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CMS Guide to Interim Measures

Editors: Philipp Dickenmann
 
Philipp Dickenmann
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Louise Boswell
 
Louise Boswell
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Introduction
Welcome to the 2016 edition of the CMS Guide to Interim Measures.

The CMS Guide to Interim Measures is a tool for practitioners and in-house counsel to gain an overview of the interim measures available in their own and in the other European jurisdictions, written by practitioners from the relevant country.

When a party engaged in international commerce has to consider taking urgent legal steps against a business partner or a competitor, interim measures will often become necessary to protect its position, both in the company’s own and in other jurisdictions. In fact, interim measures are frequently the only way to ensure swift and efficient safeguarding of the applicant’s interest.

Our Guide to Interim Measures provides the answers to the questions inevitably arising at this juncture: What measures are available in which country? What are the procedural requirements to obtain an interim order? Is there an ex parte measure available? How much time will it take until the court decides?

In our Guide, there is a chapter about interim measures for each jurisdiction, addressing the following topics:
  • Applicable Law
  • Jurisdiction
  • Types of Interim Measures and their Criteria
  • Procedural and Evidential Requirements for Interim Measures
  • Legal Safeguards for the Respondent
  • Timing of Interim Measures
  • Costs
  • Remedies Against the Decision on Interim Measures
  • Enforcement of an Interim Measure
  • Interim Measures in International Commercial Arbitration

For the time being, the CMS Guide to Interim Measures includes the following countries: Austria, Bulgaria, England & Wales, Hungary, Russia, Scotland and Switzerland. More jurisdictions will be added in the next few weeks.

We hope you will find this Guide a helpful and valuable resource. Should you have any further questions, please do not hesitate to contact the editors of this Guide interimmeasures.guide@cmslegal.com or the CMS practitioners of the relevant countries.


Philipp Dickenmann, CMS Zurich Louise Boswell, CMS London

Albania
Authors: Lulzim Alushaj, Iva Cucllari
1. Applicable Law
1.1.1 After the breakup of the communist regime in 1990, Albania faced a new era in litigation procedure. Until then, the concept of private property had not been recognised by the State and the civil procedural law had not allowed for any interim measures except for those relating to family properties. For the first time in Albanian history, from March 1996 the Albanian Civil Procedure Code1(CPC) provided for interim measures.
1.1.2 Interim measures are mainly governed by the CPC. In order to determine whether any additional provisions other than those included in the CPC are applicable to an interim measure, the applicant has to check two issues:
  • whether the claim or the interim measure is of an international nature; and
  • whether there are special provisions for the particular subject matter of the claim.

1.1.3 For international cases, the provisions of the Private International Law2(PIL) and international treaties take precedence over the rules of the CPC. These provisions relate mostly to jurisdiction and enforcement issues.
2. Jurisdiction
2.1 International and geographical jurisdiction – the venue
2.1.1 Before the actual claim commences, the applicant may file its request for an interim measure with any court that has jurisdiction over the substantive case, or with the court within the jurisdiction in which the interim measure will be enforced.
2.1.2 Unlike other jurisdictions which have well-developed and detailed rules for interim measures, Section IV of the CPC contains only a few articles governing all of the options available to individuals and legal entities to secure and preserve their rights until the end of court proceedings.
2.1.3 The plaintiff has the right to apply for interim measures either ante causam (i.e. before starting proceedings) or during the court proceedings. In the event that the plaintiff (the applicant) applies for interim measures ante causam, the competent court of law will decide whether to accept or decline the interim measures sought. The CPC considers the competent court to be the court of law where the applicant resides, or where the property subject to the interim measure is situated.3
2.1.4 On the contrary, in the event that the applicant seeks interim measures during the court proceedings, the CPC considers the competent court to be the court of law where the respondent resides (or has its temporary place of residency) in compliance with Chapter III of the CPC. The competent court dealing with the substantive proceedings is also competent to order interim measures.
2.1.5 Pursuant to the PIL provisions, the Albanian courts of law have jurisdiction to impose interim measures should the measures be executed within the Albanian territory. In addition, Albanian courts have jurisdiction to permit interim measures even if the subject matter of the claim is international. The CPC envisages that the right to impose interim measures extends not only to the first instance courts but also to the court of appeal during any appeal proceedings.
2.1.6 The CPC does not distinguish between the type of interim measures available depending upon the nature of the claim. Interim measures are applicable to any claim during each phase of the court proceedings and, in any case, before the court makes its final decision in the substantive case.4
2.1.7 Administrative claims are now governed by new administrative procedures. The administrative procedures are subject to the Law no. 49/2012 setting out rules and procedures relating to administrative courts and related procedures (APC). The administrative courts are entitled to rule on all those civil cases where one of the parties (plaintiff or defendant) is a public authority. The plaintiff has the right to apply for interim measures, either ante causam, or during the court proceedings5 in the same manner as other civil cases mentioned above at paragraph 2.1.3.
2.1.8 The administrative court may only issue an interim security measure in favour of the plaintiff, if:
  • a reasonable risk exists,6 which might cause immediate, significant, and irreversible damage to the plaintiff; and
  • security7 is provided by the plaintiff to secure any possible damage which might be caused to the defendant by such an interim measure.

2.2 The effect of jurisdiction clauses
2.2.1 Article 52 of CPC enables the parties in a civil court procedure to change the applicable jurisdiction by written agreement. However, any change of the jurisdiction relating or connected to immovable properties and their real rights, as well as in matters relating to an inheritance, is not valid.
2.2.2 In addition, Article 81 of the PIL allows for the possibility of the Albanian courts issuing an interim security measure, even if the parties (plaintiff or defendant) have chosen a foreign jurisdiction in their agreement. Such an interim measure has to be executable in Albania only. It is worth noting that on 2 March 2010 the Albanian Supreme Court issued decision no. 92 which ruled on interim security measures for arbitration cases (further details are set out in section 10 below).
3. Types Of Interim Measures And Their Criteria
3.1 Types of interim measures available
3.1.1 It is not possible to provide a detailed and exhaustive list of interim measures available pursuant to Albanian law. However, it can be said that, when the requirements of “fumus boni juris” (the jeopardised right) and “periculum in mora” (the immediate risk) are met, a specific interim measure – decided on a case by case basis – shall be ordered.
3.1.2 Pursuant to Albanian law, an interim measure aims to keep the status quo and the circumstances unchanged until the court issues a final decision. Therefore an interim security measure is of a preventive and cautionary nature. The main interim security measures are:
  • The seizure of movable and immovable property and credit accounts of the debtor; and
  • Any similar measure that the court considers suitable.

The court might issue one or more interim measures to secure any civil complaint of the applicant, provided that such interim measures do not exceed the total value of the applicant’s claim.
3.1.3 In Albania, the applicant may request an order for interim measures if he reasonably suspects that the final decision of the court will be impossible or difficult to enforce. The interim measure can only be applied if:
  • the applicant’s claim is clearly supported by written evidence; and
  • the applicant has provided the security (monetary or otherwise) requested by the court to secure any possible damage that the interim measure might cause to the respondent.

The CPC restricts the right to request interim measures in court cases to the plaintiff only. However, if the defendant files a counterclaim against the plaintiff during the court procedure, the defendant also has the right to apply for an interim measure.
3.1.4 Any claim for interim measures must be filed with the court together with supporting written evidence. In addition to the written evidence, the applicant must provide security for any potential damage that the interim measures may cause the respondent. The court, in its exclusive discretion, has the right to ask the applicant to provide further security (either monetary or otherwise) to protect the respondent from any possible damage.
3.2 Ex parte measures
3.2.1 The court usually requires both parties to be present during the hearing of applications, including those relating to the imposition of interim measures. However, in special cases, or where there is some urgency, the court will issue its order on an ex parte basis in the presence of the applicant only. These are cases where any delay may cause precisely the problem that the interim measure is intended to avoid (such as the transfer of property or the destruction of documents).
3.2.2 Orders for interim measures can be issued if:
  • the object(s) to be seized comprise movable or immovable property, or debtor’s credits; and
  • every other measure that is deemed appropriate by the court, including suspension of execution, has been taken.

4. Procedural and evidential requirements for interim measures
4.1 Procedural requirements
Form of the request
4.1.1 Interim measures are subject to the rules applicable to summary proceedings. The interim application is filed in writing. Currently, the option to file an electronic writ is not used as the technical procedure is often rather difficult.
Content of the request
4.1.2 The request has to include a comprehensive prayer for interim relief and a precise reference to the grounds on which the request is founded. The principle of party autonomy prevents the court from awarding more than the applicant requested. However, following the principles of a maiore ad minus and the principle of proportionality, the court can – and should – order a lesser measure if the applicant is sufficiently protected by such a measure.
Enclosures to the request
4.1.3 The applicant must attach all supporting evidence to its request. The court may give directions with respect to the conduct of the case after it has received the interim application (e.g. to summon the parties to a hearing or to set the respondent a short time in which to file a written response).
4.2 Implementation of the procedure
4.2.1 All summary proceedings adhere to the principle of acceleration. After the request is received and unless an ex parte measure is sought, the court will either summon the parties to a hearing or set the respondent a short deadline in which to submit a written statement of defence. If summoned to a hearing, the parties (or their representatives) have to physically appear before the judge.
4.2.2 In circumstances where the court opts for a written procedure, the court may decide whether or not to order a second round of written submissions. This second round must be in compliance with the deadline imposed by the CPC. After the hearing or the exchange of briefs, the court will decide on the applicant’s request. Where the court orders an interim measure, it will also issue the necessary directions to enforce the measure.
4.2.3 In the event that a request is obviously unfounded or is inadmissible, the court will dismiss it without further procedures. If the respondent does not submit its statement of defence within the allocated time or does not appear at the hearing, the proceedings will continue without the respondent’s statement of defence or appearance.
4.3 Evidential requirements
Limitation of evidence
4.3.1 In principle, only documentary evidence is permitted during the court proceedings. The meaning of documentary evidence is interpreted in a broad sense, including every document suitable to prove relevant facts (such as papers, drawings, plans, photos, films, and audio recordings).
Standard of proof
4.3.2 Interim measures are granted before or during the civil procedure only when the applicant gives written evidence supporting the application.8 According to Albanian law, written evidence may be in the form of:
  • public deeds drafted by public authorities and by the relevant personnel in charge, including deeds drafted by foreign public authorities; and
  • any document drafted by a public authority and its personnel which are neither competent nor drafted in the required form, but which are signed by the parties.

