1 Introduction

1. Provisional and protective measures play an essential role in securing access to justice and, more in particular, in securing the enforcement of rights. Proceedings often take long, and procedures for provisional and protective measures are essential in providing a swift means to obtain an order from a court. These measures aim to secure enforcement of rights or otherwise preserve rights and prevent (further) harm, usually pending the resolution of proceedings on the merits. In some cases, such measures can be requested prior to or even largely independent from the main proceedings, or they can be requested to support enforcement after a judgment has been given. Their provisional nature lies in the fact that these measures will cease to have effect as soon as a judgment in the main proceedings is given, or at a designated time. As a result of this, provisional measures lack res iudicata.
2. The types of measures that are available, the requirements for granting them, as well as the procedures to obtain these measures, differ substantially per country. Provisional and protective measures are not a uniform concept, but in fact host a wide variety of measures and orders, ranging from preservative measures such as attachment orders and measures to secure evidence to more far-reaching measures that to some extent anticipate a judgment in the main procedure, ie, regulatory measures and interim payments. While many systems have different types of provisional and protective measures, their availability differs per country. For instance, while in some countries, including the Netherlands, England and Wales (hereinafter: England), and France, interim payments can be granted by way of a provisional measure, in other countries such measures do not or hardly exist, for example in Spain, Italy, the United States, and Argentina. This may relate to the availability of a dedicated order for payment procedure, as is subject to Pt XI Ch 2^[1], which may make proceedings to obtain an interim payment redundant.^[2] The procedures and further requirements to obtain a provisional or protective measure also diverge; for example whether or not it is required to initiate main proceedings, time frames, and the required evidence. The procedures and requirements may also differ depending on the type of measure and its specific aim, for instance, securing evidence, attachment of assets, or an interim payment.
3. Despite these differences, there are basic similarities between the countries, and between the different types of measures. Usually, obtaining a provisional or protective measure is subject to urgency, requires prima facie evidence to prove the legitimacy of the claim, and a risk of irreparable harm needs to be established. In many countries and for most types of provisional and protective measures, main proceedings (proceedings on the merits) need to be initiated either before or after requesting a provisional or protective measure. Provisional and protective measures play an important role in legal practice in preserving and protecting the rights of the claimant, while the challenge is to minimise the risk of unnecessary harm to the respondent by safeguarding their (minimum) rights. A key element in the granting of provisional and protective measures is that of proportionality, meaning that the interests of both claimant and respondent are taken into account, and that the least burdensome measure should be taken. To secure the provisional nature of the measure, some sort of security may be required. Finally, if an order is set aside in the main proceedings or in appeal, or measures lapse due to the temporary nature of the order, the applicant may be held liable and be required to compensate for the damage caused by the measure.
4. For the purpose of the present chapter, country information was collected primarily through questionnaires regarding provisional and protective measures in Spain, France, Italy, the Netherlands, the United States, Argentina, Brazil, China and Taiwan. Some additional information on Germany and England and Wales, and incidentally on other countries is included in the analysis. Apart from the information provided on different legal systems, soft law instruments and EU legislation has been taken into account. An important source of reference is the ELI-UNIDROIT Model European Rules of Civil Procedure (hereafter: ERCP^[a]) as adopted in 2020.^[3] The Rules on Provisional and Protective Measures are laid down in Part X (Rules 184-203) ERCP and these rules are based on a comparative analysis of different systems as well as European and international sources. While provisional and protective measures are also important in transnational litigation and in arbitration, this chapter focuses primarily on court litigation and does not specifically address provisional measures in arbitration^[4] or the cross-border context.
5. This chapter discusses the key features of the three main categories of provisional and protective measures that can be distinguished: protective measures, evidence measures and provisional measures (regulatory measures and interim payment). For each type of measure, it seeks to provide a definition, discuss the objectives and key characteristics and address issues regarding fundamental rights. Due to their special features and the (usually) urgent nature of these measures in particular, full compliance with fundamental rights, including the right to be heard, may not always be possible. The rights of the claimant, on the one hand, to obtain a provisional or protective measure to preserve the possibility of enforcement and to prevent (irreparable) harm, and the rights of the procedural and substantive rights of defendant, on the other hand, need to be balanced carefully.
6. The present chapter will not discuss transnational or cross-border aspects of provisional and protective matters. It may be noted that due to their special – usually urgent and temporary – nature provisional and protective measures receive different treatment in private international law. For instance, under the Brussels Ibis Regulation a special jurisdiction rule is laid down in Art 35, while the applicability of the enforcement regime is limited pursuant to its Art 2(a).^[5] In the ERCP, Rules 202 and 203 provide special rules for international jurisdiction and the recognition and enforcement of provisional and protective measures. Interim measures of protection are specifically excluded from the Hague Choice of Court Convention of 2005 as well as from the Hague Judgments Convention of 2019.^[6] According to the EU Service Regulation^[7] as well as the Hague Service Convention^[8] provisional and protective measures may, in case of urgency, be ordered without taking into account the service requirements.
7. This chapter starts with a general part dealing with the categorization of provisional and protective measures, definitions of provisional measures and the role of soft law and, in particular, European legislation in this regard (Sec 2). As some of the basic requirements are the same for the different categories of provisional and protective measures, it was considered useful to include this general part. The subsequent sections of the chapter proceed to discuss protective measures (Sec 3), evidence measures (Sec 4), and (regulatory) provisional measures, including interim payments (Sec 5).

2 Categories of Provisional and Protective Measures in the International Context

8. As was mentioned in the Introduction, the term provisional and protective measures hosts a wide variety of measures granted in a wide variety of procedures. Even different terminology is used for provisional and protective measures, which are also referred to as, among others, interim or provisional relief, interim measures, interim orders, preliminary measures, interlocutory or preliminary injunctions. In this chapter, the term provisional and protective measures is used as this seems to be generally understood and is also used in European regulations, international conventions and in soft law instruments.
9. The categorization of provisional and protective measures differs per country, as does the regulation in the codes of civil procedure. Some countries provide specific rules for specific types of measures, others have a more general framework in place, which have been further developed in case law. An important role in the framing and categorization of provisional and protective measures is played by doctrine and soft law. In particular, in the EU, also legislative instruments and case law of the Court of Justice of the European Union are of relevance.^[9] 
10. Most important in this regard is the rule on international jurisdiction in relation to provisional and protective measures, currently laid down in Art 35 of the Brussels Ibis Regulation.^[10] In the Reichert case, the Court ruled that in the context of that rule these measures are generally intended ‘to preserve a factual or legal situation’ with a view to safeguarding rights.^[11] In the case Van Uden v Deco Line the Court specified that under certain conditions an interim payment could also qualify as a provisional measure.^[12] The existence of and conditions for granting a provisional and protective measure is a matter of national law.^[13] In the area of intellectual property, where provisional and protective measures play a very important role in safeguarding intellectual property rights, as supported by Art 50 of the TRIPS Agreement^[14] and the EU Directive on the enforcement of intellectual property rights (IP Enforcement Directive).^[15] For attachment orders the Regulation on the European Account Preservation Order provides rules.^[16]
11. The most important harmonization projects and soft law instruments for the present purposes are the (1) Storme report of 1994^[17], (2) ILA Principles on Provisional and Protective Measures of 1997^[18], (3) ALI/UNIDROIT Principles of Transnational Civil Procedure of 2004^[19], (4) ELI-UNIDROIT Model European Rules of Civil Procedure (ERCP) of 2020^[20]. The Storme report, Part 10, adopted a broad definition of protective measures, based on three categories. These are (i) conservatory or preservation measures to secure enforcement, (ii) regulatory measures to secure the status quo, to make a provisional arrangement, or to order a party to do or refrain from certain acts, and (iii) anticipatory measures that may award (part of) the claim that is or will be brought in main proceedings. Over time, provisional and protective measures related to preserving evidence have evolved as a separate category.
12. This division has also been adopted in the latest and most encompassing soft law instrument on civil procedure, the ELI-UNIDROIT Model European Rules of Civil Procedure.^[21] As mentioned in the Introduction, the ERCP includes rules on provisional and protective measures in its Part X, Rules 184-203. The four key functions are described in Rule 184(1):

(1) A provisional or protective measure is any temporary order that has one or more of the following functions: (a) to ensure or promote effective enforcement of final decisions concerning the substance of the proceedings, whether or not the underlying claim is pecuniary, including securing assets and obtaining or preserving information concerning a debtor and his assets; or

(b) to preserve the opportunity for a complete and satisfactory determination of the proceedings, including securing evidence relevant to the merits or preventing its destruction or concealment; or

(c) to preserve the existence and value of goods or other assets which form or will form the subject-matter of proceedings (pending or otherwise); or

(d) to prevent harm from being suffered, to prevent further harm, or to regulate disputed issues, pending final judgment.

