Interim measures and civil litigation.
I A Court Drama for an Unperformed Drama II Purposes of this Study III Conventional Wisdom on Interim Measures IV A Different Picture V Overview of the Swedish Regulation A Basic Principles B The General Provision VI A Definitive Provisional Measure? VII The Inevitable Substitute to Litigation VIII Flexible and Prospective Enforcement of Justice
I. A COURT DRAMA FOR AN UN-PERFORMED DRAMA
Let me begin by telling a story about a court drama that took place in the Swedish city of Malmo. Once upon a time--or just over a decade ago, to be more precise--the theatre company "Hipp" was about to stage the world premier of Jacques Prevet's play LES ENFANTS DE PARADIS. Just a few hours before the first performance, the district court in Malmo issued an injunction with immediate effect, forbidding the performance of the play. Earlier that day, before lunch, the playwright's heir applied to the district court (1) for an interim injunction. A judge granted the injunction a few hours later after finding that Hipp was about to commit copyright infringement. He found an immediate injunction was necessary in order to protect the copyright owner from the harms that might be caused by an unauthorized performance of the play. The judge granted an immediate injunction because the court could not deliver a judgment on the case's merits in time to prevent such harms. A subsequent judgment would be equally ineffective because it would be unable to repair the damages that would have already occurred.
The court's injunction was an interim order valid indefinitely until the case settled in a final judgment. The order also set out a fine of 100,000 Swedish crowns payable by the theatre company for each breach of the injunction. (2) Hipp, however, did not breach the order. The theatre company cancelled the premier at the last minute and chose instead to let the legal drama play out in the court.
The issue involved in this case was whether Hipp intended to perform the play without permission from the rightful owner, thereby committing copyright infringement. The heir to Prevet claimed that irreparable damages would be done to the renommee of the playwright if the performance were to go ahead as planned. Hipp had, of course, an entirely different view of the matter. It claimed that the parties had already reached an oral agreement a few months earlier regarding the right to perform the work. According to Hipp, only further details remained to be settled concerning the amount of compensation to Jacques Prevet's heir for the theatre's acquisition of the performing rights. The agreement was based on an understanding that the theatre made great economic and personnel investments in the preparation of the play for the world premier. The theatre asserted that the heir was fully aware of those circumstances.
Hipp successfully appealed the district court's injunction. This success, however, was short-lived. The court of appeals actually quashed the injunction; (3) finding that the application for an interim injunction was defective on one point: the amount of security offered by the heir.
The heir offered a certain amount of security against the damages Hipp might suffer due to a wrongful injunction. Unlike the district court, the court of appeals found that the amount proposed was too low and instead offered a figure it deemed more appropriate. After presenting the additional securities, the heir turned again to the district court for a new interim injunction on Hipp's performance of the play.
At this point, the theatre company had second thoughts on letting the drama play out in the courts. The parties agreed on a settlement and never demanded judgment. Hipp compensated Prevet's heir for the theatre's right to perform the play, and the world premier could be held. This copyright drama was over in a little more than a week, a considerably shorter time than it would have taken to settle the dispute through the ordinary process of civil litigation.
The court was never required to hold any oral hearings on the breach of copyright question. Consequently, neither the parties nor the general public knew whether Hipp acquired the performance rights through the alleged oral contract. Speedy resolution had its price though, especially according to the theatre company's legal counsel, who later claimed that the heir had used the interim measure to drive up her compensation for the right of performance:
The heir took the fullest advantage of the situation. She obtained conditions for the right of performance that must be unique in the history of European theatres for similar works. The compensation demanded was of a size way over the customary amount for the branch and conditions were made on the performance that were totally unheard of. All this happened without the theatre having had an opportunity to adduce evidence that it was not a case of infringement in copyright, and therefore, that there was no probable ground for the plaintiff's case. (4)
This drama is just one of many cases that have run a similar course and may have received more or less attention in the media. Newspapers and television reports, however, seldom make it clear that the court decisions are actually only interim solutions, not a final judgment. In theory, such relief is not intended to be the final outcome of the dispute. It is also not intended to pressure the parties to abstain from going further with the litigation and to seek resolution through settlement. These effects will, however, often occur in practice.
II. PURPOSES OF THIS STUDY
The drama described in the preceding section is the introduction to my treatise on interim measures in civil litigation. (5) This treatise is broadly based and problem-oriented. It examines the intended and actual functions of interim measures within the framework of a normative survey of published and unpublished Swedish court decisions. The 'official' purpose of interim measures, as a guarantee for enforcement, is set against the secondary purposes or effects that such measures have in practice, particularly their function in conflict resolution as a substitute for litigation. The treatise also explains aspects of interim measures that would explain their growing importance and effect. Furthermore, the treatise provides a critical evaluation of the raison d'etre for the institution of interim measures and its present structure.
On the matter of methodology and legal science, this problem-oriented study adopts the perspective of the parties. The purpose of this viewpoint is not to provide the parties with a toolbox of legal advice on strategies for successful litigation or to suggest tricks and schemes of advocacy. Furthermore, because the "practical side" of the law is important, even if sometimes an unwanted element of legal reality, it will also be explored. While this party based instrumentalism may be disparaged by legal or political advocates, it is pedagogically efficacious for legislators and adjudicators.
This author's study of the material did not begin with the consideration of a party-based perspective. Rather, the idea has emerged successively from processing the material over time. It is only after a time-consuming process that one fully realizes the difficulties in treating this subject only in the classical perspectives of the legislator and the courts. Gradually, the need arises to draw from the arguments of the parties in order to arrive at a richer picture of the functions, practical significance, and development of the institution of interim measures, such as guarantees for enforcement and form conflict resolution.
Those who are familiar with security measures orders in Swedish case law understand they are often cursory and often devoid of any meaning. Furthermore, neither the travaux preparatoires (preparatory work) nor other sources of law give any guidance, through concrete cases or questions of principle. In this perspective, the arguments of the parties can breathe some life into the case law and give it more substance, thus elucidating the rationale of the court's decision.
There are additional factors in the parties' perspectives to consider. One aspect of the parties' behavior is that a litigant should be a catalyst for practical needs borne out in reality and requiring legal protection. This enables the parties to be the initiators of legal development through case law as they present different situations and insist upon remedies. The courts can then prune the flora of needs, matching changes in society and new types of conflicts to the desire for stable law.
Another aspect of party behavior is instrumentalism, which can take the shape of egoism. A system of rules or a procedure can be used for purposes other than those intended. One may encounter good purposes, which are not explicitly expressed in the legal order. The law must also respond to the inverse and equally prevalent purposes that are adverse or controversial. When this instrumentalism takes over and gains significant influence, it affects the potential for reaching the stated goal of the law. For a study of the party-based perspective, one must analyze the arguments of the parties. Comparing case law and party arguments provides information on the functions of interim measures, changes in functions, and the driving forces behind them.
