Provisional Measures in Cross-Border Cases

• Author: Jonathan I. Blackman
• Pages: 81-91

81

Nothing catc hes an adversary’s attention more quick ly than a provisional remedy

at the outset of a dispute. In most common law jurisdictions, litigation normally

proceeds at a relatively measured, if not stately, pace. Service of a complaint, or

comparable initial pleading, precedes a response, by way of answer or motion

directed to the legal sufficiency of that pleading, with some form of evidence

gathering a nd/or further wr itten submissions if t he case survives the i nitial plead-

ing stage, and f inally some form of tri al or other adjudication. Even where proce-

dural systems permit for summary disposition, as in a motion for summary

judgment under t he Federal Rules of Civil Procedur e in the United States, there is

typical ly some period of time before such a disposition can be obtained, and its

availability generally depends on the absence of material disputed fact ual issues.

Settlement or ulti mate litigated d isposition wi ll eventually occur, of course, but

only after a more or les s extended period of time.

Contrast the above scenar io with the very d ifferent dynamic of a case that

starts w ith a provisional measure or remedy. The defenda nt wakes up to find not

merely that it has been sued, but that its property, perhaps on an ex parte basis,

has been attached, or t hat it has been summoned, on several hours’ notice, to

show cause why it should not be restrained from tak ing some action or disposing

of some or all of its property. Suddenly confronted by papers prepared at relative

leisure by an adversary, the defendant may f ind itself at the outset of the lawsuit

severely disadva ntaged—for suc h an order may both tie its hands f inancially and

fix an i nitial jud icial mindset about the parties’ respective positions and equities

in the case that may be diff icult to change afterward (not to mention, if the case

involves lots of money or is otherwise worthy of media attention, giving the

plaintiff an opportunity to announce an in itial success t hat it will spin into a

CHAPTER 8

Provisional Measures in

Cross -B order Cas es

Jonathan I. Blackman

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