Milletlerarası Usul Hukukunda ihtiyati tedbirler

Abstract

This study examines the international jurisdiction, choice of law, recognition and enforcement problems in provisional measures having international aspects. After examining categories of provisional measures in national laws international regulations are examined. Briefly the following results have been achieved: In the international regulations which are examined in this study, provisional measures are described as instruments providing a preliminary means of securing assets out of which an ultimate judgment may be satisfied and maintaining the status quo pending determination of the issues at trial Anti suit injunction and interim payments, adopted in Anglo-American law systems, are excluded from this definition. As regards international jurisdiction of national courts it may be said that a court of the place where the property is located, a court which has jurisdiction to rule on the merits of the dispute, and a court where the debtor's domicile have jurisdiction to take provisional measures. It is accepted that if the parties determined a jurisdiction clause or arbitration national courts would have jurisdiction to grant provisional measures. As regards recognition and enforcement of provisional measures, they can not be able to recognize and enforce because of non-binding character unlike the other foreign judgments. This is a traditional view in national laws. According to the the international regulations it is possible for a judgment to be enforceable although it lacks the effect of res judicata under the law from which it emanates. However there are two preconditions to recognition and enforcement of provisional measures : Judgment should be addressed to the debtor and the right of defence of debtor should be respected. Applicable law to the provisional measures is refered to the national laws in international regulations. The dominant view provides application of lex fori in national system of conflict of laws because of the the fact that provisional measures concern civil procedure or the rules regulating this area are directly applicable rules. According to us, after determining the existence of directly applicable rules in this area, there must be distinction between the procedure of provisional measures and the conditions related to the provisional measures. In the matter of conditions of provisional measures regarding to the types of provisional measures it should be determined whether to apply lex causae or not It is appropriate that law of the country where the judgment of provisional measures is emanated determines the modification and the abolishment of these measures. As applicable law to the the action for damages arising from unlawfull provisional measures, it may be asserted applying the rules of law applicable to the tort by analogy. There is need to regulate this matter by an international instrument which has comprehensive and pragmatic solutions because of the fact that judgments for provisional measures in international litigation have different character. Otherwise provisional measures will be confined to the national laws and necessity of the international trade law and interests of person who request legally protection will not be responded.