C-391/95

V A N U D E N v DECO-LINE

OPINION OF ADVOCATE GENERAL LÉGER delivered on 10 June 1997 *

1. The reference for a preliminary ruling, Rotterdam, the Netherlands, and Komman- made pursuant to Article 3 of the Protocol of ditgesellschaft in Firma Deco-Line, Peter 3 June 1971 1 by the Hoge Raad der Neder- Determann (hereinafter 'Deco-Line' or 'the landen (Supreme Court of the Netherlands), defendant in the main proceedings'), estab- will undoubtedly give the Court occasion to lished in Hamburg, Germany, concluded a consider a number of questions of principle 'slot/space charter agreement'. Under the concerning the Brussels Convention of 27 agreement, Van Uden made available to Deco- September 1968 on Jurisdiction and the Line cargo space on board vessels operated Enforcement of Judgments in Civil and Com- within the framework of a liner service, in mercial Matters, 2 as amended by the Con- return for payment of a charter hire (calcu- vention of Accession of 1978 3 (hereinafter lated according to rates agreed between the 'the Convention' or 'the Brussels Conven- parties). tion'). In particular, the Court is asked for a ruling on the interpretation of Articles 1, point 4, 5, point 1, and 24 of the Convention, the repercussions of which are likely to extend well beyond the context of this case. 4. Deco-Line having failed to pay certain invoices, its contracting partner instituted arbitration proceedings against it in the Neth- 2. The circumstances of this case are as fol- erlands pursuant to the agreement. lows.

I — Facts and procedure

5. It is pointed out by the court making the reference 4 that Deco-Line does not possess 3. In March 1993, the companies Van Uden any seizable assets in that country. Maritime (hereinafter 'Van Uden' or 'the appli- cant in the main proceedings'), established in

its outstanding invoices was seriously dis- brought against a defendant who has neither turbing its cash flow, Van Uden made an a fixed place of residence nor a recognised interim application to the President of the domicile in the Netherlands, provided that Rechtbank (District Court), Rotterdam, there are certain minimum connections with seeking collection of four of the debts pay- Netherlands law. The Netherlands court held able under the agreement. Its principal claim that that criterion was fulfilled in this case for was for a sum of D M 830 919.13, together two reasons. Firstly, Deco-Line is engaged in with interest thereon at the statutory rate, international trade and thus acquires claims in and, in the alternative, an advance of the Netherlands, so that any judgment against DM 404 923.29 on the sum sought in the it could be enforced in the Netherlands. Sec- principal claim. ondly, such a judgment could also be enforced in Germany.

7. Deco-Line disputed the jurisdiction of the Netherlands court, claiming that the German courts should hear the case under the general jurisdiction conferred, in principle, under the 10. The President further considered that the first paragraph of Article 2 of the Brussels jurisdiction conferred on him under Nether- Convention, on the courts of the State in lands law by Article 1022(2) of the Code of which the defendant is domiciled. In the alter- Civil Procedure was not affected by the fact native, it disputed the urgency of the matter. that the parties had agreed to have recourse to arbitration in the Netherlands. Article 1022(2) of the Code of Civil Procedure is worded as follows:

'(1) Where an obligation to pay a sum or 13. In that court's view, although Article 24 sums due under a contract must be per- of the Convention allows the President to formed in a Contracting State — so that, base his jurisdiction on Article 126(3) of the under Article 5, point 1, of the Brussels Code of Civil Procedure, the criteria for the Convention, the creditor is entitled to application of which are, in principle, fulfilled sue his defaulting debtor before the courts in this case, that jurisdiction is nevertheless of that State with a view to obtaining subject to the additional criterion that the performance, even though the debtor is matter must have sufficient connection with domiciled in the territory of another Netherlands law. However, in the context of Contracting State — do the courts of the the Brussels Convention, the Gerechtshof first-mentioned State (for that same considered that this latter criterion is fulfilled reason) have jurisdiction also to hear and only if the relief granted by the court hearing determine a claim brought by a creditor interlocutory applications is capable of taking against his debtor in interim (kort geding) effect within the territorial jurisdiction of that proceedings for an order requiring the court, and if it is enforceable there. Under the debtor, by provisionally enforceable scheme of the Brussels Convention, the latter judgment, to pay a sum which, in the condition must likewise be fulfilled in order view of the court hearing the interlocu- for the jurisdiction of the President also to be tory application, is very probably due to based, as in this case, on Article 5, point 1, of the creditor, or do additional conditions the Convention (in so far as Van Uden's claim apply in relation to the jurisdiction of is for the payment of a sum of money and the the court hearing the interim application, place where that contractual obligation is to for example the condition that the relief be performed is in the Netherlands). H o w - sought from that court must take effect ever, in the Gerechtshof's view, the mere pos- (or be capable of taking effect) in the sibility that Deco-Line will acquire assets in Contracting State concerned? Netherlands territory in the future is insuf- ficient for that purpose.

