JUDGMENT OF THE COURT

17 November 1998 (1)

(Brussels Convention — Arbitration clause — Interim payment — Meaning of'provisional measures‘)

In Case C-391/95,

REFERENCE to the Court under the Protocol of 3 June 1971 on theinterpretation by the Court of Justice of the Convention of 27 September 1968 onJurisdiction and the Enforcement of Judgments in Civil and Commercial Mattersby the Hoge Raad der Nederlanden for a preliminary ruling in the proceedingspending before that court between

Van Uden Maritime BV, trading as Van Uden Africa Line,

and

Kommanditgesellschaft in Firma Deco-Line and Another

on the interpretation of Article 1, second paragraph, point 4, Article 3, Article 5,point 1, and Article 24 of the Convention of 27 September 1968, cited above (OJ1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on theaccession of the Kingdom of Denmark, Ireland and the United Kingdom of GreatBritain and Northern Ireland (OJ 1978 L 304, p. 1, and — amended text — p. 77),and by the Convention of 25 October 1982 on the accession of the HellenicRepublic (OJ 1982 L 388, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet,G. Hirsch, P. Jann (Presidents of Chambers), G.F. Mancini, J.C. Moitinho deAlmeida, C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm (Rapporteur),L. Sevón and M. Wathelet, Judges,

Advocate General: P. Léger,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

—    Van Uden Maritime BV, trading as Van Uden Africa Line, by L. Ebbekink,of the Hague Bar,

—    Kommanditgesellschaft in Firma Deco-Line and Another, by J.L. deWijkerslooth, of the Hague Bar,

—    the German Government, by J. Pirrung, Ministerialrat in the FederalMinistry of Justice, acting as Agent,

—    the United Kingdom Government, by L. Nicoll, of the Treasury Solicitor'sDepartment, acting as Agent, and by V.V. Veeder QC, and

—    the Commission of the European Communities, by B.J. Drijber, of its LegalService, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the German Government, the UnitedKingdom Government and the Commission at the hearing on 22 April 1997,

after hearing the Opinion of the Advocate General at the sitting on 10 June 1997,

gives the following

Judgment

1.

    By judgment of 8 December 1995, received at the Court on 14 December 1995, theHoge Raad der Nederlanden (Supreme Court of the Netherlands) referred to theCourt for a preliminary ruling under the Protocol of 3 June 1971 on theinterpretation by the Court of Justice of the Convention of 27 September 1968 onJurisdiction and the Enforcement of Judgments in Civil and Commercial Matters

eight questions on the interpretation of Article 1, second paragraph, point 4, Article3, Article 5, point 1, and Article 24 of the Convention of 27 September 1968, citedabove (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978on the accession of the Kingdom of Denmark, Ireland and the United Kingdom ofGreat Britain and Northern Ireland (OJ 1978 L 304, p. 1, and — amended text —p. 77), and by the Convention of 25 October 1982 on the accession of the HellenicRepublic (OJ 1982 L 388, p. 1) (hereinafter 'the Convention‘).

2.

    Those questions were raised in the context of a dispute between Van UdenMaritime BV ('Van Uden‘), established at Rotterdam, the Netherlands, andKommanditgesellschaft in Firma Deco-Line and Another ('Deco-Line‘), ofHamburg, Germany, concerning an application for interim relief (in kort gedingproceedings) relating to the payment of debts arising under a contract containingan arbitration clause.

3.

    Under the first paragraph of Article 1, the Convention is to apply in civil andcommercial matters. The second paragraph provides, however, under point 4, thatit is not to apply to arbitration.

4.

    Under Article 2 of the Convention, the general rule of jurisdiction is that personsdomiciled in a Contracting State are, whatever their nationality, to be sued in thecourts of that State.

5.

    Persons domiciled in a Contracting State may be sued in the courts of anotherContracting State only by virtue of the rules set out in the Convention. The secondparagraph of Article 3 lists the rules of exorbitant jurisdiction which are not to beapplicable against persons domiciled in another Contracting State, includingArticles 126(3) and 127 of the Netherlands Code of Civil Procedure (Wetboek vanBurgerlijke Rechtsvordering, hereinafter 'the Code of Civil Procedure‘).

6.

