Originally from:
The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
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Attachments Abroad II
Lawrence W. Newman and Michael Burrows
This chapter is the second part of a two-part discussion which begins
with the preceding chapter. In the first part, we dealt with the bases for
obtaining prejudgment attachment in countries outside the United States,
including the showing required of plaintiffs and the sometimes heavy
burden of security imposed by the court of many jurisdictions. This
chapter considers certain aspects of the consequences of obtaining an
attachment outside the United States, in particular, obtaining information
from garnishees about assets attached, priorities among competing creditors
and the bases on which attachment may be vacated.
The extent to which an attachment may be worth the time and expense
required depends, in significant part, on what the attaching plaintiff obtains
as a result of the attachment. If a plaintiff is able to obtain a lien that is
superior to the rights asserted by creditors who may come later, he will be
willing to expend more effort than he would if the best he can obtain is a
right that is subject to later defeasance by other claimants against the same
assets.
In New York, once an order of attachment is served, the garnishee,
frequently a bank, is obliged to report what assets are affected by the order.
This information is made available to the plaintiff, who may also, when
there are numerous creditors seeking security, obtain information as to
where his attachment stands in relation to attachments and other liens obtained by
others, including the amounts of those other liens.
The plaintiff is in quite a different position in many jurisdictions outside
the United States. In Switzerland, for example, banks—the most likely
garnishees—generally refuse to reveal what, if anything, was attached. The
banks have taken a position that their obligation of confidentiality regarding
bank accounts would be too easily breached if they made disclosure to
everyone who obtains an attachment. A bank that has its own claim against
the attached assets must, however, make disclosure to the bankruptcy office
or risk losing its right against the assets. In Geneva, many banks often telephone
the plaintiff or his lawyer to pass on information regarding any assets
attached. The practice in Luxembourg, another haven of bank secrecy, is
similar; plaintiffs' counsel may find out from the banks only informally if
they have succeeded in attaching anything of value. Under the law in
the Netherlands, the plaintiff only finds out what he has attached at the
completion of the hearing on the merits, when he is about to enforce his
judgment against what he has attached. What apparently is a problem of
proceeding in the dark without knowing whether there are assets against
which a judgment is enforceable may, in Dutch practice, be alleviated with
the assistance of skilled counsel, through informal disclosures of
information.
In other countries, disclosure is obtained by the parties directly or
through the courts. Thus, in Belgium and Germany, the garnishee must
provide to the plaintiff, within two weeks of service of the attachment
order, information concerning the nature of the assets attached and other
attachments against the same property. In such countries as Brazil, France, Italy, Japan, Korea and
the Philippines, disclosure is made to the court or a court official, either on
application by the plaintiff, or as a matter of course. The information so
provided is ordinarily available to the plaintiff.
