2. Provisional measures securing the enforcement of...

2. Provisional measures securing the enforcement of judgment (attachment/freezing injunctions) The pre-conditions for obtaining

provisional measures Proceedings to obtain an order for provisional measures

Content and effect of the provisional measure

Provisional measures and security

Enforcement of the protective measure

Provisional Measures and main proceedings

Relationship between interim proceedings and provisional enforcement?

Austria -with regard to pecuniary claims, an enforceable title precludes the order of a provisional measure (§379 I EO) as provisional enforcement is possible; for other claims, an enforceable title does not affect the order of a provisional measure as provisional enforcement in these cases is not possible

-claim does not have to be due and a conditional claim can be secured; a future claim cannot be secured

-pecuniary claim: concrete subjective danger (§ 379 II EO) which means imminent prospect of frustration of enforcement of a judgment on the merits + concrete objective danger (decision would have to be executed in countries that have not ratified the Brussels/Lugano convention)

- with regard to other claims objective danger is sufficient; pursuant § 381 Z 2 EO imminent danger of violence or damage

- competence: Court :

-- pending the main proceedings: the court of the main proceedings (§387 I EO; in family or competition law matters this court is always competent);

--during the execution: the competent court for the execution;

-- Before case is pending AND between final verdict on the merits and enforcement: regional court at domicile of defendant or at the place where disputed object is located

- claim, supporting facts and urgency must be made credible; only “present” proofs allowed,; simplified evidence procedure;

-pecuniary claims: measures mentioned in § 379 III EO are compulsory; for other claims court has discretion (§382 EO) within the limits of the applicant’s claim (405 ZPO)

- deposit of movables (§379 III Z 1 EO) with regard to pecuniary claims and other individual claims

- with regard to a pecuniary claim or a claim of restitution: disposition by debtor is prohibited and may also be ordered against a third party debtor

- operation in personam against the debtor: not possible in pecuniary claims, but may be used to secure other claims (§ 386 I EO)

- security of the creditor can be ordered:

-- to “complete” insufficient but existing means of proof of a monetary claim, if any imminent damage can later be repaired with money

-- in other cases on discretion of court court

- security can be ordered ex post

- court enforces the measure ex officio; if necessary (e.g. seizure of a corporal object) a bailiff assists the court

- execution is not subject to the general law of enforcement, provisional measures are sui generis bases for enforcement ; general law is applicable for prohibition/bid of actions [specific performance?] (§ 382 I EO)

- no further sanctions available

- Pre-conditions: (1) service of the order on the debtor; (2) proof of lodgement of the security

- provisional measure must be enforced within 1 month (§ 396 EO); provision is only applicable, if p.e. depends on a security of creditor; if security is not given within this time, provisional

- if provisional measure is ordered prior to main proceedings commencing, order of the court on p.m. contains a deadline, after the expiration of which the measure has to be overruled ex officio

- court of main proceeding can change the order e.g. in case of

--excessive collateral [Übersicherung],

-- new facts making lapse need for protection (§ 399 I EO)

- Strict liability of debtor pursuant to § 394 I EO if

-- the claim can not be proven during main proceedings,

--application for p.m. was not justified seen from an ex post perspective

- provisional measure is subsidiary to provisional enforcement in case of pecuniary claims; concerning other claims provisional enforcement is not possible

- interim proceedings are summary contended proceedings allowing later execution, (like a provisionally enforceable title) while provisional enforcement as such is an executive proceeding

can also be a basis

- existence of competing claims from other creditors does not support order for p.m.

- generally: ex-parte decision; oral proceedings after appeal by defendant

- the applicable law is determined by conflict of laws rules; in cases of special urgency Austrian law can be applied

- no liens created

- provisional measure is drafted as an order that must include grounds

- either side may seek normal appeal (“Rekurs” ), in addition defendant can object (Widerspruch)

measure lapses -Additional penalty by the court possible if creditor applied for an order vexatiously

The pre-conditions for the obtaining of provisional measures

Proceedings to obtain an order for provisional measures






Belgium In general, claim must be due; future claims can not be secured

Conservatory seizure (saisie conservatoire) requires title or authorisation by court, in latter case, creditor has to prove claim, but relaxed standard of proof

the extent of the p.m. ordered will depend on the level to which the claim is proved

Seizure requires the danger of insolvability of debtor (1413 CJ)

Injunction (ordonnance de référé): urgency required (584 CJ)

Competence:

Seizure: “Judge of seizures” (enforcement court ?)

Injunction: juge des référés or court already hearing the merits of the claim

Conservatory seizures are ordered ex-parte

Injunctions are granted after an adversary (oral) procedure; exceptions possible if absolutely necessary (1025-34 CJ)

Judge carries out a summary examination

Conflict of laws rules applied

Content of a provisional measure is not determined by law, but the court determines each case on its individual facts

Seizure:

-prohibition on the disposition of the seized goods is effected against the debtor (and the third party debtor)

-no lien on seized assets

-valid for 3 years

Decisions are drafted as an order and include grounds Seizure can later be modified / revoked

Remedies (injunctions !?):

-appeal

-opposition in case of default judgments

-third party opposition

General rules of enforcement apply; the bailiff is responsible for the enforcement

If debtor disregards seizure by disposing of assets, this constitutes criminal offence

Time limits: saisie conservatoire is effective during 3 years; exception: seizure of immovable property

