1. Provisional Measures: Classification and the trans-border context

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1 1. Provisional Measures: Classification and the trans-border context Definition: to secure assets; to maintain the performance and to preserve evidence (search orders) Jurisdiction for crossborder foreign (on the merits) foreign Austria - 379, 381 EO : to secure assets/ to secure other claims from which an ultimate judgment may be satisfied EO provides for various to maintain the status quo; it is often debated whether these types of should be allowed in cases where there is no connection with a relevant recognised basis for a claim ( nicht anspruchsgebundene Regelungsverfügung ); pursuant to court judgments, such a measure is only available if it is expressly mentioned in legislation (2 cases: in divorce proceedings with regard to matrimonial assets; that protect against domestic violence) - to ensure interim payments or performance exist; they are granted in the case of 381 Z 2 EO, if necessary to prevent imminent violence or damage; the most commonly mentioned provisions regarding interim payment are 382 I Z 8 lit a; 382 a EO (interim maintenance) - protective to secure evidence are available if evidence cannot be preserved pursuant 384 ff ZPO - within the scope of Art. 31 VO/44/01 the applicant can choose between the courts which have jurisdiction under 387 EO/ 162 I PatG; general civil procedure law is not applicable, because jurisdiction for protective is only ruled in EO; courts of jurisdiction pursuant 387 II EO fulfil the EJC s requirement that there exist a real connection between the object to secure and the competent court, because provisions refer to domicile of defendant, seat of third-party-debtor or locus of the object in question - can order protective to support a foreign main proceeding - jurisdiction in these cases: pursuant to 387 II EO, even in cases of 387 III EO if the court determining the main proceeding would have jurisdiction, an Austrian court can order the measure; if there is no jurisdiction pursuant 387 II EO for Austrian courts, generally the order of a protective measure is not possible; - formerly courts only ordered if execution were possible (within Austria or after recognition in another state); now it is accepted that an order might also be made where forced execution is not possible - no with the effect of a world-wide Mareva injunction - no particular rules exist in relation to protective affecting assets abroad; in Austria the defendant is not generally heard, so that recognition and enforcement of Austrian protective abroad pursuant Brussels an Lugano Convention was not possible; now the problem is, if such ex-parte can be recognized abroad under Art. 34 Nr. 2 VO 44/01/EG - no court decisions with regard to recognition and enforcement of foreign protective under Art. 32 VO/44/01 EG/ Art. 25 Brussels Convention : obiter dictum of OGH that dealt with enforcement of foreign protective pursuant Brussels/Lugano Convention; OGH said, that recognition and enforcement in Austria would only be possible if defendant had the opportunity to be heard before the measure was ordered - Art. 31 VO/44/01 should be expressed more clearly - harmonization of European law systems with regard to is inadvisable for several reasons: (1) standard forms do not lead to a simplification, because of the variety of possible cases; moreover the recognition and enforcement of foreign will not play an important role, because the order of the measure at the place of enforcement is more effective (2) the problem of the duration of substantive proceedings in Europe should not be addressed by protective

2 Definition: to secure Jurisdiction for cross- Recognition and assets; to maintain performance and border foreign (on the the for the preservation of merits) main foreign evidence (search orders) proceedings by measure (Art. 32 Reg Belgium Classification used in questionnaire is not applied under Belgian law; however a similar division is applied according to some doctrines. Normally, there is a division between preparatory (those ordering preservation of status quo and preservation of evidence) and (interim) orders of payment/performance 1) Measures to secure assets: a) Arrest in rem (saisie conservatoire, 1413 et seq Code judiciaire) for monetary claims b) Protective seizure of an object (saisierevendication, 1462 CJ) c) sequestration (1961 Code civil) d) putting under seal The presidents of the first instance court order for interim payment (ordonnance de référé-provision), art C.J. Measures for preservation of evidence are considered as p.m., art. 584 C.J. Int the alternative: -Judge competent for the substantive matter, art. 19 C.J. - Judge of seizures (juge des saisies, enforcement court) [concerning assets located in Belgium] art. 19 (2) C.J. - Juge des référés [concerning acts / omissions to be performed in Belgium] art. 635 n 5 C.J. is not applied in relation to foreigners if the order must be enforced abroad. Assistance possible in principle No special rules relating to trans-boarder cases; however, following rulings VanUden/Mietz additional condition of lien reel Ex parte procedure possible in case of absolute necessity (the same as internal proceedings) No available having effect similar to world-wide Mareva injunction No case law available - 2) Measures to maintain : Court order (ordonnance de référé).

