What, if any, are the main types of interim remedies available in your jurisdiction?
Litigation (2nd edition)
Austrian courts may grant preliminary injunctions in order to protect the enforceability of a claim or to protect a party from irreparable harm. The endangered party might file for a preliminary injunction together with the claim initiating a legal proceeding, or before the start or in the course of a pending proceeding.
The Austrian Enforcement Act distinguishes the following types of preliminary injunctions:
- to secure a monetary claim;
- to secure other claims; and
- to secure a right or a legal relationship.
In order to secure a monetary claim, the following means are available:
- order for the deposit of money or custody or administration of moveable assets;
- prohibition on selling or pledging moveable property;
- prohibition directed towards a third party;
- order for putting immoveable property under administration; and
- prohibition on transferring or mortgaging immoveable property.
With regard to injunctions for securing other claims or rights, other means such as establishing a right of retention or ordering the debtor to refrain from any action adversely affecting the claim, right or object, are available.
Austrian courts may grant interim remedies in support of foreign proceedings if the prospective foreign judgment is enforceable under Austrian law. Similarly, interim remedies ordered by a foreign court or arbitral tribunal may be enforced if they comply with Austrian law.
There are three types of interim remedies: provisional seizure, provisional disposition with regard to a disputed subject matter, and provisional disposition that determines a provisional status.
Provisional seizure is the interim remedy that allows the obligor to temporary seize assets of the obligee in order to secure the enforcement of a monetary judgement.
Provisional disposition with regard to a disputed subject matter is the interim remedy to prohibit the transfer of the possession or change in the registration of real property.
Provisional disposition that determines a provisional status is the interim remedy to temporarily determine the “legal status” or the legal right of the plaintiff (for example, in the case of an employment termination dispute, the legal status of the claimant to receive salary).
The main types of interim measures available are provisory attachments of assets which will have to be confirmed after Court proceedings occur on the merits of the claim.
There are two kinds of interim remedies available in China: preservation, and earlier enforcement.
Preservation is an interim remedy that the court, pursuant to an application by a party of the litigation, make a temporary seizure to the counterparty’s property, evidence, or to order the counterparty to undertake certain acts or forbit the counterparty from certain acts. For preservation measures to apply, the circumstance of the case shall be urgent where the legitimate rights and interests of applicant will be subject to irreparable damages if the preservation measure is not implemented timely. Preservation shall be limited to the scope of the claims or the properties related to the case. The court adopting preservation measures may order the applicant to provide guarantee.
Earlier enforcement is an interim remedy that applies only to cases for alimony, payment of maintenance, payment of child support, pension, medical care, labour remuneration and other similar cases where there is an urgent need for earlier enforcement to apply. This measure requires (1) the rights and obligations relationship between the litigants shall be clear, (2) failure to grant earlier enforcement shall have a serious impact on the applicant's livelihood or business activities, and (3) the respondent has the capacity for performance. The court adopting earlier enforcement may order the applicant to provide guarantee.
The main types of interim remedies are represented by: (i) interim seizure, which consists in freezing the movable/immovable assets of the debtor; (ii) interim attachment; (iii) applications for the preservation or detention of property.
Altogether, there is the possibility to apply for a presidential ordinance in order to obtain an interim measure.
The Cypriot courts have very wide powers to grant interim relief in support of civil and commercial claims.
The main types of interim injunctions and orders granted by the Cypriot court are the following:
(i) Freezing orders (known as “Mareva injunctions”) preventing a defendant from using or dissipating all or part of his/her assets (including assets located outside Cyprus) pending the determination of the plaintiffs claim;
(ii) Orders (known as “ancillary disclosure orders”) ordering the disclosure of a defendant’s assets for the purpose of policing a freezing order granted against the defendant.
(iii) Disclosure orders (known as “Norwich Pharmacal orders”) ordering a person who is mixed up in wrongdoing to disclose information and/or documents in order to enable the applicant to bring legal proceedings in respect of the wrongdoing (e.g. by enabling him/her to identify the wrongdoers or obtain vital information concerning the wrongdoing) and/or trace misappropriated assets.