Debtor can demand initiation of main proceedings

Court deliberating on the merits can amend or overrule injunctions and order the return or release of seized objects

Liability of creditor if the p.m. was based on incorrect factual allegations of the debtor

P.M. are p.e. by law

There are considerable differences:

-interim proceedings have an effect on the legal situation and are therefore considered as actions

-provisional enforcement is only regarded as a consequence of the decision that has already been taken and is therefore not considered as an action



Content and effect of the provisional measures





Denmark -claim does not have to be due; a future claim can be secured

- creditor not required to present an enforceable title, because in this case generally enforcement would possible (627 Nr. 1 Rpl,) if no objection[?] was filed against the title; priority of enforcement

- “arrest” can only be ordered if chances of later payment are substantially diminished

- regarding potential injury, creditor has to show urgency, e.g. imminent frustration of enforcement of a judgment on the merits; the imminence of competing claims from other creditors is not sufficient

- court at the place of enforcement measures is competent; pursuant to §§ 631 II, 487 Rpl. general provisions on jurisdiction in enforce-ment matters apply

- presentation of evidence by the creditor requires all information about concrete circumstances and other important details, documents; court decides in its discretion

- in principle: debtor is to be heard, proceedings are oral

exeption: danger of frustration (§§ 631,493 Rpl)

-prima facie evidence is sufficient

-conflict of law rules not necessarily applied

- with regard to arrest: pursuant to § 631 II Rpl concerning the effect of the arrest, provisions relevant to attachment are applicable (exception: rules of realization)

- most effects are determined by legislation, but court also has discretion

-content: blocking of assets (632 II Rpl.); prohibition on disposition of the seized goods against the debtor (§§ 631 II, 519 I Rpl.)

- provisional measure does not operate in personam against debtor (since 1976);

- creditor does not obtain a lien on the seized assets

-measure is drafted as an order

- order that the creditor lodge security is possible pursuant to § 629 Rpl.

-court has discretion; exercise of which is influenced by likelihood that claim exists and debtor is solvent

-security can be deposited in cash or by cheque at court; other assets also can be deposited

-amount of the security depends on amount of the claim

- security can be ordered subsequently

-enforcement court is the enforcement organ

-enforcement of the provisional measure takes place according to the general law of enforcement

- if debtor does not follow the provisional measure he can make himself liable to (penal) prosecution pursuant § 283 I Nr. 1 Strfl.

-pre-conditions of enforcement:(1) service of the order on the debtor is not required if imminent frustration of enforcement is assumed; third party debtor must be informed by creditor in order to avoid liberating effect of payment to debtor; (2) proof of performance of the security: court has discretion; (3) full averment of facts

- main proceeding has to be initiated within one week by the creditor; in cross-border cases within 2 weeks (634 Rpl.), else debtor can demand abrogation of the arrest

- court of the main proceedings can amend or overrule the order and can order the return/release of the seized items

-debtor has further claim in damages, if arrest has been ordered wrongly (639 Rpl.), notably if the creditor’s claim was not fully justified

- arrest does not allow realization of items, but provisional enforcement does

- if pre-conditions for arrest are given, generally a waiver of the deadline of execution is possible

- arrest is excluded, if creditor disposes of an enforceable title (627 Nr. 1 Rpl.)

- targets are different: arrest ensures later enforcement before pre-conditions for enforcement are given; provisional enforceability allows satisfaction of the creditor; remedies exclude each other








Finland -claim must not be due

-a future claim can be secured

-urgency is not required; instead the pre-requisite with regard to the potential injury is the requirement of “danger”,(danger of loss of property by the opposing site, or danger of decrease of value of another petitioner´s right by active or passive behaviour of the other party (Chapter 7, Sections 1-3 of the Code of Judicial Procedure)

-additional prerequisites: debt or other right in question should be enforceable by a decision referred to in the Enforcement Act (requirement on the nature of the claim, because main proceedings have to be initiated within one month)

-court hearing the main proceeding has jurisdiction during the main proceeding and until deadline for a reply has lapsed; before institution of main proceeding: Chapter 10 of the Code of Judicial procedure

- bailiff has jurisdiction in enforcement stage

- decision-maker is a single judge prior to the institution of the main proceedings, afterwards composition depends on the main issue

-evidence in relation to danger: mere allegations sufficient

-in principle no ex parte proceedings, exeption: danger of frustration; (protective brief possible)

-standard of proof: probable evidence; with regard to pre-condition of danger: burden of proofing the allegation

-application of lex fori (probably)

-content of the measure is determined by legislation, court discretion

-contents: blocking of assets, prohibition on disposition of the seized goods against debtor/third party debtor

- measures do not act in personam, creditor does not get a lien on the seized assets

- measure is drafted as a decision (Chapter 24, Sec. 1 of the Code of Judicial Procedure

- decision by a court, normally no grounds included

-court decision on a provisional measure may be independently appealed, apeeal does not have suspensive effect

-in principle posting of security required before enforcement takes place (Chapter 7, § 7 Enforcement Act);

exceptions possible

- if creditor is unable to provide security and

- his right is manifestly well-founded

-competence: enforcement organ / bailiff

- execution of the pm is subject to the general law of enforcement (Chapters 3-4 of Enforcement Act); also provisions in Chapter 7 of Enforcment Act

-further sanctions if debtor does not fulfil order

- service of the order on the debtor is necessary; interim orders are enforced without prior notice

