Provisional and Protective Measures

Abstract

This chapter focuses on provisional and protective measures, which are important both in domestic and cross-border litigation to secure effective enforcement or to otherwise preserve rights and prevent (further) harm prior to the commencement of proceedings or pending final judgment. Part X of the European Rules of Civil Procedure consists of three Parts: a General Part (Section 1), which includes rules that apply to all types of measures, unless otherwise provided; a Special Part (Section 2), which includes rules on Asset Preservation, Regulatory Measures, Evidence Preservation, and Interim Payments; and a Cross-Border Part (Section 3), which primarily refers to existing legislation. Section 3 further provides a minimal number of general rules as it is not intended to provide a set of rules on the complex and multifaceted issue of cross-border provisional and protective measures. Principle 8 of the ALI/UNIDROIT Principles was the starting point for the development of Rules concerning provisional and protective measures. This Principle includes three basic rules: on function and proportionality (8.1); ex parte measures; (8.2); and compensation and security (8.3).