3 Definition: to secure assets; to maintain the performance and for the preservation of evidence (search orders) Jurisdiction for crossborder foreign Denmark - measure to secure assets exists: arrest ( 641 ff. Rpl.) - measure to maintain the exists: forbud ( 641 ff. Rpl.) [ + ist nicht auf Englisch so bekannt als auf Deutsch to secure assets exist (wie nächste Spalte: -no to ensure interim payments or interim performance - to preserve evidence exist ( 635 ff. Rpl.) - no special provisions for cross-border under Art. 24 EuGVÜ II, 646 I Rpl. make reference to 487 Rpl., which regulates the general local jurisdiction of the court competent for enforcement matters. This provision is also valid for the international jurisdiction - with regard to the jurisdiction of the ECJ in cross-border cases the courts will hold a hearing in which both sides take part. no Mareva injunction allowed; since the Van- Uden-Decision, it has been debated whether courts will grant an arrest with regard to assets abroad, when courts of another Member State have jurisdiction in the main proceeding - appellant must start the main proceedings abroad within 2 weeks - no recognition of foreign if they were granted in an ex-parte decision - standard forms (+), but after adjustment to the European systems of and enforcement of foreign -recognition of ex parte can be allowed, if: (1)examination of the claim takes place, maybe in a summary procedure with obligatory postproceeding, that could give due process of law to the defendant (like 634 ff. Rpl.); (2)security of the creditor; (3)strict liability; - European freezing injunction should be introduced

4 Definition: to secure assets; to maintain the performance and for the preservation of evidence (search orders) Jurisdiction for crossborder foreign Finland - general clauses relating to under Chapter 7 of the Code of Judicial Procedure - to secure assets: attachment of the real and movable property (Chapter 7, Section 1-2) - to maintain the : special protective measure/ general protective measure (Chapter 7, Section 3) -special rules on in some areas: arrest of a ship (Chapter 4 of the Maritime Act, 674/1994); interim injunctions in accordance with Section 68 of the Patent Act (550/1967) and Section 48 of the Trademark Act (7/1964); in these provisions reference is often made to Chapter 7 of the Code of Judicial Procedure - interim payments and interim performance not available - to secure evidence exist pursuant to the Act on Securing the Evidence in Civil Matters concerning Industrial Property Rights and Copyrights (344/2000); there is discussion about whether this provisions can be used to preserve evidence in other cases, because search orders cannot be based on the Code of Judicial Procedure - in the enforcement stage, the bailiff can search the property in question (Chapter 3, Sections of the Enforcement Act -domestic jurisdictional reasons which apply to under Art. 31 VO/44/01 are in Chapter 7, Section 4 and Chapter 10 of the Judicial Code in relation to securing future enforcement and to maintain the ; - under this provision decisions are to be made by a general court of law, which has jurisdiction in the main proceeding, this question is regulated in Chapter 10 -the legal literature states that can be ordered in Finland in support of main proceedings in other Member State signatories to the conventions such as Brussels and Lugano Convention; decisions are not yet available - principally has to be heard pursuant Chapter 7, Section 5.2; orders that are merely interim and are issued ex parte - with the effect of a world-wide Mareva injunction are not permitted - standard form (+) - recognition of ex parte can be allowed - applicant should be obliged to initiate the main proceedings within a short time - creditor should provide security and, in case of a debtor s loss, compensation - cross border service in accordance with Reg. 1348/00/EG - information from the debtor: by a standard form - introduction of a European freezing order (+), but high level of protection of the defendant

