What, if any, are the main types of interim remedies available?
Litigation & Dispute Resolution
According to the Swiss Swiss Debt Collection and Bankruptcy Act (DEBA), in order to secure monetary claims a creditor may request the freezing of certain assets of the debtor, which are located on Switzerland, including bank accounts ("measure in rem", not "measure ad personam").
The issuance of a freezing order against specific assets of a debtor according to the DEBA requires a specific reason for such issuance.
According to article 271 of the DEBA, a creditor may apply for a freezing order with respect to specific assets located in Switzerland (see above), and with respect to an unsecured matured claim for the following six reasons:
- the debtor has no fixed domicile;
- the debtor is concealing his assets, absconding or making preparations to abscond so as to evade the fulfilment of his obligations;
- the debtor is passing through or belongs to the category of persons who visit fairs and markets, for claims which by their nature must be fulfilled at once;
- the debtor does not live in Switzerland, and none of the other grounds for a freezing order is fulfilled, provided the claim has a sufficient connection with Switzerland or is based on a recognition of debt pursuant to art. 82 para. 1 DEBA;
- the creditor holds a provisional or definitive certificate of shortfall against the debtor;
- the creditor holds a definitive title to set aside the objection.
Interim measures not against assets of a debtor / defendant are governed by the Code on Civil Procedure. Such measures are ordered if the requesting party credibly shows that (i) a right to which it is entitled has been violated or a violation is anticipated, and (ii) the violation threatens to cause not easily reparable harm to the requesting party. The court may refrain from ordering interim measures if the opposing party provides appropriate security.
The court may order any interim measure suitable to prevent the imminent harm, in particular an injunction, an order to remedy an unlawful situation, an order to a register authority or to a third party, performance in kind, or the payment of a sum of money in the cases provided by the law.
After issuing a freezing order or ordering an interim measure, the requesting party must prosecute the claim (by judicial actions) within short deadlines in order to uphold the freezing order / the interim measures until a final judgement or the enforcement of a judgement, respectively.
Under Chilean law, plaintiff can request interim remedies even as pre-actions before submitting a claim. These remedies are known as “precautionary pre-action remedies” (“medidas prejudiciales precautorias”) and are specified – in a non-restricted manner – in article 290 and subsequent of the CPC. The remedies listed in such article are the following and they can be requested at any stage of the proceeding:
- Preventive attachment over the thing that shall be the subject matter of the proceeding.
- Appointment of one or more controllers.
- Retention or attachment of certain assets.
- Prohibition to execute acts or contracts over certain assets.
In general, plaintiff must submit a written request indicating the action that he intends to file and a brief explanation of its grounds, submitting enough evidence supporting –as a serious presumption– the right claimed, as well as the urgency and necessity of the remedy, notwithstanding other special requirements. If the requested remedy is not expressly stated in the law, the court also has the authority to require an adequate bond to the future plaintiff.
The purpose of such remedies is to ensure the effectiveness of the action and they only reach that amount of defendant's property necessary to achieve that object.
Various interim remedies are available. The main types include (i) measures for ensuring potential enforcement of an award, e.g. sequestration of assets; (ii) orders preventing the defendant from taking certain actions, e.g. committing trademark infringements, or less commonly, instructing the defendant to perform certain actions; or (iii) orders for the claimant to provide security for the defendant’s litigation costs.
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.
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.
A claimant can apply for the pre-judgment attachment of movable assets belonging to a defendant who does not have sufficient assets in the jurisdiction to satisfy a judgment. This procedure is ordinarily invoked to arrest ships or aircraft. Other forms of interim remedies, for example for the possession of real estate, are available.
There are two types of interim measures available: arrest and preliminary injunction. To secure pecuniary claims, arrest can be given in the debtor's property or assets. To secure a claim for something other than the payment of money, a preliminary injunction may be requested. A preliminary injunction can order the defendant to perform something, refrain from doing something or tolerate something, or can decide that an asset shall be taken out of the defendant's possession and taken into custody or administration.
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, it will be irreparably injured by such action. 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.
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).