For the purpose of this study, a large amount of unpublished cases have been gathered and scrutinized, encompassing so-called Ocases from four of the six courts of appeal during the time period of 1981 to 2002. (6) In analyzing the cases, the author paid special attention to the parties' written submissions in order to understand what the parties wished to achieve through the interim measure, and to survey the content and structure of the parties' arguments. The value of this investigation is in determining what role the parties may have had or will have in the development of legal processes on interim measures, especially the changes in the functions of interim measures. Admittedly, much of the legal argument in the submissions reflects points already known and identifiable through the usual sources of law. Since legal sources in this area are scarce, however, there ought to be "creative development" of known lines of thought in the parties' submissions as well as some "defendable" new thinking--perhaps as a consequence of international influences and the parties' rapidly changing reality.
In order to deepen and to isolate the characteristic way of thinking and arguing which can be traced to parties and courts in the Swedish context, this author has used the ideas and reasoning of foreign law. (7) Here, the question is not of a traditional Landerstudium, in which the different jurisdictions are presented respectively, nor is the purpose to pursue a proper comparative investigation. Parties and courts face remarkably similar problems throughout the Western world. Admittedly, solutions to these problems vary significantly, but the starting point is for the solutions and the basic principles of law to coincide. The basic elements of interim measures are generally the same. These circumstances encourage the free movement of legal thinking across national boundaries. The differences between legal systems also help to describe, understand, and critically assess the Swedish model.
III. CONVENTIONAL WISDOM ON INTERIM MEASURES
The case of Jacques Prevet's play described above is a kind of court drama. This drama stands in sharp contrast to the rather dull conception of interim measures given by the legal rules, the travaux preparatoires, and the standard literature in this area. In practice, high-profile court dramas that draw the attention of the general public are the exception. The most common form of interim measure is a seizure order in cases concerning the payment of debt. (8) Through a seizure order, the court requires that the property of the defendant debtor be taken into possession--or secured by other means to ensure that the plaintiff creditor can obtain payment for a debt under dispute at a later time. Courts usually issue seizure orders when they suspect that the debtor is using his money or assets for purposes other than paying his debts. In the absence of such an order, the debtor would be unable to pay his debts. It would then be difficult or even impossible to enforce a future judgment against the debtor, as the debtor would no longer possess any distrainable property. The purpose of a seizure order is to guarantee that a creditor will be able to enforce an imminent judgment against a debtor.
Seizure is merely one form of interim measure or, as it is also called, a form of security measure in civil litigation. Another form of security measure is an interim injunction forbidding the defendant from performing a certain act or activity. (9) Another example is a court's interim order for specific performance, directing the defendant to take certain measures, e.g., to deliver certain goods. The court can appoint a trustee who will have the task of temporarily administering certain property. The trustee also may be required to assume the responsibility of the defendant for a certain activity or to take certain measures.
Officially, security measures and the process dealing with such measures constitute an inchoate legal and technical appendix to the ordinary civil trial. On the surface, no controversial feature merits a critical examination and survey of the structure and functions of interim measures. The institution prevents the defendant from recklessly and impudently rendering himself immune from court judgments.
Essentially, the need for security measures--such as seizure and injunction--in civil litigation is connected to two factors: the slowness of the ordinary civil trial and the tendency of some defendants to take so-called 'sabotage' measures. It may take considerable time from when a dispute arises to when the dispute is resolved through a final judgment. Thus, a time gap provides ample room for a defendant to obstruct the plaintiff's rights. The defendant could hide or sell the property in question, carry out competing commercial activities in breach of contract, take advantage of the inventions of the plaintiff, or shirk his responsibility for a debt by emptying a company of its assets, etc. There are many reasons why a defendant would take any of these improper measures: sometimes he is simply malicious and wishes to harm the plaintiff, other times he is merely indifferent to the plaintiff's rightful interests. The defendant may also erroneously believe that the plaintiff's claim is unfounded or the defendant may obstinately maintain that although the plaintiff's demand is well-grounded per se, it must yield to other, considerably more important, interests.
The plaintiff reacts by parrying the imminent threat immediately. This is done through an application to the courts for the quick, legal, provisional relief that interim measures offer. This court order is meant to stop or steer the defendant's reaction or, through other means, to set the boundaries for his freedom of action during the continued litigation. The order should neither fully nor definitively determine the real substantive dispute between the parties. The court decision should only prevent the defendant from taking measures during the trial that would render a judgment on the substantive claim meaningless. Interim measures are thus designed to function as provisional measures; they serve as temporary relieves, guaranteeing that the expected future judgments will actually provide the benefits sought. The intimate connection between interim measures and the judgment constitutes a procedural question in civil litigation. This special form of case management, the procedure for interim measures, constitutes, a "process within a process."
Described in this way, interim measures function as a necessary instrument in the administration of justice. Interim measures serve as a support to civil litigation and not a replacement; they are not designed to encourage settlements. Nor are interim measures meant to be used to bring pressure on the defendant to satisfy the plaintiff's substantive claim. The provisional relief is, through interim measures, meant to function as a guarantee for security and protection provided by law.
IV. A DIFFERENT PICTURE
The conventional picture of provisional relief is simple and one-sided. The stated objectives of the rules on interim measures are not precise, nor is reality so obligingly streamlined that it is always possible in practice to apply interim measures strictly within the frame of their intended functions, i.e., foremost to provide a kind of guarantee for enforcement.
Interim measures can function as a surrogate for trial in civil claims. A civil judgment, as well as the civil process itself, would lose its practical significance if security measures were not available. Interim measures are needed to stop, or to exercise control over, events that would destroy or deteriorate ex ante the possibilities of enforcing the pending judgment or render the judgment meaningless or less valuable to the winning party.
In practice, the use of security measures have had a different effect than to preserve or strengthen the significance of the civil trial as a means of conflict resolution. Additionally, it appears that orders for interim measures have taken over the functions of final judgments, thereby making the civil trial superfluous. The radical change of course of civil litigation, from a slow procedure characterized by a high degree of legal certainty to a speedy procedure with a lower degree of legal certainty, should generate a great deal of debate. Given the intrusive and devastating effects that interim measures may entail, there should be vociferous charges of suspicion that these forceful measures have been decided on all too "loose grounds," but there has not been an outcry thus far.
The procedure for security measures responds better to the market's needs for conflict resolution than traditional civil litigation. What the market seeks is a speedy, forceful and more-or-less reliable decision. In a world full of compromises, legal certainty would be just one of the merchandises for actors of the market. (10) On the question of interim measures as a substitute for civil litigation, one English commentator has maintained that "[t]he present procedure of interlocutory relief must be accepted for what it is: a compromise in quality for the sake of timeliness, with potential harmful consequences to entitlements of a permanent nature." (11) Today, it is not uncommon for lawyers and their clients, who are often engaged in commercial disputes, to consider speed as equivalent to legal certainty. Even some legislators have occasionally adopted this notion.
Legal certainty and speed are not mutually exclusive of one another but rather have merged. This merging has made analysis of the tension between certainty and speed more difficult. By incorporating speed into legal certainty, the requirement of good 'process economy' has attained a higher status than it previously held. This critique is not meant to disparage speed's value. Legal speed may even have a higher value than legal certainty. But that is another question.
