Questionnaire Provisional Measures

Transcription

1 Preliminary remarks Questionnaire Provisional Measures Swedish National Report Nicola Hesslén, Göteborg In Sweden we have regulations on provisional attachment, other security measures and interim decisions in civil cases mainly in The Code of Judicial Procedure (Rättegångsbalken), chapter 15, but also in some other laws. A. The Code of Judicial Procedure Chapter 15, section 1. If a person that shows probable cause to a money claim that is or can be made the basis of judicial proceedings, or determined by another similar procedure, and if it is reasonable to suspect that the opposing party, by absconding, removing property, or other action, will evade payment of the debt, a court may order provisional attachment of so much of the opponent s property that the claim may be secured on execution. Chapter 15 section 2. If a person shows probable cause to believe that he has superior right to certain property that is or can be made the basis of a judicial proceedings, or determined by another similar procedure, and if it is reasonable to suspect the opposing party will conceal, substantially deteriorate, or otherwise deal with or dispose of the property, to the detriment of the applicant, the court may order provisional attachment of that property. Chapter 15 section 3. If a person shows probable cause for a claim against another person that is or can be made the basis of judicial proceedings or determined by another similar procedure, and if it is reasonable to suspect that the opposing party, by carrying on a certain activity, by performing or refraining from performing a certain act, or by other conduct, will hinder or render more difficult the exercise or realization of the applicant s right or substantially reduce the value of that right, the court may make an order for measures suitable to secure the applicant s right. A measure 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. Section 3 can be used in e.g. cases on injunction, superior right to a manufacturing process, contracts on restraint-of-trade and activites creating sanitary inconvenience.

2 Chapter 15 section 4. In pending proceedings concerning superior right to certain proprety, if it is shown that one of the parties has unlawfully disturbed the opposing party s possession, or has taken any other unlawful measure regarding the property, the court may order the immediate restoration of the possession or other immediate redress. The orders refered to in sections 1-4 are issued by the court where the proccedings are pending. When no proceedings are pending (possible in sections 1-3) the rules of competence in civil disputes shall determine the competence of the court (The Code of Judicial Procedure, chapter 10). The reference to another similar procedure alludes for example to the summary debt recovering procedure and arbritation disputes. According to case law from The Supreme Court, NJA 1983 s. 814, it is also possible to obtain provisional attachment and other security measures when the main proceedings are held in another country if the foreign judgment will be enforceable in Sweden. 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 According to chapter 15 section 5, however, the court can make the decision immidiately and without hearing the opposing party if delay places the applicant s claim at risk. The debtor is thereafter given an opportunity to respond and the court may re-examine the decision. The courts order does not have to be served before the enforcement. Except in some exeptional cases the applicant must deposit a security at the court for the loss that the opposing party may suffer. If enforcement of the order is necessary (sections 1-4) an application has to be made to The Enforcement Authority. When enforcing the order in accordance with section 1 The Enforcement Authority decides on which property to attach. In exceptional cases the court decides on which property to attach and in these cases the Enforcement Authority only safeguards the property (as section 2). When effectuating the court s order The Enforcement Authority, with some exceptions, applicates the rules on attachment in general. rmally personal property is taken into care. Attached goods can normally not be sold and attachment of salary is not possible. B. Maintainance in family cases In questions on maintainace in family cases (The Code on Parents and Children [Föräldrabalken] chapter 7 section 15 and The Marriage Code [Äktenskapsbalken] chapter 14 section 7) the court (a single judge), after a claim from the applicant, can order interim payments to former spouse or children (maintainace pending suit). These orders can be changed by the court during the proceedings. Before the court makes a decision on interim payments the opposing party has a right to be heard. The writ is served to the debtor. The applicant does not have to post a security to obtain a decision on interim payments.

