What, if any, are the main types of interim remedies available?
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.
The main types of interim remedies that are available include: -
- Interim injunctions, including mandatory injunctions, prohibitory injunctions and Mareva injunctions to freeze the assets of the defendant;
- Orders for the detention, custody or preservation of any property which is the subject-matter of the dispute, or for the inspection of any such property in the possession of a party to the dispute; and
- Orders for interim payment by the defendant, at any time after the Writ of Summons has been served on him and the time limit for him to enter appearance has expired.
The Court may also grant an Anton Piller order permitting a party to enter another’s premises to search for and seize property or evidence. Such orders are made to prevent the defendant from destroying incriminating evidence in his possession.
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 main types of interim remedies are detailed in the Spanish Civil Procedure Act, amongst others:
- Provisional attachment
- Court control or administration to secure profitable properties in litigation
- Deposit of movable assets
- Inventory of the defendant’s assets
- Precautionary record of the claim in the relevant Land Registry and other public registries
- Court resolution ordering the temporary suspension of an act or activity
- Stay of resolutions adopted either at the company’s shareholders’ meeting or by its board of directors
The list contained in the Spanish Civil Procedure Act is not an exhaustive list and, therefore, other interim measures can be adopted as long as they comply with the legal requirements and are useful for securing the future ruling. Moreover, specific laws, such as the Spanish Patents Law, include other specific interim measures.
Indonesian laws acknowledge interim decisions, among others:
a. uit voerbaar bij voorraad or an immediate decision, requesting that the district court decision to be executed although the disputing party submits an appeal or a challenge towards it;
b. provisional measures, requesting for security, usually over the defendant’s assets, to ensure payment of compensation;
c. in administrative courts, interim measure is also recognized to withhold enforcement of a government stipulation while in the process of an administrative claim.
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,
- 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, and
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 Commerce Code regulate 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 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.).
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.
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.
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.
A number of interim remedies are available which relate, for the most part, to preserving the status quo pending a full determination in the proceedings.
For example, a freezing order, known as a Mareva injunction, may be granted to restrain the dissipation of assets by a party if the Court believes that the party may remove, conceal or dissipate assets.
If a party believes that certain documents may be destroyed by their opponent or withheld from the discovery process, the court may grant an order allowing for the search and seizure of documents. This ‘Anton Pillar Order’ permits the plaintiff to enter the defendant’s premises with a view to inspecting and potentially removing items of evidence.
A party wishing to obtain such interim remedies will be required to meet a high standard of proof and must demonstrate inter alia that they have a prima facie case, that the balance of convenience favours the granting of the order, and that damages would not be an adequate remedy.
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).
The main types of interim remedies are interim injunctions, which can either require the other party to do a specific act or to refrain from doing an act. Examples are 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 “freezes” some or all of its assets (this is particular effective in cases of suspected fraud where money and other assets can be preserved until the claim is determined).
As a main rule commencement of a trial will not have suspensory effect but it is possible for the court to order interim measures. Necessary preliminary steps can further be ordered by a court of arbitration.
Immediate execution (In Danish: umiddelbar fogedforretning) concerns the possibility to become in possession of a movable asset, or on the contrary to expose another of the possession.
Injunction concerns the duty not to act, undertake acts and withstand certain actions. The plaintiff must show that the injunction is necessary, and that the purpose will be made impossible if the result of a normal trial must be awaited.
Arrest concerns protection of a demand and must be followed by a justification case before the ordinary courts as well as a main case regarding the substance of the actual claim. The measures ensure that there is something left to get enforcement against when the plaintiff has obtained the judgement.
Taking of evidence ensures the parties' ability to provide information needed for an approaching trial, where preservation of evidence (In Danish: bevissikring) concerns the possibility to ensure evidence of infringement of an intellectual property right, involving an inspection with the aim of ensuring information.
Litigants may apply for interim measures by way of summary proceedings (référé) or ex parte proceedings (requête). In either case, proceedings are faster than proceedings on the merits and the decision of the Court will be provisional. Interim measures are available in the following cases:
- in case of urgency, when the measure cannot be seriously challenged, or is justified by the existence of a dispute – e.g. appointment of a provisional administrator when a company is blocked due to a conflict between the shareholders;
- to prevent imminent harm or to stop manifestly illegal nuisance – e.g. construction of a building without authorisation;
- for evidentiary purposes, when there is a legitimate reason to preserve or to establish, before proceedings on the merits, the evidence of the facts upon which the resolution of the dispute depends. Evidentiary measures are subject to the same exceptions (e.g. privilege) as disclosure of documents (see question No. 14);
- to protect a creditor prior to the recovery of its claim. These ‘precautionary measures’ (mesures conservatoires) prevent the debtor from disposing of its assets.
Some interim measures may also be obtained without giving prior notice to the defendant:
- when the law allows it. For instance, Article 145 of the French Code of Civil Procedure allows the applicant to request an evidentiary measure by way of ex parte proceedings; or
- when circumstances demand non-adversarial proceedings (e.g. search & seizure orders, where an element of surprise is necessary to avoid the destruction of evidence).
On 18 January 2017, EU Regulation no. 655/2014 of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters entered into force. This Regulation introduces a new procedure enabling a creditor to obtain a precautionary measure over bank accounts in a member state and to have this measure automatically recognised and enforced – without any specific procedure – in other member states.
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.