(iv) Search orders (known as “Anton Piller orders”) requiring persons who are in control of premises situated in Cyprus to (a) permit an independent “Supervising Advocate” and the applicant’s representatives to enter such premises for the purpose of searching them and removing documents and/or obtaining information (including from computers found in the premises) relating to specific matters and (b) inform the Supervising Advocate where such documents and/or information may be found.
(v) Orders (known as “Chabra orders”) preventing a person against whom the applicant has no cause of action or claim (such as a person who holds assets as a trustee, agent or “nominee” of a wrongdoer against whom the applicant has brought a claim) from dissipating assets under his/her control or administration which may become available to satisfy a judgment which may be obtained by the applicant against the wrongdoer.
(vi) Orders ordering the appointment of an interim receiver for the purpose of ensuring the preservation of the defendant’s assets and/or the defendant’s compliance with the freezing order.
(vii) “Quia timet” injunctions which are “pre-emptive” injunctions intended to prevent the commission of a wrong or the violation of the applicant’s rights in circumstances where an act amounting to a wrong or a violation of the applicant’s rights is threatened.
The granting of interim relief always lies within the discretion of the court. In order for the courts to exercise its discretion the plaintiff applicant must establish, by presenting strong evidence by way of affidavit, that he has a good arguable case on the merits and that, unless the relief is granted, it will be difficult or impossible for complete justice to be done at a later stage. The court must also be satisfied, after weighing the likely consequences of granting and not granting the relief sought, that it is “just and convenient” to grant the interim relief. Interim relief may be granted on an ex-parte basis (i.e. without notice to the defendant/respondent) in cases of urgency or where there are other special circumstances justify the granting of relief on an ex-parte basis.
The Cypriot courts may grant interim relief in support of proceedings instituted in Cyprus or in another EU member state as well as in support of contemplated or pending international arbitral proceedings.
As a main rule, the commencement of legal proceedings does not have suspensory effect. However, the courts can, if necessary, by way of a prohibitory or mandatory injunction order a person or a company to temporarily do, refrain from doing or tolerate certain actions.
An arbitration court can also, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute.
Certain types of interim remedies are available to the plaintiffs and defendants. For the plaintiffs, certain interim remedies are available such as the request for seizure/attachment on the defendant’s possessions, file for custodianship over the disputed object, and file for any request related to the disputed claim. Defendants on the other hand could file enforcement contestation, the cessation of enforcement or if any of the defendant’s assets are seized, the defendant could file a request to remove the seizure. Generally, the law provides for a wide scope of interim measures that may be taken depending on the nature of the case.
Interim remedies include:
(i) attachment of debtor’s assets,
(ii) injunction, (iii) imposition of certain duties (duties to perform certain acts),
(iv) temporary transfer of assets in dispute to the claimant or a third party,
(v) stay of enforcement. This list is not exhaustive and the parties may request the court to grant any other interim measures provided they are proportionate to the amount of claim.
The Commerce Code regulates interim remedies that the parties can request in order to maintain the status quo during trial. In other words, an interim measure is granted by a Judge to immediately preserve the current status existing among the parties, or to refrain a party form taking certain actions that could make it impossible to obtain relief.
Interim remedies can be granted prior or during trial when there is a founded fear that the person against whom a lawsuit will be filed, may disappear or hide to avoid being summoned to trial; or when there is a founded fear that the assets will be disposed of.
Additionally, recent court precedents have determined that other precautionary measures referred to in other regulations such as the Federal Code for Civil Procedures, are also available for the parties in commercial litigation.
The German Code of Civil Procedure provides for different kinds of interim remedies. The most relevant measures of interim relief are:
- seizure to preserve the property in dispute, sec. 916 et seq. ZPO
- personal arrest, sec. 918 ZPO and
- interim injunctions in cases of a claim for non-pecuniary performance or, in exceptional cases, for specific performance of the obligation in dispute, sec. 935 et seq. ZPO.
In practice, interim relief is often granted in corporate law disputes, e.g. if a shareholder of a company wishes to prevent the other shareholder from adopting a specific resolution at the general shareholder meeting. Also in IP disputes, parties regularly apply for interim measures to prevent or stop the violation of their IP rights.
