3. Temporary injunctions (measures maintaining the status quo pending determination of the issues at trial)

Transcription

1 3. Temporary injunctions ( maintaining the status quo pending determination of the issues at trial) The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim Austria The answers concerning the securing the enforcement of judgments (synopsis 2.) apply accordingly The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim Belgium In general, claim must be due; future claims can not be secured Intensity of p.m. ordered depends on degree of proof concerning claim (?) Urgency (584 CJ) required The judge competent for injunctions ( juge des référés) or court already engaged on the merits of the claim Injunctions are operated in an adversary (oral) procedure; exceptions possible if absolutely necessary ( CJ) Judge carries out a summary examination Content of is not determined by law, but the court determines each case on its individual particularities Decisions are drafted as an order must be motivated Remedies: -appeal -opposition in case of default judgments General rules of enforcement apply; the bailiff is responsible for the enforcement -proof of performance of the is not a condition -in general there do not have to be respected any set periods of time Debtor can dem initiation of main Court deliberating on the merits can change or overrule injunctions Liability of creditor if the p.m. was based on incorrect factual allegations of the debtor P.M. are p.e. by law Conflict of law rules applied -third party opposition

2 The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the Enforcement of the protective Measures main between interim Denmark prohibitory injunction ( forbud ): - claim has not to be due - future claim can be secured - creditor has not to present an enforceable title - with regard to the basis for the claim urgency is necessary; threatened frustration of enforcement of a judgment on the merits is not required; infringement of rights must be imminent concretely - actions of the debtor must be qualified for infringement of the right of the applicant - jurisdiction has court of enforcement at the general place of jurisdiction of defendant (646 I Rpl.); general provisions on jurisdictions in enforcement matters are applicable - decision maker is a judge or junior judge or another specially qualified employee of the court -applicant has to make credible the pre-conditions for forbud - principally: debtor is to be heard, are oral - debtor can address a protective writing to the court - stard of proof: substantiation - content of the order consist in an interim prohibition, if debtor does not obey: imprisonment/ compensation for damages (651 Rpl.); further at its discretion of the court (645 Rpl.) - blocking of assets is possible if there is a relationship with the action to be undone - prohibition of disposition of the sized goods: provisions about arrest are applicable ( 652 Rpl.) - operation in personam, imprisonment can be ordered after infringement of the order - is drafted as an order - motivation, sometimes in oral form - court of enforcement can order a on its discretion, if appellant has not proofed his claim yet - difference to arrest is that the amount of does not depend on a pecuniary claim - jurisdiction has court of enforcement - general law of enforcement is applicable - main proceeding has to be initiated by the creditor within one week (648 I Rpl.) - the court, that issued the order cannot order the initiation of main - court of the main proceeding can change or overrule the order can order the return/release of the seized items - is subsidiary to main (642 Nr. 3 Rpl.) -appeal is possible

3 The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim Finl The answers concerning the securing the enforcement of judgments (synopsis 2.) apply accordingly The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim France - Only a which explicitly maintains the status quo is available. The power of the court derives from Article 809 (1) NCPC (enforcement of an obligation to act or to refrain from doing an act) -Art. 808 NCPC: In case of urgency, court can order all kinds of p.m. if (1) the claim is not seriously opposed by the other party or (2) the existence of a dispute makes p.m. necessary; -Art. 809 I NCPC: court can order the restoration of a situation to prevent an imminent danger or to stop an infringement that is evidently illegal; (urgency implied, debated) -Jurisdiction: Special judge (juge de référé) of the court competent to decide on the merits. Competence: when case is pending: president of chamber / single judge deciding on the case; else president of court competent to decide on the merits; - adversarial (exception : ex parte proc.) - in case of accrued urgency t is ordered ex parte (812 NCPC); anticipatory brief possible; - creditor must assert proof the conditions of column 1; exceptions: of reinstatement: no proof of urgency necessary If the creditor applies for ex parte the proof of urgency (additional) circumstances that justify a non adversary procedure are required Content determined according to the individual particularities of each case; discretion of the court; not bound by particular requests of application Effect: depends on ; decision must be motivated (495 NCPC) Remedies: -appeal; -opposition in case of default judgment (490 NCPC); -in case of ex parte proceeding: appeal; application of interested third party to court rendering order (496 NCPC) The judge can order that the p.m. is conditional on a, 489, 517 NCPC, discretion of the judge No specific enforcement organ; responsibility of the court: The compliance of the debtor is assured by penalties (astreinte; enforced by bailiffs) Order does not prejudice case on the merits (488 NCPC). The debtor can contest initiate main Court deciding on the merits can modify / abrogate p.m. - can only be amended in case of changed circumstances (488 NCPC) Liability only according to Code Civil (fault required) P.M. are p.e. by law (514 NCPC)