Though few in Sweden have critiqued the measures' effect on conflict resolution, the response of other foreign critics is completely different. Since the 1960's, discussions have centered on how the process for obtaining interim relief has paradoxically become a surrogate for the civil trial itself. The question is whether the development in Sweden is moving in the same direction. Have the practical importance and content of interim measures deviated significantly from their intended functions? If this is the case, does it put into play the justifications of interim measures? These questions are worth investigating. The task in the context of legal science is to survey and critically examine the functions of interim measures. These functions may be ones the parties are seeking, have already achieved, have officially sanctioned, or classified as unwanted.
V. OVERVIEW OF THE SWEDISH REGULATION
A. Basic Principles
A fundamental point of departure regarding interim measures is the prohibition on premature enforcement. Under this prohibition no one shall be subject to enforcement of a claim before that claim has finally been decided in a judgment. (12) The defendant shall, as a rule, be free from coercive measures during the process of civil litigation. (13) Typically, the system of rules involving interim relief is designed to the advantage of the defendant and is manifested through the absence of an order of interim measure. The defendant's need for protection is top priority.
The court decides whether to depart from the prohibition of premature enforcement when addressing an application for interim measure. Such a departure means the court must make, through a special decision, a provisional order in favor of the applicant seeking the interim measure. The order, normally valid until further notice or at the latest, until the final judgment, can be reconsidered at any time during the process. A decision on interim measure does not acquire the force of res judicata in relation to the substantive claim, or in relation to a subsequent application for interim measures. The order is inherently provisional in nature.
A plaintiff or a defendant may apply for an interim measure. It is, however, extremely rare that a defendant is granted interim relief. In principle, an order may only bind the applicant's adversary. An order of interim measure cannot, in principle, bind a third party not involved in the proceeding.
An interim measure can only be ordered to ensure a meaningful judgment. A measure may be ordered for attaining three purposes. The main purpose is to secure enforcement of a future judgment expected to be given in favor of the applicant. The second purpose, albeit almost of an exceptional character, is to ensure that the applicant should immediately be able to enjoy his substantive rights, i.e., to obtain the protection that he should only be able to obtain through a judgment. Finally, an interim measure may be ordered with a view to provisionally regulate the relationship between the parties. Any other purpose for which interim measures may be used has not received much attention in Swedish law. Similarly, abuse of the security measures in civil litigation has not been fully explored.
An interim measure may be ordered both before and after hearing the defendant (ex parte and inter partes, respectively). If a delay per se constitutes a danger, the court may, according to Chapter 15, section 5 of the Code of Judicial Procedure, consider and decide the application without first giving the defendant an opportunity to be heard. A "danger in delay" can be seen as a constituent element of the risk of sabotage. When there is "danger in delay," there is an acute need of interim relief.
The application for interim measures is normally dealt with in a written procedure. According to procedural law, the process concerning interim measures is construed as an incidental process within the ordinary trial. (14) The process regarding interim measures thus constitutes an appendix to the civil litigation. Interim measures are categorized as a trial issue, one that should be addressed by the court hearing the substantive claims. (15) An interim measure is conditional upon the civil litigation having commenced or the substantive claim being shortly filed with the court for determination. The interim measure enables the main proceeding to fulfill its function. An interim measure cannot arise, exist or subsist without connection to imminent or on-going civil litigation, nor can it be transformed to something of a definitive nature.
The substantive claim does not need to be decided within the frame of the civil litigation process. An interim measure may be applied for even if the substantive claim is to be decided through similar adjudication, such as arbitration.
An order of interim relief is meant to be an exceptional measure. A departure from the prohibition on premature enforcement must be restricted to special cases. A risk of sabotage must exist. The applicant's need for protection must be acute and have a direct link to a current dispute between the parties. Interim measures bear the characteristics of both administration of justice and enforcement. Previously, interim measures formed part of the law of execution of judgments, while today, administration of justice is the primary function. The institution is, thus, regulated mainly by the Code of Judicial Procedure.
This cannot, however, hide the fact that in important parts, the law on enforcement of judgments provides interim measures with both force and content, in particular seizures. For a defendant whose property is being seized, there is a significant difference between the seized property being taken from his possession and if the seizure consists only in his being forbidden to use the property in a particular manner. The way in which the seizure order is secured is decided in an enforcement proceeding and is regulated in the Code of Execution of Judgments.
The granting of interim measures is based principally on statutory grounds, with the conditions laid down in law. There is insufficient published case law for the institution to say that they have obtained its form and content from Supreme Court precedent. In the published case law, one cannot discern, any expression of a general theory on what conduct of the principle defendant would count as a sabotage measure.
Not all conditions for the granting of interim relief, however, are statutory. Some of these have been created by the courts on the basis of interpretations of the character and purposes of the institution, inter alia, those mentioned or suggested in the travaux preparatoires. For example, one condition is that the dispute must normally concern a specific performance in order for interim measures to be granted as security for the principal claim. Another example of a condition is the requirement of proportionality. The case law requires that the damages the applicant stands to suffer if the application is not granted be greater and more serious than the damages that the defendant risks suffering if the interim measure is granted. When the situation is reversed, the application shall in principle be denied even if other conditions for the granting of interim measures are fulfilled. (16)
B. The General Provision
The general rules on interim measures are found in Chapter 15 of the Code of Judicial Procedure. These rules are intended, in principle, to be applicable to all types of civil litigation. They should not be limited to situations where the applicant wishes to obtain interim relief to secure a future court judgment in civil matters or future decisions in proceedings comparable to a civil trial, as an example of arbitration. (17) The fact that the parties have agreed that the substantive claim be adjudicated through arbitration does not relieve the civil court of its ability to issue orders of interim measures; while an arbitration panel may simultaneously order security measures.(18) An order by an arbitrator would not, however, be immediately eligible and it is still unclear how such orders are binding on the parties. (19) Another example of a situation where the civil court may order an interim measure, without anticipating a subsequent trial of the substantive claim, is when the substantive issue is to be heard in a foreign court, provided that the judgment is enforceable in Sweden. (20)
There are a number of rules in private law regulations deviating from or supplementary to the general regulation in Chapter 15 of the Code of Judicial Procedure. These special rules are found foremost in the area of intellectual property and have priority over the general rules in the Code of Judicial Procedure. The courts will not have discretion over the choice between the application of the general and the special rules based, for instance, on considerations such as what is equitable in the concrete case. On the other hand, the special rules outside of the Code of Judicial Procedure are neither meant to be exclusionary, nor exhaustive, in relation to Chapter 15 of the Code of Judicial Procedure. If a special rule does not regulate a certain part of the problem explicitly, it is for the court to fall back on and apply the general rules of the Code of Judicial procedure.
There are four main provisions in the general regulation of security measures in Chapter 15 of the Code of Judicial Procedure. Sections 1-3 of the Chapter form a group and differ in several respects from section 4, which deals primarily with the restoration of possession. The following paragraph focuses specifically on Chapter 15, sections 1-3, of the Code of Judicial Procedure.
Sections 1-3 were originally constructed to distinguish between different kinds of substantive claims: section 1 dealt with seizures for securing a payment claim, section 2 laid down rules on seizure in connection with claims of better title to a certain property, and section 3 was concerned with appropriate measures to secure other claims. Earlier case law assumed that the areas of application of these rules were clearly distinguished; seizure, for instance, was the only relief available for securing a payment claim. (21) The legislature reacted to this judicial interpretation and enacted responsive amendments, which went into effect on July 1, 2000. (22) The current position of the law is that section 3 may also be applied with regard to claims for payment or delivery and claims of better title to property.