In line with international practice, German courts are also empowered to grant interim relief in arbitration matters (sec. 1033 ZPO). Also parties to foreign arbitrations may resort to the German courts for such measures, provided the respective court has jurisdiction with respect to the requested interim order.
The main types of interim remedies in Hong Kong are injunctions, whether mandatory (ordering the other party to do a specific act) or prohibitory (ordering the other party to refrain from a specific act).
An example of a mandatory injunction would be an Anton Piller order, whereby a defendant is required to allow the plaintiff to enter the defendant’s premises in order to obtain evidence for the plaintiff’s case. An example of a prohibitory injunction would be a Mareva injunction (freezing order), which seeks to prevent the defendant from dealing in or otherwise disposing of its assets, pending determination of the plaintiff’s claim.
There are a variety of interim remedies available in Guernsey. The main types are:
- interim injunctions, such as:
- summary judgment and strike out (see above);
- unless orders; and
- security for costs.
- freezing injunctions;
- search orders;
- Bankers Trust orders;
- Norwich Pharmacal orders;
- anti-suit injunctions; and
- the Clameur de Haro (a Norman customary injunction affecting property).
There are also interim interlocutory remedies under Guernsey customary law which provide a form of interim execution, known as arrêts. An arrêt (of which there are various types) can take effect to freeze assets, arrest wages or to impose other remedies to improve a party’s chances that a debt will be paid. In modern commercial litigation, parties more commonly choose to apply for an appropriate injunction.
The court may, in order to prevent the ends of justice from being defeated, grant a temporary injunction or make such other interlocutory orders in accordance with the principles prescribed under Order XXXIX of the Code. In this regard, Section 37 of the Specific Relief Act, 1963 states that temporary injunctions are such, as are to continue until a specified period of time, or until a further order of the court.
The courts in India have wide discretionary powers and may grant interim relief, as may be appropriate to preserve the ends of justice, such as security for costs, arrest and attachment before judgment, order for interim sale, etc.
As regards arbitration proceedings, interim measures may be granted by the arbitral tribunal under Section 17 of the Arbitration Act or by the court under Section 9 of the said Act for securing the amount in dispute, for preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement, for the appointment of a receiver, etc.
Isle of Man
The usual type of interim remedies available in common law countries worldwide are available in the Isle of Man including (i) asset freezing orders (Bitel LLC v Kyrgyz Mobil 2011 MLR N7); (ii) Anton Piller search orders, (iii) Bankers Books Evidence Act orders, (iv) Norwich Pharmacal disclosure orders (Secilpar 2003-05 MLR 352), (v) Chabra orders (Cruz City 1 Mauritius Holdings v Unitech Ltd 2015 MLR 13), (vi) Bankers Trust v Shapira orders, (vii) the appointment of a receiver under section 42 of the High Court Act 1991, and (viii) the appointment of a liquidator provisionally under section 178 of the Companies Act 1931. Some rarely used additional local interim remedies include restoration of the status quo orders (Bellamy v Forster Appeal Division 6 April 2018) and actions of arrest orders (Raad v Sturgeon 2003-05 MLR N11).
See also rule 7.16 in respect of orders for interim remedies.
Under section 56B of the High Court Act 1991 the High Court can act in aid of proceedings in a foreign court or tribunal and grant interim relief where proceedings have been or are to be commenced outside the Isle of Man.
Manx courts act very quickly in urgent cases conscious of the island’s reputation as a leading financial centre and the need to protect and enhance that reputation.
The main kind of interim remedies provided by Italian law are the protective/precautionary measures (“procedimenti cautelari”), which may be applied for both ante causam and/or during the ordinary proceedings. The general rules to be applied to all these remedies, if not expressly waived, can be found at Article 669 bis et seq. of the Italian Code of Civil Procedure. The main protective/precautionary measures provided by Italian law are the judicial/conservation seizure, the preventive expert assessment and the contingency orders.
Moreover, upon request of the interested party of first-degree proceedings, the judge can order the payment of the sums that have not been contested by the counterparty (Article 186 bis) and/or issue an injunction order if the requirements set forth at Article 633 et seqq. of the Code are met (please see above) (Article 186 ter). These measures can be revoked by the judge who issued them but may remain effective in case of termination of the proceedings.