4 The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the Enforcement of the protective Measures main between interim Germany - injunction in relation to a disputed claim or other legal relationship. The claim has not to be due. As a rule, a future claim can not be secured. The creditor must not present any title. The court s order serves as the title. - Urgency is a prerequisite. - All sought are strictly limited by the possible relief in the main. 1. Jurisdiction: the court hearing the main or the court at the place where protective is enforced. 2. No competence of a specific judge (for ), as a rule, the panel hearing the merits orders protective. 3. Reduced stard of proof: Applicant must assert a claim; present prima facie evidence. 4. As a rule, the court decides on the injunction in adversarial (often written). In the case of urgency or if specific protection is needed, the injunction is ordered ex parte. The debtor can address to the court a protective writing. 1. The content is determined by legislation. The judge can freely make decision. The content is to order the debtor to act or not to act. 2. are ordered as injunctions (order) or as judgment.. 3. If the application is rejected the creditor may lodge an immediate appeal (sofortige Beschwerde). The debtor may oppose to the injunction (Widerspruch). A judgment is attackable by appeal (Berufung). The creditor must provide for a. The amount is determined by the court, it depends on the possible damages which the debtor will incur. 1. The court is responsible for 2. As a rule, the law of enforcement (8 th book of the ZPO) applies. However, the legal effects of any enforcement are limited to protect 3. Injunctions are enforced by penalties. 1. The court, which issued the order, can order the main in limited time. The main proceeding is initiated by debtor through an application (Art.926 ZPO). 2. The debtor may claim damages incurred by the order (Sec. 945 ZPO). Both are legally separated, see Secs. 707 et seq. ZPO ( enforcement) Secs. 916 et seq. ( protective ). The legal effects of enforcement are different: The creditor may apply for full enforcement (including the distribution of the proceeds), while are limited to the protection of the creditor s rights (as a rule, full enforcement is not allowed).

5 The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim Greece Generally, the provisions of the CPC dealing with also apply to temporary injunctions like remedies - situation to be secured must be connected to a legal relationship, no need of a specific substantive right an may produce rights obligations in the future - prohibition of full satisfaction or of causing an irreparable harm to the debtor - quasi-exclusive subject-matter competence of the justices of the peace - content is determined by the court on its discretion - temporary injunctions operate in personam against the debtor, prohibition of disposition an eventual subsequent disposition suffers from relative invalidity - ordinary appeal exceptionally is allowed concerning judgments issued by a judge of the peace -possible at court s discretion ; ordered ex officio or on application of a party - general law of enforcement is applicable (700 CCP); distinction between positive non-monetary performance capable of substitution by a third person or not abstention or toleration - in case of positive performance not capable of substitution, abstention or toleration court compels debtor by coercive fines, noncompliance in this cases may lead to criminal prosecution Art. 692 (4) CCP explicitly stipulates the prohibition of full satisfaction with regard to the right secured. The Greek literature speaks of the accessory or complementary function of p.m.

6 The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim Irl - fair bona fide question of the applicant for determination - whether, if the applicant will have success an receive a permanent injunction, he could be compensated by an award of damages - whether, if the respondent will have success in the trial, he could be adequately compensated by the applicant for any damage he sustained during the temporary injunction - both could sustain a damage: balance of convenience -interlocutory injunction: plaintiff must pass a fair or serious question -participation of de defendant: in interim court decides on an ex parte basis; in interlocutory injunctions defendant is present can dispute the preconditions -content is not determined by any legislative provisions, court decides each case at its discretion -ex parte decisions can be set aside on application by the defendant at the interlocutory stage - interlocutory 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 of the defendant can be compensated without commencing a new action -plaintiff must bring to the courts 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 injunctions forms part of the main is regarded as a protective - special factors