3 An appeal can be made to a higher court by the losing party. If enforcement of the order is necessary an application has to be made to The Enforcement Authority. The court s order can be enforced as being legally valid. C. Incorporeal chattels There is also regulations on prohibitions, subject to default fine, in cases concerning incorporeal chattels (laws on copyright, trademark, patent and so on). These decisions can be made without the opposing party having an opportunity to respond to the application if there is risk for damage on the applicant. The applicant must post a security at the court for the loss the opposing party may suffer. In cases concerning incorporeal chattels it is also possible for the owner of a right to secure evidence for a forthcoming judicial proceedings on actionable use of the right by the opponent (infringement investigation). The court s order is in these cases also enforced by The Enforcement Authority. Enforcement is possible without the courts decision being served. D. The law on payment orders and enforcement assistance (summary proceedings) In cases concerning enforcement assistance the measure applied for may be granted by the Enforcement Authority s unit for summay proceedings immidiately, without hearing the opposing party, if it is probable that it can t be deferred. The questions 1. Definition 1.1 In line with the European Court of Justice s decision in Reichert it is the role of provisional measures under VO 44/01/EG to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter. What provisional measures under your domestic laws come within this definition? According to Government Bill on the Bruxelles Convention (The Governments Bill 1997/98:102, s 48, see also The Governments Bill 1991/92:128 s. 198) and doctrine, provisional attachment and other security measures in the Code of Judicial Procedure, chapter 15, and decisions on interim payment in maintainance cases should be the provisional measures that come within the scope of VO 44/01/EG. 1.2 Does your national legal system provide for the following (functional) subdivision (classification) of provisional measures: measures to secure assets of which an ultimate judgment may be satisfied (such as an Arrest, section 916 et seq. German ZPO); Provisional attachment in the Code of Judicial Procedure chapter 15 sections 1 and 2. See also Preliminary remarks.

4 1.2.2 measures to maintain the status quo pending determination of the issues at trial (such as an injunction in competition / antitrust disputes); Certain measures according to the Code of Judicial Procedure chapter 15 section 3. Orders from the court in cases concerning different forms of incorporeal chattels. See also Preliminary remarks measures to ensure interim payments or interim performance (such as [kort geding, référé provision]); Immediate restoration or other immediate redress according to the Code of Judicial Procedure chapter 15 section 4 Orders on maintainace in family cases (maintainace pending suit). Cases concerning enforcement assistance in the summary proceedings See also Preliminary remarks. 1.3 For each of the provisional measures addressed in question 1.1 please state to which of the subdivisions set out under 1.2 it belongs; See Does the legal literature / doctrine in your State favour an alternate or different classification to that set out under 1.2 above; I have not found any discussion in the legal literature/doctrine on the classification. 1.5 To what extent do measures for the preservation of evidence (search orders) come within the scope of provisional protection of rights (mesure provisoire / conservatoire)? After an order from a court it is possible for the owner of a right (for example copyright, trademark and patent) to secure evidence for a forthcoming judicial proceeding on actionable use of the right by the opponent. The court s order is enforced by The Enforcement Authority after an application from the owner of the right, see Preliminary remarks C. Otherwise not applicable in civil cases in Sweden. 2. Measures securing the enforcement of judgment (attachment orders) The answers are given from the assumption that measures in The Code of Judicial Procedure, chapter 15, and decisions on interim payment in maintainance cases are the provisional measures that come within the scope of VO 44/01/EG. 2.1 What provisional measures does your national law provide for the enforcement of claims for payment; Provisional attachment (The Code of Judicial Procedure chapter 15 section 1).

5 2.2 What provisional measures (injunctions) currently ensure the performance or failures/omissions to act? Orders and injunctions according to The Code of Judicial Procedure chapter 15 section Measures ensuring the performance of entitlements to services As regards the contents the question is not understandable Restraining orders Orders according to The Code of Judicial Procedure chapter 15 section 3. see also Preliminary remarks. 2.3 The pre-conditions for the obtaining of provisional measures With regard to the claim that is to be secured: does the claim have to be due; Yes. In certain cases it s possible to obtain provisional measures if the claim will be due during the proceedings can a future claim be secured; must the creditor present an enforceable title. t applicable in Sweden, see Preliminary remarks if you answered yes to above, please state which titles must be presented (judgment, notarial act settlement or something else) With regard to the potential injury to the plaintiff urgency imminent frustration of enforcement of a judgment on the merits If the applicant show that delay places the applicant s claim at risk the court may order provisional attachment immediately without hearing the debtor

