Books Developments in PIL Scholarship

Draguiev on Interim Measures in Cross-Border Civil and Commercial Disputes

Deyan Draguiev is the author of this monograph published in 2023 by Springer. He has kindly provided the following abstract.

The book proposes a holistic overview of interim measures and associated procedures in civil and commercial matters in international litigation and arbitration proceedings. It reexamines key features in this context and outlines novel findings on interim relief in the area of international dispute resolution. The book analyses the rules of EU law (EU law regulations such as the Regulation Brussels I bis and the rest of the Brussels regime) as the single system of cross-border jurisdictional rules, as well as the rules of international arbitration (both commercial and investment). In the process, it conducts a complete mapping of interim measures problems and explores the criteria for granting relief under national laws. For this purpose, it includes an extensive comparative law overview of many jurisdictions in Europe, Asia, Africa, the Americas, etc., to reveal common standards for granting interim relief.

In deeper depth, as follows, chapter after chapter.

Chapter one provides the wider framework for the analysis of interim relief procedures in cross-border civil and commercial disputes.
It sets out the underpinnings of the dispute resolution process from the standpoint of philosophy, sociology, psychology, and general legal theory by drawing references from fundamental social scientists and legal philosophers. It outlines the conceptual grounds for the existence of interim relief within the system of dispute resolution. Furthermore, after portraying the key background features upon which the study builds its foundations, chapter one also clarifies the terminology, which the study employs. This chapter puts forward the key points, which the entire study seeks to argue. More particularly, the position, which is argued, is that interim measures are not merely a procedural power of the dispute resolution authority or means to ensure the proper enforcement of the final ruling of the dispute, rather they have a wide-ranging function as a tool to manage and influence the pending dispute itself.

Chapter two focuses on the procedural rules for establishing jurisdiction to grant interim relief.
The first part deals with the so called “Brussels regime” or “system”, i.e. the variety of regulations which the European Union has established in the area of cross-border civil and commercial disputes. The backbone of the system is Regulation Brussels I bis – “Recast” (1215/2012), previously Regulation Brussels I (44/2001). The main features of interim relief in EU law stem from it and influence a number of other EU regulations. This chapter analyses the prerequisites for EU courts’ jurisdiction to provide interim relief, both as general grounds and as specific interim measures jurisdiction, with details about Art. 35 of Regulation Brussels I bis. This chapter also includes the regulations covering matrimonial matters (Regulation 2201/2003 and Regulation 2019/1111) and also Regulation 4/2009, Regulation 650/2012, Regulation 2016/1103, and Regulation 2016/1104. The European Account Preservation Order is not included.
The second part provides overview of the jurisdictional bases for interim relief in the area of international arbitration. It makes a brief overview of the general grounds for jurisdiction of arbitral tribunals, and of the specific rules establishing jurisdiction to grant interim relief. This includes also a review of the rules of major arbitral institutions and domestic legislations, as well as analysis of the coordination, concurrence, even competition between state courts and arbitral tribunals in granting interim relief, with a proposed possible solution for this situation.

Chapter three analyses the procedural nature and characteristics of interim measures with strong focus on a comparative survey of most systems of law – in Europe, Asia, Africa, both Americas and Australia.
Based on this review of national law criteria for granting interim relief, the purpose is to outline several key benchmarks that are found within a wide-ranging list of legislations – proof of prima facie merit on the substance of the dispute, necessity, proportionality of measures, urgency as time factor, unilateral or bilateral nature of proceedings, etc. Furthermore, this part also provides an overview of various rules of arbitral institutions containing guidance on what measures may be granted under the respective rules. Chapter three looks into the procedural functioning of interim measures before state courts and arbitral tribunals, i.e. standards of proof, conduct of procedure, issuance of final award/decision/order, its form and content, etc. The chapter reviews the scope of interim measures and strives to provide in-depth list of the powers of dispute resolution bodies and the types of measures that are traditionally granted by courts and arbitral tribunals. The liability for damages if the measures are cancelled/revoked is reviewed, as well. Chapter three, finally, features an analysis of the typical measures that are provided in a selection of particularly common types of international disputes, including international sale of goods, international construction projects, intellectual property disputes, maritime and aviation disputes, anti-suit injunctions, etc. The argument in this section is that the characteristics of the underlying dispute are related to the nature of the measures that are typically awarded.

Chapter four seeks to outline the procedural mechanism for putting interim measures into effect.
This chapter provides review of the enforcement conditions, formalities and procedural steps under the regulations within the Brussels regime with focus on Regulation Brussels I bis. This chapter also contains an overview of one of the most challenging aspects of interim relief in international arbitration, i.e. its enforcement.
First, it covers a salient issue, which is widely discussed in legal theory and in arbitral case law, that is to what extent interim measures may be forced by an arbitral tribunal upon the parties to the arbitration case.
Second, this chapter analyses the important matter whether third parties non-signatories can be compelled by arbitral measures.
Third, the chapter reviews the procedural mechanisms contained in various national laws established to facilitate enforcement of interim relief by domestic legal procedures.
The chapter also deals with the liability for non-compliance with interim measures, including those granted in arbitral proceedings, providing overview of national laws and case law examples from different legal systems.

Chapter five compares the features of interim measures in private law disputes having international elements with the relief granted by international bodies established by public international law such as the International Court of Justice, the International Tribunal for the Law of the Sea, the European Court of Human Rights, the Court of Justice of the European Union and also the European Commission as an organ of an international organization (the EU).
The grounds for such comparison stem from the transnational characteristics of the disputes that arise both in private and in public international law. Focusing on these common international elements, Chapter five outlines the similarities to obtain interim relief under the auspices of the listed international judicial or quasi-judicial bodies in comparison to the conditions analysed under chapters two-four regarding civil and commercial cases. This chapter analyses this by providing review of the legal status and powers of these international adjudication bodies through the prism of the key benchmarks: jurisdiction, standards for assessment, procedure to obtain relief, and enforcement of measures. The comparison demonstrates significant similarities especially as to the criteria for granting relief and the potential issues with enforcement.

Chapter six provides assessment of the matter concerning interim relief and procedures in private law international disputes by drawing conclusions from the review and analysis under the previous chapters.
This chapter outlines the grounds to argue the two focal points of the entire study.
The first argument is that the proper understanding of interim relief is that it does not merely safeguard enforcement/compliance with the final decision on a dispute but that, if measures are placed in wider context, they should be seen as an instrument to manage not only the pending legal proceedings but also the entire ongoing conflict until its resolution.
The second argument is that the result of interim relief should be that no further aggravation of the dispute is allowed.
This chapter further employs the tools of the law & economics theory as to portray interim relief also as a wealth maximization lever. This chapter puts in comparison the effectiveness of the mechanism of granting and enforcement of relief before courts and before arbitral tribunals in order to propose what strategy parties are recommended to employ for better results. Finally, this chapter summarizes the types of interim measures and puts them in different categories.

Chapter seven is an attempt to look at the discussion in chapters one-six in a rearview mirror and provide a final overview placed in a wider context.
This study has purported from its outset to put the issue of interim relief against a broader, cross-jurisdictional and cross-sectoral background. It reflects the current global trends in business, private relations and disputes. This chapter reiterates the position of the author that the proper way to perceive interim measures is to view them not only as a creature of legal dispute resolution procedure but to understand interim relief as a means to ensure greater values such as reaching a meaningful end of the legal procedure, organizing the management of the underlying relationship between the parties, and providing an opportunity for restoration of the accord between them. If interim measures are seen through such a prism, their role and effectiveness appear to be ever important.

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