5 Definition: to secure assets; to maintain the performance and for the preservation of evidence (search orders) Jurisdiction for crossborder foreign France Classification used by questionnaire is not used in French law. Instead there is a division between temporizing [temporary?] (mesures d attente) and anticipatory (+ for preservation of evidence). 1)Measures to secure assets: a) Arrest in rem (saisie conservatoire) and judicial securities (67 et seq. Act of 9 July 1991; b) protective pursuant to Articles 808, 812 NCPC; c) preliminary injunctions, Art. 809 I NCPC 2) Measures to maintain the : protective pursuant articles 808, 812 NCPC 809 II N.C.P.C.: Court order for - interim payments (référé-provision) and - interim performance (référéobligation) Measures for the preservation of evidence (145 NCPC) are considered since the nature of the court order that requires the preservation is (ordonnance de référé / sur requête) In relation to securing future enforcement: As alternatives: -Judge of the place of enforcement; -French court in case of urgency if enforcement is restricted to French territory -French nationality of applicant or defendant (not within scope of application of Brussels Reg / Conv) In relation to maintaining the : French court at the place of execution affecting assets within French territory has jurisdiction In relation to interim payments and similar : the same principles as for securing future enforcement apply -Assistance can be granted, if criteria of van Uden are observed with regard to the French jurisdiction -Court order for interim payment (ordonnance de référé-provision) only available if test of VanUden / Mietz is met (security; execution on French territory) -Ex-parte orders are theoretically possible, but to date none have been made -Court can make preliminary injunctions similar to Mareva injunction on the basis of article 809 II N.C.P.C. combined with the threat of a penalty (astreinte); anti-suit injunctions also possible Appeal period extended in trans-boarder cases Provisional have been recognised by a court in a case where : -the decision on the merits (1. instance) was also recognized -defendant was notified that p.m.-proceedings had taken place - international ordre public was not violated -Standard form if there is a common understanding about (definition etc.) -Modification of the rules on competence; kind of forum non convenience should be allowed -There should be a exequatur -Ex-parte are acceptable as long as appeals are granted to the defendant -Conflict of law rules need to be applied in case of p.m. -It should be up to the judge to decide whether or not a security is required (exception: interim payments/performance) -In principle, appeals should be allowed against the judge that has ordered the p.m. -Simplified signification -a freezing injunction could be useful, if the recognition of such injunctions is also ensured

6 Definition: to secure assets; to maintain the status quo Interim payments or interim performance and for the preservation of evidence Jurisdiction for crossborder foreign (on the merits) main proceedings by domestic courts foreign measure (Art. 32 Reg Germany Measures to secure assets: a). Arrest (916 ZPO): applied to secure monetary claims / claims that can be turned into money [liquidated] b) Interim injunction (einstweilige Verfügung) in form of securing order (Sicherungsverfügung, 935 ZPO): applied to secure non-monetary claims (e.g. delivery of goods) Measures to maintain the : Maintaining order (Art. 940): applied to maintain and regulate the status quo (Regelungsverfügung. -Provisional payment order only in exceptional circumstances (935, 938 I ZPO) -The preservation of evidence is provided in Art. 485 ZPO, as independent evidence procedure. -Court competent for deciding on the merits also competent for p.m. (919, 937 ZPO); rules on local jurisdiction apply analogously; -Additional jurisdiction for arrest at place where assets are located (919 ZPO) - In case of urgency, jurisdiction will be extended to allow maintaining the at place where debated object is located (940 I ZPO); must be approved within short timeframe by court competent on the merits - Additional jurisdiction for Court at place of register for orders relating to entries in the register (942 II ZPO) - Foreign assets are the subject of recent cases; following these decisions, may be issued. German Courts also recognised a Mareva Injunction. -The particular rule in relation to affecting assets located abroad is Art. 917 (2) ZPO: arrest can be applied for if the judgment must be enforced in foreign country (as an abstract risk). However, this provision does not apply to EU-Member States and Contracting Parties of the Lugano- Convention - Interim payments can be recognized and enforced in Germany. The case of Miez dealt with this problem. 1. The recognition of an ex parte decision itself may be adequate, but before starting execution the claimant must ensure the debtor s rights are protected. 2. The court may permit some exceptions for security by the creditor, for example in support cases. 3. Compensation by the creditor would be proper. 4. The debtor should be informed by way of a standard form communication which should not be too complicated.