Under Philippine rules of procedure, the interim remedies commonly available for commercial disputes are:
- preliminary attachment, wherein the court levies on the property or garnishes the debts, credits, and other receivables of the defendant;
- preliminary injunction, wherein the court prevents a party from performing or compels a party to perform a particular act;
- receivership, wherein the court orders a receiver to preserve, administer, and/or dispose of the property subject of litigation;
- replevin, wherein the court orders the personal property subject of litigation to be delivered to the party seeking recovery of possession; and
- support pendente lite, applicable to family law cases, wherein the court orders a party to pay the applying party an amount of money for support while the case is pending.
The main types of interim remedies in our legal system are Injunctions. These can be ordinary or specified (e.g. suspension of company resolutions) and always depend on a final decision ruled in the appropriate main action.
There are two pre-action interim remedies available – interim injunction and freezing order.
A motion for interim injunction should include, in addition to the mandatory information, a description of decisive facts giving grounds for the necessity of interim injunctions or concern that execution would be frustrated, a description of facts reliably confirming the grounds for and duration of the entitlement for which protection is sought, and it must be clear from the motion which interim injunction is sought by the claimant.
By freezing order, the court may order pledge of assets, rights or other property of the debtor to secure a monetary claim of the creditor if there is concern that execution may be frustrated.
If someone shows probable cause that he or she has a money claim, that is or may be subject to judicial proceedings (including e.g. arbitration), and if it is reasonable to suspect that the opposing party will take action to avoid payment of the debt the court may order the provisional attachment of money. Similarly, if someone shows probable cause that he or she has superior right to property and if it is reasonable to suspect that the opposite party will take action to conceal, substantially deteriorate or otherwise deal with or dispose of the property, the court may order the provisional attachment of that property.
In addition, the court may issue an order for any measures suitable to secure the applicant’s right. This requires that the applicant shows probable cause to believe that he or she has a claim against another that is or can be subject to judicial proceedings (including e.g. arbitration) and that 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. These measures that the court may order include for example a prohibitory injunction to carry on a certain activity or perform a certain action, an order to have regard to the applicant's claim, the appointment of a receiver or any other measure required to protect the claimant’s rights. All such injunctions and orders may be made subject to a default fine. Finally, in pending proceedings, the court may also order the interim restitution of specific property that the dispute concerns.
The main type of interim remedy is an interim injunction, which can either require a party to do a specific act (“mandatory injunction”) or to refrain from doing something (“prohibitory injunction”). Examples of interim injunctions include an order that a party preserves certain relevant evidence, or (in more extreme cases) allows another party to take copies of its IT systems, or orders “freezing” some or all of party’s assets (this is particularly effective in cases of suspected fraud where money and other assets can be preserved until the claim is determined). As a general rule, it is usually more difficult to obtain mandatory injunctions than prohibitory injunctions.
The law does not list all available interim remedy measures. Practically, the main types of interim remedies are as follows:
- travel ban,
- attachment of all the debtors’ assets such as: bank accounts, properties, movables assets (shares, parts etc.),
- status quo,
- ban of disposal of assets, etc.
The most prevalent (and successful) interim remedy is the brief-term action called “referimiento”, which is a special complaint, similar to an injunction, that allows the plaintiff to obtain a quick, interim decision provided that it shows that the proposed measure is urgent, and that the plaintiff’s motion is well-grounded. This type of complaint is a popular remedy originated in France and adopted in the Dominican Republic when adopting the French Code of Civil Procedure enacted in 1806. Additionally, a non-secured creditor may obtain an ex parte order to temporally seize the debtor’s assets through a quick, simple procedure, which in turn (when accepted) can be challenged by the debtor by means of the aforementioned “referimiento” complaint.
Indonesian law acknowledges the following interim decisions:
a. uit voerbaar bij voorraad or an immediate decision requesting that the district court’s decision be executed despite an appeal or a challenge against the decision by one of the disputing parties;
b. provisional measures requesting for security, usually over the defendant’s assets, to ensure payment of compensation; and
c. for administrative courts, withheld enforcement of a government stipulation during the process of an administrative claim.
