Officiële Toelichting

P-8A ‘Provisional relief’ embraces also the concept of ‘injunction,’ which is an order requiring or prohibiting the performance of a specified act, for example, preserving property in its present condition. Principle 8.1 authorizes the court to issue an order that is either affirmative, in that it requires performance of an act, or negative in that it prohibits a specific act or course of action. The term is used here in a generic sense to include attachment, sequestration, and other directives. The concept of regulation includes measures to ameliorate the underlying controversy, for example supervision of management of a partnership during litigation among the partners. Availability of provisional remedies or interim measures, such as attachment or sequestration, should be determined by forum law, including applicable principles of international law. A court may also order disclosure of assets wherever located, or grant provisional relief to facilitate arbitration or enforce arbitration provisional measures.

P-8BPrinciple 5.8 and 8.2 authorize the court to issue an order without notice to the person against whom it is directed where doing so is justified by urgent necessity. ‘Urgent necessity,’ required as a basis for an ex parte order, is a practical concept, as is the concept of preponderance of considerations of fairness. The latter term corresponds to the common-law concept of ‘balance of equities.’ Considerations of fairness include the strength of the merits of the applicant's claim, relevant public interest if any, the urgency of the need for a provisional remedy, and the practical burdens that may result from granting the remedy. Such an injunction is usually known as an ex parte order. See Principle 1.4.

P-8C The question for the court, in considering an application for an ex parte order, is whether the applicant has made a reasonable and specific demonstration that such an order is required to prevent an irreparable deterioration in the situation to be addressed in the litigation, and that it would be imprudent to postpone the order until the opposing party has opportunity to be heard. The burden is on the party requesting an ex parte order to justify its issuance. However, as soon as practicable, the opposing party or person to whom the order is addressed should be given notice of the order and of the matters relied upon to support it and should have the right to apply for a prompt and full reconsideration by the court. The party or person must have the opportunity for a de novo reconsideration of the decision, including opportunity to present evidence. See Principle 8.2.

P-8D Rules of procedure generally require that a party requesting an ex parte order make full disclosure to the court of all issues of law and fact that the court should legitimately take into account in granting the request, including those against the petitioner's interests and favorable to the opposing party. Failure to make such disclosure is ground to vacate an order and may be a basis of liability for damages against the requesting party. In some legal systems, assessment of damages for an erroneously issued order does not necessarily reflect the proper resolution of the underlying merits.

P-8E After hearing those interested, the court may issue, dissolve, renew, or modify an order. If the court had declined to issue an order ex parte, it may nevertheless issue an order upon a hearing. If the court previously issued an order ex parte, it may dissolve, renew, or modify its order in light of the matters developed at the hearing. The burden is on the party seeking the order to show that it is justified.

P-8F Principle 8.3 authorizes the court to require a bond or other compensation, as protection against the disturbance and injury that may result from an order. The particulars of such compensation should be determined by the law of the forum. An obligation to compensate should be express, not merely by implication, and could be formalized through a bond underwritten by a third party.

P-8G An order under this Principle in many systems is ordinarily subject to immediate appellate review, according to the procedure of the forum. In some systems such an order is of very brief duration and subject to prompt reconsideration in the first-instance tribunal prior to the possibility of appellate review. The guarantee of a review is particularly necessary when the order has been issued ex parte. Review by a second-instance tribunal is regulated in different ways in various systems. However, it should also be recognized that such a review might entail a loss of time or procedural abuse.