(8) If the answer to Question 7 must be that, in order for the court hearing the appli- cation for interim relief to have jurisdic- (5) Does it make any difference to the answer tion, it is also required that the relief to Question 4 whether substantive pro- sought from it must take effect (or be ceedings on the main issue are, or may capable of taking effect) in the Con- become, pending and, if so, is it material tracting State concerned, does that mean that arbitration proceedings had started that the order applied for must be capable in the same case? of enforcement in that State, and is it

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then necessary for this condition to be 3. social security; fulfilled when the application for interim relief is made, or is it sufficient that it can reasonably be expected to be ful- filled in the future?'

4. arbitration'.

II — Legal framework

18. Finally, 'provisional, including protective, ings lead to the granting or refusal of the measures' are the subject of Article 24 of the interim relief sought, a decision given in such Convention, which is the sole provision of proceedings is often regarded as final by the Section 9 of Title II. That article allows a parties in that no substantive proceedings are court which does not have jurisdiction as to initiated on the main issue. Although origi- the substance of the matter to order such nally the interim relief sought could relate measures, within the scope ratione materiae only to orders to act or refrain from acting, of the Convention, if the plaintiff chooses to for some time now the Hoge Raad has also, apply to that court rather than to the court of within certain limits, accepted pecuniary another Contracting State having jurisdiction claims. It is thus possible to obtain, by interim as to the substance. The measures which may proceedings, an advance on the payment of a be ordered will be those available under the debt, provided that the validity of that debt law of the State of the court to which the is indisputable or virtually indisputable.' application is made.

B — National law

21. Although the Netherlands Government has not lodged any observations during these proceedings, reference may usefully be made to the information which it supplied in the 19. Interim civil proceedings, termed as 'kort context of Case 25/81 W v H. [1982] ECR geding', are dealt with by Article 289 et seq. 1189: of the Code of Civil Procedure.

26. It should first be determined whether the existence of an arbitration clause has the effect of excluding proceedings such as those in this case from the scope of the Convention on the basis of Article 1, point 4, thereof.

23. In both cases, the court raises the more specific question of whether the jurisdiction of a court to hear interim applications is sub- ject to the condition that its decision will take effect within its territorial jurisdiction and, from that point of view, whether that condi- tion must be fulfilled when the application is 27. The written observations submitted to made, or whether it is sufficient that it is the Court by the parties to the main proceed- merely likely to be fulfilled in the future. ings, the German and United Kingdom Gov- ernments and the Commission consider this issue in their examination of Questions 2 and 5, even though those two questions do not relate directly to it. The arbitration clause and arbitration proceedings are mentioned by the national court more, it seems, in the context of determining any effect they may have on 24. With regard to both those possibilities, whether the decision given by the court the court also asks, in particular, whether it hearing the application can take effect in the is material that the case brought before it territory of its own State than in order to has been referred to arbitration (Questions 2 establish 'whether their existence is such as to and 5). preclude the application of the Convention.