4.3.3 Any private document signed by the person who drafted it is admissible, provided that he/she recognizes his/her signature. According to Albanian law, private documents also include company books, and books kept by professionals such as lawyers, notaries public, doctors, pharmacists, individual entrepreneurs in general.9
4.3.4 The applicant must provide to the court written evidence demonstrating that it has a civil claim and justifying the interim measure requested by evidencing both the urgency and the potential risks to the applicant. The court and/or the respondent may object to the accuracy of such written evidence, or it may be verified by the court.
5. Legal safeguards for the respondent
5.1 Right to present counter-arguments and evidence
5.1.1 The respondent can present counter-arguments and evidence either at a hearing or in a written statement of defence. In principle, the same restrictions apply to the respondent as to the applicant. The burden is on the applicant to provide sufficient evidence in support of its case. The respondent will then need to provide sufficient evidence to undermine and overthrow the applicant’s case.
5.2 Principle of proportionality
5.2.1 The court is required to apply the principle of proportionality. The principle of proportion-ality is defined in the relevant case law. For example, the Albanian Supreme Court – interpreting Article 206 CPC paragraph (b) – stated that: “Except for the suspension of the enforceability of a Court order, other interim measures are not precisely specified and detailed. This means that, considering each single claim, the competent Court may at its discretion adopt an interim measure deemed appropriate to protect the applicant’s right, without jeopardizing the defendant’s rights”.10
5.2.2 The court retains discretion as to whether to request security from the applicant in respect of the interim measures sought against the respondent.11 As stated above, a seizure order can be given if there is a proven and justified reason and in the case of an emergency. The CPC envisages that the seizure order will be granted in order to guarantee that the right of the applicant will not be disposed of, transformed or lost during the trial period.
5.2.3 All interim orders (taking into account all categories of proceedings such as civil, adminis-trative, commercial and family) are legally binding when the court issues its order. The court’s decision to order an interim measure has to be executed by the bailiff officer with immediate effect. If the first instance court rules on the civil claim in favour of the plaintiff and such decision is appealed, the interim order remains in force and applicable until a fi-nal decision is issued by the court of appeal. Once the final judgment on the case has been issued, the seizure order turns into an executive seizure order, which means that the bailiff officer can seize assets and sell them in accordance with execution procedure.
5.3 Security
5.3.1 Upon the request of the respondent, the court may make the imposition of any interim measure conditional upon the payment of security by the applicant. In its request, the respondent has to explain credibly why he is likely to suffer damage from the measure sought, and has to substantiate the amount of such damage. The court has discretion as to whether to order security or not. The court will refrain from ordering security when there is no doubt about the existence of the underlying substantive claim (i.e. that the applicant has not only referenced credible facts but has substantially proved them).
5.4 Damages for unjustified interim measures
5.4.1 The respondent’s interests are also safeguarded by its right to seek compensatory damages in the case of an unjustified interim measure being successfully obtained against him. The respondent (or a third party) suffering such damage may file its claim as a counter-claim in the underlying main proceedings, or as a separate ordinary claim.
6. Timing of interim measures
6.1 Similarities and differences when filing a request before or after commencing proceedings
6.1.1 Where an interim measure is issued before the main proceedings are commenced, the court will set a deadline by which the applicant must file the substantive claim. The length of the deadline is fixed by the court, taking into consideration the circumstances of the case, and no later than fifteen days from the date in which the decision allowing the interim measure is made, in compliance with Article 204 of the CPC. Failing to meet the deadline to commence the substantive claim will cause the order granting any interim measure to expire automatically.
6.2 Duration of an interim measure procedure
6.2.1 Requests for interim measures are usually decided relatively quickly (and Article 202 CPC envisages the court will decide within five days). There are cases in which the issuance (or denial) of an interim measure takes considerably longer. Usually, the reason for this is that the court is not convinced that the matter is urgent and/or feels that the applicant could have filed its request much earlier but failed to do so without apparent reason. In principle, the interim measure is imposed until judgment in the substantive claim. Should the conditions on which the interim measure was granted change, the court can revoke or modify the interim measure at the request of any interested party.
7. Costs
7.1 Court costs and compensation for professional representation
7.1.1 An applicant should consider the court costs incurred, as well as the costs of its own representation and the fact that it might have to pay court costs in advance.
7.1.2 Court costs include the court fee and, where applicable, the costs of taking evidence and/or translations. The court costs are calculated based on a fixed set of tariffs.
7.1.3 If the applicant files a request for the issuance of a seizure order, the relevant court fee approved by the Ministry of Justice and the Ministry of Finance is LEK 800 (approximately EUR 7.00), not including legal defence costs and expenses of execution which may vary from case to case.
7.2 Advance on costs
7.2.1 In Albania, the court can demand advance payments on costs from the applicant. It should be emphasised that costs relating to technical experts (such experts being admitted to interim proceedings where appropriate) together with translators, inspection and other similar costs should be anticipated by the applicant.
7.3 Decision on costs and cost shifting
7.3.1 The judge makes a decision as to the proportion of the costs incurred (in relation to the application for an interim measure) which a party is responsible for paying at the end of the substantive trial of the matter. The respondent is liable for any court taxes and expenses incurred (including its attorneys’ fee) proportionally in relation to that part of the claim where the court ruled in favour of the applicant. The compensation payable by one party to the other includes the costs (or a proportion of the costs) incurred by the “winning” party in relation to professional representation.
7.3.2 The compensation payable by one party to the other includes the costs (or a proportion of the costs) incurred by the “winning” party in relation to professional representation. There is no tariff regarding the compensation. The successful party can require full com-pensation of its professional representation; however the court has discretion to adjust the amount of the compensation.
8. Remedies against the decision on interim measures
8.1 Modification and revocation
8.1.1 If requested by one of the parties, the interim measures granted may be changed or revoked if the circumstances have changed or if the measures have later proven unjustified.12 Examples of circumstances where there may be a change are:
  • the urgency has ceased;
  • much greater harm is feared; or
  • the subject/substantive matter has ceased to exist.

In all the above cases, the judge must arrange another hearing at which both parties are required to be present.
8.1.2 The court may order an alternative remedy, if either party applies for substitution of the interim measure sought with an alternative measure. This may be requested by one party after the court has heard the other party, and there is an insufficient basis to prove that the conditions for which the interim measure was issued have changed. The court also has the power to remove the measure imposed. Any appeal against the court’s decision that determines the replacement or removal of the measure suspends its execution
8.2 Appellate remedies
8.2.1 The parties have the right to appeal in the following situations:13
  • where a court decision accepted the application for the issuance of an interim measure;
  • where a court decided to change the order applied for/granted; or
  • where a court decided to revoke the order imposing the interim measure.

8.2.2 A decision which rejects the application for an order for an interim measure is not subject to appeal.
8.2.3 An appeal filed by a respondent against the decision of a first instance court does not suspend the application of the interim measure awarded at first instance.
8.2.4 Enforcing an order for an interim measure does not prevent the party subject to the procedure from appealing the court’s decision.
8.2.5 Where an order for an interim measure is appealed, the appeal procedure involves shorter deadlines in comparison to the standard appeal procedure in Albania. The appellant has to file the related pleadings within five days of the date the order was issued.
9. Enforcement of an interim measure
9.1 Enforcement of interim measures issued by national courts
9.1.1 A seizure order issued by a court entitles the applicant to commence the related execution against the respondent’s asset. A seizure order is immediately enforceable, and no further order is needed to commence the procedure.14 Enforcement is carried out by a bailiff officer.
9.1.2 The applicant is immediately entitled to enforce the seizure order commencing from the date it has been issued by the court. The procedure consists of blocking/limiting the availability of assets, rights and/or interests that have been mentioned and listed in the court order. According to the CPC, a seizure may be enforced via:
  • execution on bank accounts of individuals and/or legal entities;
  • execution on movable property;
  • execution on immovable property (seizure over any property that is registered with the competent land registry until the conclusion of the substantive trial or the time determined by the court);
  • execution on ships, aeroplanes, and other similar vehicles; or
  • execution on a debtor's credits.

9.1.3 All assets, rights or interests subject to seizure cannot be disposed of for the duration of the seizure order.
9.2 Enforcement of interim measures issued by foreign courts
9.2.1 The Albanian CPC does not consider that orders in relation to interim measures comprise a final judgment. For this reason, decisions relating to interim measures issued by foreign courts are not recognised in Albania. For example, a worldwide freezing order issued by an English court would not be enforceable in Albania. The order following the substantive trial is however enforceable.
Enforcement under the Lugano Convention
9.2.2 The Lugano Convention is not applicable in Albania, but Albania does recognise other Conventions (in relation to the enforcement of orders) including the Hague Convention of 1 February 1971 (relating to the enforceability of orders issued by foreign courts, which has been ratified by Albania), as well as the New York Convention 1958 (relating to the enforcement of the awards issued by arbitration panels) and the European Convention for Arbitration (Geneva 21 May 1961).
10. Interim measures in international commercial arbitration
10.1 Interim measures by state courts
10.1.1 The Albanian Supreme Court on 2 March 2010 issued decision no. 92 in relation to interim measures for international arbitration cases. It decided that Albanian courts can grant interim measures even when an international arbitration tribunal has jurisdiction, although the Albanian courts have done so in only a few cases when the parties were also involved in arbitration procedures at the same time.
10.1.2 In cases involving international commercial arbitration, the interim measure is applied when and if (for example) the rights subject to the arbitration procedures concern properties located in Albanian territory. The Albanian Supreme Court’s decision creates the possibility for the application of civil procedural rules in cases where the applicant seeks a seizure order in a civil court, even where the parties have agreed to resolving their disputes in an international arbitration tribunal.
11. Contacts
CMS Adonnino Ascoli & Cavasola Scamoni Sh.p.k.
Rr. Sami Frashëri
Red Building – 1st Floor
1001 Tirana, Albania
12. References
  • Law no. 8116 and subsequent amendments.
  • Law no. 10428 in compliance with the European Commission Regulation no. 593/2008.
  • CPC, art 204.
  • CPC, art 203.
  • In any case, before the administrative court has issued the final decision.
  • Based on written evidence.
  • Specified by the court only. Should the court deem it necessary, the applicant must provide security (monetary or otherwise) for possible damage that may be caused to the respondent in granting the interim measure sought.
  • CPC, art 202.
  • CPC, art 260.
  • Order Nr.10, del 24.3.2004
  • CPC, art 202, paragraph II(b).
  • CPC, art 207 and 211.
  • CPC, art 209.
  • CPC, art 510.