    Under Article 5, point 1, of the Convention, a person domiciled in a ContractingState may, in matters relating to a contract, be sued, in another Contracting State,in the courts for the place of performance of the obligation in question.

7.

    Article 24 of the Convention, which deals specifically with provisional andprotective measures, provides:

'Application may be made to the courts of a Contracting State for such provisional,including protective, measures as may be available under the law of that State, evenif, under this Convention, the courts of another Contracting State have jurisdictionas to the substance of the matter.‘

8.

    In March 1993 Van Uden and Deco-Line concluded a 'slot/space charteragreement‘, under which Van Uden undertook to make available to Deco-Linecargo space on board vessels operated by Van Uden, either on its own account or

in association with other shipping lines, on a liner service between northern orwestern parts of Europe and west Africa. In return, Deco-Line was to pay charterhire in accordance with the rates agreed between the parties.

9.

    Van Uden instituted arbitration proceedings in the Netherlands pursuant to theagreement, on the ground that Deco-Line had failed to pay certain invoicessubmitted to it by Van Uden.

10.

    Van Uden also applied to the President of the Rechtbank (District Court),Rotterdam, for interim relief on the grounds that Deco-Line was not displaying thenecessary diligence in the appointment of arbitrators and that non-payment of itsinvoices was disturbing its cash flow. In its application, it sought an order againstDeco-Line for payment of DM 837 919.13 to cover four debts due under theagreement.

11.

    In those proceedings, Deco-Line objected, first, that the Netherlands court had nojurisdiction to entertain the claims. Being established in Germany, it could be suedonly before the German courts.

12.

    The President of the Rechtbank dismissed that objection on the ground that anorder sought as interim relief must be regarded as a provisional measure within themeaning of Article 24 of the Convention.

13.

    Referring to Article 126(3) of the Code of Civil Procedure, he decided that, ascourt of the plaintiff's domicile, he had jurisdiction to entertain an application madeby a plaintiff residing in the Netherlands against a defendant with no knowndomicile or recognised place of residence there. He further concluded that thecase had the requisite minimum connection with Netherlands law, for two reasons:(i) Deco-Line was engaged in international trade and would thus become a creditorin the Netherlands, so that any judgment against it could be enforced there, and (ii)such a judgment could also be enforced in Germany.

14.

    Finally, the President of the Rechtbank took the view that his jurisdiction was inno way affected by the fact that the parties had agreed to have their disputedetermined by arbitration in the Netherlands since, under Article 1022(2) of theCode of Civil Procedure, an arbitration clause cannot preclude a party's right toseek interim relief.

15.

    By provisionally enforceable judgment of 21 June 1994, the President of theRechtbank, Rotterdam, therefore ordered Deco-Line to pay Van Uden the sum ofDM 377 625.35, together with interest at the statutory rate.

16.

    On appeal by Deco-Line, the Gerechtshof te s'-Gravenhage (Regional Court ofAppeal, The Hague) quashed that order. In its view, the fact that the case had tohave a sufficient connection with Netherlands law meant, in the context of theConvention, that it must be possible for the interim order applied for to be

enforced in the Netherlands. The mere fact that Deco-Line could acquire assetsthere in the future was, it considered, insufficient for that purpose.

17.

    A further appeal against that decision was brought before the Hoge Raad derNederlanden, which stayed proceedings and requested a preliminary ruling by theCourt on the following questions:

'(1)    Where an obligation to pay a sum or sums due under a contract must beperformed in a Contracting State — so that, under Article 5, point 1, of theBrussels Convention, the creditor is entitled to sue his defaulting debtor inthe courts of that State with a view to obtaining performance, even thoughthe debtor is domiciled in another Contracting State — do the courts of thefirst-mentioned State (for that same reason) have jurisdiction also to hearand determine a claim brought by the creditor against his debtor in interim[kort geding] proceedings for an order requiring the debtor, by provisionallyenforceable judgment, to pay a sum which, in the view of the court hearingthe interim application, is very probably due to the creditor, or do additionalconditions apply in relation to the jurisdiction of the court hearing theinterim application, for example the condition that the relief sought fromthat court must take effect (or be capable of taking effect) in theContracting State concerned?

(2)    Does it make any difference to the answer to Question 1 whether thecontract between the parties contains an arbitration clause and, if so, whatthe place of arbitration is according to that clause?