The main types of interim remedies are:-
(a) Interim Injunctions
Interim injunctions are governed under Order 29 of the ROC. They may be granted by court to compel anyone to do something (mandatory injunction) or restrain from doing certain things (prohibitory injunction). An injunction should only be granted:-
(i) When there are serious issues to be tried;
(ii) When damages would not be an adequate remedy;
(iii) When the balance of convenience tilts in favour of granting an injunction.
Interlocutory injunctions are usually granted to preserve the status quo pending final disposal of the case. The Court may grant an injunction to restrain a Defendant from removing from the jurisdiction or disposing of or concealing its assets which may be necessary to meet the Plaintiff’s claim (Mareva Injunction).The Court may also order an Anton Piller Injunction based on Order 29 of ROC to allow the Plaintiff to enter the Defendant’s premises for inspection and seizure of evidence or offending goods. This is regarded as an extreme relief and will only be granted when:-
(i) There is a strong prima facie case against the Defendant;
(ii) The damage must be very serious to the Plaintiff;
(iii) There is clear evidence that Defendant has incriminating documents or things; with real
possibility that the Defendant may dissipate its assets or destroy such materials.
(b) Appointment of Receiver
An application may also be made to the Court for the appointment of a receiver under Order 30 Rule 1 of the ROC. This appointment is generally made to preserve any properties or assets pending disposal of a court proceeding. An application for an injunction, ancillary or incidental to an order appointing a receiver, may also be joined with the application to such an order. [See Order 30 Rule 1(3) of the ROC]
In Chile there are “pretrial measures", which are proceedings that are initiated prior to the filing of the complaint and that may be intended to prepare the entry into trial, obtain proof that for some reason may not be surrender during the trial, or ensure the result of the action that is going to be tried (e.g. an injunction over the defendants assets).
The latter are the so-called preliminary injunction measures. Of course, the general rule is that, among those measures, only conservative measures are granted in Chile, which seek to prevent the current factual situation from being altered. Thus, prohibitions to hold contracts on certain goods are very common, or the withholding and seizure of the defendant´s goods.
Measures that seek to anticipate the effects of the final judgement are rather rare. There are certain specific cases that allow it (for example, courts are allowed to grant provisional food, or to grant the claim in case of defendants default or nonappearance in court). However, these measures are far from constituting the general rule in our system.
However, the legislation leaves the door open for the provision of other “unnamed” preliminary injunctive measures which are not expressly regulated (Art. 298 CHCPC).
Precautionary warrants are interim measures granted by law to the creditor or holder of a real right to secure the future payment of his credit or other rights, whenever the latter has no title which would grant him immediate execution.
Therefore, any person, without the necessity of any previous judgment, may secure his rights by filing an application for the court to issue one or more of the following precautionary acts, provided the conditions prescribed by the law are complied with and provided further that the court issuing the warrant is satisfied, on a prima facie basis, that such warrant is necessary in order to protect the rights belonging to applicant. The interim measures that may be sought are the following:
(a) warrant of description;
(b) warrant of seizure;
(c) warrant of seizure of a commercial going concern;
(d) garnishee order;
(e) warrant of impediment of departure;
(f) warrant of arrest of sea vessels;
(g) warrant of arrest of aircraft;
(h) warrant of prohibitory injunction.
An application for the issuing of a precautionary warrant is to be made by means of an application confirmed on oath. Such application shall, under pain of nullity, contain:
- the origin and nature of the debt or claim; and
- when the right is a debt, or a demand which may be satisfied by the payment of a sum of money, the amount of such demand.
Once the application has been filed, the applicant is bound bring an action in respect of the claim within the time limit specified by law. This varies according to the precautionary act requested. If the applicant fails, without just cause, to bring such action, the effects of the warrant shall cease and the applicant shall be liable for all damages and interest.
Pursuant to Swiss law, a difference is to be made between interim measures aiming at securing monetary claims and interim measures aiming at the protection of non-monetary claims. The former are regulated by the Federal Debt Enforcement and Bankruptcy Act of 11 April 1889 (DEBA); the latter are subject to the CCP.