-the performance of the security must be checked

-effect of the provisional measure is not subject to execution of the order within a set period of time

-if measure has been granted, applicant normally has one month to initiate the main proceedings, else p.m. will be abrogated; court must notify the applicant how he must act to prevent the measure being cancelled (Chapter 7, Section 11/12 of the Code of Judicial Procedure)

-court of the main proceeding can overrule or change the order, but it cannot order the release of the seized items (bailiff is competent)

-debtor has further basis for claiming damages (Chapter 7, Section 11/12 of the Code of Judicial Procedure)

-Enforcement Act differentiates between terms like “judgment” (garnishment is possible, before judgment has gained legal force) and “provisional measures” (legal force is not required for enforcement)

- judgments that can be provisionally enforced have been subject to the full consideration, by contrast, protective measures are obtained in summary and urgent proceedings, sometimes even before an ordinary proceeding is instituted

-p.e. and p.m. have complementary function








France 1) Arrest in rem and judicial securities (liens): enforceable title or permission by the judge; claim must appear well-founded in principle; risk of insolvency of debtor (urgency implied);

2) Protective Measures:

a) Art. 808 NCPC: In case of urgency, court can order p.m. if (1) these measures are not seriously opposed by the other party OR (2) the existence of a dispute makes p.m. necessary;

b) Art. 809 I NCPC: court can order protective measures or the restoration of a situation to prevent an imminent danger OR to stop an infringement that is evidently illegal; (urgency implied, debated)

-Jurisdiction:

1) Enf. court at debtor’s domicile (merchants: president of the court or the commercial court)

2) President of the court competent to decide on the merits

-Ex parte proceeding?

1): Yes, Art. 67 Act 1991; debtor can appeal arrest order; judge can reserve right to reconsider issue after a hearing (rétractation)

2): Possible in case of particular urgency if circumstances of case demand that measure is ordered ex parte (812 NCPC); anticipatory brief possible;

competence: if case is pending: president of chamber / single judge deciding on the case; otherwise president of court that is competent to decide on the merits;

Content:

1) determined by legislation

2) determined on facts of each case;

discretion of court, not limited by terms of the creditor’s application

Effect:

1)a) Debtor may not dispose of arrested property; lien for creditor in case of attached claims (preferential right);

1b) Judicial security does not inhibit dispositions of debtor; but the creditor is protected by preferential right and “droit de suite”

1) Enforcement court can additionally impose penalties

2) depending on measure; decision must include grounds (495 NCPC)

Remedies:

1) appeal; revocation by the judge who has ordered the measure if option of revocation had been reserved

1) No security

2) The judge can make p.m. dependent upon security, 489, 517 NCPC, discretion of court

1) Enforcement by bailiff; additional penalty payments (astreinte) possible

Disposing of seized objects constitutes criminal offence

2) No specific enforcement organ; (in)action of debtor assured by penalty payments (astreinte; enforced by bailiffs) ;

1) obligation on the creditor to initiate the main proceedings, if he does not have an enforceable title

Court deciding on the merits cannot order release of seized objects; however judge of enforcement court is obliged to release object after (final?) judgment denying claim

Strict liability of creditor for damages

2) Order does not prejudice case on the merits (488 NCPC). The debtor can contest and initiate main proceedings

Court deciding on the merits can modify / revoke p.m.

P.M. are p.e. by law (514 NCPC)

?

Future claims can be secured

-Provisional measures can only be changed afterwards in case of new circumstances (488 NCPC)

In general, creditor has to prove the conditions set out in column 1; exceptions: measures of reinstatement: no proof of urgency necessary

-Conflict of law rules applied? 1) No; 2) Yes

2) appeal; opposition in case of default judgment (490 NCPC);

in case of ex parte proceeding: appeal; application of interested third party to court making the order (496 NCPC)

Liability only according to Code Civil (fault required)








Ger-many

-Arrest: provisional measure relating to monetary claims / claim that can be monetised.

- Urgency is required: imminent frustration of enforcement of a judgment on the merits, sec. 917 (1) ZPO

1. Jurisdiction: the court hearing the main proceedings or the court at the place of enforcement measures.

2. A single Judge determines the application.

3. Relaxed standard of proof: applicant must establish a probability that the claim exists

Even if the plaintiff is unable to establish the claim, the court may order an arrest on the condition of a security of the creditor

4. The judge decides whether or not an ex parte hearing is necessary. If the court decides ex parte, the arrest is granted as an order. If a hearing takes place, the court gives a judgment

1. The content of an arrest order/judgment is determined by legislation. The content is freezing assets or prohibition on disposition of the seized goods by the debtor/third party debtors. The personal arrest operates in personam against the debtor.

2. The creditor obtains a lien on the seized assets. The priority principle applies. Once bankruptcy has commenced, the lien which applied in the month immediately prior is rendered invalid.

3. The form of the provisional measure is a decision or judgment. The decision is not to be motivated. [“A decision may be made on the court’s own motion”?]

4. If the application is rejected the creditor may lodge an appeal (sofortige Beschwerde). Against the decision a ‘contradiction’ (Widerspruch) can be lodged;

The creditor must lodge security. This is determined by legislation. It is offered by the form of ‘deposit’ (Hinterlegung).

