Provisional Measures in Family Law and the Brussels II Ter Regulation

Yearbook of Private International Law, 2019

36 Pages Posted: 16 Mar 2020

See all articles by Ilaria Pretelli

Ilaria Pretelli

Swiss Institute of Comparative Law; University of Urbino

Date Written: September 29, 2019

Abstract

Provisional and Protective Measures in family matters need special consideration because they are not limited to economic matters and significantly interfere with the self-determination of persons and often of vulnerable persons, namely children. This circumstance explains the exceptional regime of the Brussels II ter Regulation as compared to the general regime of the Brussels I and Lugano systems. The article also deals with the problem of the law applicable to provisional measures, in the absence of a specific European rule on this matter. We argue that, whenever a provisional or protective measure is taken by the judge who will not rule on the substance of the matter and especially in cases where the measure is provisional and anticipates the merits, judges should avoid the application of the law of their forum and apply the law applicable to the substance to the provisional measure they are required to issue.

Keywords: Applicable Law, Jurisdiction, Recognition and Enforcement, Provisional Measures, Interim Reliefs, Protective Measures, Family Law, Child Abduction, Return Proceedings, European Private International Law, Conflict of Laws

JEL Classification: K36, K33, K40, K41, K42

Suggested Citation

Pretelli, Ilaria, Provisional Measures in Family Law and the Brussels II Ter Regulation (September 29, 2019). Yearbook of Private International Law, 2019, Available at SSRN: https://ssrn.com/abstract=3495447

Ilaria Pretelli (Contact Author)

Swiss Institute of Comparative Law ( email )

Lausanne, CH-1015
Switzerland

University of Urbino ( email )

Via Saffi 2
Urbino, Pesaro-Urbino 61029
Italy

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