The structure of the rules in sections 1-3 follows a common pattern. In order for an application for security measure to be granted, the rules require that the applicant show reasonable grounds for his substantive claim, demonstrate that the claim is the subject of civil litigation or similar proceedings and that it is reasonable to assume that there is a danger of the defendant acting in a way that could obstruct the enforcement of a final judgment in the applicant's favor or in another way to diminish the value of the judgment or the applicant's rights. If the applicant wishes to have an order of security measure before first hearing the defendant, the applicant must demonstrate that risks exist in delaying the order (section 5, paragraph 3). Furthermore, according to section 6, paragraph 1, an applicant can apply for a security measure only if he provides security for the damages that may be incurred by his counterpart. As mentioned earlier, further conditions have been created in the case law.
Besides the rules presented above, there are also rules in section 5 of Chapter 15 on questions of case management (forum, requirement of a written application, other management issues concerning the measure and costs) and in sections 7-9 on the duration of the security measure (restoration, annulment and prolongation in connection with the decision in the case). There is also a rule in section 10 on the so-called "rules of enforcement."
In general, one should note that the rules in Chapter 15 of the Code of Judicial Procedure have primarily arisen, and in practice have developed, in the perspective of a normal case for an order of security measure.
This "normal case" can be summarized in the following way: Chapter 15 of the Code of Judicial Procedure is designed primarily to fit typical situations of domestic civil litigation. It is concerned with an application for security measures made immediately before or simultaneously with the lodging of a substantive claim with the court. The application arises as an incidental question to the case in which the main claim is or will soon be the subject of adjudication by the court. The purpose of the security measure is normally to secure enforcement of a forthcoming judgment in the case. The applicant must therefore make a claim that is immediately enforceable.
Chapter 15 of the Code of Judicial Procedure delineates the majority of the conditions for granting a security measure; though statements in the travaux preparatoires on basic principles, as well as the case law, have precisely the typical case in mind. One should therefore be careful when considering these conditions in other situations. (23)
The text of Chapter 15 is unclear, except on one point-whether the parties themselves may agree inter se on other terms concerning the conditions for granting an interim measure. The court, according to section 6, paragraph 2, may not consider the adequacy of the security provided by the applicant if it is accepted by the defendant. The published case law has not provided an answer on whether the conditions for granting an interim measure are mandatory rules or whether the courts can apply terms agreed on by the parties. Conversely, different positions on parts of the questions, within the complex of problems, have primarily been taken in unpublished decisions of the courts. (24)
VI. A DEFINITIVE PROVISIONAL MEASURE?
My study of the institution of provisional legal protection in civil litigation confirms that this protection shows a number of odd contrasts. This institution is both what it is meant to be and what is not. This is already apparent through a study of the written rules in this area and becomes even clearer when the case law is investigated. The statutory rules are formulated in such a way that they promote the supporting role of interim measures in civil litigation. At the same time, these rules do not have a structure that directly hinders or obstructs the institutions' role as a substitute for civil litigation. Some of the rules leave room for their application that directly promotes the substitutive effects of security measures. There are unwritten basic principles that underline the purpose of security measures as supportive of civil litigation, but it does not appear that they have been followed in practice to prevent security measures from fulfilling the role of substitutes for litigation.
Both the legislature and the courts are ambivalent about the tasks of provisional protective measures. Some judges manage and determine the question of security measures in a spirit that promotes the substitutive effect of the judgment; while others act with the intention to frustrate this effect. There are statements in the travaux preparatoires emphasizing that interim measures shall serve to secure the realization of the judgment in civil litigation. At the same time, one can also find statements that uncritically and unreflectively acclaim the positive aspects of the security measures' indirect conflict resolution function, illustrated by settlement between parties. Is it always desirable that the defendant be forced, under the pressure of an interim security measure, to agree to a settlement with significant compromises? Ought one disregard the considerable risk that the interim measure is ordered on the basis of insufficient material and should never have been ordered if adequate material were available for consideration?
The vagueness of the rules governing interim measures and the unevenness in their application by the courts invite litigants and their counsel to resort to tactical moves. An important strategy of the applicant is to persuade the courts to "stretch" the application of the rules. Sometimes this takes place openly. In such cases, an extension of the application may be a welcomed development of the law. An effort to change the rules, however, sometimes happens covertly and may amount to attempts to obtain interim measures for unintended purposes. It may be difficult for the courts to investigate successfully and see through this strategy. The rules fail to clearly define when security measures should be used and provisions requiring the courts to perform checks on the application of interim measures are conspicuously absent. Application of the existing rules can, to a limited degree, work against the abuse of provisional security measures. There are existing principles of law from which that would permit the courts to perform a check on the purpose of the application of interim measures so as to prevent their abuse in civil litigation. (25) There is, however, no evidence that the courts have interpreted these principles in such a way as to systematically frustrate a possible abuse.
The Swedish law does not differ, especially considering its current stage of development, from what is observed in other legal systems. It is debatable whether Swedish law has gone as far as the law of other countries. Neither the legislator nor the courts have taken clear positions regarding the use of security measures as substitutes for civil litigation. There is also silence on the part of the legislature as to the role that the courts ought to play in the development of the institution of security measures. Moreover, there is a need for general guidelines from both the legislator and the Supreme Court that provide a basis for development of security measures.
There will no doubt be different opinions on the good and the bad in a development that shifts security measures in civil litigation from being a provisional protective relief towards their application as a final measure. This shift in function, some may discern as the beginning of a modern and competitive alternative to the slow and arduous civil litigation process. (26) This alternative can be understood as superior to a trial as it satisfies the needs of the market for a speedy, efficient and authoritative decision. The satisfaction of these needs contributes to the creation of good conditions for the desirable development of an administration of justice that services the needs of the market. Moreover, one must bear in mind that public resources are limited and shrinking; there are not enough for the creation and maintenance of an advanced administration of justice. The institution of interim measures provides for an administration of justice that is cheaper for the state, the citizens and the parties.
Others maintain that this change in function is another sign of the continuing process of disarmament of public administration. In addition to the development of various forms of private conflict resolution, which replaces civil litigation in courts, case management and adjudication in courts increasingly bears a summary character. This jeopardizes the democratic insight and the check of legislation's impact on society that full adjudication provides. The need for expediency is prioritized over thorough application and development of substantive rules through democratic order.
Regardless of one's stance on the function of provisional measures as substitutes for civil litigation, the question remains whether it is reasonable or possible to limit the substitutive function. Is it instead the case that a provisional protective measure, which is supportive of the substantive litigation, is also necessarily one that is to some extent substitutive? Or is it perhaps that the substitutive function is just the price that one must pay if provisional protective measures are to serve a supportive function in civil litigation?
VII. THE INEVITABLE SUBSTITUTE TO LITIGATION
Several parts of provisional protective relief contribute to its substitutive function in civil litigation: (1) the content of the order of interim measure, (2) the prognostic test (the question of reasonable grounds for the applicant's substantive claim), and (3) the legal and actual effects of the order. Moreover, one also needs to take into account the possible legal effects of including oral merit and evidential hearings within the framework of the application process for an interim measure.