Protective measures mostly fulfil the functions mentioned in sub (a) and (b), while evidence measures are covered by sub (c). Both regulatory measures and interim payments fulfil the function listed in sub (d).

13. For the purpose of the present chapter provisional and protective measures have been divided into three main categories, ie, (1) Protective Measures (including attachment orders), (2) Evidence Measures (which can have a preservation or provisional nature); and (3) Regulatory Measures and Interim Payments (provisional measures). As interim payments do not exist in all countries and largely fulfil the same function as regulatory measures, they will be dealt with together. These three categories will be discussed in the following three sections. Each section will address the definition of the type of measure under discussion, the objectives, the characteristics and issues regarding fundamental rights.

3 Protective Measures

3.1 Definition of Protective Measures

14. Protective measures and regulatory measures alike are of a temporary nature and are, in general, not to be used to finally determine the dispute; in other words, their effect ceases at the latest when the claim on which a protective measure is based is finally dismissed in the proceeding on the merits. Protective measures are aimed at securing the enforcement of the final judgement, typically but not exclusively, preventing the debtor’s assets from being sold, transmitted, or otherwise concealed or destroyed. As goes in principle for all types of provisional measures, protective measures don’t produce res judicata effects.
15. In this part, we will focus on measures granting provisional protection referring to ordinary subject matters. Protective measures under specific procedural rules, which apply to special subject matters, such as commercial disputes or labour law, should primarily be dealt with in Part XII of the CPLJ for the sake of completeness.

3.2 The Objectives of Protective Measures and in How Far Are They Reached

16. In this section, we explore why the legal institute of protective measures has been established in the selected legal systems, in particular the Taiwanese, French, US-American, Spanish, Dutch, German, Italian and Brazilian law should suffice to provide a general outlook of the protective measures worldwide. In addition, we will also take into account the ELI/UNIDROIT Model European Rules of Civil Procedure as a relevant soft law text containing interesting suggestions for future legislative developments.
17. As said before, the common goal pursued by protective measures in all jurisdictions is securing the enforcement of a final judgment. This can be reached through a variety of measures, which will be dealt with below. Based upon the legal systems included in this study, it can be concluded that protective measures operate as a necessary means to compensate for the extensive length of the declarative proceedings, since there is overall consensus that without effective protective measures, litigation could result completely ineffectual. Effective protective measures could also produce the positive outcome of discouraging defendants from further litigating when opposition to the claim is likely to end up proving futile.
18. Furthermore, protective measures are mainly aimed at ensuring the effectiveness of judgments granting monetary relief, that is, judgments ordering the respondent to pay an amount of money, typically through the seizure of goods or other assets convertible into money. But adopting protective measures might also be appropriate when the remedy sought by the plaintiff is of a different kind, for instance a pure declaratory judgment relating to ownership of real estate. In this case the appropriate protective measure would be a precautionary registry notation of the claim (notice of pendency). This further implies that there is no necessary link between protective measures and enforcement proceedings, since the effectiveness of declaratory judgments is commonly considered not to be necessary for genuine procedural enforcement.
19. Protective measures are available in all jurisdictions. In Taiwanese law, for instance, the ‘provisional remedies proceeding’ (Art 522 ff of Taiwan Code of Civil Procedure, hereafter TCCP) aims at protecting the right of the (potential) creditor (ie, the applicant) to trial within a reasonable time; in reality, however, the number of applications for protective (and regulatory) measures is remarkably low in comparison to the number of small claim litigations, which, according to the relevant statistics, could be terminated within three months on average. In French law, the ‘procédure de référé’ (Art 485 ff of French Code of Civil Procedure, hereafter FCCP) and the ‘procédure sur requête’ (Art 493 ff FCCP), both of which can be utilized to obtain protective measures, pursue the objective of effectiveness of civil justice; these two proceedings apply for a significant portion of total cases received by French courts. The same is true for the ‘provisional remedies’ (Rule 64 ff of the Federal Rules of Civil Procedure, hereafter USFRCP) under US federal law, which includes, among others, protective measures.

3.3. The Characteristics of Protective Measures

3.3.1 Preliminary Remarks

20. In this section, we will first describe what kinds of protective measures courts could take under which requirements. Next, special attention will be paid to proceedings for issuance of protective measures to determine to what extent they depart from the standard civil procedure and become a special form of procedure. The question of which legal and factual effects protective measures could produce, especially in relation to the substance of the underlying claim, will also be addressed.
21. The legal technique used to establish protective measures varies in the different jurisdictions. In some legal systems, a set of specific measures is initially regulated, and later a general provision is introduced allowing the adoption of other measures whatsoever that may be suitable to ensure the effectiveness of the final judgment. This is the case, for instance, of the Art 700 of the Italian Code of Civil Procedure (ITCCP) (provvedimenti d’urgenza (urgent measures)), which allows whatever measure different of those previously set up by the code which, according to the circumstances, could prove suitable to ensure the effects of the decision on the merits, provided there is a well-founded reason to fear that during the proceedings the right of the claimant is threatened by an imminent risk^[22]. Rule 64 USFRCP, after enumerating some specific kinds of protective measures (arrest, attachment, garnishment, replevin, and sequestration), allows the adoption of other corresponding or equivalent remedies. And according to the Sec 935 German Code of Civil Procedure (GCCP) any measure other than attachment regarding the subject matter of the litigation is an available remedy, given the concern that a change of the status quo might frustrate the effectiveness of the right enjoyed by a party or might make its realization significantly more difficult.^[23]
22. Other jurisdictions do not provide regulations about specific protective measures but entitle the claimant to apply for whatever measure is suitable to secure the effectiveness of the final judgement, provided that a set of general requirements is met. This is the case of the Art 726.1 of the Spanish Code of Civil Procedure (SCCP) which establishes that the Court may order any kind of direct or indirect measures in relation to the assets and rights of the defendant if certain characteristics are met.^[24] But these general provisions also include an exemplificative enumeration of possible measures aimed at preventing that a kind of horror vacui that could dissuade the judge from adopting the measures. The same technique is also followed by the Art 301 of the Brazilian Code of Civil Procedure (BRCCP) and the FCCP with the ‘procédure de référé’ (Art 485 ff) and the ‘procédure sur requête’ (Art 493 ff), both of which can be utilized to obtain protective measures, pursue the objective of effectiveness of civil justice.^[25]
23. In contrast with the open-ended provisions of the aforementioned legal systems, the Rule 194 of the ELI/UNIDROIT Model European Rules of Civil^[26], only makes three specific measures available to the claimant to obtain asset preservation (an attachment order, which is an order authorizing provisional attachment of the respondent’s assets; an asset restraining order, which is an interim order preventing the respondent from disposing of, or dealing with, their assets; or a custodial order, which is an order that the respondent’s assets shall be placed in the custody of a neutral non-party) without adding a residual clause.

3.3.2 Common Types of Protective Measures

24. Despite some differences in the legal regime and the nomen juris, it is noteworthy that the great deal of substantial resemblance existing between the types of protective measures and their main characteristics in the different legal systems. It is therefore worth drawing a panoramic view commenting on these differences and similarities.