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31. Without commenting on the issue of whether a clause conferring jurisdiction on an arbitration tribunal must be regarded as a clause conferring jurisdiction on 'a court or 1. Article 17 of the Convention the courts of a Contracting State' within the meaning of that provision, and therefore whether Article 17 should apply in this case, it is sufficient to point out that, if that were the case, it would still not deprive the provi- sions of the Convention of their effect. 29. That observation gives rise to a prelimi- nary remark. The observations submitted with regard to the effect of the arbitration clause in this case have all hinged on an interpretation of Article 1, point 4, of the Convention. However, I think it best to reject immediately 32. We would actually be faced with a choice an argument which, although it has not been between two possibilities. taken up during the proceedings, could nev- ertheless appear attractive.

33. O n the one hand, the situation could be treated as that, envisaged by the academic writings, of a clause conferring jurisdiction 30. It is tempting to regard the arbitration on a court of a State not party to the Con- clause agreed upon between the parties as a vention or a clause not fulfilling the condi- voluntary prorogation of jurisdiction as tions laid down in Article 17. It would then

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no longer be the Brussels Convention, but 35. It is clear, in all events, that, even if Article the law of each State, which would determine 17 of the Convention had been relied on, the the scope of that clause, and it would be for Convention would nevertheless have been the lex fori to state whether, if necessary, the applicable. It would, of course, still be neces- clause is not to take effect. 7 However, it was sary for the dispute to come substantively pursuant to the provisions of its national law within the scope of the Convention. I there- (Article 1022(2) of the Code of Civil Proce- fore come back the problem raised by the dure) that the court hearing the application arbitration clause in the light of Article 1, ruled out the operation of the clause at issue point 4, of the Convention. in the present case.

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be governed by the provisions of the Con- sion referred to in Article 1, point 4, could be vention since the parties have agreed, under understood: the terms of the agreement, to submit their disputes to arbitration.

'Two divergent basic positions which it was not possible to reconcile emerged from the discussion on the interpretation of the rel- evant provisions of Article 1, second para- graph, point (4). The point of view expressed 39. The second, put forward by Van Uden principally on behalf of the United Kingdom and the Commission, suggests that the scope was that this provision covers all disputes of that exclusion should not be stretched too which the parties had effectively agreed should far. be settled by arbitration, including any sec- ondary disputes connected with the agreed arbitration. The other point of view, defended by the original Member States of the EEC, only regards proceedings before national courts as part of "arbitration" if they refer to arbitration proceedings, whether concluded, in progress or to be started.' 11

40. Although this may be the first time that the Court has had occasion to rule on the effect of the existence of an arbitration clause on the application of the provisions of the Brussels Convention to proceedings pending before a national court, 9 the framers of the 41. It is thus quite natural that those two Convention were aware of these issues. The 'divergent basic positions which it was not report by Professor P. Schlosser 10 already possible to reconcile' should have been stated identified the two ways in which the exclu- and argued in detail before the Court.

47. The first argument put forward by the German Government and Deco-Line, it should be noted, has already been set out in the Rich case cited above. I shall not 44. Moreover, the German Government re-examine it since the Court agreed with the asserts that the interim relief sought is insepa- view taken by Advocate General Darmon rably linked to the subject-matter of the arbi- who proposed, in his Opinion in that case, 17 tration proceedings in the sense that both that it should be rejected in these terms: concern the payment of a debt; since the arbi- tration proceedings are excluded from the scope of the Convention, the application for interim relief, which is ancillary to those pro- ceedings, must be treated in the same way. 13

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48. I would add that, in the circumstances of referred to in Article 220 of the Treaty of this case, I see an advantage in allowing the Rome. Moreover, the Council of Europe has application of the rules of the Convention, prepared a European Convention providing a even though the risk of two courts both uniform law on arbitration, and this will prob- claiming jurisdiction cannot be discounted. If ably be accompanied by a Protocol which the Convention is not applied, it is difficult to will facilitate the recognition and enforcement see how a situation such as that which arose of arbitral awards to an even greater extent initially in this case, where arbitration could than the N e w York Convention. This is why not be implemented due to the inertia of one it seemed preferable to exclude arbitration.' 1 9 of the parties, could be resolved. In line with the Court's judgment in Rich, cited above, any proceedings for the appointment of arbi- trators would, in that case, certainly fall out- side the scope of the Convention. The risk of both courts refusing jurisdiction could then not be discounted. 51. The objective was thus to prevent the Brussels Convention from duplicating pre- existing or future international provisions.