The substitutive function of interim measures is most apparent when the order of interim measure has the same content as the action's prospective judgment, which the measure seeks to secure. This occurs in situations in which the applicant succeeds in getting a result through the interim measure when, strictly speaking, such a result is generally only available through a final judgment. Regardless of whether the order has such content, the interim measure may have a substitutive effect through the prognostic test on which the order of interim measure is based. The position of the court on the question of whether the applicant has reasonable grounds for his claim in civil law gives a preliminary indication of who the successful party will be. The party designated as the losing party through this ruling may for different reasons (e.g., on economic grounds) concede the counter-party's claim and refrain from pursuing the matter further. On the basis of the legal and practical effects of the order of interim measure, the defendant may act in the same way even if the order does not have the same content as the forthcoming judgment.
For several reasons, one may question whether it really is possible to counteract the substitutive function connected with the three elements of provisional measures mentioned above. As far as the prognostic test is concerned, practical problems as well as problems of principle are created by the tension between two principles of procedural law. First, there is the principle that during a trial a court should not form an opinion on the substantive issues before all the case material is presented, and that the opinion of the court on these substantive issues is to be issued through a final judgment in the case. Second, is the principle that a party should not be subject to enforcement measures in a civil claim before the court has made a final judgment on the matter.
As a matter of principle, there are good reasons why the prognostic test should be characterized by a relatively low standard of proof and by a summary consideration of the civil claim. This view takes its point of departure from the general principle that in a trial the court should not form an opinion on the substantive issues before the entire case material is presented, and that the position is then to be taken through the final judgment in the case. Inherent in this principle is the requirement that the court should, as far as possible, avoid constructing the prognostic test in such a way, or give a prediction in such a form, that the position taken becomes a full substitute for final judgment. It is the task of the courts to limit or simplify the determination of the substantive matter. This ought, preferably, to be carried out in a way that comes into minimum conflict with the underlying principle. In competition is the need of an applicant for interim measures to have his application considered quickly, which, as a result of the short time limit, deprives the parties of the chance to gather case material, reflect and present a complete case in a satisfactory manner.
There are, however, good reasons for objecting to a low standard of proof and the summary process; inter alia this standard and the summary process would disproportionately favor the applicant. The objection may also have its roots in the principle of procedural law that a party should not be subject to enforcement measures regarding a civil claim before the court has made a final decision in the matter. This maxim would be void of content if the applicant is unduly favored by a low standard of proof regarding the substantive claim. The objection to a low standard of proof is perhaps the strongest in cases when the court knows, or strongly suspects, that a decision on an interim measure would attain "final" force.
In line with the perspective sketched above, the requirement that the applicant show reasonable grounds for the substantive claim should not be understood as a directive for the court to enter summary judgment on either a question of fact or law. Instead, the content of this requirement should be determined by the fact that the case material in an application for interim measures is often incomplete, normally dealt with in a written process, rarely presented orally, and imperfect in its presentation of facts. These are all factors that affect the certainty of the prediction of the court's preliminary finding. These factors also justify the rule that the court should only express an opinion on whether the applicant has reasonable grounds for the substantial claim. After all, in normal cases one would not encounter higher degrees of certainty than "reasonable grounds." This prediction is not built on a summary consideration of the case material, but rather on an ordinary consideration of the case based on incomplete and partially-presented material.
The tension between the two principles of procedural law mentioned above can be resolved in different ways. One way is to minimize the number of cases in which the court assesses the strength of the applicant's substantive claim. The reasoning behind this is that the courts should never carry out a prognostic test if the application can be rejected on other grounds (e.g., that the applicant has offered insufficient security against damages to the defendant). The court should, accordingly, first investigate the other conditions for granting the interim relief and then try to form an opinion of whether any of these conditions are unfulfilled. Even if it turns out that the application meets all other conditions, it is still possible to counteract the exposure of preliminary information that would steer the disposition of the case. Another way is to refrain from giving a clear and careful account of the positions that the court has taken in the different questions under assessment. In unpublished cases the courts frequently stop at a brief declaration that the applicant has or does not have reasonable grounds for his claim without giving precise reasons for the finding. Even if the court writes more than this in the decision, it is usually done with expressions that are vague, general, or in other ways indicative of the provisional nature of the interim measure.
The disadvantage of this system is that the brevity of the reasoning in the court decisions gives the impression of a primitive standard in the administration of justice. It is also questionable whether brevity in the court's account really serves to attain its purpose; it is still possible for the parties to form an opinion on the strength of the prediction. A party who is creative can certainly draw sufficient conclusions through a comparison of a brief decision with his own intuitive view on the relative strengths of his and that of his counterpart's place, and how well the parties have presented their cases in court. If a party is of the opinion that the cases have been well and fully argued for in court on the basis of relatively complete case material, despite a brief decision without much substance, they will assess the strength of the court's prediction and accordingly give it an effect in steering his subsequent conduct. What is of decisive significance in such assessments is the party's view on the depth of the prognostic test. If a party believes that the courts would usually carry out the prognostic test only cursorily and superficially, they will not allow the preliminary decision to have any decisive influence on their further litigation.
It appears to be quite frequent that a party will try in different ways to influence the strength of the preliminary decision. The applicant would be interested in presenting as much material as feasible and in the clearest way possible. Preferably, the assessment of interim measures is done under conditions similar to the ordinary trial. It is quite usual that the party would request an oral hearing and also to present evidence orally. With the exception of certain cases in intellectual property, the courts have not been inclined to give in to the parties' aspirations to create a substitute for litigation in this manner.
The parties' tendency to make use of interim measures as a substitute for litigation may entail, in different ways, stresses on the administration of justice. The English example, American Cyanamid Co. v. Ethicon Ltd. (27) and its progeny, (28) shows that the matter is not simple enough that one would win significant advantages by abandoning or toning down the prognostic test to focus on the weight of interests corresponding to the so-called test of proportionality in Swedish law. A decision that has not been preceded by a consideration of the substantive claim may, in many situations, still have "final" force and therefore constitute a substitute for a final judgment in the case. This is often connected to the fact that legal and practical effects associated with the interim measure may persuade the unsuccessful defendant to give in to the demands of the plaintiff. This "discovery" has led the English courts to modify the principle in American Cyanamid. The lower courts have reintroduced the more comprehensive prognostic test, inter alia, in cases when the order of interim measure can be assumed to have a final effect. The principal reason for this reintroduction of the test is that it would otherwise be too easy for the applicant to obtain interim relief at the cost of the defendant.