Under the CCP, upon motion of a party a court can order interim measures if the applicant shows credibly that a right to which it is entitled has been violated or a violation is imminent and that such violation threatens to cause not easily reparable harm. In addition, the applicant must show urgency and the interim measure to be ordered must be proportionate.
The court may order any measure that is suitable to prevent the imminent harm (e.g. an injunction, an order to remedy an unlawful situation, an order to a third party (including to governmental authorities) , performances in kind, or the payment of money in the cases provided by the law).
The court may make the interim measure conditional on the payment of security by the applicant if it is anticipated that the measures may cause loss or damage to the opposing party.
In cases of high urgency, issuance of interim measures may be requested on an ex parte basis. If interim measures are issued by the court ex parte, the court will subsequently summon the parties to a hearing or it will set a deadline to the opposing party to comment on the ordered measure in writing. Thereafter the interim measure will be confirmed or lifted.
A request for interim measures may be filed at any time, i.e. before or after the proceedings on the merits were filed. The request will be handled in summary proceedings. If a request for interim measures is filed prior to commencing the legal action on the merits, the court will set a deadline to the applicant to prosecute its action (i.e. to file the legal action on the merits). Failure to do so will result in the lifting of the interim measure.
The protection of monetary claims is regulated by the DEBA. Pursuant to the DEBA, a creditor may request a freezing order regarding assets located in Switzerland in order to secure a due debt that is not secured by a pledge, if (i) the debtor has no fixed domicile, (ii) the debtor, with an intention to avoid the fulfilment of its obligations, removes assets, flees or prepares to flee, (iii) the debtor is in transit, or belongs to the category of persons who visit fairs and markets for claims that by their nature must be fulfilled immediately; (iv) the debtor is not domiciled in Switzerland and no other grounds for ordering the freezing order are applicable but the claim has a sufficient nexus with Switzerland or is based on a recognition of debt (issued in writing); (v) if the creditor has a certificate of shortfall against the debtor; and (vi) if the creditor has a definitive title (for example a court judgment ordering the payment) against the debtor confirming the latter's monetary debt towards the creditor.
The freezing of assets constitutes an instrument that allows the creditor to secure the enforcement of its claim. To that end, certain assets of the debtor are provisionally seized. For the debtor, the seizure of assets is quite drastic. Therefore, the freezing of assets will only be ordered under the strict conditions mentioned above. In its request, the creditor must mention and substantiate as far as possible the grounds for the freezing order, the debt to be secured, the asset to be seized as well as its location. Moreover, the creditor must make credible that the legal requirements to order the freezing of assets are fulfilled.
In practice, parties commonly request freezing orders for assets located in Switzerland that belong to debtors that are not domiciled in Switzerland, or, alternatively, based on a court judgment ordering payment. The other grounds set out above for the issuance of freezing orders are only rarely invoked, because they are difficult to prove.
Typically, freezing orders are initially granted on an ex parte basis, following which the debtor is given the possibility to raise its objections by filing an appeal with the court within 10 days. If a creditor has obtained a freezing order before having initiated enforcement proceedings or before having filed a legal action on the merits , it must do so within 10 days from notification of the freezing order (burden to prosecute). Failure to do so will result in the freezing order being lifted.
The main provisions regulating interim remedies are included in Articles 682 to 738 of the GCCP (provisional measures).
The main types of interim remedies that may be ordered by the Court in commercial litigation are:
- Judicial security (Articles 704, 705 GCCP)
- Interim registration of a pre-notice of mortgage (Articles 706 seq. GCCP)
- Conservatory attachment (Art. 707 seq.)
- Custody (Art. 725 seq.)
- Provisional award of claims (Art. 728 seq.)
- An injunction regulating matters on a provisional basis (Art. 731 seq.).
Two types of interim remedies exist: arrest, used to secure a pecuniary claim, and preliminary injunction, which is used to secure other types of claims and that typically will order the defendant to perform something or refrain from doing something. In both cases the plaintiff needs to establish that there is a need for such extraordinary measures, e.g. that the execution or enforcement of the claim would otherwise be considerably impeded.
