For an arrest, are there any special or notable procedural requirements, such as the provision of a PDF or original power of attorney to authorise you to act?
To arrest a vessel in Australia, the applicant must commence in rem proceedings against the vessel (not the owner) by filing a writ pursuant to the Admiralty Rules 1988 (Cth) (Admiralty Rules), usually in the Federal Court of Australia. An arrest application is also filed with the writ along with an affidavit particularising the claim and a draft arrest warrant.
If the registrar is satisfied the documents as filed are in order, the arrest warrant will be finalised and issued to the relevant Admiralty Marshal who arrests and takes custody of the vessel.
In terms of ship arrest, the Chinese maritime court requires submission of an original application, the original power of attorney and the certification of identity of the legal representative. In case of emergency, faxed copy of the application may be accepted and the original application can be submitted later but this may vary from different requirements of the maritime court. The power of attorney and the certification of identity of the legal representative issued by foreign parties shall be notarized by the local notary public and legalized by the Chinese embassy or the consulate-general in their countries. Again it varies from court to court, in case of emergency, whether they will accept the original power of attorney and the certification of identity of the legal representative first, with the notarized and legalized copies to be supplemented later once they are available.
Given the urgency of the matter, the courts usually accept a PDF form of the power of attorney, but order the applicant to deliver the original within a short period of time (3 days).
All the documents supporting the motion for arrest, if in a foreign language, have to be translated into the Croatian language by a sworn court interpreter.
In order to “justify the arrest”, within 15 days of the arrest, the arresting party has to submit proof that it has commenced relevant proceedings on the merits before a competent forum.
Since the arrest is to be carried out in our jurisdiction by a Civil Court, usual Court formalities should be observed. That in practice would imply that an original power of attorney is usually needed to submit the arrest petition before any local Court.
There are no formal authorisation requirements that must be met (e.g. power of attorney) so that a lawyer in Cyprus may file admiralty or civil proceedings or an application for arrest on behalf of a claimant.
There is no formal requirement for a POA, but in practice a POA is served with the Maritime Court. A copy scanned PDF is sufficient.
The filing of an application for arrest before any Italian Court must be made by an Italian attorney at law (Avvocato) appointed by virtue of a power of attorney. In case the power of attorney is issued outside the Republic of Italy, it must be notarised and apostilled or legalized, as appropriate.
In terms of court procedure rules, the original power of attorney and corporate certificates are required in order to file an application for arrest of the vessel by the authorised lawyers. Additionally, Japanese courts are inclined to request the arresting party to provide original paper documents, but this is subject to the courts and can be discussed between the lawyers and the judges.
One will need to submit an arrest application to the local court where the vessel is located or expected to arrive in near future. The application must satisfy all general requirements for submissions to the courts and should include all the documentary evidence the claimant wants to rely on. Norwegian courts assume that a lawyer purporting to be representing a party is authorised to do so. However, the other party may request proof of such authorisation, but that rarely happens. If so, then a power of attorney may be necessary, but not from the outset of the proceedings. The court will normally also accept a copy unless there are reason to believe that the copy is not a true copy.
In regard to effecting an arrest / attachment, the following documents are required:
- Power of Attorney
- Affidavit of Merit for the claim
- Proof of Ownership of the Defendant of the vessel to be attached
There is no requirement for a power of attorney. A Writ is filed (with a brief endorsement of claim) and together with an affidavit setting out the background and details of the claim and the solicitor will attend before a Registrar to seek a warrant of arrest.
For all three types of ship arrest as discussed in Q5 above, we will be required to submit the PDF copy of the power of attorney (POA) to the court. The Korean court generally requires the POA to be signed and notarized, but if urgency is involved, the court may (or may not at its discretion) accept the signed copy on the condition that the notarized copy will be supplemented. We will also be required to submit the official corporate document (e.g. corporate registry certificate, etc.) of the creditor/claimant. Such corporate document can be replaced by the Corporate Nationality Certificate issued by the creditor/claimant, insofar as the certificate is signed and notarized.
An original power of attorney (POA) is required for the appointed lawyer to file the application for ship arrest. And if the POA is issued by a foreign entity, the POA needs to be notarised by a notary public in the country of that entity and further legalised by the Taiwan representative office near that country. If the POA is made in a language other than Chinese, a translation would also be required. However, subject to the judge's discretion, the judge may allow a copy or PDF of the POA be submitted first but the original POA shall be supplemented within a period of time decided by the judge.
In a Rule B action, seeking in personam attachment or garnishment – which may include vessel seizures – the Court requires a verified complaint by the plaintiff setting forth a prima facie valid admiralty claim at the time of the filing of the Complaint, and an accompanying affidavit signed by the plaintiff or the plaintiff's attorney stating that, to the affiant's knowledge, or on information and belief, the defendant cannot be found within the district.
In a Rule C in rem arrest action, the Court likewise requires a verified complaint that describes with reasonable particularity the property that is the subject of the action; and that the property is within the district or will be within the district while the action is pending.
There are no special formalities apart from the application to the court, and a lawyer does not need a power of attorney in order to represent his client.
If the arresting creditor is a foreign natural or legal person, it is necessary that it issues a written mandate to its legal representatives authorizing them to file the arrest of behalf of the said arresting party. This is normally done by means of a power of attorney. At the time of the arrest, only a scanned copy of the signed power of attorney. That said, at a later stage, it may be required to file a notarized and apostilled original in the relevant court acts.
The petition for arrest would be generally accompanied or within the pleading containing the complaint and the same would be authorized simultaneously (Article 167 of Law 8) although it could be done separately in the course of the proceedings.
As general rule, a party must act through a qualified lawyer in Panama. This implies that an original power of attorney is to be filed with the court. Generally, if granted in private documents (as opposed to public instrument) and by a non-resident or foreign entity or person, the same would have to be certified by notary public and further legalized by a Panamanian Consul or Apostilled. It is also necessary to provide evidence of the existence of the legal entity, unless such confirmation is given within the notarial certification of the power of attorney. Nonetheless and in accordance with the rules of Civil Procedure which supply law 8, it is possible for the lawyer to act in lieu of power of attorney, as negotiorum gestor, by posting a bond with the Court. The law allows 2 months from the time that the lawyer is so admitted in order to file the corresponding power of attorney.
In Brazil, all the documents presented by a lawyer in court are presumed legitimate, so that there is no need for an original power of attorney to be presented. If the proof of debt is not in the Portuguese language, it is preferable that the claimant bring a certified translation.
Although recommended, some Brazilian courts have considered it unnecessary to present the translation of proof of debt. The thesis applied is that are common documents for both parties, so there would be no prejudice to the defence.
In the case of the judge understands that the translation is necessary, the order of arrest can be given with another order, for the plaintiff, to present translated versions of the documents.