3.3.2.1 Attachment

25. In many civil claims, the most effective device to ensure the success of the enforcement proceedings is the freezing of assets or provisional attachment before initiating the declaratory proceedings or at least while those proceedings are pending. It is commonly assumed that an attachment taken at the right time can effectively avoid arduous investigations in the debtor's assets in the enforcement stage and save the administration of justice the cost and efforts necessary to carry out such investigations.^[27]
26. Indeed, the most common protective measure, available in all the analyzed legal systems, is the attachment of the defendant’s or prospective defendant’s assets known under a large variety of names in the different legal systems: Arrest (Germany), attachment/garnishment (USA), embargo preventivo (Spain), sequestro (Italy, Brazil), conservatoir beslag (the Netherlands) etc. Through this measure, assets owned by the debtor are seized or made bound to secure the plaintiff’s claim seeking monetary relief.
27. But attachment is not solely available for this kind of relief. In some legal systems attachments can also be adopted referring to other claims with the purpose of securing a subsidiary monetary relief in the case of non-fulfilment or impossibility of fulfilment. While in most jurisdictions attachment in these cases is not proper, in others, like Germany or Spain, it is^[28]. Those differences among different jurisdictions in mind, the ELI-UNIDROIT Model of European Rules of Civil Procedure allows every kind of asset preservation order to be issued with the purpose of protecting all types of claims.^[29]
28. Attachment is generally adopted by the court endowed with jurisdiction for the underlying claim (Art 723 SCCP; 669-ter and quarter ITCCP; Art 299 BRCCP), although in some legal systems the measure can also be adopted by a different court. In Germany, for instance, according to the Sec 919 GCCP, both the court before which the main action is being pursued as well as Amtsgericht (the local court) in the district of which the object to be seized or the person whose personal liberty is to be limited are situated or resident, are responsible for issuing the writ of attachment. In the Netherlands attachment is lodged with the President of the District Court Art 700 ff Dutch Code of Civil Procedure (DCCP)^[30] and executed by the bailiff.
29. Generally speaking, attachment orders refer to goods of the defendant, especially sums of money or other goods convertible into money. But since rights pertaining to the defendant are also assets that can have a monetary value, attachment may in some jurisdictions also be ordered regarding those rights.^[31]
30. An attachment order is primarily directed at the assets owned by the defendant. But it is also possible that these assets are not actually possessed by the defendant but are under the control of another person. The attachment order in these cases is directed at the third party. In Common Law jurisdictions attachment order affecting nonparties is known as garnishment. A garnishment is a court order to a third party (such as an employer) to pay money (such as wages) owed to the defendant instead of to the plaintiff. This order is frequently used in disputes regarding child support payments, when, for example, judges might enter a garnishment order to an employer, directing the employer to pay a portion of the employee/father’s wages directly to the parent/mother with custody of the children.
31. In US jurisdictions, garnishment is generally a remedy used after judgment on the merits, but some states allow garnishment as a provisional remedy.^[32] A court may order a garnishment to help a successful plaintiff collect money damages from a defendant. A garnishment order instructs a third-party who owes money to the defendant to pay some or all that money to the plaintiff instead of the defendant.^[33] An attachment order directed to non-parties holding assets owned by the defendant is also available in Civil Law jurisdictions and it is especially usual in the case of attachment of wages to be paid by employers and money deposited in bank accounts.
32. Securing the claimant’s recovery does not mean underestimating sensitivity towards situations and risks of social exclusion. Many legal systems assume that the more the law introduces effective devices to affect the goods of the debtor, the more urgent it is to overhaul the legal minimum standards to prevent the debtor from falling into a situation of irreparable indigence or pauperization. Therefore, the protective measure attaching the defendant’s assets is subjected in many legal systems to the same constraints and limitations inherent to the attachment as a measure related to the enforcement of final judgements, thus including limitations like prohibiting the attachment of the minimum salary, of the instruments or objects needed to develop the defendant’s job or of the domestic furniture, etc.
33. For instance, according to Sec 939 GCCP, the rules governing executive attachment orders and the procedure to be followed to adopt those orders shall also apply mutatis mutandis to the attachment as a protective measure and the procedure for ordering it, unless other legal provisions set out deviating rules. The SCCP, in its turn, provides no specific procedural rules for issuing a protective attachment order, so that the provisions relating executive attachment generally apply, including those establishing social and humanitarian limitations (Art 606–608 SCCP).
34. Likewise, the Rule 194 of the ELI/UNIDROIT Model European Rules of Civil Procedure prescribes that Asset Preservation Orders must ensure that a respondent is not prevented from receiving financial allowances, provided the amounts are reasonable, for ordinary living expenses, and/or legitimate business expenses, and/or to enable it to fund legal advice and representation in respect of the proceedings, including those which are necessary for responding to the attachment order.

3.3.2.2 Receivership

35. Receivership is another common protective measure consisting of a court-appointed person who, under their custodial responsibility, is entrusted with collecting and conserving certain assets in accordance with judicial authorization. A measure can be imposed on companies, enterprises, businesses or, in general, production units to ensure the delivery of the said assets in the best possible condition or securing their benefits to satisfy the respondent’s liability in case of a positive judgement.
36. This measure is expressly provided in some legal systems, like the Rule 66 USFRCP or in the Art 727.2 SCCP (administración judicial), which alludes to the intervention or court-ordered receivership of productive assets, when a judgement is sought ordering their delivery under the title of owner, usufructuary or any other title involving a legitimate interest in maintaining or improving productivity or when guaranteeing the latter is of paramount importance for the effectiveness of the judgement to be passed in due time. Art 670.1 ITCCP establishes a kind of attachment (sequestro giudiziario) by which the judge can authorize the judicial seizure of movable properties or real estates, companies, or other aggregate of assets, when ownership or possession is controversial, and a provision should be made for their custody or temporary management. In the Netherlands onderbewindstelling (the appointment of an administrator) in case parties dispute ownership (Art 710 DCCP) can be ordered in kort geding procedure (summary proceedings) and is not related to an attachment order. The administrator can continue the necessary business (eg, of a company).

3.3.2.3 Precautionary Registry Notation of the Claim (Notice of Pendency)

37. When seeking specific relief referring to the property of real estate or to another asset amenable to notation in a public registry, the claimant may apply for a court warrant ordering the notation of the claim with the purpose of preventing potential buyers from acquiring that asset thus frustrating the interest of the plaintiff. In the US Law the so-called notice of pendency (also lis pendens) is not a judicial measure but an administrative one which must be filed with the clerk of the county in which the property is situated, along with a copy of the complaint. There is no mention of this protective measure in Federal Law and its availability and regulation are completely up to state law. It is defined as a mechanism by which a plaintiff in litigation concerning property may guarantee that nothing will occur during the course of the lawsuit that will create a defect in the defendant’s title to the property at issue.^[34] 
38. In Spanish Law, instead, Art 727.5 of the SCCP provides for a specific judicial measure of this kind, namely, the precautionary registry notation of the claim when the latter refers to assets or rights subject to inscription in public registries. Likewise, Art 301 BRCCP mentions among the available protective measures the so-called registro de protesto contra alienaçao de bem (registration of protest against sale of property).
39. For different purposes, which are not to be confused with those of the aforementioned measure, the registry notation is also used to prevent the transmission of attached assets. See, for instance, Sec 939 GCCP (Ersuchen um Eintragungen im Grundbuch (request for entries in the land register)) and in Art 679 ITCCP (esecuzione del sequestro conservativo sugli immobili (enforcement of attachment on real estate)).

3.3.2.4 Sequestration and Replevin

40. In US Law sequestration is a provisional measure consisting of the provisional seizure or setting apart of specific property upon which a party to a suit has a claim of ownership, or a right, lien or privilege, so as to preserve its pending litigation.^[35] Beside this provisional remedy, issued as an incident of a main action, replevin (also named claim and delivery) is commonly defined as an auxiliary procedure allowing the plaintiff as a provisional remedy to take possession of the property prior to a judgment on the action,^[36] or also, an action seeking return of personal property wrongfully taken or held by the defendant.^[37] This measure, mentioned in Rule 64 USFRCP, originates in common law and its legal regime varies by jurisdictions. In contrast with sequestration, replevin allows recovery of the property whereas sequestration causes placing property under custody of a sheriff.
41. Provisional recovery of personal property awaiting trial when seeking this kind of final relief is also possible in civil law jurisdictions but more frequently available through a summary proceeding or a regulatory provisional measure regulating the relationship between the parties. In these jurisdictions, instead, the issuing of a custodial order, by which the defendant’s assets are placed under the custody of a third person is more common. Among specific protective measures, Rule 192 (c) ECPR includes a custodial order, which is an order that the respondent’s assets shall be placed in the custody of a neutral non-party (a custodian). The 5º Comment of this Rule points out that such an order, like an attachment or an asset restraining order, can properly and broadly be understood to encompass the safe-keeping and preservation of any type of property, whether physical, intangible or electronic.
42. In the same vein, Art 727.3 SCCP, for instance, provides a depósito judicial, the deposit of a movable asset, when the claim seeks relief consisting of delivering the said assets and the latter are in the possession of the defendant. Similarly, Art 670 ITCCP regulates the sequestro giudiziario, by which a judge can authorize the seizure of mobile goods or real estate, companies, or other sets of goods, when ownership or possession is controversial. In the Netherlands, gerechtelijke bewaring (court custody) of goods is available in case of risk of concealment, possible as part of the requested attachment (Art 709 DCCP), outside the scope of an attachment order or as part of the enforcement procedure (Art 853-861 DCCP), then to be ordered in a kort geding procedure.
43. Adopting this measure implies depriving the asset holder of its use while the case is awaiting trial, which could cause him substantial harm and set him under a powerful constraint to settle the dispute in terms favourable to the plaintiff. By the contrary, the attachment is exclusively directed to establish a guarantee to ensure a monetary claim and does not imply an interest of the claimant on the property of the assets object of seizure, so that the owner of the assets could retain their possession depositing an undertaking with the court or simply being permitted to use them to run their businesses under a judicial warning of incurring criminal or civil liability.