Austria
Author: Daniela Karollus-Bruner
1. Applicable Law
1.1.1 Under Austrian law, interim measures are governed by the Austrian Enforcement Act (EA), namely sections 378 et seq. A series of other regulations contain specific provisions, such as the following:1
  • section 24 of the Federal Act against Unfair Competition secures cease-and-desist orders under competition law;
  • section 87c of the Austrian Copyright Act secures cease-and-desist orders under copyright law;
  • section 458 of the Austrian Civil Procedure Code (CPC) establishes the legal basis for interim relief in actions of trespass;
  • section 48 of the Austrian Anti-trust Code provides interim measures in order to bring an end to certain violations such as infringements of the cartel prohibition;
  • section 74 of the Austrian Code for the Labour and Social Court allows preliminary payments in social justice proceedings.

1.1.2 At a European level, article 35 of Regulation (EC) No 1215/2012 (Brussels I Regulation) provides for the possibility of applying for provisional, including protective, measures to the courts of a Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter. In international contexts, bi- and multilateral treaties such as the Lugano Convention may be relevant.
2. Jurisdiction
2.1 International and geographical jurisdiction – the venue
2.1.1 If the request for interim measures is filed at the same time as the lawsuit or in the course of pending proceedings, the court of the main proceedings has jurisdiction.2
2.1.2 Otherwise it is primarily the court in whose jurisdiction the respondent is domiciled or has its habitual residence or seat that will have jurisdiction.3 In the event that such jurisdiction is not given, it is either the location of the concerned object or the garnishee’s domicile, habitual residence or seat or the place where the interim measure is to be executed which is determinative.4 This applies not only to the period prior to court proceedings, but also in securing upcoming arbitral awards5 or pending proceedings abroad.
2.1.3 Within the scope of European law, the jurisdiction of the court of the main proceedings may additionally result from the Brussels I Regulation.
2.1.4 Austrian Courts have international jurisdiction to order interim relief if the matter complies with the above-stated requirements regarding the regional rules of territorial jurisdiction.6
2.2 The effect of jurisdiction clauses
2.2.1 Jurisdiction clauses relating to interim measures are invalid under Austrian law.7 Clauses designating jurisdiction of the court of the main proceedings do not determine jurisdiction for interim relief, but may of course affect it (see paragraph 2.1.1 above).
2.3 Subject-matter jurisdiction
2.3.1 Before the main proceedings are pending, district courts (“Bezirksgericht”) are competent to order interim measures,8 but in certain matters such as in competition law, copyright law, consumer protection law or labour and social law, the potentially competent court of the main proceedings has jurisdiction.9 This court may not necessarily be a district court.
2.3.2 In Austria, in most court districts, commercial and labour law cases are handled by the “Landesgericht”. In Vienna only there is a special Commercial Court (“Handelsgericht”) and a Labour Law Court (“Arbeits- und Sozialgericht”).
3. Types of Interim Measures and their Criteria
3.1 Three categories
3.1.1 The interim measures provided for by Austrian law can be divided into three categories: preventive measures, regulatory measures and performance measures. The categorisation is not of great practical importance, but provides a general overview by presenting the principal characteristics.
Preventive measures (“Sicherungsverfügungen”)
3.1.2 Preventive measures may be granted in order to secure the enforceability of either monetary claims10 (see section 3.2) or other claims11 (see section 3.3) from which an ultimate judgment may be satisfied. The latter also includes actions for declarations or actions requesting a change of a legal right or status.12
3.1.3 The purpose and content of these measures is to ensure the judicial assertion or realisation of a specific claim. The measures taken must therefore be within the scope of the underlying claim, which means that they can never grant more rights or burden the opponent to a greater extent than a favourable decision would.
Regulatory measures (“Regelungsverfügungen”)
3.1.4 Regulatory measures allow for constructive intervention and thus regulate the temporary state of affairs rather than just freeze the situation as preventive measures would. However, there is no clear definition, and the term itself is subject to controversies. Section 381 no 2 of EA is seen as the key provision for regulatory measures.
3.1.5 The function of regulatory measures exceeds the security purpose of preventive measures. Section 381 no 2 of EA refers to preventing imminent violence or irrecoverable damage.13
3.1.6 In spite of the wide drafting of section 381, regulatory measures cannot be considered separately from a contentious legal position or its violation and are therefore contingent upon the existence of a right. But the type and the extent of such measures are not linked to the contents of the main claim. Regulatory measures attempt to create a temporary, tolerable state of affairs until full judicial protection is guaranteed.
3.1.7 As regards the nature of any imminent irrecoverable damage, there are many examples found in case law, including for instance imminent damage to health, violations of privacy and rights relating to personality (e.g. right to a name), imminent loss of customers, violation of a non-compete clause by an executive employee, imminent trade libel, imminent loss of sales (e.g. in relation to competition law infringements), and the disloyal exercise of voting rights by a trustee of a corporation.
Performance measures (“Leistungsverfügungen”)
3.1.8 Performance measures provide preliminary fulfilment (or performance) of an alleged obligation. While the law expressly refers to performance measures only in very particular cases, e.g. in maintenance matters,14 case law holds that these measures are admissible within the scope of section 381 no 2 of EA.
3.1.9 With this in mind, performance measures can be taken in order to prevent imminent violence or irrecoverable damage, but only insofar as the desired factual position is reversible. Beyond that, it is highly controversial whether or not such measures are admissible.
3.2 Interim measures to secure monetary claims15
3.2.1 In order to secure the enforceability of monetary claims, preventive interim measures may be granted in two cases, presupposing either a subjective or an objective threat to the prospective enforcement.
3.2.2 First, preventive interim measures may be taken if it is probable that without the requested measure the respondent would impede or considerably exacerbate the enforcement of the claim,16 e.g. by damaging, destroying or relocating assets. The applicant does not need to prove that the respondent caused the threat by intent or negligence; a certification of the respondent’s carelessness in its own affairs or of a failure to take an action against a third party which it is legally obliged to take may be sufficient. In any event, the applicant is required to certify that the respondent will probably impede the enforcement of the claim.
3.2.3 Secondly, the applicant may base its application on the fact that a judgment would have to be enforced in a state where enforcement is not guaranteed by European or international law. Accordingly, the applicant must make a credible case that the respondent will have no assets on Austrian territory by the time the decision can be enforced but for the interim measure ensuring enforcement against assets located in Austria. This means that the objective threat to the enforceability of monetary claims is limited to cases of an impending unpromising enforcement abroad.
3.2.4 All of the means available to secure monetary claims are listed exhaustively in section 379(3) of EA, comprising the following possible court orders:
  • the custody and administration of the respondent’s movable tangible property, including deposition in court;
  • a prohibition on alienating or pledging the movable tangible property with the effect that any disposal in contravention of this prohibition would be invalid;
  • a prohibition on disposing of a monetary claim, a claim for performance or for delivery of property, and at the same time a demand that the third party does not settle the debt, perform or deliver the property (“Drittverbot”);
  • the administration of the respondent’s real estate; and/or
  • a prohibition on encumbering and alienating the respondent’s real estate.

3.3 Interim measures for non-monetary claims17
3.3.1 Preventive measures for non-monetary claims are widely used because – contrary to monetary claims – there are hardly any other means of securing the claim. With regards to monetary claims, there are not only specific, more rapid civil procedures,18 but also provisions securing the enforcement of judgements19 or allowing provisional enforceability to a certain extent.
3.3.2 The applicant seeking such preventive measures has to show credibly that there is a concrete, objective threat to the enforceability of a claim. In this respect all circumstances to the case are relevant, and there are no further specific requirements regarding the respondent’s behaviour (i.e. the cause of the threat is not limited to the conduct or attitude of the respondent but may result from all circumstances of the case.) Again, impending enforcement abroad may provide a reason for preventive measures.
3.3.3 Section 382 of EA provides for possible means to protect non-monetary claims. The listing is non-exhaustive and goes beyond the listing for monetary claims. In all events, the means are linked to the object to which the applicant’s claim refers. For instance, the court may authorise the applicant to retain the property of the respondent (“Retentionsarrest”), but may also order that the respondent take actions in order to preserve the property or prohibit him from taking adverse actions.
3.4 Preventive taking of evidence
3.4.1 Preliminary taking of evidence is ruled by the Austrian Code of Civil Procedure.20 These provisions are designed to secure the necessary evidence, contrary to interim measures relating to the claim itself. The court is allowed to take evidence even prior to the start of the main proceedings, if there are concerns regarding the loss of or difficulties regarding the use of evidence21 or if there is a relevant legal interest in obtaining a declaration of the current state of an object (i.e. its physical condition).22
3.4.2 Pursuant to the prevailing legal opinion in Austria, interim measures to protect evidence can only be taken if the provisions mentioned above do not apply. But more recent legislation, like the Patent Act,23 the Copyright Act24 or the Trademark Act25 do provide interim measures to protect evidence in specific circumstances.
3.5 The criteria for interim orders
The existence of a claim
3.5.1 In all events, the applicant has to demonstrate credibly the existence of an underlying claim.26 The specific claim and all assertions made in this regard need to be indicated in a precise way.27 If the request is filed at the same time as the lawsuit, a mere reference to the claim is sufficient.
The threat to the substantive claim
3.5.2 Recent case law has consistently held that it is necessary to demonstrate credibly actual circumstances indicating a threat to the underlying claim. The assertion of a theoretically existing risk of threat does not satisfy these requirements.
3.5.3 As mentioned above (see sections 3.2 and 3.3), preventive measures for monetary claims presuppose either a subjective threat to the enforceability of the claim or impending difficulties in enforcement abroad. In contrast, in preventive measures for non-monetary claims, any kind of objective threat is sufficient.
3.5.4 Under Austrian law, the applicant is not required to assert a need for urgent action, even though it might nonetheless be advisable to do so, especially when seeking ex parte measures. The need for urgent action will usually be deducible from the circumstances indicating the specific threat to the claim.
Principle of proportionality

3.5.5 When deciding which measure to take and to what extent, the court has to observe the principle of proportionality28 and thus may only grant measures that are necessary to achieve the aim of the respective provision. The court is limited to the mildest interim measure the applicant applied for. To give an example, the court may have to restrict an interim measure demanding a third party not to settle a debt to only part of the debt.
3.5.6 In this respect, interim measures will not be granted if there is any other reasonable way to avert the threat to the underlying claim.
Reversibility
3.5.7 As a basic principle, interim measures are not supposed to generate irreversible situations, so as to ensure that the initial situation can be restored in the event of a lost case. This rule applies to both preventive and regulatory measures. However, with regard to performance measures, its application is controversial. By way of example, it is open to question whether or not performance measures are admissible if only a payment of damages is possible.
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
Form of the request

4.1.1 The application has to be submitted to the court either in writing or verbally with a written record being made.29 The right to verbally submit is reserved to applicants who are not represented by a lawyer.
Content of the request

4.1.2 The requirements for an application for interim measures include:
  • the general requirements for procedural documents: the name of the court, a designation of the parties and if necessary, the signature of the lawyer acting for the applicant;30
  • the facts relevant to establishing jurisdiction;
  • the requested measure and its duration;31
  • the indication of the underlying claim (either asserted or one that has already been awarded);32 and
  • the facts on which the application is based, notably the specific threat to the underlying claim.

