CONTEXTUALISATION OF PROVISIONAL MEASURES IN CROSS BORDER CASES IN THE WESTERN BALKANS – STRIKING A BALANCE BETWEEN FINALITY AND LEGAL CERTAINTY

Abstract

Provisional measures as legal instruments are intended to be of effect for a limited period conditioned by occurrence of a certain event or passing of a specific period. Therefore, in essence, these measures are not final and for a long time their circulation in cross border cases was disputed. However, their frequent use in practice provides for them to be able to be recognized and enforced from one jurisdiction to another. The importance of these measures in the European Union is acknowledged by the possibility provided in the Brussels I, Brussels Ibis, Brussels IIter, Maintenance and Succession Regulation for their recognition and enforcement. Moreover, some European national acts, such as the Spanish Act on international judicial cooperation in civil matters have provided for their circulation under certain conditions. However, such effect of these measures remains in the “grey” zone for the countries in the Western Balkans. Recent trends in the North Macedonian case-law show certain acceptance of the foreign provisional measures and their recognition and enforcement. This paper is intended to contextualize the provisional measures in cross border cases within the legal doctrine and the jurisprudence of the Western Balkan countries and show the importance of the balance between finality and legal certainty.