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Designed to give practical information and guidance to lawyers and businessmen who are interested in securing expected future judgments and in making strategic decisions.
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As an introduction to this issue it must first be mentioned that rules governing Argentine court procedures are passed locally by the legislature of each Argentine Province. Hence, they may vary from one Province to another.
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Designed to give practical information and guidance to lawyers and businessmen who are interested in securing expected future judgments and in making strategic decisions.
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In Australia, if a plaintiff believes there is a real risk that a debtor will deal with assets so as to frustrate any future judgment in favour of the plaintiff, the plaintiff can apply to court for a Mareva injunction. An application can also seek orders in support of the Mareva injunction (such as an order that the debtor give discovery of his or her assets) but otherwise the Mareva injunction remains the primary judicial measure available to a plaintiff in Australia to preserve a debtor’s assets pending judgment.
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Creditors may apply for interim orders (Einstweilige Verfügung) to obtain provisional relief. Such orders are to impede the frustration or delay of future enforcement proceedings, i.e., to secure a certain claim, be it of pecuniary or other nature.
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According to Belgian civil procedural law, a distinction has to be made between conservatory attachments (bewarend beslag, saisie conservatoire/seizure for security) and attachments in execution
(uitvoerend beslag, saisie exécutoire/enforcement of judgments).
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The law relating to Writs of Attachment is provided for in The Supreme Court of Judicature Act (SCJA) Chapter 82 of the Laws of Belize in an indirect manner and does not cover all of the areas addressed by the questions hereto.
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In the narrow sense of the word attachment is available to any person having a just cause of action at law against any person or persons absent from Bermuda but who has been in Bermuda by way of Writ of Attachment under the Attachment Act, 1874.
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The general nature of an attachment is to avoid the mockery of the plaintiff’s rights. Under Bolivian law a plaintiff’s rights against a debtor can be secured by affecting the property of said debtor.
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Brazilian law provides for specific actions with the purpose of preventing dispersion of debtor’s assets and securing satisfaction of a judgment yet to be rendered. These actions aim at assuring the result of another action and they are provisional in nature, since the final judgment of the main action replaces the provisional relief granted in the request for injunction.
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In the absence of local Brunei decisions, the Brunei Courts still refer to English law decisions on similar statutes as well as English Common law as persuasive authorities. Furthermore, there is in Brunei the existence of a legislation entitled the Application of Laws Act (CAP 2) wherein Section 2 of the Application of Laws Act (Cap. 2) provides that:
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Canada is a federal state consisting of ten provinces and three territories in which the federal and provincial governments share political and legal power. Under the Canadian constitution the federal and provincial governments are assigned respective spheres of jurisdiction. Federal law applies throughout Canada while the laws of a particular province apply only within that province.
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Attachments and injunctions are treated separately in Chilean law depending on the kind of proceeding in which they have been ordered. In executive proceedings or Juicios Ejecutivos (i.e. proceedings aimed at attaching assets of a debtor in order to sell them in public auction and pay its debt with the proceeds thereof) attachments are of the essence...
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In the Hong Kong SAR, the Mareva injuction is the primary judicial remedy available to a Plaintiff seeking to obtain provisional relief against a Defendant to prevent the dissipation of the Defendant’s assets pending judgment.
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Whenever in any proceedings to obtain an attachment under Part 7 of the Civil Procedure Law, Cap. 7, it is suggested by the garnishee that the debt or property sought to be attached belongs to some third
person, or that any third person has a lien or charge upon it, the Court or Judge may order such third person to appear and state the nature and particulars of his claim upon such debt or property.
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According to Section 74 ff. of the Czech Civil Procedural Code “Obcansky soudni rad” (hereinafter “CCPO”) before or within a court procedure, the Plaintiff “zalobce” may demand the court to issue a preliminary injunction “predbezne opatrení.” The debtor can be obligated to fulfill one of many options: to give money or property in court custody, not to dispose with his property or rights, do something (facere), not do anything (omitere), or withhold (pati).
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The judicial measures available for plaintiff to obtain provisional relief affecting property of debtors consist of Provisional attachment or seizure, the effect of the measure is that the debtor is prevented
from the use of his assets and the disposition of it.
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The rules governing attachment are contained in the Danish Administration of Justice Act, which provides numerous formal rules concerning the hearing of different types of case by the Danish courts. Part 56 of the Administration of Justice Act provides rules that detail the conditions for the levying of attachment.