7 The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim Italy Italian law does not provide for specific injunctions of this kind, but the providimenti d urgenza treated in part 4 of the questionnaire / synopsis are applicable. The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim Luxemburg order to maintain the status quo (ordonnances de référésauvergarde) : Court can order all necessary to avoid imminent danger or to stop disturbances that are manifestly illicit (932 I NCPC) [urgency is implied condition of imminent danger] In case of urgency, court can order p.m. if (a) these are not seriously opposed by one of the parties or (b) if the existence of a dispute makes them necessary (933 I NCPC) Competent: president of county court at domicile of debtor or alternatively at the place of execution (choice of creditor) Creditor must proof imminent danger of damage or voit de faite [verbotene Eigenmacht] of debtor Debtor must be heard, no ex parte (?) Content of p.m.: discretion of court Order must be motivated, can be appealed General rules apply; compulsory payments (astreinte) possible Debtor can not require initiation of main by creditor but start negative affirmative action (action déclaratoire négative) Creditor only obliged to pay damages if he acted in bad faith or in case of gross negligence

8 Netherls The pre-conditions for the obtaining of -the claim has to be due. In special cases the claimant in kort geding may request an injunction against a threatened wrong. The creditor has not to present an enforceable title. -urgency required is For a in kort geding: 1. There is an urgent interest at stake; 2. The interests of both parties have to be balanced; 3. The balancing of interests justifies the decision in kort geding. Proceedings to obtain an order for 1. Jurisdiction: In principle the voorzieningenrechter of the district court may hear all kinds of claims. Ordinary rules for the court s relative competence are applicable (Art CCP). Supplementary jurisdiction is given to the voorzieningenrechter at the place where the immediate decision is required. Since a kantonrechter s kort geding has be created (Art. 254 ss 4 CCP) which gives absolute competence to the Kantonrechter to decide in kort geding. 2. A Single judge can determine the application. 3. The kort geding is an adversarial oral procedure. Normally the debtor is merely heard at the oral session. 4. In relation to the claim it is recommended that written evidence be adduced. The stard of proof is not very stringent. The evidence must be sufficiently clear for the judge to convince himself of the existence of the claim during the oral session. In relation to urgency normally it suffices to state in the writ that there is urgency. In relation to further preconditions the writ has to mention not only the formal data, but also the facts on which the claim is based as well as the remedies the defendant might introduce. Content effect of the 1. The Content is not determined by the legislation. The voorzieningenrechter of the district court decides on the content of the, taking into account the requested provisions the circumstances. The guiding principle for reaching a decision is necessity or well- balance. 2. As the content of the temporary, blocking of assets prohibition on disposition of the seized goods against to debtor/third party debtors are required. 3. The form of the is an ordinary judgment (Art CCP). There are reasons provided for the ruling, but they might be less detailed. 4. In general, the is no time-limit. 5. Remedies for claimant defendant are: -objection (verzet: to a default judgment, Art CCP) within 4 weeks; -appeal (Art. 339 ss2 CCP) within 4 weeks; -cassation (Art. 402 ss2 CCP) within 8 weeks. As a rule, will be required. Enforcement of the protective 1. The bailiff is responsible for 2. It is subject to the general law of Measures main proceeding s Although the kort geding procedure is a, in 95% of cases no procedure on merits will follow. Parties tend to accept the as if it were the procedure a final decision. between interim

9 The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim Portugal Applicant has to proof in a summary way (Glaubhaftmachung) acclaimed right (fumus boni iuris) that he will suffer prejudices that can not be mended easily; Answers to the corresponding column of part 2 apply accordingly Content of p.m. basically predefined by law; extent depending on application, court can only accord or deny it (including possibility of according minus; but not aliud) Answers to the corresponding column of part 2 apply accordingly Answers par to the corresponding column of part 2 apply accordingly No relationship Court Order General form: May not be made if potential prejudice incurred by debtor in case of order surpasses considerably any possible prejudice of applicant (creditor) that the is intended to avoid Order must be motivated, loosing party pays costs of procedure Appeal to court of higher instance; in case of ex parte : same instance Decision can be modified by court that ordered p.m. (new situation required) on appeal The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim Spain The answers concerning the securing the enforcement of judgments (synopsis 2.) apply accordingly

