Summary

According to a common understanding in the case law, it is not possible to secure an ascertainment claim as a court decision rendered with respect to such a claim cannot be executed by way of compulsory execution. The common position is that measures for securing an action can only be applied with regard to claims requesting the making of a judgment executed by way of compulsory execution.

Analysing the historical roots of the Estonian civil procedure rules, the law and theoretical writings of other countries (primarily of Russia and Germany) and the international arbitration rules, the author attempts to show the invalidity of the position. In the author’s opinion, ascertainment claims are securable and, in order to secure a claim, there is no need to file with a court a proprietary claim or a claim under the law of property. In the case of ascertainment claims, it is normally possible to determine the disputed object. Therefore, such a claim can also be secured. The disallowing of ascertainment claims breaches the principle of dispositiveness and deprives us of the possibility of protecting our rights effectively. Also, the author argues that it is not correct to claim that judgments are only executed by way of execution proceedings. A judgment rendered with regard to an ascertainment claim is enforceable regardless of the fact that its execution is effected outside the execution proceedings.