Discretionary Powers of the Commercial Court in Applying Preliminary Injunctions

The relevance of the topic under study is that the discretionary powers of the court in the context of the institution of temporary security do not have a clearly defined framework, and therefore are the subject of controversy both among scientists and in the legal community as a whole. The article highlights the problematic aspects of judicial discretion when deciding interim measures to secure a claim and evidence in commercial proceedings. The research draws logical parallels between the use of discretionary powers by commercial court judges and the observance of the rights of individuals to a fair and effective trial. The article analyses the current understanding of the court’s discretionary powers in the works of scholars and through the prism of judicial practice. The author provides examples of the limits and conditions for using court discretion using the provisions of the Code of Economic Procedure of Ukraine, which are established by the legislator using restrictions on the use of security in certain types of economic relations, and explains the logic of such prohibitions. The study identified insufficiently researched gaps and required further elaboration, namely, the lack of clear boundaries for the commercial court when deciding on the preliminary injunction and the need to balance the interests of all parties. The article proposes a mechanism for narrowing judicial discretion through the prism of “legitimate purpose”, which should minimize the subjective influence of a judge on decision-making. The article offers an understanding of the legitimate purpose of interim measures in commercial litigation – as a unity of efficiency and proportionality criteria. We suggest that the parties should be allowed to propose their own interim measures to the court, taking into account the case’s specific circumstances. But, it is almost impossible to establish clear criteria for the potential danger a defendant may pose by his or her actions. Therefore the court must independently assess all risks and justify the need for such a decision as fully and clearly as possible for the parties.