3.3.2.5 Personal Arrest

44. In fostering the effectiveness of an attachment order, some legal systems go so far as providing a highly aggressive means to force the defendant to comply with, namely, depriving them of their personal freedom if they appear reluctant to cooperate with the court showing assets to be attached or otherwise putting the effectiveness of the claim at risk.
45. This is the case, among others, for Sec 918 GCCP, which allows arresting a debtor (persönlicher Sicherheitsarreste (personal security arrest)) which is a remedy only available if it is required in order to ensure compulsory enforcement against the property of the debtor when such compulsory enforcement is at risk.^[38] As for the implementation of the measure, Sec 933 GCCP remits to Sec 802g, 802h and 802j subsections (1) and (2), which in its turn govern the arrest of the debtor unwilling to reveal his assets by a court-appointed officer in the enforcement proceedings. According to those provisions, should the creditor file a corresponding application, the court shall issue a warrant of arrest against the respondent who has failed to appear at the meeting scheduled for the provision of the information on his financial circumstances and assets without having excused himself, or who refuses to provide the information on his financial circumstances and assets without citing any grounds, to force the debtor to provide such information.
46. Where the arrest consists in limitations of personal freedom other than the detention (for example, withdrawing the debtor’s identity papers, passport or a foreign visa), it will be governed by special orders to be issued by the court responsible for the seizure. After the debtor has provided the information on his assets, he shall be released from detention.
47. According to Sec 802j GCCP the arrest may not be ordered for a period longer than six months. If an arrest of six months has been executed against a debtor, due to his refusal to provide the information on his financial circumstances and assets, the provision of such information on his financial circumstances and assets may be imposed on him by ordering an arrest in the subsequent two years only if the special requisites determined in Sec 802d GCCP are met, even if a corresponding petition is filed by another creditor.
48. In some US (but not Federal) jurisdictions, the personal arrest measure is also available as a protective measure in civil proceedings. It must be noted that almost every American jurisdiction has abolished it (New York in 1979, California in 1969) but in some of them it remains. This is the case, among others, in Alaska and Idaho. Some American jurisdictions still retaining personal arrest only admit this measure when it is satisfied that the respondent is about to remove from the state with intent to defraud creditors or is absconding, which is the case in Alaska.^[39] But other state jurisdictions provide for a more extensive list of grounds of civil arrest, like South Carolina.^[40]
49. In general, personal arrest is – in a comparative outlook – rather an uncommon measure and even in those jurisdictions where it is still in force, its practical significance, despite having overcome a constitutionality test,^[41] is becoming smaller and will presumably continue to decrease. This is probably the reason why not all dogmatic facets of the institute have been thoroughly analysed.^[42]

3.3.2.6 Other Protective Measures

50. As above mentioned, in some legal systems, a set of specific measures are regulated and later a general provision is introduced allowing the adoption of other measures whatsoever and other jurisdictions do not provide regulations about specific protective measures but entitle the claimant to apply for whatever measure suitable to secure the effectiveness of the final judgement, provided that a set of general requirements are met. In both cases, protective measures other than those above commented can be adopted.
51. Art 727.4 SCCP, for instance, provides as an available protective measure the drawing up of inventario de bienes (assets inventories) in accordance with the conditions to be specified by the court. The same measure is also provided by Art 301 BRCCP (arrolamento de bems). Through the inventory a set of assets owned by the defendant will be drawn up reflecting their state of conservation, characteristics, etc, so that the defendant would incur liability, should those assets be impaired, destroyed, concealed, or otherwise eliminated.
52. In some jurisdictions attachment can only be issued upon assets located inside the boundaries of the court’s jurisdiction. This is specially the case of the federal states. In other cases, like most European jurisdictions, an attachment order can be issued upon all the assets owned by the defendant within the national territory. Where the court responsible for the main action has no jurisdiction to attach defendant’s assets nationwide, it could be useful for the interest of the plaintiff to resort to an asset restraining order, which is an interim order preventing the respondent from disposing of, or dealing with, their assets,^[43] wherever they are located or whoever holds them. Unlike the attachment, which is an ad rem measure, this provisional remedy binds the defendant himself. It is the case of the well-known Mareva Injunction, which is an order aimed at restraining the defendant, and anyone with control over the defendant's assets, from disposing of the defendant's assets so as not to reduce their value below a certain level, usually the value of the plaintiffs claim.^[44]
53. In some Civil Law jurisdictions this measure could be granted on grounds of the statutory open-ended clauses of available protective measures. But in some Common Law jurisdictions, like the US, the Mareva injunction is an equitable remedy only available in certain conditions and if certain requisites are met.^[45]

3.3.3 Procedural Issues

3.3.3.1 Criteria for Awarding Protective Measures

54. Despite some significant differences, a substantial accord between jurisdictions as for the criteria for awarding protective measures exists. Rule 193 ERCP provides for two of those criteria with a wording which applies to the majority of legal systems. According to the Rule,

a party seeking an order under Rule 192 must show that: (a) their claim for relief has a good chance of succeeding on its substantive merits (fumus boni juris), and (b) it is likely that, without such an order, enforcement of a final judgment against the respondent will be impossible or exceedingly difficult (periculum in mora).

In some jurisdictions issuing a protective measure also requires providing security to cover the damages inflicted on the defendant in case the claim proves eventually unsuccessful.

3.3.3.1.1 Fumus Boni Juris

55. Awarding protective measures commonly requires showing that the underlying claim has good chance of succeeding (likelihood of success on the merits). The standard of evidence required for this purpose does not amount to satisfy the standard of proof needed to render a positive final judgement. It suffices a prima facie proof (principio de prueba, Glaubhaftmachung, etc).

3.3.3.1.2 Periculum in Mora

56. Granting a protective measure requires showing likelihood that, without such an order, enforcement of a final judgment against the respondent will be impossible or exceedingly difficult, which also implies that some kind of risk could impair or frustrate the final success of the claim if the measure is not timely adopted during the pendency of the proceedings. Most jurisdictions don’t explicitly state what kind of risk exactly has to be prevented as a condition to honour the petition of protective measures, so that this requirement must be assessed by the court on case-by-case basis. See, for instance, Art 726.1.1ª SCCP; Art 300 Sec 1º BRCCP; Art 671 and 700 ITCCP; Sec 917 GCCP.
57. Unlike the aforementioned Civil Law jurisdictions, most US state jurisdictions provide for a detailed list of grounds of attachment so limiting the availability of the measure. This is the case, for example, of the Sec 6201 of the New York Civil Practice Laws and Rules which prescribes as far as five different grounds of attachment (the defendant is a nondomiciliary residing without the state, or is a foreign corporation not qualified to do business in the state; or the defendant resides or is domiciled in the state and cannot be personally served despite diligent efforts to do so etc etc).^[46]

3.3.3.1.3 Providing Security

58. Providing security to cover the damages in case the claim proves unsuccessful, is another common requisite to grant protective measures. Almost all the jurisdictions analysed in this work leave it to the discretion of the court whether or not to require the provision of a surety previous to granting or continuing a provisional measure (Sec 921 GCCP, Art 300 BRCCP, Art 669-undecies ITCCP and in most US State jurisdictions^[47]). Underlying these legal systems is the idea that demanding a bond from the economically weak plaintiff might mean, in many cases, blocking the path to obtaining an effective judicial protection of their rights. Other jurisdictions, on the contrary, consider providing security as a necessary requirement to grant the measure (see Art 728.3 SCCP, with the only exception of collective claims).
59. Security can also be a means to compensate the hardships of the claimant in showing likelihood of success on the merits. This is the case of Sec 921 GCCP: if sufficient security is provided for the hardships that the opponent risks suffering, a court may issue an order of attachment although the claim or the grounds to this purpose have not been demonstrated to the satisfaction of the court.
60. Most legal systems do not specify in their legal texts what kind of security the plaintiff must provide. Art 300 Sec 1 BRCCP just establishes that real or personal or collateral security must be provided. Art 728.3.III and 529 SCCP adopt an unusual rigorous criterion in requiring that the security may be posted in cash, by means of a joint and several guarantee of indefinite duration and payable upon first demand, issued by a credit entity or a reciprocal guarantee company or by any other means that, in the opinion of the court, guarantees the immediate availability, as appropriate, of the amount concerned.