10 The preconditions for the obtaining Proceedings to obtain an order for Content effect of the Enforcement of the protective Measures main Sweden -The claim should be due before or during the. A future claim can not be secured. The creditor has not present an enforceable title. -The applicant must show that it is reasonable to suspect that the opposing party, by absconding, removing property, or other action, will evade payment of the debt. 1. Jurisdiction: the court hearing the main procedure; there is no difference if enforcement is sought prior to or during the main. A debtor without residence in Sweden may be sued at the place where the obligation was created or the debt incurred (the Code of judicial procedure chapter 10 section 4). 2. A single Judge determines the application. 3. It is not stipulated to which extent the creditor should produce evidence. He has to show probable cause that he has a claim it should be reasonable to suspect that the debtor will evade payment. 4. As a general rule, the opposing party must be given an opportunity to respond to an application on a attachment/ before the court makes a decision. If the applicant show that delay places the applicant s claim at risk the court can make the decision immediately without hearing the debtor. 5. The debtor can not address to the court a protective writing. A under section 3 may include: -Prohibition, subject to a default fine, of carrying on a certain activity or performing a certain act or -an order, subject to a default fine, to have regard to the applicants claim or -an order to the appointment of a receiver or -an issue of a direction suitable in other ways to safeguard the applicants right. 1. If enforcement of the order is necessary an application has to be made to The Enforcement Authority. The Content of the temporary injunction depends on the claim the court decision. 2. The form of the is an order. The decision is to be motivated. 3. An appeal can be made to a high court. A re-examination at the court that ordered the can also be requested. 4. When a has been granted before the main are pending, the applicant must present within a month of the order on institute a court order action on the matter at issue. If not, the lapse immediately. The same time limit applies if the main are held in another country. Except in some exceptional cases the applicant must deposit a at the court for the loss that the opposing party may suffer. The shall compromise a pledge or a guarantee. Often the consists of a bankguarantee. If the applicant lacks means to furnish, if he has shown extraordinary reasons for his claim, the court may waive the requirement. 1. The Enforcement authority is responsible for 2. The execution of the is subject to the general law of 3. The court order does not have to be served before the The enforcement of the decision normally takes place immediately, without notifying the debtor.

11 The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the Enforcement of the protective Measures main between interim United Kingdom Engl/ Wales (1) -The claim that is to be secured does not have to be due; future claims can be secured. - Application notice to defendant: three days before trial; the delay can be neglected by court in case of urgency Discretionary decision of court, used in accordance with the following principles: For general temporary injunction (1) Serious question must be tried; (2) (Later) Damages must be an inadequate remedy for the applicant; 1. Jurisdiction: Both the High Court the County Court, depending on the kind of interim injunction that is being sought; rarely: county court 2. Single judge determines on the application. 3. Oral. Ex parte decisions are possible, if application can be made without notice. This is the case - for freezing injunctions search orders 1. The Content is not determined by the legislation. The granting of interim injunctions is a form of equitable relief is a matter within the discretion of the court. 2. The content of the temporary depends on the manner of injunction being sought: a freezing injunction blocks of assets prohibits the disposition of the seized goods; it is valid against debtor/third party debtors 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. 1. The court is responsible for enforcement 2. It is subject to the general law of (3) Adequate undertaking by claimant for damages (4) Balance of interests in favour of claimant; (5) The court should take account of such as are calculated to preserve the status quo; (6) There may be special factors to be considered in the particular circumstances of individual cases. - in case of urgency -if secrecy is essential for the order to be efficacious No protective writings possible. 4. Applications must be supported by evidence, unless the court orders otherwise. Draft order stard form used. 3. The form of the is an order. There are no reasons provided for the ruling. 4. The order is addressed to the defendant, but it also binds third parties with knowledge of it.

12 United Kingdom Engl/ Wales (2) For Freezing Order: (1) A cause of action justifiable in Engl Wales; (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. For Search Order: (1) An extremely strong prima facie case on merits; (2) Very serious potential or actual harm to the claimant s interests; (3) There must be clear evidence that incriminating documents or things are in the defendant s possession AND that there is a real possibility that such material may be destroyed before any application on notice can be made. 5. Stard of proof in relation to the claim to be secured: (1) For interim injunction: The Claimant must show that there is a serious issue to be tried; (2) For freezing order: The claimant must show a good arguable case; (3) For search Orders: The claimant must show an extremely strong prima facie case. 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 frank disclosure to the court of all material facts, including those that go against the application. 5. Any of the following matters may be raised in defense: 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 is valid for a specific limited time; this stated in the order.

13 The pre-conditions for the obtaining of Proceedings to obtain an order for Content effect of the protective Measures main between interim United Kingdom Scotl Interim interdict: Creditor must show potential harm to himself if interdict is not granted - Competent is the court at the place where it is alleged that the wrong is likely to be committed (single judge) - Creditor must show factual evidence of potential harm; any kind of evidence allowed - Creditor can request ex parte - Debtor can challenge the interdict on the basis that it is not necessary Interim interdicts - can prevent the debtor from destroying or using an object. - are granted for a specific time but can be renewed - do provide reasons Creditor does not have to post. If debtor breaches his duties under the interdict, this constitutes contempt of the court Neither the debtor nor the court can initiate the main or require the creditor to do so. Court of the main can not overrule the interdict