III. Provisional Measures under the Brussels Convention

The definition of provisional and protective measures and the scope of Article 24 of the 1968 Brussels Convention were matters addressed by the European Court in Case C–391/95, Van Uden Maritime BV v. KG in Firma-Decoline . The plaintiff was seeking interim payment under a contract even though the dispute over payment had been referred to arbitration. As an initial issue the European Court noted that the existence of arbitral proceedings on the merits did not take the dispute over provisional measures out of the scope of the Convention. The subject-matter of the dispute, which was determinative in establishing the applicability of the Convention, was payment under a contract for the provision of services. The existence of an arbitration agreement was, nevertheless, found relevant by the Court. The Court noted that normally a national court with jurisdiction to hear the merits of a case would also have jurisdiction to hear any application for provisional or protective measures. Where the proceedings had validly been referred to arbitration, however, no national court would have jurisdiction to hear the merits of the case under the Convention. Article 24 was then the only basis on which a court might assume jurisdiction to grant provisional measures

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