7 Definition: to secure assets; to maintain the performance and for the preservation of evidence (search orders) Jurisdiction for crossborder foreign Greece - Greek Code of Civil Procedure (CCP) provides in its fifth book - to secure assets: (1) judicial security (2) pre-notice of a mortgage (3) conservatory attachment - to maintain the and secure assets (maybe dealt with under both): (1) judicial custody (2) sealing, inventory or public deposit of property these remedies secure future monetary claim or a claim for specific performance by maintaining the legal of the respective objects - to maintain the : majority of the belong to this class of, especially that are ordered in the discretion of the court; expressly mentioned in CCP is the regulation (settlement) of a claim - adjudication of a claim (interim payment) expressly mentioned in CCP - exist to regulate a situation, which in extreme cases and under strict preconditions may lead to the satisfaction of a nonmonetary claim - early discovery or other pre-trial search orders do not exist; exception: Art. 725 II CCP provides for the judicial custody of commercial or professional books or documents a measure, if the applicant shows that he has a right to inspect the documents according to substantive law. This measure is different to a search order, because it presupposes a substantive law. - international competence rests with the court with territorial jurisdiction for the main proceedings and the court at the place of enforcement of the ordered measure (Art. 686 III CCP); last provision is a gate for jurisdiction in cross-border cases within the scope of Art /01/EG - if foreign substantive proceedings can be recognized according to domestic provisions, multilateral or bilateral conventions or Regulation 44/01/EG courts will support a foreign main proceeding - ex parte decisions are unusual; in cases involving foreign elements they will be the rare exception - legislation does not provide anything similar to the world-wide Mareva injunction - no provisions in relation to with extraterritorial effects - procedural law provides a wide and flexible variety of remedies, so that the effects of a foreign measure can be easily transformed; Greek courts have a positive attitude towards the recognition of foreign - legal theory follows the ECJ: enforcement and recognition of is possible if conditions set out by ECJ are fulfilled - standard form will not be very compatible with procedural system; considerable it may be concerning the conservatory attachment - firmness off judgment ordering the remedy and eventually irreversible effects of an ex parte measure are good reasons against their recognition: if they will be allowed, deposition of a security by applicant is necessary; strict liability of the creditor, independent from his culpability; - cross-border service: following the Commission s proposal for a European Enforcement Order - information of the debtor: according to Arts of the Commission s proposal - European freezing order (+) under strict pre-conditions (e.g. no exorbitant fora arresti)

8 Definition: to secure Jurisdiction for cross- Recognition and assets; to maintain the performance and border for the preservation of evidence (search orders) foreign Ireland - there is no formal classification of in Ireland -the type of measure most frequently sought is the injunction, (for example mandatory or prohibitory injunctions; interim/interlocutory or perpetual injunctions, interim injunctions only have an effect until a further order is made, meanwhile interlocutory injunctions have effect until the final hearing) -injunctions that secure assets from which an ultimate judgment may be satisfied (operating in rem), - Mareva injunction operating in personam) -temporary injunctions are available to maintain the in a pending process - to ensure interim payment do not exist - that require a defendant to continue performance exist - for the preservation of evidence there is a Discovery Order that allows a litigant to obtain documents in the possession of another party or a non-party(order 50, rule 4, RSC 1986) - Anton Piller Orders allow the plaintiff to enter the defendant s premisesunder certain conditions - Asset Disclosure Orders in aid of a Mareva injunction -the courts have power to grant, including protective, where the courts of another contracting state have jurisdiction, even where the plaintiff has no independent cause of action within the jurisdiction (pursuant Section 13 (1) of the Jurisdiction of Courts and Enforcement of Judgments Act 1998); under Section 13 (2) the High Court can refuse to grant the measure if it seems to be inexpedient for that court to grant the measure - there is a High Court decision to the effect may be granted to support foreign substantive proceedings - those orders can be granted on ex parte basis -Awaiting information -a standard form to obtain could cause problems, as there is no similar procedure in Ireland - exceptionally recognition of ex parte, if precautions for the defendant exist - the cross border service should be performed in line with Art. 11 of the proposal for a European Enforcement Order -European freezing order under certain preconditions