Enclosures of the request

4.1.3 Supportive evidence needs either to be enclosed with the request or simply be cited in it. As the court may invite the applicant to submit the cited evidence,33 it is in the applicant’s interest to immediately attach all relevant documents to the application in order to avoid prolonging the process.
4.2 Implementation of the procedure
4.2.1 After having received the request, the court examines the merits of the claim in issue. As the proceedings for taking evidence adhere to the principle of acceleration, they will not be extensive. It is within the discretion of the court to summon the respondent to a hearing,34 although hearings are rare. The court may simply hear witnesses in order to get a better impression of their credibility. Such “hearings” are not public and are limited to the judge questioning the witness. The court may issue an invitation to submit evidence,35 but may also immediately grant the measure on the basis of a plausible request.36
4.2.2 If the application has deficiencies, the court will ask the applicant to remedy the application within a specified period of time,37 whereas applications that do not comply with the legal requirements regarding the necessary content will be rejected.38
4.3 Evidential requirements
Limitation of evidence

4.3.1 The taking of evidence is limited to evidence kept at the disposal of the court (“parat”)39 such as documents that can be produced easily (including written witness statements), video tapes, CDs or informants who are able to appear before the court. However, any application to hear a witness by means of mutual legal assistance40 or request for an expert’s report41 is inadmissible.
4.3.2 The court is not required to obey the principle of immediacy strictly and is therefore not required to obtain the most direct and immediate impression of the events at issue. The court may base its decision on evidence resulting from other proceedings.42
Standard of proof – credibility

4.3.3 If the court so requires, the applicant has to demonstrate credibly that its claim is justified.43 The test applied by the court is a test of credibility rather than an in-depth assessment of the justification for the applicant’s claim. Nevertheless, the substantiation of the facts must be of such quality that, from the court’s point of view, they are more likely to be true than not true (meaning a greater than fifty percent chance that the claimed threat exists).
4.3.4 With regard to performance measures specifically, the court is obliged to test the credibility of the specific threat to the claim in a particularly stringent way.
5. Legal Safeguards for the Respondent
5.1 Right to be heard
5.1.1 Austrian courts of first instance are generally not required to hear the respondent prior to their decision.44 Only so far as civil rights are concerned, the proceedings have to fulfil the requirements arising out of article 6 of the European Convention on Human Rights (ECHR) (“fair trial”) and the respondent needs to be heard as long as this would not lead to a delay likely to defeat the purpose of the interim measure.45
5.1.2 However, if the respondent has not been heard prior to the court’s decision, it may raise an objection to the court’s decision (“Widerspruch”),46 which can comprise legal or factual arguments.47 In short, through an objection the respondent would be treated as if it had been heard before the court decision was rendered. To avoid objections, courts usually serve the application on the respondent, who may reply within a short deadline set by the court (typically ranging between three days to two weeks).
5.2 Principle of proportionality
5.2.1 As mentioned in paragraphs 3.5.5 and 3.5.6 above, Austrian courts are required to apply the principle of proportionality. Consequently, courts have to observe the principle of proportionality when deciding which measure to order.48
5.3 Security
5.3.1 To protect the respondent the court may make the provisional measure conditional upon the payment of security by the applicant.49 The court is allowed to do so, if either the applicant does not succeed in evidencing sufficiently the threat of the underlying right or if it appears essential according to the circumstances, despite the fact that the applicant successfully evidenced the threat of the underlying right. It is not possible to obtain such security for certain limited types of interim measures, like interim measures in maintenance matters (sections 382(1) no. 8a and 382a of EA), in cases of domestic violence (section 382b of EA) or the violation of privacy (“Stalking”; section 382g of EA).50
5.3.2 The court has the discretion to fix the amount of the security that it sees fit.
5.4 Damages for unjustified interim measures
5.4.1 In the case of unjustified interim measures the respondent has the right to seek damages.51 The applicant has to pay such damages, if:
  • its alleged claim has been finally rejected by the court;
  • its request otherwise proves to be unjustified (e.g. if the objection of the respondent is successful); or
  • it did not file the lawsuit or the request for the granting of an execution (“Exekutionsbewilligungsantrag”) within a certain period of time, if the court had set such a deadline.

5.4.2 The respondent can only benefit from this provision if the interim measure was not justified from the outset.52
5.4.3 The court has the ability to fix the amount of compensation for damages at its own discretion.
5.4.4 A damages claim for unjustified interim measures has to be filed at the court that rendered the interim measure within three years from knowledge of the damage and the identity of the wrongdoer.
6. Timing of Interim Measures
6.1 Similarities and differences when filing a request before or after the case on the substantive matter is pending
6.1.1 The timing of the application does not generally affect the prerequisites for interim measures. It may however have an impact on jurisdiction (see section 2.1).
6.1.2 If an application is submitted before the main proceedings are brought, the court has to set a deadline for the applicant to file a lawsuit (typically three to six months). Within the period specified by the court, the applicant must prove that it filed the lawsuit. The court has to give it the opportunity to express its views and may eventually extend the period for justified reasons.53 In the absence of the filing of the substantive claim by the deadline set, the court has to set aside the ordered measure, either upon application or upon its own initiative.54
6.1.3 The respondent has the right to seek damages on the basis of the expiry of the deadline (see section 5.4). The right to claim for compensation exists even if the action is upheld afterwards.55
6.2 Duration of an interim measure procedure
6.2.1 In practice, requests for interim relief are decided quickly, in very urgent cases potentially within hours. In urgent cases it is nevertheless advisable to notify any third parties involved, e.g. the bank in case of revocation of a bank guarantee.
6.2.2 The interim measures will remain in place for so long as is necessary to the relevant measures to be carried out; until the substantive proceedings are concluded; or as otherwise ordered by the Court. See further section 8.1 below.
7. Costs
7.1 Court costs and compensation for professional representation
7.1.1 The amount of court fees payable by the applicant depends upon the amount in dispute in the main claim56 and is based on a tariff. If the request for interim measures is filed at the same time as the lawsuit or in the course of pending proceedings, there are no (additional) court fees to pay.57
7.1.2 The basis for calculating the costs according to the Austrian tariff for lawyers is the amount in dispute.58 If the application for interim measures and the statement of claims are combined, the fees for this (combined) submission increase by 25%.59
7.2 Decision on costs and cost shifting
7.2.1 The costs of interim proceedings have to be advanced by the applicant.60 The court may only decide upon an obligation to reimburse the costs after the main proceedings have been completed.
7.2.2 Compensation for the costs of interim proceedings depends on the provisions of the law governing the main proceedings. If the law does not provide for reimbursement of costs with respect to the main proceedings, they cannot be awarded in relation to interim measures.61
7.2.3 Under Austrian law, the “loser pays rule” applies. The applicant is entitled to recover the costs incurred to obtain an interim measure when prevailing in the main proceedings and if the interim measure was granted. In contrast, the respondent is entitled to compensation if the interim measure was not granted. If a request is partially admitted, the costs are allocated proportionally.
7.2.4 However, compensation for the costs of the proceedings is limited to (i) the court fees, (ii) the lawyer’s fees based on the Austrian tariff for lawyers and (iii) the costs for any expert’s opinion that has been obtained in advance or the costs for summoning a witness.
8. Remedies Against the Decision on Interim Measures
8.1 Modification and revocation
8.1.1 Pursuant to section 399(1) of EA, an interim measure may be modified or revoked if it has been performed too widely, circumstances have changed, the respondent pays security or if the applicant’s underlying claim has been paid, has been finally rejected or if there is a final decision finding that the underlying claim has already ceased to exist. According to prevailing legal opinion, there may be other reasons for the modification and revocation of an interim order, besides those which are expressly mentioned in section 399 (1) of EA. Thus, the provision may be applied by analogy if the specific need for protection ceased to exist after the court has granted the interim measure.
8.1.2 As a general rule, a request for modification or revocation has to be filed. However, in certain circumstances (e.g. if the court had set a deadline for a certain action of the applicant and the applicant missed the deadline)62 the interim measure may also be revoked ex officio.
8.1.3 The request has to be filed at the court that ordered the interim measure. Unless the main proceedings are pending, any application for modification or revocation of the interim measure must be brought before the court of first instance. The applicant for the interim measure has to be heard in writing or orally before the court renders a decision.63 In general, a hearing is not required by law. However, due to article 6 ECHR, hearing the parties might be mandatory in some cases.
8.1.4 Each and every interim measure has a limited effective period. Nevertheless, the interim measure does not expire automatically after the end of this time period. Instead, a request for revocation has to be filed.64
8.2 Appellate remedies
Outline of the Austrian appellate system

8.2.1 In Austria, the main remedies against a decision concerning interim measures are recourse (“Rekurs”) and objection (“Widerspruch”). Any party can file a recourse against a decision. Jurisdiction rests with the next highest court. On the other hand, the opportunity to file an objection is very limited. It can only be filed by the respondent and only if its right to be heard would otherwise be adversely affected. The court of first instance is competent to decide on an objection.
8.2.2 Remedy against a recourse is a second recourse (“Revisionsrekurs”) to be filed with the Austrian Supreme Court. The second recourse is limited in various ways.
Recourse

8.2.3 A recourse can be filed against the decision of the court of first instance. The reasons for an appeal are limited to facts which should have already been taken into account by the court of first instance based on the documents in the court file (“Neuerungsverbot”). The appellate court is not allowed to review the consideration of evidence by the court of first instance, if the court of first instance has taken the evidence directly (e.g. testimony).65
8.2.4 The recourse has to be filed 14 days after service of the court order regarding the interim measure.66 A recourse suspends the validity but usually not the enforceability of the court order. However, on request the court may suspend the enforcement of an interim measure.67 Recourse proceedings are only in writing.68
Second Recourse