3.3.3.1.4 Proportionality/Balance of Hardships

61. As a condition to issue a protective measure, it might be required that a balance be struck between the risks to be prevented in favour of the plaintiff and the hardships or harm that the measure might presumably inflict on the defendant. Rule 185 of the ELI/UNIDROIT Model European Rules of Civil Procedure requires that the court must ensure that the measure’s effects are disproportionate to the interest it is asked to protect.
62. Moreover, some legal or model texts introduce the principle of least burdensome measure. For example, Art 726 SCCP prescribes that the court may order any kind of measure provided, among other requirements, that cannot be replaced by another measure equally effective but less burdensome or damaging for the defendant. This same principle has also been established by the 185 Rule of the ELI/UNIDROIT Model European Rules of Civil Procedure.^[48]
63. In general, the above commented proportionality-, balance of hardships- and least burdensome measure-tests are more frequently used to adopt regulatory measures or American temporary restricting orders (TRO) and preliminary injunctions, which could go so far as to provisionally anticipating the final judgement. Since protective measures exclusively pursue ensuring the enforcement of a judgement and mainly consist of asset preservation orders, most legal systems confine themselves to put the stress exclusively on the indispensability of adopting the measure to achieve the effectiveness of the claim. For instance, according to Sec 917 GCCP, an attachment order is an available remedy wherever there is the concern that without it being issued, the enforcement of the judgment would be frustrated or be significantly more difficult. Likewise, Art 671 (sequestro conservative) and 700 (provvedimenti d’urgenza) ITCCP and Art 300 BRCCP.
64. Art 300 Sec 3ª BRCCP explicitly prohibits awarding protective measures before filing the claim if there is a risk to cause irreversible harm to the defendant.

3.3.3.2 Adopting Protective Measures Without Notice (Ex Parte Measures)

65. Although in regular basis protective measures are adopted after a hearing with the defendant, effectively protecting the claim can also require issuing the measure ex parte, ie, proceeding without notice, which is often the only means to avoiding defendant’s possible fraudulent tactics.
66. In countries like Taiwan, a provisional attachment or provisional injunction should principally be issued without oral hearing and could be ordered without any notice to the (potential) debtor (ie, the respondent); in practice, it can be assumed that most of these conservatory or preservation orders are granted in an ex parte basis. In France, while a measure conservatoire in form of ordonnance sur requête is issued in a non-adversarial way, the proceeding for that in form of ordonnance de référé remains adversarial; both proceedings are oral. In fact, in most jurisdictions ex parte measures are available if the plaintiff succeeds in showing a good chance of success on the merits, a substantial and clear risk for the effectiveness of the claim and provides for security: Art 303 and 305 BRCCP; Art 733.2 SCCP; Art 669-sexies ITCCP; Sec 921.I and 937. II GCCP.
67. Some US state laws authorize ‘pre-judgment seizure’ without prior notice or hearing under different conditions but only in rather exceptional circumstances.^[49] In the Netherlands, instead, attachment is generally requested in an ex parte procedure lodged with the President of the District Court (Art 700 ff DCCP).

3.3.3.3 Liability

68. Most legal systems make the claimant liable for the loss and damages inflicted on the defendant if the provisional measure is set aside or the claim on the merits is dismissed (Sec 945 GCCP, 669-undecies ITCCP, 300 Sec 1 BRCCP; Art 742 SCCP).
69. The aforementioned provisions, however, do not specify if a strict or a fault-base liability system is followed. On case-law basis in many jurisdictions strict liability has been imposed on the applicant, for instance in Germany^[50] and Spain^[51]. Rule 190 of the ELI/UNIDROIT Model European Rules of Civil Procedure requires an applicant to compensate the respondent for loss and damage caused by the measure on a strict liability basis (comment 3rd to the Rule 190).
70. In most US state jurisdictions, the liability of the claimant is generally confined to the amount of the sum provided as bond or security while in other jurisdictions the liability can exceed this amount.^[52]

3.4 Issues Regarding Fundamental Rights

71. While it is obvious that protective measures enhance the creditor’s access to justice and safeguard the efficiency of their (substantive) rights, there arise serious concerns of how to legitimate the limitation of procedural rights or the deprivation of property (or even personal freedom) on the side of the debtor.
72. For instance, from the perspective of Taiwanese law, the strict liability imposed on the creditor for the event of a protective measure being unjustified or improper is perceived to be one of the key instruments to strike the balance between the creditor’s and the debtor’s interests. From the perspective of French law, on its turn, concerns have been raised about the derogation from the adversarial principle and the protection of the right to be heard.
73. In the US law, for its part, whether a state law is consistent with the Due Process Clause should be considered. The US Constitution requires that notice and a fair opportunity to be heard be provided in almost all requests for provisional and protective remedies. Otherwise, the court order would potentially deprive parties of their property or liberty without the due process of law. The ex parte TRO is an exception and rarely granted. Similarly, in rare circumstances, a pre-judgment attachment can be ordered without prior notice. For both measures, the party against whom the order was entered must be allowed to appear in court within two days or in a very short time to seek dissolution of the order.
74. As has been remarked before, in most jurisdictions ex parte measures are available and viewed as constitutionally admissible if the plaintiff manages to show a good chance of success on the merits, proves a substantial and clear risk for the effectiveness of the claim and provides security sufficient to compensate the loss and damages that a wrong measure could inflict on the defendant.

4 Evidence Measures

4.1 Evidence Preservation Measures as a Specific Category of Provisional Measures

75. Plaintiffs or prospective plaintiffs in a civil action may need secure access to material evidence in possession of the other (current or prospective) party or even of a non-party, thus avoiding it from perishing or being tampered with, destroyed, or otherwise eliminated. The need for these measures can arise in any stage of the proceedings and not only prior or simultaneously to their formal commencing. In this Part we will discuss the way the different legal systems tackle these peculiar kind of measures.
76. Special focus must be given to the procedural device aimed at this goal. In some jurisdictions, measures generically tending to secure access to evidence fall under the notion of provisional measures, consequently being regulated as a specific category of them. This is the case with the ITCCP (Art 692-699). Art 692 allows the anticipated taking of witness evidence whose depositions may be necessary in a lawsuit to be brought. And by virtue of Art 696, a technical assessment or a judicial inspection may be ordered when it is urgently needed, recording the state of places or the quality or condition of things to prepare a claim.
77. For instance, in the case of the Netherlands, some sui generis types of provisional relief/attachment orders are related to evidence. That is the case of voorlopig getuigenverhoor (the provisional hearing of witnesses), consisting in the hearing of witnesses before initiating proceedings, that may be used to assess whether the case will be viable (Art 186 ff DCCP). Dutch procedural law also sets up a conservatory attachment of evidence to preserve evidence, specifically regulated for intellectual property cases implementing the IP Enforcement Directive (Art 1019b and c DCCP), where ordinary rules of attachment orders generally apply. The Dutch Supreme Court has ruled that also in non-IP cases such a measure is allowed;^[53] it is required that there is a genuine risk of concealment.
78. Other jurisdictions, on the contrary, prefer to provide this kind of measures through procedural channels other than the legal framework of the provisional measures. The SCCP, for instance, sets up a specific procedural path to anticipate the taking of evidence (Art 293-296 SCCP) for the case that evidence will presumably not be available at trial, as significantly could happen in the case of witness evidence; and a specific proceeding aimed at preserving evidence (Art 297 and 298 SCCP). In both cases the goal is not testing the chance or success of the claim, but simply taking evidence in advance or preventing perishing, concealing or destruction of evidence, respectively.
79. Sec 485–494a GCCP establish Selbständiges Beweisverfahren (an independent evidence proceeding)^[54] by which, upon the corresponding petition having been filed by a party, the court may direct in the course of litigation or outside of the proceedings that visual evidence be taken on site, that witnesses be examined, or that an expert prepare a report, provided that the opponent consents to doing so, or provided that there is a concern that evidence might be lost, or that it will become difficult to use it. And even if the proceedings are not yet pending, a party may petition that an expert prepare a written report if it has a legitimate interest in establishing the state of a person or the state or value of an object; the cause of personal injury, property damage, or a material defect or the amount necessary to remedy a personal injury, property damage or material defect.
80. Recent prominent international texts of soft law advocate for including this kind of measures in the legal regime of the provisional measures. This is the case, for instance, of the ELI-UNIDROIT Model European Rules of Civil Procedure and the Art 17 of the UNCITRAL Model Law on International Commercial Arbitration (1985), amended in 2006 with substantial extension of the rules on provisional measures. All the same, Art 7 of the Directive on the enforcement of intellectual property rights (IP), 2004/48/EC of 29 April 2004 (EU) also goes this path.^[55]
81. According to Rule 27 USFRCP, before an action is filed or pending appeal, a person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. A deposition to perpetuate testimony may be used in any later-filed district- court action involving the same subject matter if the deposition either was taken under USFRCP or, although not taken in this way, would be admissible in evidence in the courts of the state where it was taken.^[56]
82. In US law, spoliation refers to the loss or destruction of potentially relevant evidence by a party in civil litigation. Typically, there is a duty to preserve evidence once litigation begins or when it is reasonable to anticipate litigation. Parties frequently send a spoliation letter to the opposing party requesting the preservation of all relevant information. This letter can include a general request, or it can specify particular topics of information within the party’s possession that need to be preserved. The spoliation letter puts the opposing party on notice that it needs to ensure that relevant and material evidence is not destroyed inadvertently by routine maintenance measures, as well as the need to refrain from any intentional deletion or destruction of evidence. If the circumstances warrant it, a party can ask a judge to issue an anti-spoliation order to ensure that evidence is preserved pending litigation. Rule 37 (e) USFRCP authorizes judges to impose penalties on parties for spoliation. These penalties can include excluding evidence, drawing adverse inferences, dismissing the lawsuit, or entering default judgment.^[57]