49. If we set out next to define the purpose of the exclusion referred to in Article 1, point 4, as it may be inferred from its logical basis in the mind of the drafters, that provision cannot be attributed the wide scope suggested 52. The purpose of the exclusion can there- by the German and United Kingdom Gov- fore only be to ensure that the matter of arbi- ernments. tration, as regulated elsewhere, remains out- side the scope of the Convention.

ment of arbitration awards' 20 or else 'the apply to the recognition of judgments given arbitration agreement, the composition of the in such proceedings'. 23 arbitration tribunal, the arbitration proce- dure, the making of awards, appeals against awards and recognition and enforcement thereof'. 21 Those conventions are thus clearly not intended to deal with all matters which could constitute the subject-matter of a dis- pute submitted to arbitration. The extent of such matters is virtually limitless and, in any event, variable from one dispute to another. 56. In actual fact, the matters covered by the exclusion are those which '... are ancillary to arbitration proceedings, for example the appointment or dismissal of arbitrators, the fixing of the place of arbitration, the exten- sion of the time-limit for making awards or the obtaining of a preliminary ruling on ques- tions of substance as provided for under 54. Those are, moreover, the lines along which English law known as "statement of special the Court has already defined the exclusion case" (section 21 of the Arbitration Act 1950). referred to, when it held that "... by excluding In the same way a judgment determining arbitration from the scope of the Convention whether an arbitration agreement is valid or on the ground that it was already covered by not, or because it is invalid, ordering the par- international conventions, the Contracting ties not to continue the arbitration proceed- Parties intended to exclude arbitration in its ings, is not covered by the 1968 Convention.' entirety ...'. 22 ' N o r does the 1968 Convention cover pro- ceedings and decisions concerning applica- tions for the revocation, amendment, recogni- tion and enforcement of arbitration awards.' 24

62. Consequently, the subject-matter of its claim is in no way that of arbitration. 28 It is, rather, a claim in a matter relating to a con- tract 29 in the sense that 'the basis for [it] is 59. The Court has drawn attention to that the failure to comply with a contractual obli- consideration: 'In order to determine whether gation'. 30 a dispute falls within the scope of the Con- vention, reference must be made solely to the subject-matter of the dispute. If, by virtue of its subject-matter, such as the appointment of an arbitrator, a dispute falls outside the scope 63. That consideration is not, in my view, of the Convention, the existence of a prelimi- affected in any way by the fact that the dis- nary issue which the court must resolve in pute brought before the Netherlands courts order to determine the dispute cannot, what- can be regarded, as the German Government ever the issue may be, justify application of and Deco-Line suggest, as ancillary to the the Convention.' 27 principal arbitration proceedings.

69. Consequently, the objection that a court lacks jurisdiction over a dispute with which it is seised, the subject-matter of which con- 65. Once again, the decisive criterion is the cerns a matter covered by the Convention, subject-matter of the proceedings: 'Ancillary and that a panel of arbitrators should have claims ... come within the scope of the Con- jurisdiction, falls outside the scope of the vention according to the subject-matter with Court's supervision. The resolution of that which they are concerned and not according issue is a matter solely for the national court, to the subject-matter involved in the principal by application of the lex fori. claim'. 32

70. However, in this case it is sufficient to 66. I do not, therefore, find any argument point out that the Netherlands court based its capable of convincing the Court among those jurisdiction on Article 1022(2) of the Code of put forward in favour of holding the provi- Civil Procedure, which expressly provides sions of the Convention inapplicable. that an arbitration clause does not preclude the jurisdiction of a court to hear interim applications.