9 Definition: to secure assets; to maintain the performance and for the preservation of evidence (search orders) Jurisdiction for crossborder foreign Italy -the definition covers any that have the function of protecting legal positions without effecting a final decision; a distinction can be made between that apply in general field and those that apply in a more specific fields: --general : arrest; operation of a sequestrator; urgent ; against the owner of real estate in the case of imminent danger; payment of uncontested debts --specific : family law: in the procedure of separation and divorce concerning the division of property and the right to the custody of the children; grant of maintenance; labour law: payment of uncontested debts; order to reistate a dismissed employee ; tenancy law: immediate restitution of a building; road accidents: order of payment; law of associations: execution of a resolution adopted by the partners may be suspended; patent law, law of trademarks and copyrights: there are special rules on and anticipatory -interim payments or interim performance are not provided under Italian law; the only legal distinction is between preservation and anticipatory, but the order of payments concerning uncontested debts has and the in the case of urgency can have the effect of interim payments and performance - for the preservation of evidence are considered to come within the scope of, even if the rules on are not entirely applicable Jurisdiction for under Art. 31 VO/44/01 is given either if the judge has jurisdiction on the merits or if the measure must be executed within Italy, art. 10 Italian Law on Private International Law of there is a general principle that may be available to protect rights founded within a foreign jurisdiction; there is little experience in practice ; assistance has been granted in cases where assets were located in Italy and the order was executable in Italy; in a case where a foreign court had jurisdiction and the assets were located abroad, assistance was denied; -such orders are granted pursuant to the general rules where ex-parte orders form an exception -world-wide Mareva injunctions are not available -in general there is no recognition of foreign in Italy; in the Italian law only decisions on the merits [only substantive decisions?] are recognised -a standard form to obtain would be very useful -because of the great differences between European countries, common rules of competence are recommended [is that just Italy, or is this really a general point?] -a European measure would be helpful because the procedure of exequatur is a great obstacle in urgent cases -recognition of ex-parte as it may jeopardise legitimate rights of defendants -cross-border service should be performed in line with Reg. 1348/00/EG -there could be an injunction that allows a seizure of undefined goods according to the amount due

10 Definition: to secure Jurisdiction for cross- Recognition and assets; to maintain the performance and border for the preservation of evidence (search orders) foreign Luxemburg Classification used in questionnaire is not applied under Luxemburg law but can be approximated Measures to secure assets: -Arrest in rem (saisie-arret, saisieconservatoire, saisie-gagerie) -Court order (ordonnance de référé), Special Court order for interim payment (ordonnance de référéprovision, art 933 II N.C.P.C.) which corresponds to art. 809 of the French N.C.P.C. In 1991, the Court of Appeal explicitely rejected the application of art. 24 of the Brussels Convention on a référé-provision. Since the ECJ case van Uden, no case-law on this issue has been reported. Ct decision: Special Court order for interim payment (ordonnance de référéprovision) not available in cases where Art. 24 Brussels Convention applies? Harmonisation desirable having effect similar to world-wide Mareva injunction do not correspond to the traditional continental systems. Measures to maintain the : Special form of Court order (ordonnances de référé-sauvergarde) and others Court order (ordonnance de référé) for preservation of evidence (933 I 2 NCPC); considered as p.m. No available having effect similar to world-wide Mareva injunction