4.2 The Objectives of Evidence Preservation Measures and How Far They Are Reached

83. The objective pursued by evidence preservation measures is to secure the access to particular pieces of evidence which in absence of the measures could perish or be destroyed, damaged or concealed by the other party or by a non-party. Securing or preserving evidence is therefore the goal to achieve by the measures, not discovering or ferreting out evidence. Hence the distinction with the discovery devices usual in Common Law jurisdictions and specially in the US, which entitle the parties to obtain previously unknown evidence. Evidence preservation orders only cover issues relating the preservation of evidence in a narrow sense, it also being understood that preserving or securing evidence could also mean anticipating the taking of evidence at trial, as remarkably happens in the case of the witness evidence.
84. The evidence to be preserved can comprise a variety of cases: documents, electronic evidence, especially every kind of data or information storing means, but also taking witness evidence, appointing an expert to provide expert opinion material to the case, preserving objects or preventing modifications in a certain state of things, etc.

4.3 The Characteristics of Evidence Preservation Measures

85. Certain conditions have been met to adopt the measures. Usually, the applicant must satisfy the court that unless the order is made, material evidence will not be available for determining the merits. However, other than in the case of the protective or regulatory measures, the prospective plaintiff is in most jurisdictions not required to show a good chance that their claim would succeed, except that the applied measure implies an aggressive impact on the other party or third parties’ rights or interests, in which case a higher standard or a showing of a strong case could be in place.
86. In some jurisdictions the adoption of the measures requires the applicant to provide security to cover the potential damages or losses inflicted on the other party or non-party, while in others providing this guarantee could fall within the discretionary powers of the court. In any case, regardless of whether it is required to provide security, the applicant of the measures are liable for the damages. An analysis to explore the scope or extent of that liability from one jurisdiction to another could reveal considerable differences and approaches.
87. Anticipated taking of witness evidence is not an obstacle to present the witness in the trial stage if against all odds they are then available. So, for instance, Art 698 I ITCCP and Art 295.4 SCCP.

4.4 Issues Regarding Fundamental Rights

88. Evidence preservation measures are to be considered a fundamental instrument to guarantee the right to access to information and evidence, and insofar the right to a fair and equitable process. Without such measures being effective many well founded claims could result inexorably frustrated.
89. Concerns about fundamental rights referring to evidence preservation measures could also arise when they are ordered ex parte (on a without-notice basis). This typically may happen only when, in the circumstances, the other party or non-party having advance notice of the application is expected to destroy, to conceal or otherwise eliminate or to remove from the jurisdiction the evidence needed by the applicant. When proceeding this way is inevitable, the guarantee uses to be in place that the other party or non-party will duly be compensated for the suffered damages, in case the measure is set aside, lapsed or the claim is dismissed.

5 Provisional Measures - Regulatory Measures and Interim Payments

90. This section deals with provisional measures other that those considered to be protective measures and those intended to preserve evidence. These are often referred to as regulatory measures. A specific category of interim measures consists of interim payments. The rules regarding regulatory measures and interim payments differ substantially per country, and not all countries allow for these types of measures. In view of the great divergences both in black letter law and in practice, the discussion below will only consider main features and include examples by way of illustration.

5.1 Definition of Regulatory Measures and Interim Payments

91. Unlike attachment orders and evidence measures, regulatory provisional measures and interim payments are not primarily preservative, but are provisional measures intended to give a provisional arrangement or to in part award what may be granted in the main proceedings. In that regard they may also in part anticipate the outcome of the dispute on the merits, though to preserve the provisional nature, they will usually be of a temporary nature (regulatory measures) or otherwise be dependent on initiating the main proceedings within a certain set timeframe or include other guarantees to secure the provisional nature, such as a bank guarantee for repayment (interim payments).

5.1.1 Regulatory Measures

92. Regulatory measures is an umbrella term that covers a wide variety of provisional measures that exist in various countries and that have as such also been acknowledged in the ERCP^[58] and – for arbitration – in the UNCITRAL Model Law.^[59] The type of available measures and the requirements for granting these differ substantially per jurisdiction. They can be described as measures intended to maintain the status quo or to make a provisional arrangement between parties, eg, measures to perform or to abstain from certain acts. As the commentary to Rule 196 ERCP states,

provisional measures to perform or refrain cover a wide range of orders, including for instance an obligation to perform a contractual agreement, the rectification of a media publication or to abstain from acts of unfair competition or that infringe an intellectual property right.^[60] 

93. An example from national law is the German Regelungsverfügung (regulatory order) in Sec 940 GCCP.^[61] According to this provision these measures are admissible to provide for a temporal status of a legal relationship that is in dispute, in particular in the case of long-term relationships, as far as necessary to prevent significant disadvantages or to prevent impending force or for other specific reasons. In England, Rule 25.1 of the Civil Procedure Rules (CPR) on interim measures also covers measures that would fall under the category of regulatory measures.^[62] In the Netherlands, the general rules regarding the kort geding (originally derived from the French référé) in Art 254 ff DCCP also covers regulatory measures. These rules enable requesting a provisional measure in all urgent cases where the interest of parties requires an immediate measure. In practice a wide variety of regulatory measures can be requested to secure the status quo or to make a provisional arrangement (eg, the use of property, or the continuation of work in an employment dispute), or to forbid certain actions (eg, to sell certain products).
94. Regulatory provisional measures for the purpose of making a provisional arrangement, and to some extent anticipating the dispute on the merits are also available in other European countries, including in France^[63], Italy^[64] and Spain^[65]. In the US, certain preliminary injunctions and restraining orders can also be categorized under regulatory measures.^[66] It has been developed by common law, by judges, and is typically an order prohibiting a party from taking a specified action during pending litigation.^[67] Likewise, in Latin American and Asian countries, regulatory provisional measures are customary, including for instance in Argentina^[68], Brazil^[69] and Taiwan^[70] regulatory provisional measures may be requested.

5.1.2 Interim Payments

95. Interim payments are perhaps the most far-reaching type of interim remedies, and these do not exist in all countries and if they do, the requirements for granting may differ. Generally, the requirements are stricter in terms of requiring urgency and avoiding further harm, also considering the duration of proceedings on the merits. They can be considered anticipatory measure as they are intended to wholly or in part satisfy the claim in the main proceedings, anticipating the expected outcome in those proceedings. For this reason, they are not recognised in all countries, and if these are possible, they are usually subject to stricter rules. Rule 200 ERCP provides that a court may grant an ‘interim payment in relation to a monetary claim, either wholly or in party to satisfy the claim in the proceedings, in anticipation of the expected outcome’.
96. Interim payments should be distinguished from payment orders, such as the European Order for Payment Procedure^[71] which are final judgments in summary proceedings for uncontested claims. Interim payments are a category of provisional measures and while they are given in anticipation of the expected outcome in proceedings on the merits, they do not pre-empt those proceedings and do not provide a final determination of the claim between parties. They are provisional by definition and should be repaid when the claimant is unsuccessful in the main proceedings.^[72]
97. In Europe, England is one of the countries where interim payments exist and is specifically regulated in the CPR.^[73] In the EU, interim payments exist in about half of the Member States. For instance, in the Netherlands, interim payments have been enabled in legal practice under the general rules for the provisional procedure (kort geding).^[74] These interim payments have been developed in Dutch legal practice as main proceedings can be lengthy and jeopardize the financial situation of a person or company.^[75] In the case law of the European Court of Justice regarding provisional and protective measures under the Brussel Regulation, (Dutch) interim payments have been regarded as provisional measures under certain conditions, mostly to secure repayment in case the applicant is unsuccessful in the main proceedings.^[76] Other EU countries where interim payments exist – though usually under stringent conditions – include Austria, Belgium, France, Germany, Greece, Ireland, Luxembourg, Portugal, and Sweden.
98. In many other European countries, interim payments do not generally exist. This is the case for instance in Italy and Spain, and Scandinavian countries Denmark and Finland. Also in the US, many Latin American countries and Asian countries interim payments are not common, with some exceptions. For example, in Taiwan similar rules as in Germany regarding the so-called Leistungsverfügung (performance remuneration) enabling interim payments under certain conditions exist.