(3)    If the answer to Question 1 is that, in order for the court hearing theinterim application to have jurisdiction, the relief sought from it must alsotake effect (or be capable of taking effect) in the Contracting Stateconcerned, does that mean that the order applied for must be capable ofenforcement in that State, and is it then necessary for this condition to befulfilled when the interim application is made, or is it sufficient that it canbe reasonably expected to be fulfilled in the future?

(4)    Does the possibility, provided for in Article 289 et seq. of the NetherlandsCode of Civil Procedure, of applying on grounds of pressing urgency to thePresident of the Arrondissementsrechtbank for a provisionally enforceablejudgment constitute a ”provisional” or ”protective” measure within themeaning of Article 24 of the Brussels Convention?

(5)    Does it make any difference to the answer to Question 4 whethersubstantive proceedings on the main issue are, or may become, pending and,if so, is it material that arbitration proceedings had started in the samecase?

(6)    Does it make any difference to the answer to Question 4 that the interimrelief sought is an order requiring performance of an obligation of payment,as referred to in Question 1?

(7)    If Question 4 must be answered in the affirmative, and ”the courts ofanother Contracting State have jurisdiction as to the substance of thematter”, must Article 24, and in particular the reference therein to ”suchprovisional ... measures as may be available under the law of [a Contracting]State”, be interpreted as meaning that the court hearing the application forinterim measures has (for that same reason) jurisdiction if it has jurisdictionunder provisions of its national law, even where those provisions arereferred to in the second paragraph of Article 3 of the Brussels Convention,or is its jurisdiction in the latter case conditional on the fulfilment ofadditional conditions, for example that the interim relief sought from thatcourt must take effect, or be capable of taking effect, in the ContractingState concerned?

(8)    If the answer to Question 7 must be that, in order for the court hearing theapplication for interim relief to have jurisdiction, it is also required that therelief sought from it must take effect (or be capable of taking effect) in theContracting State concerned, does that mean that the order applied formust be capable of enforcement in that State, and is it then necessary forthis condition to be fulfilled when the application for interim relief is made,or is it sufficient that it can reasonably be expected to be fulfilled in thefuture?‘

18.

    The questions raised relate to the jurisdiction, under the Convention, of a courthearing applications for interim relief. The national court wishes to know bothwhether such jurisdiction could be established on the basis of Article 5, point 1, ofthe Convention (Questions 1 to 3) and whether it could be established on the basisof Article 24 (Questions 4 to 8). In both cases, the national court's questions relateto

—    first, the relevance of the fact that the dispute in question is subject, underthe terms of the contract, to arbitration,

—    next, whether the jurisdiction of the court hearing the application forinterim relief is subject to the condition that the measure sought must takeeffect or be capable of taking effect in the State of that court, in particularthat it must be enforceable there, and whether it is necessary that such acondition should be met at the time when the application is made, and

—    finally, the relevance of the fact that the case relates to a claim for interimpayment of a contractual consideration.

19.

    The first point to be made, as regards the jurisdiction of a court hearing anapplication for interim relief, is that it is accepted that a court having jurisdictionas to the substance of a case in accordance with Articles 2 and 5 to 18 of theConvention also has jurisdiction to order any provisional or protective measureswhich may prove necessary.

20.

    In addition, Article 24, in Section 9 of the Convention, adds a rule of jurisdictionfalling outside the system set out in Articles 2 and 5 to 18, whereby a court mayorder provisional or protective measures even if it does not have jurisdiction as tothe substance of the case. Under that provision, the measures available are thoseprovided for by the law of the State of the court to which application is made.

21.

    Article 5, point 1, of the Convention provides that in matters relating to a contracta defendant may be sued, in a Contracting State other than that in which he isdomiciled, in the courts for the place of performance of the obligation in question.

22.

    Thus, the court having jurisdiction as to the substance of a case under one of theheads of jurisdiction laid down in the Convention also has jurisdiction to orderprovisional or protective measures, without that jurisdiction being subject to anyfurther conditions, such as that mentioned in the national court's third question.

23.

    However, in the present case, the contract signed between Van Uden and Deco-Line contains an arbitration clause.

24.