1. The court is responsible for enforcement.

2. It is subject to the general law of enforcement.

3. The order can be enforced before the service of the order to the debtor and the third party debtor.

4. For the arrest, the effect of the provisional measure is subject to the execution of the order within a set period of time (a month); for the security order, in principle subject to [etwas fehlt?]. If execution is not carried out within the period , the arrest can no longer be enforced .

1. The court which issued the order can order the main proceedings in limited time. [?? “can expedite the main proceedings” The main proceeding is initiated by debtor through an application (Art.926 ZPO).

2. The debtor may claim damages which result from the seizure (Art. 945 ZPO).

1. Provisional enforceability is based on a title, but the provisional measures are not.

2. Both of the remedies have the same function: provisional security of enforceability of (a future) title. [“ensuring a title (or future title) can be enforced.”]

against the judgment the normal appeal (Berufung) can be lodged.








Greece - specific substantial right or legal relationship from which rights and obligations may accrue

-claim does not have to be due, but must already exist in principle (including claims subject to term or condition)

-future claims cannot be secured, exception: future damages, if the underlying right to compensation already exists

-in principle the existence of an enforceable title bars the award of a provisional remedy

- according to 682 CCP: urgency or avoidance of an imminent danger, imminent competing claims from other creditors cannot justify a provisional measure

-subject-matter competence: single-member district courts (Art. 683 I CCP), justices of the peace (Art. 733 CCP, 683 II), three-member district courts and courts of appeal, if main case is pending before them (684 CCP), court closest to the place of enforcement (683 III); decision maker is a judge/ judges

- 690 CCP: applicant is to present all available means of proof; judge may act ex officio

- normally proceedings are oral; ex parte proceedings possible in case of extreme urgency (rare); anticipatory briefs (caveats) not known

- standard of proof: substantive right and need for urgency should be shown as probable

- admissibility of application/procedural limits: lex fori; existence of substantive right: lex causae

- content: no strict determination by legislation; Art. 691 III: decision must determine specific provisional remedy and substantive right/ situation

- court has discretion; may order any kind of conservatory measure mentioned in CCP; court is not limited to specific measure applied for but to category of measure applied for; court has to choose the milder measure between equivalent ones (Art 692 CCP)

-judicial security: functions as burden on debtor; orders public deposit of e.g. money (creditor obtains a lien on it); order not enforceable as such (if not obeyed, more drastic p.m. will be ordered);

- pre-notice of a mortgage possible creating a lien (land registry)

- in case of a lien: priority principle applies in full extent to other creditors and survives a later insolvency

-conservatory attachment: prohibition on disposal of the seized goods against debtor; relative invalidity of dispositions; no lien created, no priority

-possible at court’s discretion ;

ordered ex officio or on application of a party

-enforcement organs: bailiff and notary

- execution of the provisional measure is subject to general regulation of enforcement (Art. 700 CCP)

-provisions: Art. 710 – 719 CCP with regard to conservatory attachment of movables: (1) debtor and justice of the peace at locus arresti has to be served with a copy of bailiff´s report; (2) movables in possession of a third person are attached: third party has to be served with a copy of the judgment; (3) conservatory attachment of inmovables: copy of the judgment

-enforcement of the measure is suspended until creditor has paid the security ordered

- 702 CCP: court that ordered the measure can review its enforcement; so- called opposition

- no time limit for execution of the provisional measure

- issuing court cannot initiate proceedings ex officio

- deadline to initiate main proceedings can be given by law or court

- it is debated if debtor can initiate a negative declaratory claim (negative FSKl)

- court of main proceedings can revoke or modify the measure and can order the return/ release of seized items

- 703 CCP: creditor is liabile in cases of knowing / gross negligence of non-existence of substantive right;

- different instruments; provisional enforceability generally excludes granting of provisional measures

- provisional measures allows to secure claim earlier than by the means of provisional enforceability

Greece (2)

-provisional measure is drafted as a judicial decision

- general principle: no appeal is permitted against decisions granting or rejecting an application for a provisional remedy (Art. 699 CCP); application for revocation or modification (no suspensive effect) is possible: (1) cases mentioned in § 698 I CCP; (2) defendant has not participated in the proceedings; (3) court of main proceedings may revoke/modify the measure, if it is a court of superior or equal status to that which ordered the provisional remedy; (4) 697 III: change of circumstances

- no specific time limits; exception: conservatory attachment, judicial custody and provisional adjudication, deadline: 30 days, within this time creditor must initiate the main proceedings

In addition: 940 III CCP analog: if enforcement is irrevocably nullified, liability of creditor also in case of simple negligence








Ire-land

- main types of p.m. are injunctions which are sought as temporary relief

- no interim payments exist in Ireland; but the summary summons procedure is applied

- mandatory injunctions (restorative and enforcing) that oblige the defendant to perform an act are available, if the plaintiff can specify what action is required; mandatory interlocutory orders require strong evidence or imminent prejudice

- Irish courts allow a (worldwide) Mareva Injunction (under exceptional circumstances,)

-interlocutory injunction: plaintiff must satisfy the test of ”a fair or serious question to be tried”

-participation of the defendant: in interim proceedings court decides on an ex parte basis; in interlocutory injunctions defendant has a right of hearing

-content is not determined by any legislative provisions, court decides each case in its discretion

-ex parte decisions can be set aside on application by the defendant at the interlocutory stage

- interlocutory proceedings can be appealed to a higher court

- no specific time limits for validity

-applicant must give an undertaking to the court; if he ultimately fails at trial any losses incurred by the defendant can be compensated without commencing a new action