8.2.5 The second recourse is a remedy against the recourse and is directed to the Austrian Supreme Court. Such second recourse is only permitted if a legal question of substantial relevance exists.69 Furthermore, if the amount in dispute is below EUR 30,000 a second recourse may not be permitted and this depends on certain circumstances (e.g. the reason for second recourse). The Supreme Court itself has discretion to accept the case.
8.2.6 The second recourse has to be filed 14 days after service of the appellate court’s decision.70 A second recourse suspends the validity, but usually not the enforceability of the decision of the appellate court. However, also in second recourse proceedings exceptions concerning the suspension of the enforceability may be granted.
Objection

8.2.7 The respondent has the opportunity to file an objection against the decision, if it has not been heard in the proceedings.71 Through such an objection the respondent would be treated as if it had been heard before the court’s decision was rendered. Consequently, the respondent may raise legal and factual arguments as they stood at the time the decision was rendered.
8.2.8 An objection has to be filed within 14 days after service of the decision.72 An objection does not suspend the enforceability of the interim measure, and even if requested to do so the court is prohibited from granting a suspension.73 The court of first instance has jurisdiction. The court has to hold a hearing in order to suspend or to deal with the objection. The court has to examine whether or not the interim order was justified and meets the conditions laid down by the law.74
8.2.9 A recourse may be filed against the decision rendered in the objection proceedings.75
Recourse and Objection

8.2.10 The respondent has the opportunity to file a recourse and an objection simultaneously. If so, courts will decide on the recourse first, unless the respondent declares that it wishes for its objection to be dealt with first.76
9. Enforcement of an Interim Measure
9.1 Enforcement of interim measures issued by national courts
9.1.1 As a general rule, interim measures will be enforced ex officio which means that there is no need for a separate application. If necessary, the court can appoint a bailiff or request another court’s assistance.
9.1.2 Execution is admissible only within a period of one month from the date on which notice was served on the defendant.77 This time limit is particularly relevant for measures that are conditional upon the payment of security. If the applicant fails to lodge the security within one month, the measure granted is invalid and execution prohibited.
9.2 Enforcement of interim measures issued by foreign courts
Enforcement of measures issued in Europe

9.2.1 Within the scope of application of the Brussels I Regulation or the Lugano Convention, interim measures that have been granted by a Member State can be recognised and enforced in Austria.78
9.2.2 However, this does not apply for ex parte measures issued by another Member State. Enforcement is only admissible if the respondent had the right to express its view on the applicant’s allegations regarding the interim measure. The fact that the respondent may have set out its position in advance by filing a protective letter would not be sufficient.
Enforcement of measures issued outside Europe

9.2.3 As most conventions on mutual recognition and enforcement do not comprise interim measures (at least as far as Austria is concerned and apart from matters relating to maintenance obligations), enforcement of foreign measures often fails because of the narrowly drawn requirements.
9.2.4 However, according to Austrian case law, Austrian courts may grant interim measures even if the respondent is domiciled in a state where enforcement of the interim measure is not possible.79 Overall it is advisable to file the request for interim relief directly in Austria or in a Member State of the Brussels I Regulation or the Lugano Convention.
10. Interim Measures in International Commercial Arbitration
10.1 Interim measures by state courts
10.1.1 Under Austrian law, a party is permitted to apply to any competent state court for interim measures in spite of an existing arbitration agreement. This provision applies before and during arbitral proceedings and cannot be waived by the contracting parties. Therefore, the respondent cannot oppose the application on the basis that the court lacks jurisdiction because of an existing arbitration agreement.80
10.1.2 Austrian courts cannot refuse interim measures in aid of arbitration if the arbitration has its seat outside Austria.81
10.2 Interim measures by arbitral tribunal with seat in Austria
10.2.1 Unless otherwise agreed, the arbitral tribunal may, at the request of a party, order provisional or protective measures against another party, as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute, if otherwise the enforcement of the claim would be frustrated or considerably impeded or there is danger that irreparable damage will occur.82
10.2.2 Austrian law expressly prohibits ex parte measures in arbitration.83 Interim relief granted by a tribunal would not be enforceable through the Austrian state courts if the party subjected to the measure has been denied the opportunity to be heard.84
10.3 Interim measures by an arbitral tribunal with its seat abroad
10.3.1 Upon the application of a party, Austrian courts have the authority to enforce interim measures granted by a tribunal regardless of its seat. Austrian courts will enforce arbitral interim measures granted by tribunals seated in Austria, as well as such measures ordered by tribunals seated elsewhere, provided that the enforcement measure takes place in Austria, if the party against whom the interim measure has been ordered resides in Austria, or if the enforcement action should take place in Austria (e.g. if assets are located here).85
10.3.2 However, Austrian courts are entitled to refuse enforcement of interim measures issued by tribunals seated abroad, if they suffer from a defect that, if they were an award, would justify their non-enforcement under an applicable enforcement treaty.86
11. Contacts
CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH
Gauermanngasse 2
1010 Vienna, Austria
12. References
  • The listing is not meant to be exhaustive.
  • EA, s 387(1).
  • EA, s 387(2) in conjunction with the Court Jurisdiction Act (JN), s 66.
  • EA, s 387(2).
  • CPC, s 585.
  • JN, s 27a.
  • EA, s 402(4) in conjunction with s 51.
  • EA s 387(2).
  • EA s 387(3) and (4); this provision applies analogously to labour and social law: cp. Austrian Supreme Court, 5 July 2001, 8 ObA 122/01a.
  • EA, s 379(2) no 2.
  • EA, s 381 no 1.
  • Regarding actions for declarations this is controversial.
  • EA, s 381 no 2.
  • EA, s 382(1) no 8 letter a.
  • EA, s 379.
  • EA, s 379(2) no 1.
  • EA, s 381 no 1.
  • Order for payment procedure (“Mahnverfahren”, CPC, s 244 et seq. and s 448); European order for payment procedure according to the Regulation (EC) No 1896/2006; procedures for change disputes (CPC, S 555 et ceq.).
  • EA, s 370 et seq. (“Exekution zur Sicherstellung”).
  • CPC, s 384 et seq.
  • CPC, s 384(1).
  • CPC, s 384(2).
  • Patent Act, s 151b.
  • Copyright Act, s 87c.
  • Trademark Act, s 68g.
  • EA, s 389(1).
  • Cp. CPC, s 226 stating general requirements for the content of a claim.
  • EA, s 392, 399(1) no 1 and 402(4).
  • EA, s 402(4) in conjunction with s 53.
  • CPC, s 75 et seq.
  • EA, s 389(1).
  • EA, s 389 (1).
  • EA, s 389 (1).
  • Cp. para 5.1.
  • EA, s 389 (1); Cp. para 4.1.3.
  • 3 Ob 217/09x.
  • EA, s 54 (3).
  • E.g. rejection because of the lack of precision regarding the asserted claim, decision of the Austrian Supreme Court, 18 September 1991, 1 Ob 27/91.
  • CPC, s 274.
  • Austrian Supreme Court, 6 July 2011, 7 Ob 86/11i.
  • Austrian Supreme Court, 23 September 1997, 4 Ob 251/97h.
  • Austrian Supreme Court, 28 September 2006, 4 Ob 144/06i.
  • EA, s 389(1).
  • EA, s 402(4) in conjunction with s 3(2); EA s 397(1).
  • Austrian Supreme Court, 5 October 2010, 17 Ob 11/10g; Austrian Supreme Court, 2 December 2010, 2 Ob 140/10t; Austrian Supreme Court, 1 Ob 156/10p; Austrian Supreme Court, 10 July 2012, 4 Ob 56/12g.
  • EA, s 397.
  • See section 8 below.
  • See paragraphs 3.5.5. et seq. above.
  • EA, s 390.
  • EA, s 390(4).
  • EA, s 394.
  • Austrian Supreme Court, 11 December 2007, 17 Ob 28/07b.
  • EA, s 58(1).
  • EA, s 392(2).
  • EA, s 394(1).
  • Court Fee Act, s 15(4).
  • Court Fee Act, fee item 1, note 4.
  • Austrian lawyers' tariff law, s 3 and 13.
  • Austrian lawyers' tariff law, fee item 3 note 4.
  • EA, s 393(1).
  • EA, s 393(1).
  • EA, s 391(2).
  • EA, s 399(2).
  • Austrian Supreme Court, 4 August 2009, 9 Ob 32/09k; König, Einstweilige Verfügungen im Zivilverfahren4, 8/12; Rechberger/Oberhammer, Exekutionsrecht5 (2010) recital 533.
  • Austrian Supreme Court, 2 December 1993, 6 Ob 650/93; Austrian Supreme Court, 19 November 2008, 3 Ob 191/08x.
  • EA, s 402(3).
  • EA, s 402(4) in conjunction with EA, s 78(1) and CCP, s 524(2).
  • EA, s 402(4) in conjunction with EA, s 78(1) and CCP, s 526(1).
  • EA, s 402(4) in conjunction with EA, s 78(1) and CCP, s 528(1).
  • EA, s 402(3).
  • EA, s 397.
  • EA, s 397(2).
  • EA. s 397(3).
  • EA, s 398(1)
  • EA art, 402(1); for recourse see paragraphs 8.2.3. et seq. above.
  • Austrian Supreme Court, 28 April 1970, 4 Ob 319/70; Austrian Supreme Court, 26 February.2002, 1 Ob 225/01x.
  • EA, s 396.
  • Interim measures constitute decisions within the meaning of the Brussels I Regulation, art 2.
  • Decision of the Austrian Supreme Court, 12 October 1988, Om 5/88 regarding a respondent domiciled in Liechtenstein; see also Austrian Supreme Court, 16 October 2001, 4 Ob 235/01i in matters of cease and desist obligations.
  • CPC, s 585; see also Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber (Vienna Rules), art 33(5).
  • CPC, s 577(2).
  • CPC, s 593(1); Vienna Rules, s 22(1).
  • CPC, s 593(1).
  • CPC, s 593(4).
  • CPC, s 593(3).
  • CPC, s 593(4).