    Where the parties have validly excluded the jurisdiction of the courts in a disputearising under a contract and have referred that dispute to arbitration, there are nocourts of any State that have jurisdiction as to the substance of the case for thepurposes of the Convention. Consequently, a party to such a contract is not in aposition to make an application for provisional or protective measures to a courtthat would have jurisdiction under the Convention as to the substance of the case.

25.

    In such a case, it is only under Article 24 that a court may be empowered underthe Convention to order provisional or protective measures.

26.

    In that connection, Deco-Line and the German and United Kingdom Governmentsagreed that, since the parties have agreed to submit their dispute to arbitration,interim proceedings also fall outside the scope of the Convention. The GermanGovernment argues in particular that measures sought in interim proceedings, whenthey are intrinsically bound up with the subject-matter of an arbitration procedure,fall outside the scope of the Convention. In the United Kingdom Government'sview, the measures sought in the present case may be regarded as ancillary to thearbitration procedure and are thus excluded from the scope of the Convention.

27.

    Van Uden and the Commission, however, contend that the existence of anarbitration clause does not have the effect of excluding an application for interim

measures from the scope of the Convention. The Commission points out that thesubject-matter of the dispute is decisive and that the issue underlying the interimproceedings concerns the performance of a contractual obligation — a matter whichfalls within the scope of the Convention.

28.

    It must first be borne in mind here that Article 24 of the Convention applies evenif a court of another Contracting State has jurisdiction as to the substance of thecase, provided that the subject-matter of the dispute falls within the scope rationemateriae of the Convention, which covers civil and commercial matters.

29.

    Thus the mere fact that proceedings have been, or may be, commenced on thesubstance of the case before a court of a Contracting State does not deprive acourt of another Contracting State of its jurisdiction under Article 24 of theConvention.

30.

    However, Article 24 cannot be relied on to bring within the scope of theConvention provisional or protective measures relating to matters which areexcluded from it (Case 143/78 De Cavel v De Cavel [1979] ECR 1055, paragraph9).

31.

    Under Article 1, second paragraph, point 4, of the Convention, arbitration isexcluded from its scope. By that provision, the Contracting Parties intended toexclude arbitration in its entirety, including proceedings brought before nationalcourts (Case C-190/89 Rich v Società Italiana Impianti [1991] ECR I-3855,paragraph 18).

32.

    The experts' report drawn up on the accession of the Kingdom of Denmark,Ireland and the United Kingdom of Great Britain and Northern Ireland to theConvention (OJ 1979 C 59, p. 71, at pp. 92-93) specifies that the Convention doesnot apply to judgments determining whether an arbitration agreement is valid ornot or, because it is invalid, ordering the parties not to continue the arbitrationproceedings, or to proceedings and decisions concerning applications for therevocation, amendment, recognition and enforcement of arbitration awards. Alsoexcluded from the scope of the Convention are proceedings ancillary to arbitrationproceedings, such as the appointment or dismissal of arbitrators, the fixing of theplace of arbitration or the extension of the time-limit for making awards.

33.

    However, it must be noted in that regard that provisional measures are not inprinciple ancillary to arbitration proceedings but are ordered in parallel to suchproceedings and are intended as measures of support. They concern notarbitration as such but the protection of a wide variety of rights. Their place in thescope of the Convention is thus determined not by their own nature but by thenature of the rights which they serve to protect (see Case C-261/90 Reichert andKockler v Dresdner Bank [1992] ECR I-2149, paragraph 32).

34.

    It must therefore be concluded that where, as in the case in the main proceedings,the subject-matter of an application for provisional measures relates to a questionfalling within the scope ratione materiae of the Convention, the Convention isapplicable and Article 24 thereof may confer jurisdiction on the court hearing thatapplication even where proceedings have already been, or may be, commenced onthe substance of the case and even where those proceedings are to be conductedbefore arbitrators.

35.

    Next, as regards the conditions set out in the Convention for the grant of anapplication under Article 24, Van Uden submits that no further condition need befulfilled for the court hearing such an application to have jurisdiction provided thatit has jurisdiction under provisions of its national law even where those provisionsare among those listed in the second paragraph of Article 3 of the Convention. Deco-Line, however, maintains that the imposition of stricter conditions is clearlyjustified and that, in any event, the fact that Article 24 refers to national rules onjurisdiction implies that the court in question is free to hold that its jurisdiction issubject to such conditions.