-plaintiff must bring to the court’s attention that the injunction isn´t being enforced

- execution is part of the general law of enforcement

- disobedience of the defendant is classified as civil contempt, for enforcement, motion of the applicant is necessary

- applicant can claim Attachment, Committal or Sequestration

Temporary injunction forms part of the main proceedings and is regarded as a protective measure








Italy -the claim does not have to be due nor does the plaintiff have to present an enforceable title; it is sufficient that the claim is “likely to exist”

-future claims can be secured

-for any conservatory measure it is necessary that the plaintiff proves the risk of a prejudice as well as urgency

-competing claims by other creditors are not sufficient to satisfy the conditions above

-urgency can lead to an operating of a sequestrator

-the court that is competent for the procedure on the merits has jurisdiction for provisional measures , even if the procedure on the merits is not yet pending; if several jurisdictions are available, the plaintiff has the right to chose

-there are special rules p. e. on arbitration procedures

-the competence for provisional measures is determined according to the general rules; nevertheless such measures are generally ordered by a single judge

-the plaintiff must present proof with regard to the claim and the urgency of the measure, but there are no formal evidentiary requirements

-an ex-parte decision can only be conducted if the notification of the debtor would itself endanger the enforceability of the claim

-besides this exception, an adversary and oral procedure takes place; within the procedure

-the content of provisional measures is determined by law

-the content of a provisional measure is the prohibition on the disposal of seized goods against the debtor and the third party debtor

-provisional measures operate in rem

-the creditor does not obtain a lien

-provisional measures are usually drafted as an order; only ex-parte measures are drafted as a decree, but have to be replaced by an order within a certain time limit

-against provisional measures there is a remedy called “reclamo” which is not an ordinary appeal, but a summary one

-the bailiff is responsible for enforcement

-the enforcement of provisional measures is subject to the general law of enforcement

service of the order on the debtor is not required as his knowledge of the claim is imputed based on the debtor’s participation in the trial

-the creditor must present a document proving security exists

-the creditor must proceed within a certain period of time

-in the case of non-performance the measure loses its validity

- in general there is no need for the debtor to initiate the main proceedings as the provisional measure entails an obligation on the creditor to initiate the main proceedings

-the court in which the main proceedings are carried on can change the order; if this is the case, the court can return and release the seized items

-liability of claimant based on simple fault

-there are considerable differences between provisional enforceability and protective measures: since provisional enforceability does not aim at the protection of the creditor, it is not necessary that urgency or danger of prejudice are available

Italy (2) -in the case of an ex-parte decision the judge must set up a hearing within the following 15 days within which the measure ordered must be confirmed

-in this procedure, the judge must undertake a summary examination with regard to the claim; he has to determine the applicable law according to conflict of laws rules








Luxemburg 1a) General arrest in rem (saisie-arrêt) : -existence of claim of creditor must “be certain” -existing title (eg notarized document) not necessary -claim must be accruing due - danger of frustration of final judgment (periculum in mora) [exception: existing non-judicial title?]

1b) Protective seizure in commercial matters (saisie conservatoire commerciale; 550 NCPC; in practice only used for corporal objects): -title not necessary -existence of claim of creditor must “seem sufficiently certain” (reduced standard) [Vgl aber Garnishment 2.3.1.] -risk that possible objects of arrest might be embezzled by d. -claim must be due

2) Court order (ordonnance de référé) : In case of urgency, court can order p.m. if (a) these measures are not seriously opposed by one of the parties or (b) if the existence of a dispute makes them necessary (933 I NCPC)

1a) +b)

- competence is granted to president of county ct (tribunal d’ arrondissement) at place of execution of arrest or alternatively at domicile of debtor

-ex parte proceedings summary proceeding

Anticipatory briefs not known but not impossible either

2)

Competent: president of county court at domicile of debtor or alternatively at the place of execution (choice of creditor)

Debtor must be heard, no ex parte proceedings

1) a+b) Content determined by law

1a) Authorisation of seizure to be effected by bailiff

1b)

Form: Ct order (ordonnace); executed by bailiff (huissier) seizing the object; creditor does not get a lien or any priority; appeal to juge des référés

2) Content of p.m.: Discretion of court

Order must include grounds; can be appealed

1a) No security required

1b) ?

2) ?

1a) seizure / attachment effected by bailiff (huissier), no realization (e.g. forced sale)

1b) executed by bailiff (huissier) seizing the object; no realization

2) Violation of court order (ordonnance de refere) can lead to compulsory payments as santion (astreinte)

Debtor can not require initiation of main proceedings by creditor but can start “negative” action (action déclaratoire négative)

Creditor only obliged to pay damages if acted in bad faith or with negligence

Arrest / Protective seizure can be transformed into final execution after decision on the merits;

?








Netherlands For conservatory arrest:

-The claim must be due at the time the conservatory arrest becomes enforceable, ie at the moment the judgment debt becomes due. A future claim can in special cases be secured. A title is not required.

- Only in cases of a conservatory arrest on non-registered movables in the possession of the debtors as well as on rights to bearer and order must there be a fear of embezzlement. In other conservatory arrests this condition is not required.

-Urgency is not required

1. Jurisdiction (Art. 700 CCP): the ‘voorziengenrechter’ of the district court has jurisdiction where one or more of the goods in question are in his judicial district. It does not have to be the court hearing the main procedure. The venue is the court of the defendant’s habitual residence.