6 The applicant must show that there is reasonable to suspect that the opposing party, by absconding, removing property, or other action, will evade payment of the debt imminent competition from other creditors, not in general. The conditions for provisional enforcement may be fullfilled if there is reason to belive that the debtor will evade payments of the creditors claim by making payments to other creditors that may be reclaimed in bankruptcy proceedings other reasons for urgency Additional pre-conditions Proceedings to obtain an order for provisional measures which court has jurisdiction the court hearing the main proceedings Yes. There is no difference if provisional enforcement is sought prior to or during the main proceedings the court at the place of enforcement measures. In cases concerning claims for payment a person, with no known residence in Sweden, may be sued where the property he owns is located (the Code of judicial procedure chapter 10 section 3) other court(s) If a person, with no known residence in Sweden, have entered into an obligation or otherwise incurred in debt he may, in a dispute concerning the same, be sued at the same place where the obligation was created or the debt incurred located (the Code of judicial procedure chapter 10 section 4) who determines on the application in relation to : is the decision maker a single judge, another judge, other persons (eg. registrar) A single judge

7 in relation to : is it the competent court or another organ (eg. registrar, bailiff, law enforcement authority) The competent court What evidence must the creditor present when applying for a provisional measure? It is not stipulated to which extent the creditor should produce evidence. He has to show probable cause that he has a claim and it should be reasonable to suspect that the debtor will evade payment. If delay places the applicant s claim at risk the court can make the decision immideately and without hearing the debtor. From the creditors application, and possible documents and other evidence presented, the court has to decide if the conditions for provisional measures are fullfilled in relation to the claim (see above) See in relation to the basis for the preservation (urgency) (see above) See in relation to further pre-conditions (see above) Defences available to the debtor in the application/proceedings: does the court decide ex parte or does the debtor have a right to be heard (adversary proceedings) 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. According to chapter 15 section 5, though, the court can make the decision immidiately and without hearing if delay places the applicant s claim at risk. See Preliminary remarks are the proceedings oral or written If the proccedings are not pending, the application must be written. Otherwise it is not stipulated whether written or oral can the debtor address to the court a protective writing

8 . If he is given the opportunity to respond to an application on a provisional attachment/security measure he may refute the creditors application What standard of proof applies in the proceedings See Preliminary remarks and in relation to the claim to be secured (see above) See in relation to the urgency (see above) See in relation to other pre-conditions (see above) is the applicable law determined according to the principles of conflict of laws or does the court (simply) apply the lex fori Lex fori If the main proceedings are in another country the court may have to consider foreign law when diciding if the debtor has shown probable cause for the claim. 2.5 Content and effect of the provisional measure See Preliminary remarks refering to court decision and Enforcement Authority decision respectively is its content determined by legislation? See Preliminary remarks and does a court determine each case on its individual particularities (at its discretion) See Preliminary remarks what is the content of the provisional measure? The Enforcement Authority normally decides on what goods to attach and how the goods should be safeguarded. See Preliminary remarks blocking of assets See 2.5.3

9 prohibition on disposition of the seized goods against debtor/third party debtor See does it operate in personam against the debtor (see s. 919 ZPO: custody) See Preliminary remarks on The Code of Judicial Procedure, chapter 15 section does the creditor get a lien on the seized assets If property that is provisionally attached for a claim thereafter is attached for another claim, that is not linked with a special priority right in the property, the property shall be deemed simultaneously attached for the claim of the provisional attachment creditor. That meens that the creditor gets a priority right in the property that can be exercised at compulsory sale and, under certain circumstances, at bankruptcy proceedings if yes, does the priority principle apply if yes, what effect does a lien have in insolvency proceedings if yes, what is the effect of a lien in relation to a competing creditor In what form is the provisional measure drafted (eg. as a judgment, an order or as something else) An order Is the decision to be motivated Yes What remedies are open for challenging the granting / rejection of provisional measures An appeal can be made to a higher court. An re-examination at the court that ordered the provisional measure can also be requested Is the provisional measure valid for a specific limited time When a measure in The code of judicial procedure, chapter 15 sections 1-3, has been granted before the main proceedings are pending, the applicant must within a month of the order on