5.2 The Objectives of Regulatory Measures and Interim Payments and How Far They Are Reached

5.2.1 Regulatory Measures

99. The objective of regulatory measures is to maintain the status quo or to make a provisional arrangement between parties, usually pending but sometimes also prior to main proceedings. A party can be ordered to abstain from certain acts, for instance selling products that (allegedly) infringe an intellectual property right or are considered unfair competition or are ordered to perform a contractual duty. The objective is to avoid further damage or to avoid – also considering the duration of the main proceedings – that a situation becomes irreversible. This could for instance be that a contract can no longer be performed as the goods have perished, that a book that (allegedly) infringes someone’s personality rights has already been published, or that a company has continued to sell certain products or use a trademark causing considerable financial and reputational damage to a right holder.
100. As is also embodied in Rule 184 ERCP regulatory measures aid to preserve a certain status or the existence and value of a good and to prevent from (further) harm by regulating the dispute on a provisional basis.^[77] In the commentary to Rule 196 ERCP, the objective is described as enabling the court to regulate the relationship between parties until a judgment in the main proceedings is given or until the case is resolved otherwise. These regulatory measures also support the effective administration of justice, by securing that the main proceedings are not frustrated.^[78]
101. The objectives of regulatory measures under national laws, are often not explicitly laid down in the law; usually they are part of an open-ended list of provisional measures intended to secure the effectiveness of a future judgment, be it the enforcement of a judgment or even the effectiveness of a declaratory judgment. For instance, in Spain they are covered by the general provision enabling a claimant to apply for provisional relief measures.^[79] The same goes for the Netherlands.^[80] In France, these measures are also covered by the general rules on the procedure de référé and are also intended to avoid imminent harm, end possible unlawful disturbance and to ensure that the length of proceedings does not hamper the effectiveness of judgments. In Italy and Brazil anticipating the probable judgment in the main proceedings is also mentioned in view of the long duration of civil procedures.^[81] In the US, where – unlike in some European jurisdictions^[82] – preliminary injunctions are only possible pending main proceedings, they are intended to preserve the status quo during the pendency of the litigation and to ensure judgments can be enforced after the litigation ends.^[83] 
102. There are no data available as to how far regulatory measures reach the objectives they are designed for, but generally these measures are considered strictly necessary and – thus – effective in providing for a temporary arrangement. They play an important role in legal practice, are conditional upon requirements being fulfilled and can be specifically geared to the purpose in a particular case.

5.2.2 Interim Payments

103. Similar to regulatory measures, interim payments aim to avoid further or even irreparable damage. Some countries allow this type of claim when the party has an urgent need for obtaining (part of) the amount before the judgment is delivered, also considering that the main proceedings may take (very) long. This might jeopardize the financial position of companies or individuals. For instance, in the Netherlands, the interim payment has been developed in case law in the 1980s responding to the length of proceedings and the need to secure financial stability. The idea is that adequate legal protection should also enable to obtain an interim payment and that the disadvantages of non-payment resulting from lengthy proceedings should not be solely at the expense of the creditor.^[84] Also in England the special rules on interim payments in the CPR are intended to mitigate the hardship that may be suffered having to wait for a long period of time for damages.^[85]
104.  Also, in other countries the need for interim payments has been acknowledged with a view to securing a provisional payment in urgent cases in which having to wait for a judgment in the main proceedings is particularly burdensome for the claimant. For instance, in Germany the rules on Regelungsverfügung (regulatory measures) have been extended to anticipatory measures that in part provide what is at stake in the main proceedings (Leistungsverfügung), including interim payments.^[86] In Taiwan rules corresponding with the Regelungsverfügung and Leistungsverfügung are in place with a view to ensure effective protections of rights.^[87] 

5.3 The Characteristics of Regulatory Measures and Interim Payments

105. The features of regulatory measures and interim payment diverge across jurisdictions and especially the former can take on very different shapes. As mentioned above, interim payments are only available in certain countries. Below some general characteristics and requirements will be discussed.

5.3.1 Regulatory Measures

106. Regulatory measures are usually under the general regime for provisional and protective measures that is in place. These rules differ considerably per country. In some countries, including the Netherlands and France, a relatively full-fletched procedure is in place, though with some procedural adaptations, such as the burden of proof or procedural timeframes. This also means that the procedure is in principle always inter partes, legal representation is mandatory over a certain monetary threshold and appeal is possible. In other countries, the procedure for regulatory measures is subject to different rules.
107. For instance, in England, Germany, the US, Spain^[88] and Argentina it is possible to render provisional measures ex parte. However, this is usually only allowed in exceptional cases, subject to providing prima facie evidence, and with the possibility to be heard in appeal or other recourse proceedings. For example, in the US, a temporary restraining order (TRO) may be granted ex parte only if there is a risk of great and immediate harm and the party seeking the TRO specifies the efforts made and why notifying is not necessary.^[89] Such ex parte TRO will in any case be time-limited, with a maximum of 14 days, and may be conditional upon providing a bond. A preliminary injunction can only be granted with notice in the US.^[90] In England, the court may grant an interim remedy without notice if it appears to the court that there are good reasons for not giving notice and the evidence supporting the application must state these reasons.^[91] In practice it is required that ‘full and frank disclosure’ is given.^[92] Good reasons for not giving notice are in particular that giving notice would frustrate the effectiveness of the measure. A similar rule is also laid down in Rule 186 ERCP.
108. In the EU, a general possibility to obtain an ex parte measure, including those where inter partes provisional measures are the rule - such as in the Dutch kort geding and French référé proceedings – results from the Intellectual Property Enforcement Directive.^[93] Art 9(4) thereof provides that Member States shall ensure that provisional and precautionary measures ‘may, in appropriate cases, be taken without the defendant having been heard, in particular where any delay would cause irreparable harm to the rightholder’. It adds that a party shall be informed without delay after the execution of the measures at the latest and that a review upon request of the defendant shall take place within reasonable time after the notification. This rule may be most relevant in particular conservatory measures to preserve a good or to secure evidence, but does in principle also extend to regulatory measures, for example a restraining order.
109. Countries differ as to whether it is required to initiate main proceedings before an order is requested, or – if this is not the case – whether it is required to initiate main proceedings afterwards. For instance, it is not (always) required to either initiate main proceedings before or after applying for a provisional regulatory measure in France, the Netherlands, Germany, England and Taiwan. In many other countries, such as Italy, Spain and the United States provisional regulatory measures, play a role in the context of pending main proceedings, or it is required to initiate main proceedings within a certain period after requesting or obtaining a provisional measure. For example, in Spain regulatory measures are always accessory or instrumental to main proceedings and cannot be granted or stay in force without proceedings on the merits.^[94] 
110. In some countries, the procedure to grant provisional and protective measures of a regulatory nature has in part developed as a separate track. This is for instance the case in France and the Netherlands. While provisional measures granted in those proceedings will always be provisional in the sense that they will be overturned by a judgment in the main proceedings, it is not required to do so, and the litigation will often end either because parties settle the case or main proceedings are never initiated. In that regard, these proceedings have evolved in summary proceedings, apart from maintaining their provisional nature and some other specific requirements.
111. In the EU, the IP Enforcement Directive mentioned above in relation to ex parte measures, also contains rules for initiating main proceedings. Pursuant to Art 9(5) of the Directive, the provisional measure shall be ‘revoked or otherwise cease to have effect, upon request of the defendant, if the applicant does not institute, within a reasonable period’ proceedings on the merits. In absence of a judge setting a reasonable period, this shall not exceed 20 working days or 31 calendar days. This provision is copied from Art 50(6) of the TRIPs Agreement, which had been declared applicable to the Dutch provisional procedure (kort geding) by the European Court of Justice.^[95] This rule is an integral part of the domestic rules on provisional measures as far as these intellectual property cases are concerned.^[96] A similar rule has been adopted by the ERCP, Rule 188, for all types of provisional measures.
112. General requirements largely align with those for protective measures discussed in Sec 3 of the present chapter, ie, fumus boni juris and periculum in mora.^[97] In Rule 197 ERCP the criteria for awarding a regulatory measure are worded as follows:

A party seeking such order will have to show (a) it has a good chance of succeeding in the proceedings; or (b) in case there is a significant risk that damages to the respondent will not offer adequate compensation if the proceedings are dismissed, that there is a very strong possibility [emphasis added] that the applicant will succeed in the main proceedings; and (c) that the order is necessary to regulate the substantive issue or issues in dispute pending final determination of the proceedings.