3. A request for seizure does not require proof of the claim; sometimes a fear of embezzlement has to be shown.

4. In general, the debtor has no right to be heard and it will be an ex parte decision. Generally, the debtor cannot address to the court an anticipatory brief (caveat)

5. Standard of proof:

The ‘voorziengenrechter’ will reach a decision after a summary investigation based on the information and documents provided by the applicant and the defendant.

1. The content is determined by legislation. Each case is determined according to its own particularities. The content is freezing of assets and a prohibition on disposition of the seized goods against debtor/third party debtors.

2. The creditor does not get a lien on the seized assets.

3. The provisional measure takes the form of an order. The decision does not need not include grounds

4. No appeal is available if the request is granted (Art. 700 ss2 CCP). If the application is rejected the creditor may lodge an appeal and second appeal

In general, the creditor does not have to lodge security. But leave for garnishment may be given subject to the condition that the creditor provides security for damages through the garnishment. However, this is very unusual.

1. The bailiff is responsible for enforcement.

2. As soon as the provisional seizure becomes enforceable, the bailiff follows the special provisions for the execution of the enforceable seizure.

3. The prerequisites for enforcement: service of the attachment order on the debtor and the third party debtor (in garnishment) together with the request. If security is ordered, the creditor has to provide proof of payment.

4. The effect of the provisional measure is not subject to the execution of the order within a set period of time, unless the court decides otherwise.

1. The court which issued the order can require commencement of main proceedings.

2. The court in the procedure on the merits can abrogate the seizure, as well as the ‘voorzieningenrechter’ who issued the order in a kort geding procedure initiated by a debtor.

3. The debtor may claim damages incurred by tortious seizure.

1. Enforcement only takes place after the interim proceeding.

Only after the provisional seizure has become an enforceable seizure is enforcement [realization?!] allowed.

Provisional seizure is followed by a procedure on the merits or a ‘kort geding’. If this procedure produces a title the provisional seizure will become enforceable .

2. The decision to grant an attachment order cannot be appealed. Any appeal must be directed against the court decision on the merits. If the decision is declared to be provisionally enforceable, it may be enforced in spite of the right to appeal.

P.e. and p.m. have no complementary function. (?)








Portugal Applicant must provide prima facie proof of the claimed right (fumus boni iuris) and that he will suffer loss or damage that can not be easily be remedied;

- Arrest (monetary claim): danger of frustration of later enforcement; claim must be due

-Court Order – General form:

May not be made if potential prejudice incurred by debtor in case of order considerably exceeds any possible prejudice to applicant (creditor) that shall be avoided by the measure

Jurisdiction:

-Normally, court that will decide on the merits

-Execution court at place where execution can take place

-Inventory of assets: court where assets are located also competent

-Order for cessation of employment [construction works???]: exclusively competent ct at place of employment [construction ???]

Single judge decides in first instance

Theoretically, conflict of law rules apply;

In general, debtor needs to be heard beforehand unless ex parte proceeding is necessary to assure the efficiency of the measure; anticipatory brief not possible

Content of p.m. basically predefined by law; extent depending on application, court can only grant measure applied for or deny it (including possibility of according minus; but not aliud)

Order must include grounds, costs awarded against losing party

Effects: -Freezing of assets -Arrest creates lien; priority principle applicable (exception: insolvency) -Attachment of claim with relative effect: later transfer of claim is not valid in relation to attaching creditor (622 CC) -No personal arrest

Appeal to higher court or, in case of ex parte proceedings, the same instance

Decision can be modified by court that ordered p.m. (new situation required) and on appeal

P.m. can be replaced in some cases by adequate security by debtor (387 n°3 CPC)

General rules on enforcement are applicable (e.g. rules on seizure as means of enforcement procedure (saisie execution) are applicable to arrest (406 CPC) ).

Normally, bailiff is competent organ

Debtor / third debtor failure to comply with provisional measure constitutes criminal offence (391 CPC)

Order needs to be served to (third) debtor

Arrest order losses effect if seizure of asset is not effected within two months

Main proceedings (in Portugal or other Member State of Brussels Reg / Conv) must be started within delay of 30 days after notification of p.m. to applicant;

Court deciding on the merits can only revoke p.m. ordered by this court

Debtor cannot require initiation of main proceedings by creditor but commence action to obtain “negative declaration”

P.m. loses effect if final judgment denies applicant’s claim

No relationship








Spain (1)

- a claimed right (fumus boni iuris)

- danger of frustration of final judgment (periculum in mora)

Standard of proof for above conditions depends on the circumstances of the case; all types of evidence [?] admitted; normally summary [prima facie?] proof sufficient)

-posting of security if required by judge,

-main proceedings must have been initiated; in urgent cases they can be initiated immediately afterwards

The court that will decide on the merits of the case is competent (first instance: single judge).

Conflict of law rules will be applied

In general, debtor must be heard . Exception: , ex parte proceeding is possible on application of claimant in cases of urgency or if necessary to ensure the efficiency of the measure. Plaintiff can oppose such decision during period of 20 days; if so, “opposition” proceedings follow.