11 Definition: to Interim payments or Jurisdiction for cross-border Recognition and secure assets; interim performance foreign (on the to maintain the status and for the merits) main foreign quo preservation of proceedings by evidence measure (Art. 32 Reg Netherlands -With the definition of Art.24 -Interim payments or -Measures maintaining the -There are several -If a foreign 1. Perhaps the recognition of an ex parte decision the following are included: interim performance: : cases in which foreign decision itself is adequate but, before starting execution, a). Interim injunction procedures, the kort geding at the District Court and the kantonrechterlijk kort geding at the kantonsection of the District Court. b). Preservatory or attachment orders, as well as the levying of attachment. -In the Netherlands are of two kinds. One kind aimed at constituting a temporary, the other aimed at securing the execution of the judgment on the merits. -Measures to secure assets : Conservatory attachment (articles c CCP) Kort geding, articles CCP. -Search orders are not common. But the law of evidence offers several options for to secure evidence, some must be requested prior to initiating procedings (art CCP), some operate concurrently with the proceedings, such as the examination of witnesses and expert witnesses, and the inspection of property. In evidence law the word means: prior to the time at which evidence is usually delivered at the hearing. *If the Dutch courts have jurisdiction according to Art.1-14 CCP, the voorzieningenrechter also has jurisdiction. * If the Brussels I regulation is applicable and the Dutch courts have jurisdiction based on Art.2 and 5-23, the voorzieningenrechter in kort geding also has jurisdiction. * If the Dutch courts do not have jurisdiction based on Art.2 and 5-23 Brussels I Reg., the voorzieningenrechter in kort geding may nevertheless have jurisdiction according to Art.31, if there is a sufficient nexus with the Netherlands. -In kort geding the rules in the Van-Uden case are applied: thus the claimant must provide security substantive proceedings will be supported by domestic courts. - there is no experience of practical problems and there are no problems in requesting protective with or without a judgment on the merits or a procedure on the merits. - with the effect of a world-wide Mareva injunction are not available. -There are no particular rules in relation to affecting assets located abroad. is recognized, attachment is always available. There is no case law on this issue. -Since the Van- Uden decision the voorzieningenrecht er observe the two additional conditions set out in that decision: 1). The payment of security and 2). The decision may only concern some specific actual or future property of the defendant. the claimant must be sure that the debtor s rights are protected. The guarantees related to the serving of the order on the debtor must be observed. 2. The court may order security to be paid by the creditor. But in some attachment orders a security is not appropriate. 3. Compensation by the creditor (strict liability) [??] 4. The obligation to serve the relevant order according to Art.14 or 15. Reg. would be a good, even necessary, provision. The Service of documents in accordance with Art.11 is the most appropriate. 5. The debtor should be informed by way of a standard form communication but this should not be too complicated. 6. The introduction of a European freezing order is worth considering. The major problem may be transparency of the assets abroad.

12 Definition: to secure 6.1. Jurisdiction for Recognition and assets; to maintain the performance and for cross-border the preservation of evidence foreign (search orders) Portugal Classification used in questionnaire is not applied in Portuguese law (which distinguishes instead between conservatory and anticipatory, 381 CPC) but can be applied; existing classification does not have effects in practice Measures to secure assets: -Arrest in rem (406 CPC) - Inventory of assets (421 CPC) -Court order (ordonnance de référé), general form (381 et seq CPC) and special forms, e.g. order for suspension of social deliberations (??), order for cessation of workings [employment??] Measures to maintain the : Measures for interim performance: -Provisional alimony payments (399 CPC) -Provisional damages (403 CPC) -Order for restitution of possession (393 CPC) -General of anticipatory nature Measures for the preservation of evidence are available but not considered to be (differently: Art 134 Code of Administrative Courts Procedure) Application of rules on local jurisdiction: -Court that has jurisdiction to decide on the merits of the case -Execution court at place where execution is likely to take place -Inventory of assets: court where assets are located is also competent Assistance possible but no case law In principle, general rules on national also apply in trans-border cases, e.g. regarding question of ex parte proceeding (dependant on kind of measure) No available having effect similar to world-wide Mareva injunction No published case law Van Uden / Mietz did not necessitate a change of position of the Portuguese courts. Standardisation of procedure more important than standardisation of order forms In case of ex parte orders, debtor should have opportunity to be heard in the court which ordered the measure, not only in an appellate court Introduction of a measure resembling Mareva injunction on European level desirable Court order (ordonnances de référé), general form (381 et seq CPC) and various special forms (393 et seq CPC)