10 provisional measure institute a court order action on the matter at issue. If not the provisional measure lapse immediately. The same time limit apply if the main proceedings are held in another country. Otherwise no regulation. 2.6 Provisional measures and security Is the provisional measure subject to a security of the creditor Yes. measure in the Code of Judicial Procedure, chapter 15 sections 1-3, may be granted unless the applicant deposit at security at the court for the loss that the opposing party may suffer. The security shall compromise a pledge or a guarantee. Often the security consist of a bank-guarantee. Tendered security shall be examined by the court if it has not been accepted by the opposing party. 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. 2.7 Execution / Enforcement of the protective measure Who is responsible for enforcement: the court or a different enforcement organ? The Enforcement authority Is the execution of the provisional measure subject to the general law of enforcement? Yes. See also Preliminary remarks Are further sanctions available, in the event that the debtor does not comply to the order further sanctions than those prescribed in the Enforcement code. When provisional enforcement for a claim has been ordered the Enforcement in certain cases may order a default fine if the debtor does not cooperate in the investigation. If there are extraordinary reasons, the Enforcement Authority also have certain possibilities to apply to a court for the debtor to be detained see Please describe the pre-conditions which must be presented for the enforcement of a provisional measure: Service of the order on the debtor / third party debtor

11 Proof of performance of the security, the court consider the security before it s decision Other pre-conditions Is the effect of the provisional measure subject to execution of the order by the applicant / a court within a set period of time?. See though If yes, what period of time does apply If yes, what sanctions are applied in the event of non-performance? 2.8. Provisional Measures and main proceedings Can main proceedings be required/initiated or ordered by: the debtor the court that issued the order Can the court in which the main proceedings are carried on change or overrule the order? Yes Can the court in which the main proceedings are carried on order the return/release of the seized items The court can change or overrule the order on provisional measures. The Enforcement authority then have to decide on returning seized property. The Enforcement authority s decisions can be appealed in separate proceedings Does the debtor have any further basis for claiming damages?

12 See The creditor has strict liability for any damages the debtor may suffer through any enforcement actions Please describe the relationship of interim proceedings to provisional enforcement? Are there any differences between provisional envorceability and protective measures? The applicant must show some kind of risk-situation to obtain provisional/protective measures. He also have to post a security at the court. The enforcement of the decision normally takes place immediately, without notifying the debtor. In cases concerning moneyclaims it s normally possible to get provisional enforcement without posting a security, see Questionnaire on Provisional enforcement Are the remedies aimed at different targets or do the remedies have a complementary function? Protective measures have a complementary function to provisional enforcement to secure future enforcement. There are two differerent proceedings though, and it s possible to appeal against the court s decisions in both proceedings. 3 Temporary injunction (measures maintaining the status quo pending determination of the issues at trial) 3.1 What temporary injunction (destined to maintain a legal or factual situation) does your national legal system provide? Please provide examples The answers are given from the assumption that measures in The Code of Judicial Procedure, chapter 15, and decisions on interim payment in maintainance cases are the provisional measures that come within the scope of VO 44/01/EG. Se also Preliminary remarks: C. Incorporeal chattels According to the Code of Judicial Procedure, chapter 15 section 3, the court may, under the circumstances mentioned in the section, order for measures suitable to secure the applicant s right. A measure under section 3 may include:

13 - 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 reciever or - an issue of a direction suitable in other ways to safeguard the applicants right. Section 3 can be used e.g. cases on injunction, superior right to a manufacturing process, contracts on restraint-of-trade and activitys creating sanitary inconvenience. 3.2 The pre-conditions that need to be satisfied for obtaining temporary injunction With regard to the claim that is to be secured: does the claim have to be due? can a future claim be secured? Must the creditor present an enforceable title With regard to the basis for the claim: urgency threatened frustration of enforcement of a judgment on the merits other reasons for urgency additional pre-conditions? See Preliminary remarks and answers under Which Court has jurisdiction? The court hearing the main proceedings (exercising jurisdiction over the substance of the matter) the court at the place of enforcement measures? Other court(s) Who determines on the application? In relation to : is the decision maker a single judge, another judge, other persons (eg. registrar) In relation to : is it the competent court or another organ (registrar, bailiff, law enforcement authority)