Some may criticize the reaction to American Cyanamid by the English courts. The idea of setting a high standard of proof with respect to the applicant is often built on a skewed and mistaken conception of the balance of interests between the parties. This can be illustrated by an example concerning an action for breach of a restraint from a competition clause in an employment and collaboration contract. (29)
The validity of a clause restraining competition often relies upon there being a relatively short period of time specified. Upon suspicion of a breach of the clause, there is great risk that the agreed period would expire before a judgment on the case can be given at all. An interim injunction against the competing enterprise will be the only genuine protection available to the party threatened by the enterprise. Additionally, it is often the case that the interim proceeding is the only adjudication process in which the court has a chance to assess the applicant's claim before the expiration of the time period. If a successful application for interim measures definitively decides the conflict (30) between the parties, (31) then there is an argument for setting a high standard of proof for the applicant. (32) This would be one way to protect and compensate the defendant for the deprivation of his fundamental right to an ordinary trial concerning his civil rights. (33)
The question, however, is whether this reasoning represents a misunderstanding of what is at stake in the conflict, because it rests on the premise that the applicant will win the case for interim relief. Under this approach, it would be particularly distressing for the defendant if the standard of proof is set too "low" for the applicant. Supposing that the application did not achieve interim relief, the decision would still substitute litigation, but this time to the disadvantage of the applicant. In this case, the applicant would be deprived of his fundamental right to an ordinary trial in matters concerning his civil rights. Therefore, it would be particularly distressing for the applicant if a high standard of proof were set on the question of his substantive claim.
This example illustrates the inherent problems involved in imposing too low or too high a standard of proof. This tension ought to be resolved by other means. One solution could be to justify a high or low standard on the grounds that one party's rights merit more protection than the other's. For example, the right to be protected from competition could be favored over the right to engage in a profession and be subject to a regulation restraining trade. (34) Another solution could be to weigh the interests within the framework of a proportionality test rather than use a prognostic test.
With regard to the practical effects associated with the order of interim measures, one can frame the current system within the proportionality test. For instance, the fact that the defendant's property is subject to seizure may affect the defendant's credit standing. This diminution in credit score could disqualify him for a loan that could save his company from a liquidity crisis or bankruptcy. If ordering an interim measure entails overly excessive consequences when compared to the purpose of the measure, the courts have two options to resolve the conflict. Employing the principle of least interference, the court could impose a more lenient measure than the one asked for by the applicant. Alternatively, if the first option proves practically impossible, the court may reject the application for interim relief, despite the fulfillment of the conditions for granting such relief. For the defendant to enjoy this option, he must describe concretely the deleterious effects and scope of the interim relief.
A proportionality test provides defendants the best protection against the potentially harmful effects of an interim measure. Whether, and to what extent, these consequences will harm the defendant in any given case is fact dependent. Prioritizing these effects is difficult, but establishing a black letter rule to determine when an applicant's interests should yield to a defendant's interests is even more difficult. Thus, a proportionality test would serve the fair treatment of these competing equities best.
Typically, the weighing of the applicant's need for an interim measure against harsh consequences to the defendant will favor the former. As a consequence, legislative reform to abolish or restructure the current system is not needed. The existing rules are capable of protecting defendants from harsh results in proceedings for interim measures. Courts can consider the projected legal effects of an interim measure within the framework of a proportionality test. Furthermore, courts have the option of formulating more lenient measures or giving the enforcement authorities the power to revise existing measures when circumstances change. For example, the enforcement authority may dispense with a general prohibition on all uses of a certain seized property, and permit the defendant to use the property in certain situations.
At first blush, one may be even more skeptical when an order of interim measure has the same effect as the judgment that it is meant to secure. It seems manifestly unjust that an applicant may, through an order of interim measure, obtain what he should be able to obtain only through a final judgment. How can this be justified by an appeal to notions of provisional relief? How can one secure something in the future if the applicant is able to obtain the same thing immediately?
Through various acts of sabotage, defendants can render subsequent judgments meaningless in two ways. First, the defendant may act in a manner that would make the enforcement of a forthcoming judgment impossible, or at least more difficult. A measure that prevents the defendant from so acting safeguards the enforcement of the judgment by preserving the actual conditions needed for successful enforcement of the judgment.
Second, the defendant may choose a course of conduct that would render the judgment valueless or much less valuable to the applicant. To illustrate, suppose an injunction is not imposed on a defendant who, by carrying out some business activity, breaches an applicant's exclusive rights (e.g., copyrights). At this stage, the activity of the defendant has not yet effectively precluded the applicant's ability to obtain and enforce a forthcoming judgment. A judgment against such a breach can be enforced through numerous means, including threatening to levy a substantial fine for noncompliance. The applicant, however, has other concerns. If he cannot obtain interim relief immediately, which is substantively the same as the forthcoming judgment, then the defendant's activity, while litigation is pending, will cause great and irreparable damages to the applicant's copyrights. The copyright may become so diluted in value and substance that the applicant would not be properly vindicated by a subsequent injunction. For all intents and purposes, the applicant would be stripped of his copyrights, because there would be none left to save.
The problem with this argument is that it is actually applicable in all cases. It is preferable for the plaintiff, through an order of interim relief, to force the defendant to pay for a debt, rather than to wait for a final judgment. Extension of interim relief to this extent, however, would be equivalent to abolishing the fundamental principle that enforcement of a civil claim cannot precede its adjudication by a court of competent jurisdiction. This danger has led to a rough distinction between instances where an interim measure forestalling the final judgment would be justifiable and cases in which it would not. This dichotomy can be described as a difference between genuine and quasi substitutes for judgment. It is important that an interim measure be rendered superfluous; however, such an order does not secure a meaningful judgment, it replaces the judgment. Conversely, the interim measure only provides protection up to the judgment and then the value of the final judgment is secured. The judgment is not replaced by the security measure; it serves as a kind of substitute.
Whether this rough distinction between genuine substitute and quasi substitute for judgment succeeds is debatable. There are cases of interim measures used as genuine substitutes where the applicant has a justified need for an exception to the general prohibition on premature enforcement. Such exceptions prompt a reevaluation of the foundation of interim relief. Has development gone so far that the difference between an interim measure's supportive function and substitutive function is no longer a difference in kind but only a difference in degree? The right of the applicant to obtain an interim measure should not depend on whether securing a judgment or rendering the judgment superfluous, but rather on the relative strength of the parties' need for protection in the case. The court should evaluate strengths by a discretionary weighing of the interests and not strictly defined norms. Flexibility in security measures should outweigh the administration's desire for foreseeability. Can all this be so simple?
VIII. FLEXIBLE AND PROSPECTIVE ENFORCEMENT OF JUSTICE
If development continues in the present direction, the use of interim measures would increasingly replace civil litigation as the preferred form of conflict resolution. Such a shift in the conflict resolution mechanism entails, inter alia, a change in the method of obtaining justice. Questions of how interim measures could be used and the resulting consequences if it comes to dominate the enforcement of justice in civil and commercial matters abound. How well are interim measures tailored for achieving a reasonable balance in conflict resolution, a reasonable protection of rights? The implications of this method on the development and realization of substantive legal rules on civil and commercial matters have yet to be seen.
The shift from civil litigation to a reliance on interim measures is not a judicial departure from a course of conflict resolution freely based on "justice and equity," a point often raised in connection with arbitration. Rather, a strict application of the substantive law is supplanted by a combination of a simplified application of law and a general weighing of interests, the latter being characterized by proportionality. No norms define how this combination should function; I note two potential types with a common stand in judicial assessment. The outcome of the assessment is steered by the relative weights of the result from both a substantive evaluation (the prognostic test) and a discretionary appraisal of the relative risks for damages between the parties (the proportionality test). In order to weigh the interests in each circumstance, the norms or guidelines must be flexible.