Bulgaria
Authors: Assen Georgiev, Maria Lazarova-Evtimova, Iliyan Petrov, Deyan Draguiev
1. Applicable Law
1.1.1 The new Bulgarian Civil Procedure Code (CPC) entered into force on 1 March 2008. It superseded the long-standing previous Civil Procedure Code from 1952.
1.1.2 The CPC contains the general provisions on interim (i.e. provisional and protective) measures in civil cases (Articles 389 – 403 therein).
1.1.3 For cases with international elements, the Code of Private International Law (CPIL) and Council Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation) are the main relevant instruments (see section 9.2 below).
2. Jurisdiction
2.1 International and geographical jurisdiction – the venue
2.1.1 An application for interim measures may be filed either (1) in the course of pending court proceedings or (2) prior to filing for the commencement of court proceedings.
2.1.2 In the first case, the application should be filed with the court where the procedure on the merits of the dispute (the main claim) is pending.1 Interim measures may be requested not only at first instance but also in the appellate courts. On appeal, an application may be filed before the collection of any new evidence is completed.
2.1.3 In the second case, it is possible to apply for interim measures prior to filing for the commencement of the proceedings relating to the main claim (which deals with the subject-matter of the dispute).2 Bulgarian legal theory and practice terms this “security for a future claim”.
2.1.4 The Brussels I Regulation and the CPIL regulate interim measures in cases with international elements. The Brussels I Regulation has primacy in respect of cases arising within the EU, while the CPIL applies to the areas not covered by the Brussels I Regulation.
2.1.5 Under Article 35 of the Brussels I Regulation, Bulgarian courts are empowered to grant provisional, including protective, measures even if they are not competent to rule on the main claim. The measures that the courts are competent to impose are those provided for in the domestic law of the respective Member State. According to the case law of the Court of Justice of the European Union (CJEU)3 there should be a “real connecting link” between the court granting interim relief and the subject-matter of the interim measures. Therefore, Bulgarian courts are primarily competent to grant measures with respect to any subject-matter within the Bulgarian territory. The question of which particular Bulgarian courts are competent in this situation is decided by having regard to internal procedural rules, i.e. the CPC.
2.1.6 According to Article 25 CPIL, which is triggered when the Brussels I Regulation is not applicable, Bulgarian courts are competent to grant interim measures where the subject-matter of the measure is located in Bulgaria and the decision on the main claim by the foreign court would be capable of being recognised and enforced in Bulgaria. This rule sets out a higher threshold than the one under the Brussels I Regulation. The rules of the CPC governing subject-matter jurisdiction of Bulgarian courts (Articles 103-117 CPC) determine which particular Bulgarian court is competent to deal with the application for interim measures.
2.2 The effect of jurisdiction clauses
2.2.1 As a matter of principle, parties are not entitled to vary judicial competence on interim measures by agreement, including via jurisdiction clauses. Jurisdiction under Bulgarian law is considered mandatory. If parties insert a jurisdiction clause to alter the jurisdiction on the merits (on the main claim), the jurisdiction to grant interim measures may also be altered. However, this is allowed only where the rights that form the subject-matter of the claim have pecuniary value.
2.3 Subject-matter jurisdiction
2.3.1 If the interim measure is sought in proceedings that are already pending or ongoing, the competent court is the one deciding on the merits of the case (the main claim).4 Jurisdiction should be determined in accordance with the general rules on jurisdiction in the CPC (Articles 103-117 CPC), be it statutorily defined or specified by agreement between the parties to the dispute, regardless of the subject matter of the dispute.
2.3.2 The applicant for pre-action interim relief (security for a future claim) may seek relief from the court at the location of either the applicant’s domicile (permanent address) for natural persons, or at the registered seat for corporate entities. If the subject-matter of the requested interim measure is real estate property, the competent court is the one at the property’s location. If the requested measure is a stay of enforcement proceedings, the competent court is the one at the location of the execution of the enforcement proceedings in question.
3. Types of Interim Measures and their Criteria
3.1 General criteria on interim measures
3.1.1 The measure that is granted should be adequate to address the risks identified by the applicant. Case law suggests that the court should consider all the circumstances and the nature of the rights that are to be protected.5 The interim measure should not unduly restrict the rights of the respondent as compared to the necessity of any measure and the interests of the applicant.6 According to case law, there is a rebuttable presumption in favour of necessity in any given case, unless sufficient evidence is provided to prove the contrary.7
3.1.2 The CPC lays down some restrictions on the imposition of interim measures so as to safeguard vulnerable categories of debtors. A distraint cannot be imposed on receivables that cannot be subject to enforcement.8 Certain property cannot be enforced against, for instance: fuel for three months; tools and machines used by craftsmen; a sole home (household) property, etc.9 Enforcement against the salary or pension of a debtor is possible if the debtor has a salary or pension above the threshold of the minimum wage or pension and only to a certain extent, provided for in detail in the CPC.10 The purpose behind both provisions is to ensure there are sufficient resources for a minimum standard of living. Moreover, budgetary subsidies transferred to the bank accounts of authorities supported by the state budget cannot be enforced against, and likewise cannot be subject to distraint.11
3.2 Categories of interim measures
3.2.1 The general aim of interim measures is to safeguard the status quo so that the applicant may exercise his rights or, alternatively, that the applicant is not prevented from exercising his rights if the main claim is successful.
3.2.2 Neither the CPC nor other legislative instruments lay down an exhaustive list of interim measures that may be used to protect the applicant’s rights. The CPC defines some measures and provides that the court has discretion to grant any other measure that it deems adequate with regard to the applicant’s request for relief.
3.2.3 Strictly speaking, Article 397 CPC enumerates three types of measures:
  • attachment of real estate property;
  • distraint (seizure) of moveable property and receivables (money claims); and
  • any other measures that the court determines as appropriate. The CPC explicitly includes within the scope of these measures a stay of enforcement proceedings, or arrest of a motor vehicle. These are examples only and are not intended to restrict the scope of the measures that the court may impose.
The court may grant several interim measures in order to secure the full extent of the main claim.
3.2.4 However, notwithstanding the fact that there is no exhaustive list, it is possible to outline three general categories of measures. The first category seeks to secure pecuniary claims. The second category aims at restricting the disposal of rights over real estate or other property. The third category deals with securing any other rights. With respect to the latter, possible rights that may be protected by such measures are rights without pecuniary value, such as family relations, child protection, etc.
3.3 Various interim measures and criteria
Attachment
3.3.1 Attachment is imposed only on real estate (immovable) property. It is granted by the court at the location of that property (if the measure applied for is security for a future claim), or by the court where the main claim is pending. The attachment seeks to prevent a party to the dispute (pending or future) from disposing of its rights over the property before the dispute is settled, thereby depriving the applicant (claimant) of the possibility of using the property as security for enforcement of the final court decision.
3.3.2 A proprietary disposition contrary to the imposed attachment is invalid with respect to the applicant. If its application is granted, the applicant is entitled to enforce against the attached property notwithstanding the rights acquired by any third parties after the attachment was imposed, especially if the property is transferred. If a third party enforces against an attached property, the applicant is entitled to participate in the distribution of the proceeds from the value of the property.12
3.3.3 Where the claim arises out of a contract that identifies real estate property as security for the performance of the contract, the attachment should be imposed on that particular asset.13 This is not applicable if the property is not available or it has already been encumbered by third party rights.
Distraint
3.3.4 Distraints are imposed on moveable property and receivables (monetary claims). The effects of dispositions contrary to the imposed interim measures are similar to those for attachments, namely that such dispositions are invalid with regard to the applicant and it can enforce against the distraint assets even if they are transferred to a third party. In other words, the applicant can reach these assets no matter who owns them.
3.3.5 Most often applicants request that a distraint on receivables is imposed on the bank accounts of the debtor (the respondent). The distraint may be imposed on receivables due from other third parties. In such cases, third parties are notified not to pay the debtor directly but to pay an enforcement agent (bailiff) acting for the applicant. The purpose is to prevent the respondent from making use of the sums paid by the debtors; the sum is to be held in an account managed by the enforcement agent for the period during which the distraint is imposed.
Other measures
3.3.6 As outlined in section 3.2 above, it is within the court’s discretion to grant other interim measures as it deems appropriate. The court may stay enforcement proceedings, which operates as an injunction addressed to the enforcement agent conducting the enforcement on another case. The court may oblige a party to follow, or refrain from, certain conduct, and breach of this obligation triggers a pecuniary sanction by an enforcement agent for up to BGN 200 (ca. EUR 100) for each occurrence of non-compliance.
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
Form of the request
4.1.1 The application should be in writing.14 The application can be incorporated into the statement of claim that initiates the main claim proceedings.
Content of the request
4.1.2 The application should state the nature of the interim measure requested and the value of the main claim15 The CPC does not explicitly provide for any other mandatory elements of the application but according to case law the application should meet the formal requirements for a statement of claim.16 Accordingly, the application should be written in Bulgarian, it should state the seized court, provide details identifying the respondent (name, address, telephone/fax number, etc.), and be signed by the applicant or its representative.
Enclosures of the request
4.1.3 Article 395 CPC does not contain specific requirements as to the enclosures to the application. However, since the application should be based on persuasive evidence (see section 4.3 below), sufficient documentary evidence should be enclosed with the application.
4.2 Implementation of the procedure
4.2.1 The procedure is initiated by the applicant. The only exceptions are disputes regarding alimony, where the court may grant interim measures upon its own motion. The court where the application is submitted should make a ruling on it within a day of it being filed. No hearing is held. In practice, courts usually process and deal with such applications within 3-5 days.
4.2.2 The procedure at first instance is ex parte (unilateral). The respondent is not notified of the application and the procedure, and it is not served with a copy of the application. It is therefore prevented from making submissions and raising any objections to the application. The purpose behind this rule is to reduce the risk that the respondent will swiftly dispose of its assets, thus harming the applicant.
4.2.3 The court considers the application and issues a ruling. If the court is satisfied that the prerequisites for granting the interim measure(s) requested are satisfied (see section 4.3 below), the court issues a ruling and an injunctive order.17 In cases where a guarantee has to be provided (see paragraph 4.3.6 below), the order is not issued until the guarantee is provided. Where the applicant seeks security for a future claim, the court will require the applicant to submit evidence that the claim has been brought within the period specified by the court (which, according to Article 390, Para 3 of the CPC, cannot exceed one month).
4.3 Evidential requirements
4.3.1 The application is granted if (1) the enforcement of the decision on the merits of the dispute would otherwise be rendered impossible or hindered, and (2) there is either (a) persuasive written evidence in this regard, or (b) the applicant provides a guarantee even though the evidence is not persuasive.
Necessity
4.3.2 A key factor for the granting of the requested interim measure is that the measure requested must be necessary. Necessity would be present where, as the CPC states in its Article 391, the realisation of the rights of the applicant under the final decision would be impossible or impeded if no interim measure were granted. The necessity may arise prior to bringing a claim, as soon as the claim is brought, or in the course of the court proceedings on the main claim. Necessity may arise in the context of both pecuniary and non-pecuniary claims.
Possible justification of the merits of the claim
4.3.3 The CPC does not expressly stipulate it, but both doctrine and case law consider that the other significant criterion should be that the claim is likely to be proven as justified in substance. The court undertakes a prima facie analysis of the claim to determine whether the application demonstrates the existence of the rights which are disputed. Such justification would be recognised where the evidence enclosed with the application indicates facts that are capable of giving rise to, or prove the existence of, the rights forming the subject-matter of the dispute, either in the pending proceedings or in those that would constitute a future claim.
Guarantee
4.3.4 Even if the main claim is not found to be justified, the court may still grant interim measures. The applicant may obtain an interim measure on the condition that it provides a guarantee.18 The purpose of the guarantee is to provide compensation for the direct damage that the respondent may suffer from a measure that is subsequently found to have been imposed without justification. The applicable rules for guarantees are in the Obligations and Contracts Act (OCA). According to 180-181 of the OCA, the guarantee may be in the form of a:
  • Monetary pledge;
  • Pledge of securities; or
  • Mortgage over real estate property.

