The “Best Kept Secret” in Commercial Litigation

Author: Richard Aird | Posted: January 26, 2007

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INTRODUCTION

Even before the reign of Mary Queen of Scots the Scottish pursuer possessed powers to obtain tactical advantage even before judgment in the form of a arrestment that secured an advantage over other creditors in the event of insolvency. Similar rights applied to inhibitions. From the international perspective perhaps the most remarkable of all the pre trial  remedies is the commission and diligence procedure in terms of section 1 Administration of Justice (Scotland) Act 1972. All these remedies are well understood by the Scottish Litigant and the effects of Bankruptcy & Diligence (Scotland) Bill on them is part of our discussions today. The best kept secret is how the familiar Scottish Remedies compare with those a stone throws away across the border and with those of  the Civil Law systems of Continental Europe. The commercial edge of the comparison is Article 31 of Judgement etc Regulations (44/2001)[which largely succeeded Brussels & Lugarno Conventions] This makes “provisional, including protective measures” potentially widely available. 

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