A sliding scale model illustrates the relative weighing in one combination: the weaker support an applicant has for his substantive claim, the greater preponderance of factors required in the applicant's favor in the analysis of risk for granting or denying the application. The unique circumstances of each case and the gravity of the parties' interests determine whether a clear preponderance of weight in the applicant's favor necessitates granting interim relief. Such flexibility allows the potential for a small preponderance of weight to suffice.
In the second combination, when the applicant has either very strong or very weak support for the substantive claim, no proportionality test is used. The proportionality test serves its function when the claims of the parties weigh equally in the prognostic test (i.e., an equal chance of winning the case on the merits) and when a slight preponderance of weight exists in either party's favor in the ordinary prognostic test (i.e., when one party has a slightly greater chance of winning the substantive case). An interim measure will only be granted if the outcome of the proportionality test speaks in the applicant's favor and the applicant bears the relatively greater risk of suffering damages.
The focus on substantive rights, as emphasized in classical legal thinking of justice is not central to either combination. The classic conception of justice (based on the idea of rights) shifts to a conception of justice founded on proportionality. Such proportionality gives rise to the idea that a coercive measure for the protection of a right cannot be priced without limit. There must be an endpoint for compromise. Respect for rights requires that they not enjoy absolute protection. The idea of a limit for reasonable sacrifices relates to the idea that none of the parties in a legal relationship should give or take more than the other; this is commonly referred to as commutative justice.
Admittedly, the idea of a limit of sacrifices can be found in different places in private law, but it has yet to occupy a prominent place in statutory law or case law. In the shift from civil litigation to proceedings for interim measures, not only is the idea given a space in the conflict resolution process, but it is also promoted within the framework of summary process. A right founded on probable basis may not be asserted against a risk shown to be likely to occur, if the limit of sacrifice is not to be overstepped.
The concept of proportionality has received more deference in interim measure proceedings because questions of interim relief require accelerated determinations and are often based on incomplete case material. The summary character of the process bears the risk of a court decision for interim relief in favor of a party that later loses at the subsequent trial on the substantive claim, or that would have lost if the case had received a full trial concluding with a final judgment. The uncertainties that might arise regarding the prognostic test--viz. which of the parties will turn out to be the winning party in a judgment?--alone are insufficient to justify the alternative coercive measure. A viable justification would require that the decision be preceded by due consideration of the potential harm to the losing party as a result of a wrong decision by the court.
The risk of damages for each party must be quantified and compared. The proportionality test has become a tool for distributing the risks of future damages between the parties. Thus, one should not only take into account the damages that will certainly arise but also those that could potentially arise. These are unascertained future damages and frequently there is uncertainty in predictions of such damages.
As a legal method, the institution of interim relief with the element of proportionality testing is prospective. The ideas of proportionality and a limit of sacrifice mean that the court shall consider what consequence the conflict resolution will have in the long run and demand that an evaluation of this analysis bear on the court's decision. The administration of justice will consequentially be directly concerned with future uses of resources. This concern goes in different directions. The administration of justice is aimed at avoiding unnecessary or serious destruction of values. Here, the court will decide which of the parties should avoid bearing the risk of damages as a result of the decision on interim measures.
The evaluation does not aim to determine which of the parties needs the resources most or which is most capable to use these resources for future investments. Such administration of justice would require the court to apply the proportionality test in a business dispute and to consider factors such as which party has the best business concept. This test is most capable of successfully implementing justice, and is likely to have the higher return. It is possible that approach to the administration of justice will be a component of the future--especially with an increasing focus on the rational utilization of scarce resources. At present, however, there is skepticism of court analysis via frameworks such as the so-called business judgment rule as it is not the function of the courts to determine the quality of a business decision within the frame of the administration of justice. Regardless of one's agreement or disagreement with this approach, it is hardly possible to separate this type of analysis outside of the administration of justice that claims to make an all around assessment of the circumstances.
It is not only "the prospective angle" that gives the legal method of interim relief an advantage over the classical method of civil litigation.
Another advantage of interim relief is the clear gain in time possible through the order of an interim measure functioning as a substitute for a final judgment. For certain parties in certain contexts, the gain in time can be valued highly, even higher than legal certainty based on complete case material and fully considered facts. The value given to speed is certainly a decisive driving force for the tactical use of interim measures in civil litigation. As maintained in American law, however, procedures that provide for a possibility of a preliminary indication of the outcome of the case would most likely only be utilized in those commercial cases where businessmen seek a swift, "impressionistic" answer from the court.
In order to develop and maintain a simplified method of administering justice, certain criteria must be fulfilled. The legislator must create substantive rules suited for this method of administrating justice. Procedural rules must clearly limit the extent of the parties' litigation, such as presentation of evidence and narrowing the issue at hand. The courts must develop principles for interpretation and application of law that facilitate the simplified procedure. The parties must develop forms of argument that promote efficiency in case management and decision-making.
There is reason to be skeptical of claims about developments in the direction towards a refinement or simplification in the administration of justice through interim measures. Even today there are signs that parties, for various reasons, are not satisfied with a summary assessment of their substantive claims. A good number of defendants try their best to complicate the assessment and the court's handling of the case, primarily because they have everything to win through delays. Other parties try different ways to persuade the courts to carry out a more careful and secure evaluation because the values at stake are too great for a court assessment that leaves much room to chance. Applications for interim measures often contain comprehensive accounts of the facts and detailed analyses of the questions of law. It is often difficult to see the difference between a document labeled "application for interim measure" and a document labeled "civil claim." The choice of label entails, however, that interim cases are given priority at the expense of other cases. For this reason, some parties simply jump the queue for civil judgments. Relevant evidence is gathered and presented forcefully and nothing appears to be spared. More often, the parties also try to arrange for hearings that permit oral presentation of evidence. On the whole, one gets the impression that parties--not least in commercial disputes--will try to achieve a process for interim measures that is similar to the normal trial in civil litigation, with the exception that the aim here is to arrive at a decision much more quickly than in an ordinary trial. If proceedings for interim measures increasingly take over the conflict resolution functions of civil litigation, then more and more cases on interim measures will compete for quick decisions. Taking this development to its end, we shall soon complain of slow and complicated proceedings for interim measures.
There are three possible other ways to avoid using interim measures too often as substitutes for civil litigation. One way is to radically reform the existing system of civil litigation to meet the demand of speediness in conflict resolution at the expense of legal certainty. The better idea would be to evenly distribute the total time available for quick conflict resolution, among a large number of cases. This solution could prevent more parties from attempting to jump the queue and be given priority through a process for interim measures.
Another possibility would be to pick out the group of interim measure cases that pertain to genuine and quasi-substitutions for final judgments. Such a reform--as little as the first possibility mentioned above--will surely not entirely eliminate the need for interim measures, but will certainly diminish the need. Both reform proposals presuppose that the judges can be made to offer guidance to the litigants in formal as well as substantive issues. Such guidance by the court must be combined with the implementation of rules that, to a high degree, would limit the room for digressive and time-consuming manners of litigation.