The money and the securities have to be deposited in a bank account of the court to which the application is submitted. The mortgage is established by a written declaration of consent notarized by a notary public and registered with the Property Register at the Registry Agency. It is possible for a third party (i.e. not the applicant) to stand as a guarantor. The pledges and the mortgage may be lifted only by a court order. The state, governmental institutions and hospitals are exempted from the obligation to provide a guarantee even where there are grounds for the provision of a guarantee.
4.3.5 The court has the power to combine several different measures in order to secure the full extent of the value of the claim. If the evidence cannot prove the application in full, the court may impose a measure that secures only the proven extent of the value of the claim.19 Accordingly, the applicant may be requested to provide partial security for its claim. Interim measures may be granted only on the condition of a guarantee even if the applicant submits persuasive written evidence.20 The guiding principle in this regard is to secure compensation for the damage that the respondent may suffer.
4.3.6 A stay of enforcement proceedings is granted only when a guarantee is provided.
Exceptions
4.3.7 Interim measures for monetary claims against the state, governmental institutions and hospitals are not admissible.21 The rationale behind the rule is that these entities are subsidised by the state. It is deemed that the state will be able to provide payment. Likewise, enforcement against state assets, including assets of governmental institutions and of hospitals, is prohibited.
5. Legal Safeguards for the Respondent
5.1 Ex parte proceedings
5.1.1 As the procedure for granting of interim measures is ex parte (unilateral) at first instance, the respondent does not have the opportunity to participate and submit objections or a statement of defence. Therefore the respondent cannot take action at first instance to protect its rights at that stage of the proceedings. However, the respondent is allowed to appeal a ruling that allows the interim measures once the order has been made. The appeal procedure is bilateral (see section 8.2 below).
5.2 Safeguards
5.2.1 There are various safeguards in place to protect the respondent – some of them are to be found in the course of the proceedings initiated by the application for interim measures, some after the measures have already been imposed, and some after the proceedings in respect of the main claim are completed. These are summarized below and dealt with in greater detail in the relevant sections of this chapter:
  • The court should not grant the requested interim measure if the measure is not adequate to address the risks identified by the applicant, which means undue restriction on the rights of the respondent is not allowed (see paragraph 3.1.1 above).
  • There are restrictions on the imposition of attachments and distraints (see paragraph 3.1.2 above).
  • The respondent may appeal the ruling which allows the interim measures (see section 8.2 below).
  • The respondent may request modification of the interim measures (see paragraph 8.1.1 below).
  • If the main claim is rejected as inadmissible, or in the case of security for a future claim, if the claim is not submitted within the period required by the court, or if the case is terminated, the respondent may seek compensation from the claimant/applicant for the damage incurred by the imposition of the interim measures applied for.22

6. Timing of Interim Measures
6.1 Similarities and differences when filing a request before or after the case on the main claim is pending
6.1.1 Bulgarian law does not recognise any differences between these two situations. See paragraph 6.2.1 below on the duration of the interim measure procedure in general.
6.2 Duration of an interim measure procedure
6.2.1 The seized court should make a ruling on the application for interim measures on the same day it is submitted.23 There is no difference between making application while the case is pending or before it is initiated. As the procedure is ex parte, a copy is not served on the respondent and therefore the procedure has to be extremely speedy. However, it is very likely that in practice a court, especially a very busy one, will delay the issuance of the ruling longer than the statutory period. Once the ruling is made, it is immediately enforceable. The respondent is notified of the interim measure granted by the court after it is imposed. The respondent is informed of the imposition of the measures by (i) a notification from the Property Register when attachment of real estate property is registered, (ii) an enforcement agent when the distraint is imposed, or (iii) the court for other interim measures. The interim measure will last as long as the main claim continues, unless the prerequisites for it cease to exist. A party may file a request with the court for the measure to be repealed (cancelled).
7. Costs
7.1 Court costs
7.1.1 Costs relating to interim measures are regulated by the Tariff on the state fees collected by the courts under the CPC (Tariff). Article 22 of the Tariff stipulates that the fee for an application for security for a future claim is BGN 40 (ca. EUR 20). It does not deal with applications made in the course of a pending case, so it may be inferred that no specific fees are due in such situations in addition to the general fees payable for the initiation of a case. If the applicant is successful in the main claim, it can be reimbursed for costs incurred in respect of the interim measures application.
8. Remedies Against the Decision on Interim Measures
8.1 Modification and cancellation
8.1.1 It is possible to ask the court to modify interim measures that have been imposed (Article 398 CPC). Modification allows for the substitution of an interim measure for another one. It does not function as an appeal. Modification can be initiated by either the applicant or the respondent, or both. Where a party files a motion for modification, the court grants a three-day period for the other party to submit objections with respect to the requested modification. In the case of interim measures regarding pecuniary claims, except for disputes regarding property rights, the respondent is entitled to request the substitution of the interim measure with a guarantee (for guarantees see paragraph 4.3.4).24 The substitution in this case does not require the consent of the applicant.
8.1.2 Cancellation of interim measures imposed by the court is possible in several cases:
  • If the respondent has appealed the ruling imposing the interim measures, and the ruling has been revoked.
  • If the applicant withdraws the application upon its own motion.
  • If the claim procedure is terminated because the claim is proven to be without justification, or the future claim is found to be inadmissible, or the claimant withdraws or waives its claim.

8.2 Appellate remedies
Outline of the Bulgarian appellate system
8.2.1 Bulgaria features a three-instance judicial system. First-instance courts are regional and district courts. Regional courts deal with cases below BGN 25,000 (ca. EUR 11,500). District courts entertain cases above this threshold and disputes regarding property rights of a value exceeding BGN 50,000 (ca. EUR 25,000); and disputes regarding adoption, custody and registration in public registers. The decisions of regional courts are challenged before the district courts, while the decisions of district courts are challenged before one of the five appellate courts.
8.2.2 There are limited grounds for an appeal to the highest court, the Supreme Court of Cassation. The Supreme Court of Cassation reviews only issues in second-instance decisions that (1) conflict with the case law of the Supreme Court of Cassation, (2) have been decided by courts in a contradictory manner, or (3) are important for the accurate application of the law and its development.25 Furthermore, even if the above requirements are met, cassation appeals are permitted only for rulings issued by the second-instance court that grant the requested interim measure/s for the first time (i.e., where the first-instance court rejected the interim relief application).
8.2.3 Claims with a value below BGN 5,000 (ca. EUR 2500) in civil cases and BGN 20,000 (ca. EUR 10,000) in commercial cases cannot be subject to appeals to the Supreme Court of Cassation in any event.
8.2.4 The current regime on cassation provides very limited grounds for appeal before the Supreme Court of Cassation.
8.2.5 Both the applicant and the respondent have the standing to appeal the ruling on the requested interim measures before the second instance courts, but on different grounds.26
  • If the first-instance court rejects the application for interim measures, this ruling may be appealed by the applicant within a 7-day period before the second instance court. As at that point the procedure is ex parte, the respondent is not informed of the rejection and a copy of the appeal is not served on the respondent. If the second-instance court permits the interim measures, then the respondent is entitled to appeal this decision before the Supreme Court of Cassation, subject to the conditions outlined in paragraph 8.2.2 above.
  • The respondent may appeal the ruling of the first-instance court granting interim measures. The respondent is informed of the imposition of the measures by (i) a notification from the Property Register for attachment of real estate property, by (ii) an enforcement agent in the case of a distraint, or by (iii) the court for other interim measures. The respondent has a 7-day period from being notified of the imposed measure in which to submit an appeal. The procedure then becomes bilateral. A copy of the appeal is served on the applicant, who may submit a reply within three days. The second-instance court makes decision without holding a hearing. According to the mandatory interpretation by the Supreme Court of Cassation,27 second-instance rulings reviewing first-instance court rulings that impose interim measures cannot be appealed before the Supreme Court of Cassation. In this case the ruling of second-instance court is final and non-appealable.

8.2.6 The appeal against the ruling of the first instance court does not suspend its enforcement and the measures can be imposed while the procedure at the second instance is pending.
9. Enforcement of an Interim Measure
9.1 Enforcement of interim measures issued by national courts
9.1.1 The basis for the imposition of interim measures is the court ruling and the injunctive order issued on the basis of such ruling. The latter evidences to the relevant parties (e.g. enforcement agent, Property Register, Commercial Register) that the measures granted by the court are to be complied with. Article 400 CPC stipulates that once the order is issued by the court (which happens ex officio), the applicant has to undertake its own actions for the realisation of the measures.
9.1.2 Depending upon the particular measure imposed, the enforcement procedure will be entrusted to different parties. Below follows a brief description of the main methods of enforcement:
  • For an attachment on real estate property, the order should be submitted by the applicant to the Property Register. The attachment is registered. The Register notifies the property owner.
  • A distraint may take a variety of forms – on moveable property (vehicles, chattels, etc.), receivables, shares, securities, etc. The distraint is imposed by an enforcement agent. The enforcement agent has official functions but it is not always a state authority. In the case of moveable property the agent draws up a descriptive protocol (inventory) of the property. Afterwards the property is entrusted to a third party acting as a depository. As for a distraint on receivables, the enforcement agent sends notification to the debtor and the third party. A distraint on company shares is imposed by an enforcement agent sending a notification to the Commercial Register. As for other securities, the enforcement agent prepares a descriptive protocol, takes possession of the securities and deposits them in a bank. In case of dematerialized shares, the distraint is notified to the Central Depository (being the institution which organizes and maintains dematerialized shares) and these shares should, from this point on, be managed by the public enforcement agent.
  • Where the measure is a stay on enforcement proceedings, the order has to be submitted by the applicant to the enforcement agent conducting the enforcement procedure.