13 Definition: to secure Jurisdiction for cross- Recognition and assets; to maintain the performance and border for the preservation of evidence (search orders) foreign Spain Classification used in questionnaire is not applied in Spanish law Provisional are regulated in uniform way. Decision on p.m. is seen as incidental part of procedure on the merits. The claimant can at his own responsibility / risk demand the court to accord the that the court regards as necessary to assure the efficiency of [the later decision on the merits]. (cf. 727 LEC) Measures to secure assets: 1) arrest in rem ( embargo preventivo ) 2)judicial administration of assets (real estate (?) ) 3)deposition of movable asset (claim for specific performance) 4)order for preservation of moveable property (while remaining in possession of debtor) 5)protective entry in land register 6)preliminary injunction to do / abstain from doing something 7)Inventory of assets 8)other (this list is not exhaustive; all kinds of are possible) Measures to maintain the : 1-3, 5-8 as above Interim payments: Not available in Spain (exception family law matters?) Measures for the preservation of evidence are available (293 et seq LEC) but not considered to be Court that has jurisdiction to decide on the merits of the case also has jurisdiction for p.m. Possible but very rare P.m. can be sought in support of foreign proceedings if Spanish courts are competent on the merits but not exclusively so. In principle, general rules on national also apply in trans-border cases; conflict of law rules apply concerning merits of the claim with regard to fumus boni iuris Posting of security by creditor is (normally) required if applicant is not domiciled in Spain (although this is debated) No available having effect similar to world-wide Mareva injunction No case law available Appellate court denied application of art 24 Brussels Convention to measure accorded in France while main proceedings took place in Spain Standard form very important Clarification / amelioration of art. 31 Brussels regulation Posting of security by creditor should be necessary requirement for according of p.m. in ex parte proceedings Concerning recognition / enforcement of foreign p.m., assisting court should not check acclaimed right and danger of frustration if this has already been checked by foreign court (also) competent on the merits of the case General obligation for damages of creditor to be included in community legislation

14 Definition: to secure assets; to maintain the Interim payments or interim performance and for the preservation of evidence 6.1. Jurisdiction for crossborder foreign (on the merits) main proceedings by domestic courts foreign measure (Art. 32 Reg Sweden -Within the definition of Art.24 the following are included: Provisional attachment and other security Measures in the Code of Judicial Procedure, chapter 15, and decisions on interim payment in maintenance cases. -Measures to secure assets : Provisional attachment in the Code of Judicial Procedure chapter 15 sections 1. -Measures to maintain the : Certain according to the Code of Judicial Procedure chapter 15 section 3. -Interim payments or interim performance: Immediate restoration or other immediate redress according to the Code of Judicial Procedure chapter 15 section 4. Orders on maintenance in family cases (maintaining pending suit). Cases concerning enforcement assistance in the summary proceedings. -In cases concerning incorporeal chattels it is also possible for the owner of a right (for example copyright, trademark and patent) to secure evidence for a pending judicial proceeding on actionable use of the right by the opponent. Otherwise not applicable in civil cases in Sweden. -If the foreign judgment will be enforceable in Sweden it is possible for a Swedish Court to decide on attachment and other security in Sweden, including when the main proceedings are held in another county (case law from the Supreme Court, NJA, 1983 s. 814). - Practical problems: In NJA 1995 s. 495 the Italian court had appointed the applicant as trustee of the property. This is not possible according to the Swedish Enforcement law and the Supreme Court decided that the property should be taken into care by the Enforcement Authority. -There is no power to support the issuing of with the effect of a world-wide Mareva injunction. -There are no particular rules in relation to affecting assets located abroad. -A decision from an Italian court on a security measure ( sequestro giudiziario ) was enforceable in Sweden according to the Luganoconvention (NJA 1995 s.495). -Since the Van- Uden decision there has not been any new legislation and no case law on the issue. 1. A standard form might be an improvement. 2. There should be improved mechanismsfor the exchange of information on debtors between the different countries. An information centre on debtors and their property, similar to Interpol, could be created. The information centre should allow different countries access to the data. The system should define to whom access information should be granted. The following could be suggested: a). Data processing of the civil status of all citizens of the European Union and other states which have signed up to a convention on information exchange. This processing could concern the name, address, personal identification number and social security number. b). There should be a standard form and method for information exchange directly between the enforcement authority s in the [Member bzw signatory] States. This is needed to facilitate the gathering of information on debtors and their property as well as on the legislation in another state. 3. It is appropriate to pursue the recognition of ex parte, provided the creditors claim is at risk and precautions are taken to protect the debtor. 4. The debtor should be informed by way of a standard form communication, but not by way of a oral explanation, and the most important thing is that the subject matter of the proceedings is evident form the transmitted documents. 5. The introduction of a European freezing order is worth considering. The rights of the debtor should be protected by means of a security,.