(1.) See Malmo District Court's order of 1995-09-25 in case T 3389/95 (Swede.).
(2)This fine was payable to the state and not the heir of the playwright.
(3.) See Order of the Court of Appeal for SkAne and Blekinge of 1995-10-04 in case O 153/95 (Swede.).
(4.) Goran Luterkort, Drama i Malmo, BRAND NEWS, Jan. 1996, at 28.
(5.) See generally1-4 PETER WESTBERG, DET PROVISORISKA RATTSSKYDDET I TVESTEMAL (2004).
(6.) O-cases in this context are appeals on questions of procedure. The cases studied have come from the southernmost four courts of appeal in Sweden.
(7.) Foremost is the literature and journals from English-speaking countries (Australia, England, Ireland, Canada, Scotland and the United States) and the German-speaking countries (Switzerland, Germany and Austria). Belgian, French, Dutch, Italian and Spanish law are studied through English or German authors, often in comparative studies.
(8.) See TingsrAtt [District Court of Malmo] 1991-08-05, T2661/91 (Swed.) (discussing Canadian sprinter Ben Johnson request that property of MAI be seized to secure his demand on payment for his participation in the MAI-gala). Johnson claimed that MAI terminated the contract without reasonable ground while it declared that Johnson's participation in the event was unwanted. Id. The application was withdrawn before the court decided on the issue. Id.
(9.)See Judgment of the Swedish Labour Court of 1998-09-25 in case AD B 119/98 (Swede.) (large media enterprise relied upon employment contract to persuade court to forbid a former editor-in-chief from engaging in competitive practices).
(10.) Cf. A.A.S. Zuckerman, Quality and Economy in Civil Procedure: The Case for Commuting Correct Judgments for Timely Judgments, 14 OXFORD J. LEGAL STUD. 353, 354 (1994) (pointing to English literature that supports security measures as model for new form of conflict resolution). Zuckerman cautions, "[h]owever, in view of the expense and delay involved in the present process of law, it makes sense to trade some quality for speed and economy." Id.
(11.) Id. at 387.
(12.) PETER FITGER, RATTEGANGSBALKEN I, 15:3, (1996).
(13.) I shall use the term "defendant" to denote the individual against whom a security measure is directed. The party who makes an application for a security measure will be called the "plaintiff."
(14.) Cf. Rattegangsbalken [RB] [Code of Civil Procedure] 15:5 (Swed.) (explaining process of filing for interim measure). If the substantive claim is not to be decided by a court, e.g., through arbitration instead, the application for interim measure is classified as a T-case at the district court. A T-case is categorized as civil litigation and not as "other business." This administrative routine does not entail, however, the question on whether interim measures should be handled as an ordinary civil litigation case.
(15.) Nytt Juridiskt Arkiv [NJA] [Supreme Court] 2001-05-03 p. 282 (Swed.).
(16.) At least in cases concerning infringement of copyrights, a proportionality test should not be performed if the civil claim is manifest or speaks clearly in favour of the applicant. Nytt Juridiskt Arkiv [NJA] [Supreme Court] 1995-20-11 p. 631 (Swed.); see also Nytt Juridiskt Arkiv [NJA] [Supreme Court] 2005 p. 29 (Swed.) (concerning pecuniary claims).
(17.) See Proposition [Prop.] 1980/81:84 Forslag om inforande av utsokningsbalken m.m. [government bill] (Swed.).
(18.) It is not uncommon that parties put forth arguments that an arbitration clause would bar the court from hearing applications on interim measures for lack of competence. Such an argument, however, would not entail a rejection of the application, as it normally is for lack of competence. See District Court's decision of 2000-04-17 in case SH O 2593/00 (Swede.); LARS HEUMAN, ARBITRATION LAW OF SWEDEN: PRACTICE AND PROCEDURE 329 (2003).
(19.) See HEUMAN, supra note 18, at 332.
(20.) Nytt Juridisk Arkiv [NJA][Supreme Court] 1983-12-9 p. 614 (Swed.).
(21.) See Nytt Juridisky Arkiv [NJA][Supreme Court] 1987-11-26 p. 829 (Swed.) (discussing boundary between sections 2 and 3 of Chapter 15, Code of Judicial Procedure); see also Rattegangsbalken [RB] [Code of Civil Procedure] 15:9 (Swed.) (stating commentary on the Code).
(22.) See Proposition [Prop.] 1999/2000:26 Effektivisering av forfarandet i allmandomstol [government bill] (Swed.) (stating travaux preparatoires).
(23.) An example can be given here: in cases where the applicant applies for an interim measure to provisionally regulate the relationship between the parties, or to immediately enjoy the applicant's rights, there is, in principle, no good reason for demanding that the applicant lodge a claim for specific performance.
(24.) See Court of Appeal for Western Sweden in case O 2193/93 (Swed.). A bankrupt estate was granted an order of seizure by the district court in order to secure a certain debt. The defendant appealed the district court's order and the bankrupt estate accepted the claim on appeal. The court of appeal found that the order of seizure should be quashed because the bankrupt estate accepted the claim on appeal.
(25.) For example, there is a prohibition on premature enforcement and a prohibition on prognosis of the outcome of the case.
(26.) See NEUE METHODEN IM ZIVILVERFAHREN: SUMMARISCHER RECHTSSCHUTZ ALS ALTERNATIVE ZUM NORMALVERFAHREN 109 (1991) (Erhard Blankenburg, Dieter Leipold, & Christian Wollschlager eds.); Zuckerman, supra note 10, at 353.
(27.)  A.C. 396.
(28.) See generally Jill Martin, Interlocutory Injunctions: American Cyanamid Comes of Age, 4 K.C.L.R. 52 (1994).
(29.) See Zuckerman, supra note 10, at 366 (demonstrating case in which proceedings on interim measure only 'trial' offered to parties for the resolution of conflict). In English law, this case is often considered a classic example of the problem at issue.
(30.) R. Grant Hammond, Interlocutory Injunctions: Time for a New Model?, 30 U. TORONTO L. J. 240 (1980) (discussing case where court knows order of interim measure will determine outcome of main conflict).
(31.) See Svea Court of Appeal in case O 1146/90 (Swed.) (holding compelling reasons are required to grant interim measures, when applicant seeking order entailing immediate enjoyment of rights).
(32.) See Zuckerman, supra note 10, at n.96 (describing other cases where interim measures may be definitive include disputes regarding trademarks).
(33.) Cf. Convention for the Protection of Human Rights and Fundamental Freedoms art. 6, Nov. 4, 1950, 222 U.N.T.S. 1955.
(34.) Cf. John Leubsdorf, The Standard for Preliminary Injunctions, 91 HARV. L. REV. 525, 550 (1978) (comparing publicly employed teacher to privately employed teacher). Professor Leubsdorf notes the former's potential right to invoke the First Amendment. Id.
Peter Westberg, Professor of Procedural Law, Faculty of Law, University of Lund, Sweden. I would like to thank Professor Richard Perlmutter for his illuminating introduction on the article and for the discussions we have had on the subject.
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|Publication:||Suffolk Transnational Law Review|
|Date:||Dec 22, 2007|
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