Decided by court depending on circumstances of the case; discretion of court

Order must include grounds

Applicant must bear the costs of procedure if application is denied or if judge upholds the opposition of the debtor after ex parte proceeding

Appeal to court of higher instance; in case of ex parte proceedings: same instance; no suspensive effect

Decision can be modified by court that ordered p.m. (new situation required) and on appeal

Posting of security by creditor is (normally) required if applicant is not domiciled in Spain (debated), otherwised at discretion of judge;

amount fixed at discretion of judge

Creditor required to pay damages to debtor if claimed right is (completely) denied in main proceedings (745 LEC).

Debtor can offer adequate security to avoid p.m. (discretion of judge)

Enforcement by court that decides on the merits

Service of order on debtor

Failure of debtor / third debtor to comply with provisional measure constitutes criminal offence; third debtor can be held liable for the whole sum

Decision on p.m. is seen as incident part of procedure on the merits.

Commencement of main proceedings is seen as condition for seeking p.m.; however, in urgent cases, p.m. can be sought at once; main proceedings must then be initiated within 20 days (730 LEC). Debtor cannot require creditor to commence main proceedings . If creditor does not initiate main proceedings within time, p.m. will be revoked and creditor bears costs and pays damages to debtor.

P.m. must also be revoked

a) if judge who ordered it decides in his judgement that claimed right does not exist

b) at the moment when provisional enforcement of judgement on the merits can be demanded

c) in case of final judgement

P.e. and p.m. are in principle incompatible:

P.m. must be abrogated at the moment when p.e. of judgment on the merits can be demanded, 731 LEC. P.e. can be demanded after delay of 20 days after rendering of judgment.

(Rare exceptions)

Spain (2)

Debated whether future claims can be secured.

Debtor can claim damages from the creditor that have been caused by the ex parte form of procedure (e.g. if less burdensome form of security would have been possible)

Anticipatory brief not possible (?)

Attachment of asset does not stop debtor from disposing of the asset; however, disposal of asset by debtor is criminal offence; ownership of

buyer etc is only acquired if acting in good faith

The pre-conditions for the obtaining







Sweden (1)

-The claim must be due before or during the proceedings. A future claim cannot be secured. The creditor is not required to present an enforceable title.

-The applicant must show that it is reasonable to suspect the opposing party will evade payment of the debt by absconding, removing property, or other action. .

1. Jurisdiction: the court hearing the main matter; there is no difference if provisional enforcement is sought prior to or during the main proceedings. If a person, with no known residence in Sweden has entered into an obligation or otherwise incurred a debt he may, in a dispute concerning the same, be sued at the same place where the obligation was created or the debt was incurred (the Code of judicial procedure chapter 10 section 4).


3. The extent to which the creditor should produce evidence is not stipulated. He has to show probable cause that he has a claim and it would be reasonable to suspect that the debtor will evade payment. Form the creditor’s application, and possible documents and other evidence presented, the court must decide if the conditions for provisional measures are fulfilled.

1. If enforcement of the order is necessary an application has to be made to The Enforcement Authority (EA). The EA normally decides on what goods to attach and how the goods should be safeguarded. Normally personal property is taken into care. Attached goods can normally not be sold and attachment of salary is not possible.

2. The creditor does not get a lien on the seized assets. If property that is provisionally attached for a claim thereafter is attached for another claim, which is not linked with a special priority right in the property, the property shall be deemed to be simultaneously attached for the claim of the provisional attachment creditor. That means that the creditor obtains a prior right in the property that can be exercised at compulsory sale and, under certain circumstances, at bankruptcy proceedings.

Except in some exceptional cases, the applicant must deposit a security at the court for the loss that the opposing party may suffer. The security shall compromise a pledge or a guarantee. The security often consists of a bank-guarantee.

If the applicant lacks means to furnish security, and if he has shown extraordinary reasons for his claim, the court may waive the security requirement.

-The Enforcement authority is responsible for enforcement.

-The execution of the provisional measures is subject to the general law of enforcement.

The court order does not have to be served before enforcement. The enforcement of the decision normally takes place immediately, without notifying the debtor.

The creditor can not be forced to commence proceedings on the merits.

The court can change or overrule the order on provisional measures. The enforcement authority then has to decide on returning seized property. The enforcement authority’s decision can be appealed in separate proceedings.

Strict liability of creditor.

Protective measures a complement provisional enforcement to secure future enforcement. There are two different proceedings, and it’s possible to appeal against the court’s decisions in both proceedings.

Sweden (2)

4. As a general rule, the opposing party must be given an opportunity to respond to an application on a provisional attachment/security measure before the court makes a decision. If the applicant shows that delay places the applicant’s claim at risk the court can make the decision immediately and without hearing the

debtor.

5. The debtor can not address an anticipatory brief (caveat) to the court .

3. The form of the provisional measure is an order, which must include grounds

4. An appeal can be made to a superior court. A re-examination at the court that ordered the provisional measure can also be requested.

5. When a measure in the CPC Ch 15 § 1-3, has been granted before the main proceedings are pending, the applicant must, within a month of the order on provisional measure, commence proceedings on the matter at issue. If not, the provisional measure lapses immediately. The same time limit applies if the main proceedings are held in another country.








United

Kingdom

England/

Wales

-The claim that is to be secured does not have to be due. A future claim can also be secured.

-Urgency: urgent circumstances are recognized as circumstances where there is no practical possibility of giving the required minimum three clear day’s notice to the other side. Where a case is urgent, the usual procedural requirements are relaxed in so far as is necessary to do justice between the parties.