The NCPC gives the judge sitting in summary proceedings general powers to order, in urgent matters, any interim measures to which there is no compelling objection or which are justified by the existence of a dispute (Article 932).
This judge may also order any conservatory or remedial measures that are necessary either to prevent imminent damage or to put an end to a manifestly unlawful disturbance (Article 933).
Two types of interim remedies available in the U.S. are temporary restraining orders and preliminary injunctions. A temporary restraining order forbids a person from engaging in some threatened action where the moving party can show, among other things, that it is likely to succeed on the merits and that it will be irreparably injured by such action. A temporary restraining order is generally granted for a limited period of time (14 days under the FRCP). Likewise, a preliminary injunction is a provisional remedy that a court grants to protect a plaintiff from irreparable injury. The court issues an order preserving the status quo until it is able to make a final decision on the merits.
In addition, parties may seek prejudgment seizures, such as a writ of attachment. A writ of attachment allows a plaintiff to levy on the defendant’s property to ensure that a judgment against the defendant can be satisfied by showing that (1) the claim is for a specific or easily ascertainable amount of money based on a contract; and (2) there is a high likelihood of prevailing on the claims.
In certain circumstances, a plaintiff may request the court an interim remedy either prior to or during court proceedings. Examples of such remedies include interim measures such as temporary seizure of assets or properties, or interim injunctions prohibiting certain acts or omissions by a defendant.
To secure such interim remedies, a plaintiff must prima facie prove the grounds for its claim and must further show there is an element of urgency that warrants the requested remedy (eg, by establishing that debt recovery may be jeopardised by a defendant transferring its assets to third parties).
An Iranian defendant being sued by a foreign plaintiff may demand that the plaintiff deposit a security for the costs which the plaintiff may be ordered to pay to the defendant including attorney fees) should the plaintiff lose the case.
Interim remedies are “subordinate” to the judgment over the dispute itself. If the need for an interim remedy arises simultaneously with the main claim, the petition for such remedy may be included within the statement of claim.
Iranian law does not provide for summary proceedings.
An interim relief judge may order any type of interim relief a party requires in urgent matters (section 254 DCCP). Interim relief may be requested pending proceedings on the merits or before such proceedings are initiated. Although interim relief is of a provisional nature, proceedings on the merits may not be necessary after a decision in preliminary relief proceedings has been rendered.
Examples of interim remedies are:
- protective measures, such as prejudgment attachment
- orders to do or abstain from doing something at a penalty
- exhibition of documents
In case of prejudgment attachment, proceedings on the merits must be initiated within two weeks after the attachment was made, if no such proceedings were already pending.
In commercial matters there are no provisional remedies. There are measures intended to preserve the object of the litigation or ensure its results: a) Withholding funds or personal property; b) Prohibiting the alienation of real estate; c) Sequestration; and, as an exception, d) Barring aliens not owning real property in the country from leaving it.
In matters involving intellectual property, there are measures aimed prevent the violation of intellectual property rights: a) Immediate cessation of the activity that constitutes the alleged violation; b) Provisional closing of the establishment; and c) Removal from commerce of the merchandise, unlawful copies or objects that brought about the violation, which are to be deposited with the Court.
The main interim remedy in the UAE is precautionary attachment. Such a remedy is available to preserve a party’s right if there was a genuine concern that the right is at risk such as the debtor fleeing the country or concealing his assets.
If a party files a precautionary attachment against his debtor’s assets and his request was granted by the court, he must file a claim within 8 days of the attachment taking place. This is to ensure that the action does not harm the debtor if the creditor’s claim was unlawful.
There are other interim remedies such as the request for a travel ban to ensure that a debtor does not flee the country to avoid settling his debts.
Main types include imposing an injunction order on defendant’s property in the extent of the amount claimed; prohibiting the defendant from performing certain actions; prohibiting other people from performing certain acts concerning the subject matter of the dispute; obliging the defendant to perform certain acts concerning the subject matter to the dispute; suspending the sale of the property in case of filing a claim about lifting the injunction; imposing an injunction on the property belonging to the claimant, but remaining under possession of the defendant and other remedies prescribed by law.