67. I realise, of course, that it may be thought unsatisfactory that application might be made 71. In any event, as the Schlosser report simultaneously to an arbitration tribunal and pointed out, such 'differing basic positions a national court in connection with the same lead to a different result in practice only in dispute. one particular instance': 34 'If a national court adjudicates on the subject-matter of a dispute, because it overlooked an arbitration agree- ment or considered it inapplicable, can rec- ognition and enforcement of that judgment be refused in another State of the Commu- 68. Nevertheless, I am of the view that, in nity on the ground that the arbitration agree- such circumstances, reference should be made ment was after all valid and that therefore, to the rules of national law 'since the Brus-

77. Although the wording of the first ques- B — The application of Article 5, point 1, of tion shows that the Hoge Raad seems to con- the Convention sider it established that the Netherlands court has jurisdiction to hear and determine the substance of the dispute between the parties, it should nevertheless be briefly ascertained, before examining whether that jurisdiction extends to the interim proceedings, whether 74. By its first question, the Hoge Raad asks that is so. the Court whether Article 5, point 1, of the Convention confers jurisdiction on the court seised to hear and determine a claim brought in interim proceedings, as provided for by the Code of Civil Procedure, for an order 78. I note at once, moreover, that, with the exception of Deco-Line, no one disputes that, short of excluding the application of the rules 35 — Paragraph 62 at the end. of the Convention by an interpretation, which

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I have not accepted, of Article 1, point 4, of claim for payment of the whole or part of a the Convention, the Netherlands court hearing sum due under an agreement '... finds its very interlocutory applications has jurisdiction basis in that agreement and consequendy con- under Article 5, point 1, to hear and deter- stitutes a matter relating to a contract within mine Van Uden's claim. the meaning of Article 5, point 1, of the Con- vention' since 'the basis for [it] is the failure to comply with a contractual obligation'. 38

83. Consequently, the Netherlands court seised does have jurisdiction under Article 5, 81. First, since Article 1, point 4, does not point 1, of the Convention. It is, in my apply, there is no doubt that the dispute sub- opinion, of little relevance that Van Uden's mitted for determination by the court consti- application was made in interim proceedings. tutes a 'matter relating to a contract'. Although it is sometimes difficult to be certain that a dispute constitutes such a matter, which the Court regards as an independent concept, 37 a 38 — Arcado, cited above, paragraphs 12 and 13. 39 — Case C-288/92 Custom Made Commercial [1994] ECR I-2913, paragraph 29, which applies the principles identified in Case 12/76 Tessili [1976] ECR 1473, paragraph 13, and Case 266/85 Shenavai [1987] ECR 239, paragraph 7. 40 — Paragraph 9 of the judgment given by the Gerechtshof, The 36 — Case 34/82 Peters [1983] ECR 987, paragraph 12. Hague, reproducea on page 6 of the French transtation of 37 — Ibid., paragraph 10. the observations lodged by Deco-Line.

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84. In the first place, it must be remembered, 87. Article 24 of the Convention does not in Article 1 of the Convention provides that the any way affect that conclusion. Convention is to apply 'whatever the nature of the court or tribunal' seised.

88. Even if it were to be considered that the interim relief sought by Van Uden is a 'pro- visional' or 'protective' measure within the meaning of Article 24, 44 that provision is not intended to confer exclusive jurisdiction in the matter. It merely authorises a court which 85. Moreover, the nature of the relief sought does not have jurisdiction as to the substance is immaterial under the Convention. In its De of the matter to take such measures, within Cavel I judgment cited above, the Court held the scope of the matters covered by the Con- that 'in relation to the matters covered by the vention, where the plaintiff chooses to apply Convention, no legal basis is to be found to it rather than to the courts of another therein for drawing a distinction between Contracting State which have jurisdiction as provisional and definitive measures'. 41 to the substance of the matter.

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90. The relief sought from the court applied 94. Moreover, that provision makes no refer- to under Article 5, point 1, must, of course, ence to national provisions. O n the contrary, fall within the scope of the Convention. Since, it designates directly the courts having juris- in my opinion, there were no grounds for diction. It would therefore be incompatible applying Article 1, point 4, and since the with that direct designation to make jurisdic- subject-matter of the dispute brought before tion subject to requirements of national law. the Netherlands court was contractual, that was the case here.