For general temporary injunction:

(1) there must be a serious question to be tried;

(2) damages must be an inadequate remedy for the applicant;

(3) An undertaking by the claimant must be adequate for defendant

(4) The balance of convenience should favour the claimants.

1. Jurisdiction: the court (1) hearing the main proceedings or (2) at the place of enforcement measures, and (3) other appropriate courts.

2. Judges, masters and district judges can deal with interim applications.

3. Applications must be supported by evidence, unless the court orders otherwise. Draft order standard form used.

4. Oral proceedings. The debtor has a right to be heard. Ex parte decisions are possible, if application can be made without notice. This is the case

- for freezing injunctions and search orders

- in case of urgency

-if secrecy is essential for the order to be efficacious

No protective writings possible.

1. The content of the freezing injunction is blocking of assets and prohibition on disposition of the seized goods against the debtor/third party debtors.

2. The creditor receives no lien on seized assets.

3. P.m. can only be granted in form of an order

4. The order is addressed to the defendant, but it also binds third parties with knowledge of it.

5. Any of the following matters may be raised in defence: delay or laches, acquiescence, hardship, inequitable conduct by the claimant, incapable of being effectively enforced, enforce an agreement for personal services. Interim injunctions are granted subject to later discharge.

6. The provisional measure is valid for a specific limited time; this is stated in the order.

The claimant is required to give an undertaking in damages on being granted an interim injunction. The undertaking is to pay compensation to the defendant for any loss incurred by the injunction.

The court is responsible for enforcement.

It is subject to the general law of enforcement.

Breach of an injunction is considered to be contempt of court.

The condition for enforcement: service of the order to the debtor.

The court, which issued the order, can require/initiate or determine the main proceedings.

The court, in which the main proceedings are conducted, can change or overrule the order, can order the return or release of the seized items.

Claimant must honour undertakings if injunction should not have been granted

1. Provisional enforcement is subject to successful interim proceedings.

2. Provisional enforceability is different from protective measures, and the former is the status of protective measures subject to appeal by the defendant and/ or final judgment by the court over main proceedings, but the latter is a legal remedy applied for by the Claimant.

3. All the remedies are aimed at the same function, doing justice between the parties.

(5) The court should consider measures that are calculated to preserve the status quo.

(6) There may be special factors to be considered in the particular circumstances of individual cases.

For Freezing Order:

(1) A cause of action justiciable in England (/ W);

(2)A good arguable case;

(3)The defendant has assets within the jurisdiction;

(4)A real risk that the defendant may dispose of or dissipate those assets before judgment can be enforced.

Instead of contesting an application for an interim injunction, a defendant may give undertakings in similar terms to the injunction sought by the claimant, having the same force as an injunction ordered by court.

5. Standard of proof: (1) For interim injunction, it must be shown that there is a serious issue to be tried (American Cyanamid principles); (2) for interim payment: the court must be ‘satisfied’ the defendant ‘would be held liable’ if the claim went to trial before ordering an interim payment.

6. Informal means of proof (e.g. unsworn draft affidavit) are allowed in case of urgency. The claimant has a continuing duty to give full and frank disclosure to the court of all material facts, including those that go against the application.








United

Kingdom

Scotland

Arrestment / inhibition on dependence:

Property which is in the hands of the debtor is not subject to arrestment !?

Future claims can only be secured if defendant is in a significant risk of insolvency or contemplating flight from the country

Action must be taken to the courts within 20 days of execution of the arrestment (for summary causes in sheriff courts the period is 42 days).

Creditor has to show imminent frustration of enforcement of a later judgment

Urgency is not required.

Interim interdict:

Creditor must show potential harm to himself if interdict is not granted.

Competent is the court at the place of the enforcement measure (single judge)

Creditor must produce a certified copy of judgement and other documents.

Arrestment / inhibition on dependence: - Written ex parte proceedings (if not requested during main proceedings); debtor can not address to the court a protective writing - Debtor can challenge the p.m. on the basis that creditor has no “intelligible and discernible cause of action”.

Interim interdict:

- Creditor must show factual evidence of potential harm; any kind of evidence allowed

- Creditor can request ex parte proceedings

- Debtor can challenge the interdict on the basis that it is not necessary

Even regarding arrestment, the content of the measure is determined by the court on the particularities of each case.

Ex parte measures are drafted as an order. Else, an interim interdict is drafted as a judgement

Arrestment / inhibition on dependence:

- block the assets and create a prohibition on disposition of the seized goods against debtor and third debtor.

- no time limit

Interim interdicts

- can prevent the debtor from destroying or using an object.

- are granted for a specific time but can be renewed

- does provide reasons

Creditor does not have to post security.

Arrestment/ inhibition:

Debtor can offer sufficient security (discretion of court).

P.M. are subject to a separate system of enforcement, as the assets remain in the hands of the third party

(property which is in the hands of the debtor is not subject to arrestment)

Arrestment / inhibition on dependence are executed by the messengers–at–arms or a sheriff officer.

A (third) party that does not respect the arrestment is liable for the value of the asset.

Interim interdict: contempt of the court

Neither the debtor nor the court can initiate the main proceedings or require the creditor to do so.

But action must be taken to the courts within 20 days of execution of an arrestment / inhibition on dependence

(for summary causes in sheriff courts the period is 42 days).

Court of the main proceedings can not overrule the order for P.M.

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