of Judgments - Jurisdiction in matters relating to a contract - Scope - Jurisdiction to order provisional or protective measures - Included - Substance of the dispute subject to arbitration - Jurisdiction founded solely on Article 24

(Convention of 27 September 1968, Arts 5, point 1, and 24)

2 Convention on Jurisdiction and the Enforcement of Judgments - Jurisdiction to order provisional or protective measures - Grant of measures - Conditions - Measure ordering an interim payment - `Provisional measure' within the meaning of Article 24 - Conditions

(Convention of 27 September 1968, Art. 24)

Summary

3 On a proper construction of Article 5, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, and by the Convention of 25 October 1982 on the accession of the Hellenic Republic, the court which has jurisdiction by virtue of that provision also has jurisdiction to order provisional or protective measures, without that jurisdiction being subject to any further conditions. However, where the parties have validly excluded the jurisdiction of the courts in a dispute arising under a contract and have referred that dispute to arbitration, it is only under Article 24 of the Convention that a court may be empowered to order such measures, since it cannot do so as the court having jurisdiction on the substance of the dispute. In that connection, where the subject-matter of an application for provisional measures relates to a question falling within the scope ratione materiae of the Convention, that Convention is applicable and Article 24 thereof may confer jurisdiction on the court hearing that application even where proceedings have already been, or may be, commenced on the substance of the case and even where those proceedings are to be conducted before arbitrators.

4 The granting of provisional or protective measures on the basis of Article 24 of the Convention of 27 September 1968 is conditional on, inter alia, the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought. A measure ordering interim payment of a contractual consideration does not constitute a provisional measure within the meaning of that article unless, first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, second, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made.