46 — See point 13 of this Opinion. 48 — Point 24 of its observations. 47 — Page 8 of the French translation of its observations; see also 49 — Case 145/86 Hoffmann [1988] ECR 645, paragraph 10, to this effect the observations of Van Uden, at point 1.4. which reproduces the wording of the Jeriard report, p. 42.

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the condition that the order be enforceable in C — Article 24 of the Convention the State concerned.

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case cited above. 50 O n that occasion, the 106. With regard to the measures envisaged Court was not required to rule on this issue. 51 by that provision, which, as the Court has held, may serve '... to safeguard a variety of rights', 53 academic writers often draw atten- tion to the difficulty of defining their content- Indeed, 'the absence of a uniform definition of the concept of provisional and protective measures established by the Brussels Conven- 104. The other questions submitted essen- tion is liable to result in appreciably different tially ask the Court to clarify the conditions systems of legal protection in the Member of application of Article 24. They are of two States'. 54 types: two (Questions 4 and 6) are concerned with 'provisional' or 'protective' measures, the others (Questions 5, 7 and 8) with juris- diction.

107. The Court has in any event opted for a 'Community' definition of the concept:

1. The concept of provisional or protective measures 'The expression "provisional, including pro- tective, measures" within the meaning of Article 24 must ... be understood as referring to measures which, in matters within the scope of the Convention, are intended to pre- serve a factual or legal situation so as to safe- 105. Article 24 obviously applies only if the guard rights the recognition of which is sought 'provisional' or 'protective' measures sought elsewhere from the court having jurisdiction fall within the scope ratione materiae of the as to the substance of the matter.' 55 Convention: '[Article 24] cannot ... be relied on to bring within the scope of the Conven- tion provisional or protective measures relating to matters which are excluded there- from'. 52 As we have seen, that is the case in this instance. 108. Can measures ordered in proceedings on an application for interim relief under

109. That question is justified, according to one writer, because '... the procedure of applying for interim relief (kort geding) has undergone very considerable changes in Neth- erlands practice. From an expeditious and 111. According to certain writers, however, provisional procedure, it has to a large extent 'it may ... be considered that the letter of become a procedure for urgent cases with Article 24 imposes a rigorous distinction definitive character ... Indeed, social or eco- between provisional and substantive mea- nomic issues of major importance which sures, so that any measure anticipating the demand an urgent solution, such as, for decision on the substance would cease to be example, an injunction to end a strike, are provisional within the meaning of the Brus- often the subject-matter of an application for sels Convention'. 58 That was also the opinion interim relief, the substance of which will not of the Commission in the W. v H. case cited be further discussed by the ordinary courts. above. In fact, in the Netherlands, courts hearing applications for interim relief make very little use of the power available to them to enjoin the parties to bring an action on the substance of the matter within a certain time, which deprives the procedure of most of its provi- sional character'. 56 112. However, I do not think that a measure such as that ordered in the interim proceed- ings in this case on the basis of Article 289 et seq. of the Code of Civil Procedure, requiring 110. That is because, according the classifica- the debtor to pay a sum as immediate provi- tion proposed by another writer, 57 the Neth- sional relief, 59 can be regarded as 'intended to erlands kort geding, like the French référé- preserve a factual or legal situation so as to provision, for example, is one of those safeguard rights the recognition of which is 'measures totally or partly anticipatory of the sought elsewhere from the court having juris- decision on the substance' which differ from diction as to the substance of the matter'. the more conventional provisional measures which exist in other legal systems, such as 'protective measures in the narrow sense of the term [which] are designed to ensure per- 58 — Bischoff, J.-M. and Huet, A.: 'Chronique de jurisprudence de la Cour de Justice des Communautés européennes', Journal du droit international, 1982, N o 1, pp. 942, 947. 59 — Because of the diversity of measures which can be granted in kort geding proceedings, I shall not deal with such pro- ceedings in the light of Article 24 of the Convention in gen- 56 — Droz, G. A. L., commentary on the judgment in the W v eral terms, as requested by the Hoge Raad in its fourth ques- H. case, cited above, in: Revue critique de droit international tion. I shall confine my observations to the proceedings as privé, 1984, p. 354, point 4. instituted in this particular case. Questions 4 and 6 will 57 — Târzia, G., cited above, point 2. therefore be considered together.

