Bernard Denilauler v SNC Couchet Frères.
Date: 1980-05-21
3 THE QUESTIONS BEFORE THE COURT HAVE BEEN REFERRED TO IT PURSUANT TO PROCEEDINGS BEFORE GERMAN COURTS FOR THE ISSUE OF AN ORDER FOR THE ENFORCEMENT OF THE FRENCH ORDER AND ALSO FOR A ' ' PFANDUNGSBESCHLUSS ' '  ( ATTACHMENT ORDER ) SEIZING THE FUNDS IN THE BANK ' S POSSESSION . THESE PROCEEDINGS WERE FIRST BEFORE THE PRESIDENT OF THE LANDGERICHT ( REGIONAL COURT ) WIESBADEN WHO ORDERED ENFORCEMENT ON 23 MARCH 1979 RESULTING IN SEIZURE OF THE FUNDS ON 28 MARCH , ALL WITHOUT THE DEBTOR ' S HAVING BEEN A PARTY TO THE PROCEEDINGS . IT SEEMS THAT THE ORDER BY THE PRESIDENT OF THE LANDGERICHT WIESBADEN WAS NOT SERVED ON THE DEBTOR UNTIL 3 MAY 1979 ; THE DEBTOR IMMEDIATELY APPEALED AGAINST IT BEFORE THE OBERLANDESGERICHT FRANKFURT AM MAIN WHICH REFERRED TO THE COURT THE QUESTIONS NOW UNDER CONSIDERATION .
13 ALL THE PROVISIONS OF THE CONVENTION , BOTH THOSE CONTAINED IN TITLE II ON JURISDICTION AND THOSE CONTAINED IN TITLE III ON RECOGNITION AND ENFORCEMENT , EXPRESS THE INTENTION TO ENSURE THAT , WITHIN THE SCOPE OF THE OBJECTIVES OF THE CONVENTION , PROCEEDINGS LEADING TO THE DELIVERY OF JUDICIAL DECISIONS TAKE PLACE IN SUCH A WAY THAT THE RIGHTS OF THE DEFENCE ARE OBSERVED . IT IS BECAUSE OF THE GUARANTEES GIVEN TO THE DEFENDANT IN THE ORIGINAL PROCEEDINGS THAT THE CONVENTION , IN TITLE III , IS VERY LIBERAL IN REGARD TO RECOGNITION AND ENFORCEMENT . IN THE LIGHT OF THESE CONSIDERATIONS IT IS CLEAR THAT THE CONVENTION IS FUNDAMENTALLY CONCERNED WITH JUDICIAL DECISIONS WHICH , BEFORE THE RECOGNITION AND ENFORCEMENT OF THEM ARE SOUGHT IN A STATE OTHER THAN THE STATE OF ORIGIN , HAVE BEEN , OR HAVE BEEN CAPABLE OF BEING , THE SUBJECT IN THAT STATE OF ORIGIN AND UNDER VARIOUS PROCEDURES , OF AN INQUIRY IN ADVERSARY PROCEEDINGS . IT CANNOT THEREFORE BE DEDUCED FROM THE GENERAL SCHEME OF THE CONVENTION THAT A FORMAL EXPRESSION OF INTENTION WAS NEEDED IN ORDER TO EXCLUDE JUDGMENTS OF THE TYPE IN QUESTION FROM RECOGNITION AND ENFORCEMENT .
15 AN ANALYSIS OF THE FUNCTION ATTRIBUTED UNDER THE GENERAL SCHEME OF THE CONVENTION TO ARTICLE 24 , WHICH IS SPECIFICALLY DEVOTED TO PROVISIONAL AND PROTECTIVE MEASURES , LEADS , MOREOVER , TO THE CONCLUSION THAT , WHERE THESE TYPES OF MEASURES ARE CONCERNED , SPECIAL RULES WERE CONTEMPLATED . WHILST IT IS TRUE THAT PROCEDURES OF THE TYPE IN QUESTION AUTHORIZING PROVISIONAL AND PROTECTIVE MEASURES MAY BE FOUND IN THE LEGAL SYSTEM OF ALL THE CONTRACTING STATES AND MAY BE REGARDED , WHERE CERTAIN CONDITIONS ARE FULFILLED , AS NOT INFRINGING THE RIGHTS OF THE DEFENCE , IT SHOULD HOWEVER BE EMPHASIZED THAT THE GRANTING OF THIS TYPE OF MEASURE REQUIRES PARTICULAR CARE ON THE PART OF THE COURT AND DETAILED KNOWLEDGE OF THE ACTUAL CIRCUMSTANCES IN WHICH THE MEASURE IS TO TAKE EFFECT . DEPENDING ON EACH CASE AND COMMERCIAL PRACTICES IN PARTICULAR THE COURT MUST BE ABLE TO PLACE A TIME-LIMIT ON ITS ORDER OR , AS REGARDS THE NATURE OF THE ASSETS OR GOODS SUBJECT TO THE MEASURES CONTEMPLATED , REQUIRE BANK GUARANTEES OR NOMINATE A SEQUESTRATOR AND GENERALLY MAKE ITS AUTHORIZATION SUBJECT TO ALL CONDITIONS GUARANTEEING THE PROVISIONAL OR PROTECTIVE CHARACTER OF THE MEASURE ORDERED .
16 THE COURTS OF THE PLACE OR , IN ANY EVENT , OF THE CONTRACTING STATE , WHERE THE ASSETS SUBJECT TO THE MEASURES SOUGHT ARE LOCATED , ARE THOSE BEST ABLE TO ASSESS THE CIRCUMSTANCES WHICH MAY LEAD TO THE GRANT OR REFUSAL OF THE MEASURES SOUGHT OR TO THE LAYING DOWN OF PROCEDURES AND CONDITIONS WHICH THE PLAINTIFF MUST OBSERVE IN ORDER TO GUARANTEE THE PROVISIONAL AND PROTECTIVE CHARACTER OF THE MEASURES ORDERED . THE CONVENTION HAS TAKEN ACCOUNT OF THESE REQUIREMENTS BY PROVIDING IN ARTICLE 24 THAT APPLICATION MAY BE MADE TO THE COURTS OF A CONTRACTING STATE FOR SUCH PROVISIONAL , INCLUDING PROTECTIVE , MEASURES AS MAY BE AVAILABLE UNDER THE LAW OF THAT STATE , EVEN IF , UNDER THE CONVENTION , THE COURTS OF ANOTHER CONTRACTING STATE HAVE JURISDICTION AS TO THE SUBSTANCE OF THE MATTER .