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The major Egyptian laws that deal with this subject are: (1) Law No. 13 of 1968, as amended, promulgating the Civil and Commercial Procedure Law; (2) Law No. 308 of 1955, as amended, on administrative attachment that deals with administrative attachment; and (3) the Intellectual Property Law covering Copyright, Trademark, and Patent, all amalgamated in the Law No. 82 of 2002.
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The term “attachment” is used herein to mean judicial measures available for plaintiffs to obtain provisional relief affecting the property of a debtor and security for judgments to be obtained in connection with civil proceedings for damages or other monetary claims.
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German law provides for attachment orders that can be used to freeze assets. A bank account, for example, can be frozen by way of an order which forbids the bank to effect any payments to die defendant. Moveable assets may be put in the custody of a bailiff.
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In Ghana, when by any contract a prima facie case of liability is established, and there is alleged as a matter of defence a right to be relieved wholly or partially from such liability, the court or Judge may make an order for the preservation or interim custody of the subject matter of litigation, or may order that the amount in dispute be brought into court or otherwise secured.
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Attachments are considered a procedural guarantee measure to secure the results of the procedures or judgments. Courts are empowered to decree any adequate measure to prevent transfer of debtor’s property to third parties. The freezing of property in place or placing it in the custody of a third party such as a court official, a bank or a person designated by the creditor, is perfectly feasible.
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In Indonesia, if a plaintiff believes that there is a real risk that a debtor will dissipate or deal with assets in such a way so as to frustrate any future successful judgment in favour of the plaintiff, the plaintiff can apply to the Indonesian Courts for relief.
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Depending on the nature of the plaintiff’s claim against the defendant, be it in personam or in rem, there are a full range of reliefs and orders available from the Irish Courts to assist in the securing and preserving assets of a defendant for ultimate satisfaction of a judgment.
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Prior to answering the set questions it is appropriate to explain the constitutional position of the Isle of Man. The Isle of Man is an entirely separate legal jurisdiction to that of the United Kingdom. It is not part of the realm of the United Kingdom nor is it governed by the laws of the United Kingdom. It is a Crown Dependant Territory and the Queen is acknowledged as the head of state.
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A court or registrar (a judicial officer acting in concert with the court) may issue an order of temporary lien, resulting in a lien on property in the hands of the defendant or third party “holder.” The procedure is set forth in Part 1 of Chapter 28 of the Regulations--Civil Procedure, 5744 – 1984.
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Amongst provisional remedies governed by Italian civil procedure law, attachments are the most typical and frequently used. Similarly to the other preventive proceedings, they serve to issue a further judicial order or decision for which the plaintiff is seeking an anticipated effect.
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In civil matters (specifically, claims for debt or damages), claims not exceeding $250,000.00 Jamaican dollars may be brought in the Resident Magistrate’s Courts in the various parishes in the Island.
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In general terms the nature of these judicial measures in Jersey is the freezing of the property of debtors (or indeed of the persons of debtors – see question 2 and 8) either in place or in the custody of a third party.
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All judicial measures are available for obtaining a provisional court order for the attachment of the assets of debtors. If the asset is a property or movable, it can be left in the custody of the debtor and at his own risk for its protection.
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Freezing the property in place or placing it in the custody of the court as appropriate for the type of property.
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Matters concerning attachments are regulated by various provisions in the Civil Execution.The Civil Execution Act was previously a part of the Code of Civil Procedure, but it was separated from the Code of Civil Procedure and enacted as an independent statute in 2002.
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In Kuwait, the Civil and Commercial Procedure Code provides in articles 216-226, that a prejudgment attachment is available to a creditor over his debtors personal property if the debt is certain
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Article 138 of Latvian Civil Procedure (henceforth “Law”) provides for the following means of securing claims...
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Saisie-arrêt (article 693 of the New Code of Civil Procedure) is a procedure, allowing a plaintiff, in a first stage, to freeze assets of the defendant in the hands of a third party, and in a second stage, to obtain payment of the frozen assets, in lieu of the defendant.
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In Malaysia, if a plaintiff believes that there is a real risk that a debtor will dissipate or deal with assets in such a way so as to frustrate any future successful judgment in favour of the plaintiff, the plaintiff can apply to the Malaysian Courts who like the Courts in the United Kingdom have recognised that there is jurisdiction to grant injunctions in the form of Mareva injunctions.
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