'[t]he wording of the order under appeal ... appears to indicate that a measure granting 114. That was, in any event, what the Court (by way of advance) a part of the compensa- held in its judgment in Case 125/79 Denilauler tion claimed in the main proceedings and [1980] ECR 1553. On that occasion, reference seeking to protect the applicant's interests was made to the Court by a German appeal until judgment is delivered in those proceed- court asked to register for enforcement an ings is inconsistent with the conditions for or order made by a French court, declared pro- nature of an interim application, irrespective visionally enforceable, authorising a creditor of the factual and legal circumstances of the to freeze the account of a debtor at a bank in individual case', 61 Germany. Although the Court did not expressly rule on the classification of such a measure in the light of Article 24, it refused to allow the enforcement order in that case only because the proceedings in the French court had not involved the hearing of both it was held that: parties, and thus had not respected the rights of the defence. In so doing, it seems to me that the Court implicitly acknowledged that such measures, while capable of being classi- fied as 'provisional' or 'protective' within the meaning of Article 24, could not be covered '[i]t is not possible ... to rule out in advance, by the provisions of Title III unless they had in a general and abstract manner, that pay- been ordered pursuant to adversary proceed- ment, by way of an advance, even of an ings. amount corresponding to that sought in the main application, may be necessary in order to ensure the practical effect of the judgment in the main action and may, in certain cases, appear justified with regard to the interests involved'. 62 115. Another example can be found in a recent order 60 which, although not made in the context of the Brussels Convention but on appeal against an order of the President of the Court of First Instance made in interlocutory proceedings, seems to me to identify some 116. Moreover, the relief sought in the kort principles which may guide the Court in geding proceedings is certainly intended to

118. The fact that the current trend of prac- tice in the Netherlands courts frequently seems to mean that no proceedings on the substance of the matter are either pending 121. By allowing application to be made to when the application for interim relief is made the courts of a Contracting State, 'even if, or instituted subsequently does not in any under this Convention, the courts of another way detract from the foregoing consideration. Contracting State have jurisdiction as to the substance of the matter', Article 24 is intended to apply irrespective of which jurisdictional rule is laid down by the Convention for dis- posing of the substantive issues. Consequendy, each court must determine its jurisdiction 119. Indeed, if, despite the merely provisional according to the lex fori. status which it is intended to have, the mea- sure acquires definitive character, that is only because of the attitude of the parties. As the Commission points out: 'If the defendant submits to the judgment, the fact that what is intended as a provisional measure acquires 122. Within the powers thus conferred on definitive character must be attributed to that the national court by Article 24 of the Con- submission. Similarly, where the defendant vention, the Court has held that the national does not apply for the annulment of a mea- court must '... make its authorisation subject sure ordered in interlocutory proceedings, to all conditions guaranteeing the provisional although there are no proceedings pending on the substance of the matter, that decision is a matter for the defendant alone and does not 63 — Point 37 of its observations.

127. The jurisdiction conferred pursuant to Article 24 applies only to provisional or pro- tective measures. The possibility of disposing (a) The requirement that proceedings should of the substantive issues of the case therefore also be pending before another court having remains, as we have seen, unaffected by that jurisdiction as to the substance of the matter provision. However, the court from which such provisional or protective measures are sought will not necessarily be the same as the court having jurisdiction pursuant to Sections 2 to 6 of Title II of the Convention to hear and determine the substantive issues of the case. That is why Article 24 makes it clear 124. By its fifth question, the Hoge Raad that the fact that another court has jurisdic- seeks to ascertain whether the jurisdiction tion as to the substance of the matter does conferred pursuant to Article 24 necessarily not in any way preclude the aforementioned presupposes that substantive proceedings on court, which is '... best able to assess the the main issue are, or may become, pending before another court.