113. These are thus two cumulative conditions, placing a stronger burden of proof on the applicant in the situation where adequate compensation may not be possible if he would be unsuccessful in the main proceedings.^[98] Generally, in such cases an order should not be granted, but in situations of imminent irreparable harm this may be necessary. In addition, it may be required to provide security as a condition to grant a provisional measure, as has also been discussed above in relation to protective measures.^[99]
114. In view of these requirements, and in particular the risk or irreparable harm, urgency has always been key for provisional measures. However, some countries do not impose such urgency requirement (anymore) in specific cases. For instance, in France, in cases where an obligation to pay or to do something cannot be seriously disputed, urgency is not required (référé-provision and référé-injonction de faire).^[100]
115. In many countries, the weighing of interests or balance of convenience also plays a role in whether such measure should be granted. This is, for instance, the case in Germany, the Netherlands and England. In the Netherlands, this is a general requirement, which is considered complimentary to in how far it is likely that the claim will succeed in the main proceedings.^[101] Connected to this is the principle of proportionality. Rule 185 expresses this principle as follows:

(1) A provisional and protective measure should impose the least burden on the respondent;

(2) The court must ensure that the measure’s effects are not disproportionate to the interests it is asked to protect.

5.3.2 Interim Payments

116. For interim payments, in those countries where these are available the requirements for granting these measures are usually somewhat stricter than for provisional (regulatory) measures in general. ^[102] Some countries require that liability has been admitted, or a judgment was already rendered, but the precise damage still needs to be calculated, or have stricter requirements as to the urgency of making an order or the likelihood that the claim will be successful in the main proceedings.
117. For example, in England Rule 25.7 CPR provides that one of these conditions must be fulfilled: (a) the defendant has admitted liability to pay damages or another sum of money, or (b) that the claimant has obtained a judgment for damages or a sum of money to be assessed, or (c) it is satisfied that the claimant would obtain a substantial amount of money of the claim went to trial, or (d) other conditions concerning specific cases are fulfilled. In the Netherlands, the Supreme Court has formulated three cumulative criteria: (1) the existence of the claim needs to be sufficiently proven; (2) the facts and circumstances require granting an interim payment; and (3) the risk of repayment needs to be taken into account.^[103] If there is a risk that the claimant will not be able to return the money should he not succeed in the main proceedings, the judge may not grant the interim payment. In case in the main proceedings the court decides differently, the claimant is liable for damages.^[104] 
118. Rule 201 ERCP includes similar criteria for awarding an interim payment. It requires (a) that the defendant has admitted liability, that a judgment on liability has been obtained, or it is highly likely that the applicant will obtain at least the amount sought in a final judgment; and (b) the applicant is in urgent need of payment.

5.4 Issues Regarding Fundamental Rights

119. Generally, provisional measures are considered important to safeguard fundamental rights. They are essential in securing that rights can be effectively enforced. For instance, in Spain reference is made to the constitutional right to an effective remedy.^[105] Non-compliance with regulatory measures may also be subject to sanctions. However, it is important that the rights of the applicant and the defendant are balanced, as provisional measures are often granted at short notice and generally do not involve a thorough assessment of the merits and of evidence. Above, specific safeguards have been discussed in relation to protective measures and evidence measures.^[106]
120. The requirements for regulatory measures and interim payments take the interests of both, the applicant and defendant, into account. It is important that claimant must have a strong case, and that irreparable harm is prevented as much a possible by way of providing security. The latter is particularly important for interim payments where a guaranty of repayment (eg, a bank guaranty or other form of security) is usually required. A provisional measure should be proportionate to the interests at stake and impose the least burden.^[107] Unlike specific protective and evidence measures, regulatory measures and interim payments are as a rule only granted in ex parte procedures.
121. As for other provisional and protective measures, in case the measures are set aside, lapses, or the applicant is unsuccessful in the main proceedings, the applicant can be held liable and will have to pay compensation for the loss or damage incurred by the measure. In some countries rules to this end have been developed in case law, such as in the Netherlands.^[108] In other countries this is explicitly regulated in the procedural code, including in Germany and Taiwan. In Germany, the applicant will have to compensate for damages if the injunction proves to have been unfounded from the start.^[109] The TCCP provides an obligation to return what has been received, including interest in case of payments made.^[110] The applicant is generally liable for damages, though the court may lessen or discharge the applicant in case of proof of no fault on the part of the applicant.^[111] Similar rules on liability for damages incurred by a provisional measure that is set aside or overturned are laid down in the ERCP^[112] and, for EU intellectual property cases, in the IP Enforcement Directive.^[113]

Abbreviations and Acronyms

ANCCPC	Argentine National Civil and Commercial Procedural Code (Argentina)
Art	Article/Articles
BRCCP	Code of Civil Procedure (Brazil)
ch	chapter
CJEU	Court of Justice of the European Union
CPR	Civil Procedure Rules (England)
coord	coordinator
DCCP	Code of Civil Procedure (The Netherlands)
ECLI	European Case Law Identifier
ECtHR	European Court of Human Rights
ed	editor/editors
edn	edition/editions
eg	exempli gratia (for example)
ELI	European Law Institute
ERCP	ELI-UNIDROIT Model European Rules of Civil Procedure
etc	et cetera
EU	European Union
FCCP	Code of Civil Procedure (France)
ff	following
fn	footnote (external, ie, in other chapters or in citations)
GCCP	Code of Civil Procedure (Germany)
ibid	ibidem (in the same place)
ITCCP	Code of Civil Procedure (Italy)
ie	id est (that is)
n	footnote (internal, ie, within the same chapter)
no	number/numbers
para	paragraph/paragraphs
pt	part
SCCP	Code of Civil Procedure (Spain)
Sec	Section/Sections
TCCP	Code of Civil Procedure (Taiwan)
TRO	Temporary Restraining Order (US)
UK	United Kingdom
UNIDROIT	Institut international pour l'unification du droit privé (International Institute for the Unification of Private Law)
UP	University Press
US/ USA	United States of America
USFRCP	Federal Rules of Civil Procedure (US)
v	versus

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Legislation

International/Supranational

Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994.

ALI/UNIDROIT Principles of Transnational Civil Procedure 2004

European Convention on Human Rights 1950

Directive on the enforcement of intellectual property rights, 2004/48/EC of 29 April 2004 (EU)

Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965

Hague Convention on the on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of 2 July 2019

ILA Principles on Provisional and Protective Measures 1996

Regulation on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast), 2020/1784 of 25 November 2020 (EU)

Regulation establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters, 655/2014 of 15 May 2014 (EU)

Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), 1215/2012 of 12 December 2012 (EU)

Regulation creating a European Order for Payment Procedure, 1896/2006 of 12 December 2006 (EU)

UNCITRAL Model Law on International Commercial Arbitration (1985) as amended in 2006

National

Civil Procedure Law of the People’s Republic of China

Civil Procedure Rules (United Kingdom)

Code de procédure civile (French Code of Civil Procedure)

Code of Civil Procedure of Taiwan

Código Civil y Comercial de la República Argentina (Argentine Code of Civil and

Commercial Procedure)

Código de Processo Civil 1973 (Brazilian Code of Civil Procedure 1973)

Código de Processo Civil 2015 (Brazilian Code of Civil Procedure 2015)

Federal Rules of Civil Procedure (USA)

Ley de Enjuiciamiento Civil (Spanish Civil Procedure Act)

Wetboek van Burgerlijke Rechtsvordering (Dutch Code of Civil Procedure)

Zivilprozessordnung (German Civil Procedure Code)

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Cases

International/Supranational

Reichert and Kockler v Dresdner Bank, Case C-115/88 (CJEU), Judgment 10 January 1990 [ECLI:EU:C:1990:3].

Van Uden v Deco-Line, Case C-391/95 (CJEU), Judgment 17 November 1998 [ECLI:EU:C:1998:543].

Hermès International v FHT Marketing Choice BV, Case C-53/96 (CJEU), Judgment 16 June 1998 [ECLI:EU:C:1998:292].

TOTO, Case C-581/20 (CJEU), Judgment 6 October 2021 [ECLI:EU:C:2021:808].

National

Ciba Geigy v Voorbraak, Case NJ 1985/547 (Supreme Court, The Netherlands, Hoge Raad), Judgment 16 November 1984 [ECLI:NL:PHR:1984:AG4901].

M’Barek v Van der Vloodt, Case NJ 1986/84 (Supreme Court, The Netherlands, Hoge Raad), Judgment 29 March 1985 [ECLI:NL:HR:1985:AG4992].

Hiensch v Bögels, Case NJ 2004/602 (Supreme Court, The Netherlands, Hoge Raad), Judgment 28 May 2004 [ECLI:NL:HR:2004:AP0263].

Snidiach v Family Finance Corporation (Supreme Court, US) [395 US 337 (1969)], 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969).

Fuentes v Shevin (Supreme Court, US) [407 US 67 (1972)], 92 S. Ct 1983, 32 L.Ed.2d 556 (1972).

Grupo Mexicano de Desarrollo, S. A. v Alliance Bond Fund, Inc., No 98-231 (Supreme Court, US) [527 US 308 (1999)].

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