36.

    In the German Government's view, Article 24 does not authorise a court acting onthe basis of one of the rules of jurisdiction listed in the second paragraph of Article3 of the Convention to order provisional measures unless the rule of jurisdiction inquestion is subject to the urgency of the decision or based upon that reasoning andunless the provisional measure, at the time when it is ordered, has a sufficientconnecting link with the State of that court. The latter condition is satisfied whenthe provisional measure can be enforced in that State.

37.

    In that regard, it must be remembered that the expression 'provisional, includingprotective, measures‘ within the meaning of Article 24 of the Convention is to beunderstood as referring to measures which, in matters within the scope of theConvention, are intended to preserve a factual or legal situation so as to safeguardrights the recognition of which is otherwise sought from the court havingjurisdiction as to the substance of the case (Reichert and Kockler, cited above,paragraph 34).

38.

    The granting of this type of measure requires particular care on the part of thecourt in question and detailed knowledge of the actual circumstances in which themeasures sought are to take effect. Depending on each case and commercialpractices in particular, the court must be able to place a time-limit on its order or,as regards the nature of the assets or goods subject to the measures contemplated,require bank guarantees or nominate a sequestrator and generally make itsauthorisation subject to all conditions guaranteeing the provisional or protectivecharacter of the measure ordered (Case 125/79 Denilauler v Couchet Frères [1980]ECR 1553, paragraph 15).

39.

    In that regard, the Court held at paragraph 16 of Denilauler that the courts of theplace — or, in any event, of the Contracting State — where the assets subject to themeasures sought are located are those best able to assess the circumstances whichmay lead to the grant or refusal of the measures sought or to the laying down ofprocedures and conditions which the plaintiff must observe in order to guaranteethe provisional and protective character of the measures authorised.

40.

    It follows that the granting of provisional or protective measures on the basis ofArticle 24 is conditional on, inter alia, the existence of a real connecting linkbetween the subject-matter of the measures sought and the territorial jurisdictionof the Contracting State of the court before which those measures are sought.

41.

    It further follows that a court ordering measures on the basis of Article 24 musttake into consideration the need to impose conditions or stipulations such as toguarantee their provisional or protective character.

42.

    With regard more particularly to the fact that the national court has in this instancebased its jurisdiction on one of the national provisions listed in the secondparagraph of Article 3 of the Convention, it must be borne in mind that, inaccordance with the first paragraph of that article, persons domiciled in aContracting State may be sued in the courts of another Contracting State only byvirtue of the rules set out in Sections 2 to 6 of Title II, that is to say Articles 5 to18, of the Convention. Consequently, the prohibition in Article 3 of reliance onrules of exorbitant jurisdiction does not apply to the special regime provided for byArticle 24.

43.

    Finally, with regard to the question whether an interim order requiring payment ofa contractual consideration may be classified as a provisional measure within themeaning of Article 24 of the Convention, Deco-Line and the Government of theUnited Kingdom argue that it cannot. The German Government considers that themain proceedings appear to fall outside the definition of provisional or protectivemeasures.

44.

    Van Uden and the Commission do not share that view. In the Commission's view,provisional measures must be taken to mean those whose validity lapses when themain issue is determined or on the expiry of a specified period. They maycomprise positive measures, that is to say an order to perform some act such as thehanding-over of property or the payment of a sum of money.

45.

    Here, it must be noted that it is not possible to rule out in advance, in a generaland abstract manner, that interim payment of a contractual consideration, even inan amount corresponding to that sought as principal relief, may be necessary inorder to ensure the practical effect of the decision on the substance of the case andmay, in certain cases, appear justified with regard to the interests involved (see, inthe context of Community law, Case C-393/96 P(R) Antonissen v Council andCommission [1997] ECR I-441, paragraph 37).

46.

    However, an order for interim payment of a sum of money is, by its very nature,such that it may preempt the decision on the substance of the case. If, moreover,the plaintiff were entitled to secure interim payment of a contractual considerationbefore the courts of the place where he is himself domiciled, where those courtshave no jurisdiction over the substance of the case under Articles 2 to 18 of theConvention, and thereafter to have the order in question recognised and enforcedin the defendant's State, the rules of jurisdiction laid down by the Convention couldbe circumvented.