14 See Preliminary remarks and answers under The proceedings as a mean to achieving interim measures (application prodeedings) What evidence must the creditor present when applying for a temporary injunction? In relation to the claim (above ) In relation to the basis for the preservation (urgency) (above: ) In relation to further pre-conditions (above ) Defences available to the debtor in the application proceedings: does the court decide ex parte or does the debtor have a right to be heard (adversary proceedings)? are the proceedings oral or written? can the debtor addreess to the court a protective writing what standard of proof applies in the proceedings in relation to the claim to be secured (above ) In relation to the urgency (above ) In relation to further pre-conditions (above ) See Preliminary remarks and answers under Content and Effect of the temporary injunction is its the content determined by the legislation? See Preliminary remarks and answers under Does a court determine each case on its individual particularities (at its discretion)? See Preliminary remarks and answers under what is the content of the temporary injunction? It depends on the claim and the courts decision. See 3.1 and Preliminary remarks on the Code of judicial procedure, chapter 15 section 3.

15 is its the content determined by the legislation? Does a court determine each case on its individual particularities (at its discretion)? what is the content of the temporary injunction? Blocking of assets Prohibition on disposition of the seized goods against the debtor/third party debtor (in personam) See does it operate in personam against the debtor / third party (see eg ZPO - custody) See In what form is the temporary injunction drafted (as a judgment, an order or as something else) are reasons provided for the ruling? what remedies are open for challenging the granting / rejection of the order Is the provisional measure valid for a specific limited time See Preliminary remarks and answers under Temporary injunction and the security Is the temporary injunction subject to a surety/security of the creditor Do any differences exist with regard to the security referred to in above? See Preliminary remarks and answers under 2. difference to Execution/Enforcement of the temporary injunction Who is responsible for enforcement: the court or a different enforcement organ

16 Is the execution of the temporary injunction subject to the general law of enforcement? If not, what law does apply? See Preliminary remarks and answers under Temporary injunction and main proceedings: Please briefly explain the differences in this to that in relation to the protective measure The applicant must show some kind of risk-situation to obtain protective measures. He also have to post a security at the court. In cases concerning moneyclaims it s normally possible to get provisional enforcement without posting a security. 4 Provisional measures allowing the satisfaction of the claim (interim payment/interim performance) (above ) The answers are given from the assumption that measures in The Code of Judicial Procedure, chapter 15 (in this case chapter 15 section 4), and decisions on interim payment in maintainance cases are the provisional measures that come within the scope of VO 44/01/EG. On maintainance pending suit, see Preliminary remarks, B 4.1 Does your national law permit remedies for interim payments and interim performance for the creditor? Please briefly outline the different remedies (compare also to 4.2.). Yes, it s possible for the creditor to apply to higher court. 4.2 To which constellation do these measures apply? claims for payment (such as maintenance, advance payment of legal costs) See Preliminary remarks, B other claims for performance An appeal can be made to a higher court. 4.3 The pre-conditions of a protective measure for satisfaction With regard to the claim that is to be secured

17 See Preliminary remarks does the claim have to be due? Yes can a future claim be secured? With regard to the potential injury to plaintiff urgency If the applicant show that delay places the applicant s claim at risk the court may order provisional attachment immediately without hearing the debtor See Preliminary remarks on The Code of Judicial Procedure chapter 15 section Imminent frustration of the enforcement of the judgment See Preliminary remarks on The Code of Judicial Procedure chapter 15 section Other reasons for urgency additional pre-conditions 4.4 Which court has jurisdiction The court were the proceedings are pending the court deciding on the merits? the court where seized assets are located? other court(s) who determines on the application in relation to : is the decision maker, a single judge, another judge, other persons (eg. registrar) A single judge