15 Definition: to Interim payments or Jurisdiction for cross-border Recognition and secure assets; interim performance foreign (on the to maintain the and for the merits) main foreign preservation of proceedings by measure (Art. 32 evidence Reg United Kingdom England/ Wales Measures to secure assets : Freezing Order (Mareva injunction): Order restraining defendants from disposing of, or dissipating, their assets so as frustrate any judgment which the claimant may obtain against them. Measures to maintain the : Interim Injunction: Provisional order made before trial. Mandatory injunction: order requiring specific acts to be done. Prohibitory injunction: Order to refrain from doing specific acts. Quia timet injunction: order to prevent an apprehended legal wrong, where none has been committed at the date of the application. Freezing Order: See above Interim payments or interim performance: An order for interim payment is defined in CPR,r.25.1(1)(k),as an order for payment of a sum of money by a defendant on account of any damages, debt or other sum (except) which the court may hold the defendant liable to pay. Measures for the preservation of evidence: Search Order (listed as an interim remedy under 25.1(1)(h) of the CPR; Anton Piller order) The Civil Jurisdiction and Judgment Act 1982 (CJJA 82), s.25 (1), confers on the High Court power to grant interim relief in the absence of substantive proceedings, provided proceedings have been or will be commenced in another State. With effect from 1 st April 1997, the power to grant interim relief was extended to any proceedings in any State, regardless of whether it is a Brussels or Lugano Contracting State or whether the Proceeding fall within the scope of the Conventions (Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997). Section 25 is not confined to freezing injunctions. Pending trial abroad, a Mareva injunction can be granted ex parte regarding assets worldwide, even if such a measure is not available to the foreign court addressing the substantive dispute. Typical prerequisites: a) the defendant has acted dishonestly or fraudulently on a large scale; b) the defendant is able to transfer large sums of money around the world quickly; and c) the defendant may hide assets where they are unlikely to be found. An extraterritorial Freezing injunction should not be made where the defendant has sufficient assets within the jurisdiction to satisfy the claim The Civil Jurisdiction and Judgment Act 1982 (CJJA 82), s.25 (1), confers power on the High Court to grant interim relief in the absence of substantive proceedings, provided proceedings have been or will be commenced in another State. (1) It is appropriate to pursue the recognition of ex parte, and certain interim remedies can only be applied for without notice. (2) The adoption of a European freezing order seems to be advisable. Assets outside EU should remain untouched. In order to protect the debtor, an extra-territorial freezing injunction should only be granted under strict conditions. The creditor should be obliged to give an undertaking as to damages. (3) The debtor should be informed by way of a standard form communication.

16 Definition: to secure assets; to maintain the Interim payments or interim performance and for the preservation of evidence 6.1. Jurisdiction for crossborder foreign (on the merits) main proceedings by foreign measure (Art. 32 Reg United Kingdom Scottland Measures to secure assets : Arrestment on dependence of moveable property Property which is in the hands of the debtor is not subject to arrestment (!?!) Inhibition over heritable property (real estate) Measures to maintain the : Interim interdict (prohibition to do something) Interim payments or interim performance: No available Measures for the preservation of evidence:??? Basic rule: warrant can only be granted if main proceedings are / will be held in Scotland 27 CJJA: In the Brussels / Lugano Area, and protective can also be brought in Scotland even when main proceedings (will) take place in another member / contracting state Jurisdiction for P.M. only in relation to assets located in Scotland / actions (not) to be done in Scotland Petition to the Court of Session for a warrant for p.m. required. Creditor must produce - a document stating that according to the law of the country where the judgement has been given, the judgment can be enforced - affidavits clarifying the content of the judgment There is no power to support the issuing of with the effect of a world-wide Mareva injunction. P.M. are available if a foreign (European) decision is recognized; No additional conditions applying to the recognition of interim payments A standard form to obtain P.M. would be helpful Ex parte proceedings are appropriate in some cases; proper appeal procedure is however needed in such cases. The creditor should (only) be liable for compensation in case of fault. Posting of security by creditor should not be required. Introduction of a European Freezing injunction does not seem worthwhile at the moment. It would require too much harmonization of the different national laws.