47.

    Consequently, interim payment of a contractual consideration does not constitutea provisional measure within the meaning of Article 24 unless, first, repayment tothe defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful asregards the substance of his claim and, second, the measure sought relates only tospecific assets of the defendant located or to be located within the confines of theterritorial jurisdiction of the court to which application is made.

48.

    In the light of the foregoing considerations, the answer to the first and secondquestions must be that

—    on a proper construction of Article 5, point 1, of the Convention, the courtwhich has jurisdiction by virtue of that provision also has jurisdiction toorder provisional or protective measures, without that jurisdiction beingsubject to any further conditions, and

—    where the parties have validly excluded the jurisdiction of the courts in adispute arising under a contract and have referred that dispute toarbitration, no provisional or protective measures may be ordered on thebasis of Article 5, point 1, of the Convention.

The answer to the fifth question must be that

—    where the subject-matter of an application for provisional measures relatesto a question falling within the scope ratione materiae of the Convention, theConvention is applicable and Article 24 thereof may confer jurisdiction onthe court hearing that application even where proceedings have alreadybeen, or may be, commenced on the substance of the case and even wherethose proceedings are to be conducted before arbitrators.

Finally, the answer to the fourth, sixth, seventh and eighth questions must be that

—    on a proper construction, the granting of provisional or protective measureson the basis of Article 24 of the Convention is conditional on, inter alia, theexistence of a real connecting link between the subject-matter of themeasures sought and the territorial jurisdiction of the Contracting State ofthe court before which those measures are sought, and

—    interim payment of a contractual consideration does not constitute aprovisional measure within the meaning of Article 24 of the Conventionunless, first, repayment to the defendant of the sum awarded is guaranteedif the plaintiff is unsuccessful as regards the substance of his claim and,second, the measure sought relates only to specific assets of the defendantlocated or to be located within the confines of the territorial jurisdiction ofthe court to which application is made.

Costs

49.

    The costs incurred by the German and United Kingdom Governments and by theCommission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in theproceedings pending before the national court, the decision on costs is a matter forthat court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Hoge Raad der Nederlanden byjudgment of 8 December 1995, hereby rules:

1.    On a proper construction of Article 5, point 1, of the Convention of 27September 1968 on Jurisdiction and the Enforcement of Judgments in Civiland Commercial Matters, as amended by the Convention of 9 October 1978on the accession of the Kingdom of Denmark, Ireland and the UnitedKingdom of Great Britain and Northern Ireland, and by the Convention of25 October 1982 on the accession of the Hellenic Republic, the court whichhas jurisdiction by virtue of that provision also has jurisdiction to orderprovisional or protective measures, without that jurisdiction being subjectto any further conditions.

2.    Where the parties have validly excluded the jurisdiction of the courts in adispute arising under a contract and have referred that dispute toarbitration, no provisional or protective measures may be ordered on thebasis of Article 5, point 1, of the Convention of 27 September 1968.

3.    Where the subject-matter of an application for provisional measures relatesto a question falling within the scope ratione materiae of the Convention of27 September 1968, that Convention is applicable and Article 24 thereofmay confer jurisdiction on the court hearing that application even whereproceedings have already been, or may be, commenced on the substance of

the case and even where those proceedings are to be conducted beforearbitrators.

4.    On a proper construction, the granting of provisional or protectivemeasures on the basis of Article 24 of the Convention of 27 September 1968is conditional on, inter alia, the existence of a real connecting link betweenthe subject-matter of the measures sought and the territorial jurisdictionof the Contracting State of the court before which those measures aresought.

5.    Interim payment of a contractual consideration does not constitute aprovisional measure within the meaning of Article 24 of the Convention of27 September 1968 unless, first, repayment to the defendant of the sumawarded is guaranteed if the plaintiff is unsuccessful as regards thesubstance of his claim and, second, the measure sought relates only tospecific assets of the defendant located or to be located within the confinesof the territorial jurisdiction of the court to which application is made.

Rodríguez IglesiasKapteyn Puissochet             Hirsch                Jann Mancini Moitinho de Almeida Gulmann             Murray                Edward Ragnemalm Sevón Wathelet

Delivered in open court in Luxembourg on 17 November 1998.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: Dutch.