65 — Bischoff, J.-M. and Huet, J., cited above, p. 947. 66 — Point 41 et seq. of its observations. 64 — Denilauler judgment, cited above, paragraph 15. 67 — Emphasis added.

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(b) The possibility for the court to hold that it can hear the application under a rule of exorbitant jurisdiction

132. As we know, Article 3 establishes the principle that a defendant may be sued in the courts of a Contracting State other than that 130. If the court from which a provisional or in which he is domiciled 'only by virtue of protective measure is sought pursuant to the rules set out in Sections 2 to 6 [of Title II Article 24 determines its jurisdiction according of the Convention]'.

68 — Deniiauler judgment, cited above, at paragraph 16. 69 — Point II(4)(e) of its observations.

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133. However, Article 24 is the sole provi- (c) The requirement that the measure be sion in Section 9 of that title. Consequently, capable of enforcement in the State of the the provisions of Article 3 do not appear to court hearing the application be applicable to it.

135. O n the contrary, I see an advantage in it. In view of the urgency which generally under- lies the making of such applications, the person seeking a measure intended to preserve a fac- tual or legal situation must be able to apply 138. The extremely general terms in which to his nearest court. Article 25 71 is couched mean that decisions ordering provisional or protective measures fall within the scope of Title III of the Con- vention: 'Article 24 does not preclude provi- sional or protective measures ordered in the State of origin pursuant to adversary proceed- ings ... from being the subject of recognition and an authorisation for enforcement on the 136. The jurisdiction of the courts of the conditions laid down in Articles 25 to 49 of plaintiff's domicile is certainly accepted in the Convention.' 72 such a case, contrary to the rule of principle established by Article 2. However, measures ordered under the jurisdiction conferred by 70 — See, to this effect, Béraudo, J.-P. in Juris-Classeur 'Europe', Article 24 will necessarily have 'provisional' vol. 6, part 3030, point 39; Gaudemet-Tallon, H., cited above, or 'protective' character. Once such measures point 271; Gothot, P. and Holleaux, D., cited above, points 202 and 203. have been ordered, it will then be for the 71 — Under which: 'For the purposes of this Convention, "judg- party concerned — in some cases the defen- ment" means any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, dant — to commence proceedings in the court including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer having jurisdiction as to the substance of the of the court.' matter, if that has not already been done. 72 — Denilauler judgment, cited above, at paragraph 17.

(1) T h e j u r i s d i c t i o n in m a t t e r s relating t o a c o n t r a c t exercised b y a c o u r t u n d e r Article 5, p o i n t 1, of the C o n v e n t i o n o n J u r i s d i c t i o n a n d t h e E n f o r c e m e n t of J u d g m e n t s in Civil a n d C o m m e r c i a l M a t t e r s , signed at Brussels o n 2 7 Sep- t e m b e r 1968, applies irrespective of t h e n a t u r e of t h e p r o c e e d i n g s in w h i c h application is m a d e t o t h a t c o u r t . I n particular, a c o u r t of a C o n t r a c t i n g State m a y h a v e j u r i s d i c t i o n , u n d e r t h a t p r o v i s i o n , t o h e a r a n d d e t e r m i n e a claim b r o u g h t in i n t e r i m p r o c e e d i n g s for a n o r d e r r e q u i r i n g t h e debtor, as i m m e d i a t e p r o v i s i o n a l relief, t o p a y a s u m t o t h e creditor, w i t h o u t its j u r i s d i c t i o n being m a d e d e p e n d e n t o n t h e fulfilment of c o n d i t i o n s o t h e r t h a n t h o s e specified in Article 5, p o i n t 1, s u c h as t h e c o n d i t i o n that the decision given b e capable of e n f o r c e m e n t in t h e State of t h e c o u r t hearing the application.

(2) T h e fact t h a t t h e parties h a v e agreed o n an a r b i t r a t i o n clause is relevant, if at all, o n l y u n d e r t h e lex fori, p u r s u a n t t o w h i c h it is for t h e c o u r t hearing t h e application t o m a k e sure t h a t it has jurisdiction.

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143. In the alternative:

(3) In answer to the fourth and sixth questions:

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