18 in relation to : is it the competent court or another person (eg. registrar, bailiff, law enforcement authority) 4.5 The proceedings to obtain the protective order for satisfaction What evidence must the creditor present when applying for a provisional measure? in relation to the claim (see above) in relation to the basis for the preservation (see above) in relation to further pre-conditions (see above) According to The Code of Judicial Procedure chapter 15 section 4 it must be shown that one of the parties has unlawfully disturbed the opposing party s possession, or has taken any other unlawful measure regarding the property. It is not stipulated to which extent the creditor should produce evidence Defences available to the debtor in the application proceedings: does the court decide ex parte or does the debtor have a right to be heard (adversary proceedings)? If the applicant show that delay places the applicant s claim at risk the court may order provisional attachment immediately without hearing the debtor are the proceedings oral or written? It is not stipulated whether written or oral. It can be both written and oral can the debtor address to the court a protective writing what standard of proof applies in the proceedings in relation to the claim to be secured (above ) in relation to the urgency (above ) in relation to other pre-conditions (above )

19 It is not stipulated to which extent the creditor should produce evidence, see and Content and effect of the provisional measure is its content determined by legislation? See Preliminary remarks and answers under does a court determine each case on its individual particularities (at its descretion)? See Preliminary remarks and answers under what is the content of the provisional measure? blocking of assets prohibition on disposition of the seized goods against debtor / third party debtor The property is restoriated to the applicant does it operate in personam against the debtor (see s. 919 ZPO) In what form is the temporary injunction drafted (as judgment, an order or something else) An order are reasons provided for the ruling regarding the measure? Yes what remedies are open for challenging the granting / rejection of the order An appeal can be made to a higher court is the provisional measure valid for a specific limited time 4.7 Provisional measures and security is the provisional measure subject to a surety (security / guarantee)

20 How is the order of the security measure regulated? 4.8 Enforcement / execution of the order Who is responsible for enforcement: the court or a different enforcement organ The Enforcement authority Is the enforcement of the order subject to the general regulations governing execution Yes Are further sanctions available, in the event that the debtor does not comply to the order (such as contempt of court) Please describe the pre-conditions which must be presented for the enforcement/execution of a provisional measure Service of order on the debtor / third party debtor Security of the creditor Other pre-conditions Is the effect of the provisional measure subject to enforcement by the creditor by the court within a certain period of time? If yes, what period of time does apply If yes, what sanctions do apply in the event of non-performance?

21 4.9 Amendment of the provisional measure by the court having jurisdiction for during the main proceedings What remedies are opened against a provisional measure for satsifaction? for the debtor An application to higher court by the court As regards the contents the question is not understandable can the court hearing the main proceeding revoke or amend the order? Yes, The Code of Judicial Procedure, chapter 15 section can the court hearing the main proceeding order the return of the seized items / the release of the seized claim? Yes, see Do claims for damages incurred by the debtor exist? See general rules in the Liability for Damages Act. 5. Practical information 5.1. In so far as available, please provide statistic information showing the number of cases dealing with interim payments (also in relation to main proceedings) Orders on interim payments is not possible in Sweden except maintainace in family cases (maintainace pending suit). There is no statistics on this Please detail (possible) politico-legal critique concerning the existing situation in your country. There has been some discussion on whether the creditor should get a priority right in the attached property (see ) but it is not of current interest. 6. Provisional measures and European Civil procedural law 6.1 Jurisdiction for cross-border provisional measures

22 6.1.1 What domestic jurisdictional reasons apply to provisional measures under Art. 31 VO/44/01 According to Government Bill on the Bruxelles Convention (The Governments Bill 1997/98:102, s 48, see also The Governments Bill 1991/92:128 s. 198) and doctrine, provisional attachment and other security measures in the Code of Judicial Procedure, chapter 15, and decisions on interim payment in maintainance cases should be the provisional measures that come within the scope of VO 44/01/EG in relation to measures securing future enforcement Provisional attachment in the Code of Judicial Procedure chapter 15 sections 1 and in relation to measures maintaining the status quo Certain measures according to the Code of Judicial Procedure chapter 15 section in relation to interim payments and similar measures Immediate restoration or other immediate redress according to the Code of Judicial Procedure chapter 15 section 4 and maintainance pending suit. 6.2 The assistance of foreign (on the merits) main proceedings by domestic courts Are there decisions in your State in support of assistance to foreign main proceedings abroad by provisional measures Yes If yes, please provide particulars of the main cases If the foreign judgment will be enforceable in Sweden it is possible for a swedish court to decide on provisional attachment and other security measures in Sweden also when the main proceedings are held in another country (case law from the Supreme Court, NJA, 1983 s. 814). A decision from an Italian court on a security measure ( sequestro giudiziario ) was enforcable in Sweden according to the Lugano-convention (NJA 1995 s. 495) Did practical problems arise in connection with these? 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 Are such orders granted ex parte or after a hearing of the debtor? Ex parte. Concerning orders on provisional measures from a swedish court, see See

23 If the foreign decision is enforcable according to VO 44/01/EG a decision of provisional protective/security measures is a consequence of a declaration of enforceability from Svea Hovrätt (Swedish Court of appeal, see Appendix II, Reg 44/01/EG) Does your national law permit provisional measures with the effect of a world wide Mareva injunction (that is to say a comprehensive seizure of the debtor s assets around the world)? 6.3 Do particular rules apply in relation to provisional measures affecting assets located abroad? Please describe the pre-conditions of such provisional measures How is the defendant informed about the proceeding? Are specific provisions applicable with regard to the drafting of the order Do these provisions also apply in the area of application of Art. 31 VO 44/01/EG? Have the ECJ s decisions in Cases C-391/95 und C- 99/96 (Van Uden and Mietz, respectively) brought about a change in your country? There has not been any new legislation and no case law in the matter Recognition and enforcement of a foreign provisional measure (Art. 32 VO 44/01/EG) Are provisional measures available in your country if a foreign provisional decision is recognized (Art. 32 Reg. 44/01/EG, Art. 25 Brussels Convention)? Yes If yes, please detail the most important cases NJA 1995 s 495, see and Have problems been experienced in practice? See 6.2.3

24 6.4.2 Are there any additional conditions that apply to the recognition of interim payments and similar remedies Have the ECJ s decisions in Cases C-391/95 und C- 99/96 (Van Uden and Mietz, respectively) brought about a change of the legal situation in your country? There has not been any new legislation and no case law in the matter. 7 Policy recommendation What law-making acts of the EU could improve provisional measures currently in place 7.1. With regard to the obtaining of such measures Possibly: creation of a standard form to obtain provisional measures. A standard form might be an improvement Further informal measures in connection with the European judicial network The possibilities to exchange information on debtors between the different countries should be better. A information center on debtors and their property, similar to Interpol, could be created. The information center should have data accessibility to different countries. The system should define to whom acess 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) Form and possible methods for an information exchange system directly between the enforcement authoritys in the States. This is needed to facilitate the gathering of information on debtors and their property as well as on the legislation in another State With regard to recognition of the order If the courts of the Member State A are competent according to their national legislation to take decisions authorizing provisional or protective measures, despite that the assets are situated in the Member State B, and that enforcement consequently only can take place there, it should be possible to to recognize such a decision in the Member State B. The court of Member State B should only have to exercise discretion and maybe revalue security posted by the creditor. The demanding for security, and revalue if necessary, means that the interests and protection of the debtor is secured.

25 In particular: do you consider it appropriate to pursue the recognition of provisional measures ex parte (that is those which have been ordered without hearing of the debtor)? Yes, if the creditor s claim is at risk and precatutions are taken for the protection of the debtor If yes, what precautions must be observed for the protection of the debtors rights? examination of the claim by the court of first instance to ensure that all elements of the cause of action are met Requirement of a security by the creditor See Where should the debtor object to the provisional measure: to the court which ordered the meausre; to the courts where the enforcement takes place In the interest of the debtor both shold be possible Compensation by the creditor (strict liability) See and How should cross-border service of the relevant order be performed? In line with Reg. 1348/00/EG (having regard to the service requirements contained in Art. 14 and 15 of the regulation) Yes In line with Art. 11 of the Commission s Proposal for a European Enforcement Order (COM (2002) 159final? Yes How should the debtor be informed? By way of a standard form communication, as per the rule in Articles in the Commission s suggestion for a European Enforcement Order for Uncontested Claims. Yes

26 By way of oral explanation by the bailiff when performing the service of the order, the most important thing is that it is evident from the transmitted documents what the proceedings concern. 7.3 Do you consider the introduction of a European freezing injunction as worthwhile? Yes If yes, how should the rights of the debtor be protected A security, see 7.2