9.2 Enforcement of interim measures issued by foreign courts
9.2.1 Interim measures issued by foreign courts can be enforced under the EU Regulations governing enforcement of judgments in civil and commercial matters, for example Council Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation); Council Regulation No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility; Council Regulation No. 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, or the Bulgarian Code on Private International Law. In most cases enforcement will be based on the Brussels I Regulation or the CPIL.
9.2.2 When considering the enforcement of interim measures granted by other EU Member State courts under the Brussels I Regulation or another EU Regulation, it should be borne in mind that in its case law the Court of Justice of the European Union28 has reasoned that there should be a “real connecting link” between the issuing court and the subject-matter of the requested measure. Otherwise, the request may lead to undue expansion of the jurisdiction of the issuing court and infringe the scope of sovereignty of the EU Member State where enforcement would be sought. In practical terms, if a court in another EU Member State allows an interim measure, e.g. the freezing of a bank account in Bulgaria, it is questionable whether this measure would be enforced in Bulgaria. The Bulgarian case law on this aspect has not yet developed. Therefore, parties seeking interim relief regarding assets located in Bulgaria may prefer to request measures directly from the Bulgarian court instead of obtaining interim relief abroad and trying to enforce it in Bulgaria afterwards.
9.2.3 If the issuing court is not within the EU, enforcement of any interim measure ordered would be under the CPIL (Article 117). This sets out the general procedure regulating any enforcement of judgments of foreign judicial authorities. The competent court for such enforcement procedures is the Sofia City Court. The court is not allowed to rule on the substance of the matter decided by the foreign authority, but may only review whether it complies with the statutory requirements in Article 117 CPIL being:
  • the foreign court or authority had jurisdiction according to the provisions of Bulgarian law, but not if the nationality of the claimant or the registration thereof in the state of the court seized was the only ground for the foreign jurisdiction over pecuniary claims;
  • the respondent was served with a copy of the statement of claim, the parties were duly summoned, and fundamental principles of Bulgarian law relating to the defence of the parties have not been prejudiced;
  • the Bulgarian court has not ruled in proceedings on the same facts, involving the same cause of action and between the same parties;
  • no proceedings based on the same facts, involving the same cause of action and between the same parties, are brought before a Bulgarian court earlier than a case instituted before the foreign court in the matter on which the judgment (in respect of which recognition and enforcement is sought) has been rendered;
  • the recognition or enforcement is not contrary to Bulgarian public policy.

10. Interim Measures in International Commercial Arbitration
10.1 Interim measures by state courts
10.1.1 The relevant legislative instrument regulating arbitration, including international commercial arbitrations, is the International Commercial Arbitration Act (ICAA). According to Article 9 ICAA, Bulgarian state courts have jurisdiction to grant interim measures regarding a dispute which is subject to arbitration proceedings. The measures may be granted both prior to the commencement of arbitration or while the case is pending before the arbitral tribunal. The rules and procedure of the CPC are applicable to the interim measures procedure.
10.2 Interim measures by an arbitral tribunal with its seat in Bulgaria
10.2.1 An arbitral tribunal with its seat in Bulgaria is subject to the application of the ICAA (Article 1). According to Article 21 ICAA, where no contrary agreement exists, the parties to arbitration proceedings may request interim measures from the arbitral tribunal. The ICAA stipulates that upon the application by one of the parties, the tribunal may oblige the other party to undertake appropriate measures to secure the rights of the applicant party. There is no specific indication of what these measures may be. The tribunal may require the provision of a guarantee from the applicant.
10.2.2 The ICAA does not provide the arbitral tribunal with an absolute jurisdiction to grant interim measures. Some types of interim measures available in Bulgaria are difficult to reconcile with the powers of the arbitral tribunal, since most measures require assistance from public officials who are not obliged to comply with any order issued by the arbitral tribunal. Moreover, the case law of the most commonly chosen Bulgarian arbitral institution – the Arbitration Court at the Bulgarian Chamber of Commerce and Industry – suggests that interim measures imposed by the arbitral tribunal may be binding only upon the parties to the dispute and should not affect rights of third parties.29
10.2.3 In this regard, the arbitral tribunal is entitled to request assistance from the competent state court for the granting of interim measures that fall outside the powers of the arbitral tribunal, including interim relief that may affect rights of third parties.
10.3 Interim measures by an arbitral tribunal with its seat abroad
10.3.1 The ICAA does not cover arbitration proceedings with a seat outside Bulgaria, and there is no other Bulgarian legislation that provides for a special regime for such cases. With respect to the enforcement of interim measures granted by an arbitral tribunal with its seat abroad, the proper procedure to be followed should be the one laid down by the CPIL as set out in section 9.2 above.
11. Contacts
CMS Cameron McKenna Nabarro Olswang LLP
Landmark Centre
14 Tzar Osvoboditel Blvd.
1000 Sofia, Bulgaria
Maria Lazarova-Evtimova
T +359 2 92199 37
E maria.lazarova@cms-cmno.com
Iliyan Petrov
T +359 2 92199 94
E iliyan.petrov@cms-cmno.com
Deyan Draguiev
T +359 2 92199 95
E deyan.draguiev@cms-cmno.com
12. References
  • CPC, art 389.
  • CPC, art 390.
  • See para 9.2.2.
  • CPC, art 389.
  • Supreme Court of Cassation, 11 January 2010, case no 888/2009.
  • Supreme Court of Cassation, 13 July 2009, case no 388/2009.
  • Supreme Court of Cassation, 18 December 2012, case no 926/2012.
  • CPC, art 393, para 2.
  • CPC, art 444.
  • CPC, art 446.
  • CPC, art 520.
  • CPC, art 459.
  • CPC, art 399.
  • CPC, art 395, para 1.
  • CPC, art 395, para 1.
  • CPC, art 127.
  • CPC, art 395, para 3.
  • CPC, art 391, para 1, item 2.
  • CPC, art 394.
  • CPC, art 391, para 2.
  • CPC, art 393, para 1.
  • CPC, art 403.
  • CPC, art 395, para 2.
  • CPC, art 398, para 2.
  • CPC, art 280.
  • CPC, art 396.
  • Interpretative Decision no. 1 of 21.07.2010 under case no. 1/2010 of the General Assembly of the Civil and Commercial Divisions of the Supreme Court of Cassation.
  • Bernard Denilauler v SNC Couchet Freres, 21 May 1980, case no C-125/79; Van Uden Maritime BV v Kommanditgesellschaft in Firma Deco-Line, 17 November 1998, case no C-391-95.
  • Arbitration Court at Bulgarian Chamber of Commerce and Industry, 14 October 2005, international arbitration case no 17/2005.

China
1. Applicable Law
1.1.1 In the People’s Republic of China (PRC), interim measures in general civil matters are governed by the PRC Civil Procedure Law (CPL).1 The CPL in its current form took effect on 1 January 2013, after being revised by a Decision of the Standing Committee of the National People’s Congress issued on 31 August 2012 (CPL Amendment 2013). One of the major developments of the CPL Amendment 2013 dealt with interim measures, specifically the introduction of preliminary injunctions.
1.1.2 Further details on interim measures are provided in the Supreme People’s Court Interpretation of the Application of the PRC Civil Procedure Law issued by the Supreme Court on 4 February 2015 (Interpretation) and the Provisions of the Supreme People's Court on Several Issues concerning Cases of Property Preservation Handled by People's Courts issued by the Supreme Court on 1 December 2016 (Provisions).2
1.1.3 As well as the provisions in the CPL, interim measures applicable to intellectual property disputes are set out in Articles 57 and 58 of the PRC Trademark Law, Articles 66 and 67 of the PRC Patent Law and Articles 50 and 51 of the PRC Copyright Law.
2. Jurisdiction
2.1 International and geographical jurisdiction – the venue
International jurisdiction
2.1.1 Civil actions against PRC domiciled parties, individuals residing in or bodies corporate registered in the PRC, are subject to the jurisdiction of the PRC courts.
2.1.2 Where an action is instituted against a defendant who is not domiciled within the PRC concerning a dispute over a contract or rights and interests in property, the PRC courts have jurisdiction if the:
  • contract was executed or performed;
  • subject matter of the action is located;
  • defendant has distrainable property; or
  • defendant maintains a representative office

within the territory of the PRC.3

Where a dispute pertains to breach of a contract which is deemed to be foreign-related there may be a choice of governing law, even where the PRC courts have jurisdiction.4
Geographical jurisdiction for interim measures
2.1.3 If court proceedings have not been commenced, then an application for an interim measure must be made to the people’s court located in the area where:
  • the property to which the dispute relates is located;
  • the respondent is domiciled; or
  • when an interim measure is sought to preserve evidence, the evidence is located.5

Where a lower court which has jurisdiction considers that a higher level court should hear the application, the lower court has discretion to move the application to a more senior court.6
2.1.4 If an action has already commenced, the interested party seeking the interim measure may only file the application for an interim measure with the same court as the court in which the action has been commenced.7 If the parties commence an action later at a court other than the court in which the pre-trial preservative measures were issued, this court shall transfer the pending case and, thus, the jurisdiction for the preservative measures to the court in which the parties commenced proceedings.8
2.1.5 The courts first enforcing the seizure, detainment or freezing of the property are responsible for the relevant disposal of such property. However, for claims where security is to be repaid first, or claims where issues relating to priority over the seized property involved are the subject of execution procedures within the jurisdiction of any other courts, those courts that are examining the priority claims may require the transfer of such seized property for execution, provided at least 60 days have lapsed from the date of first seizure and the courts first enforcing the seizure have not yet issued an auction announcement on the seized property, or begun the selling procedure for the seized property.9
2.1.6 If a party to a dispute arising from: (i) foreign economic and trade activities; (ii) international transportation; or (iii) maritime activities, refers the dispute to an international arbitral institution established by the PRC10 and subsequently applies for an interim measure, the international arbitral institution must submit the application to the intermediate-level court where the respondent is domiciled or the respondent’s property is located.11
2.2 The effect of jurisdiction clauses
2.2.1 Under article 34 of the CPL, the parties to a dispute may, by written agreement, choose the court to hear the dispute. This could be by way of a jurisdiction clause in the written contract to which the dispute relates, or the parties can agree a stand-alone jurisdiction agreement after a dispute has arisen.12 When specifying their preferred jurisdiction, the parties may choose any of the locations where: (i) the claimant or respondent is domiciled; (ii) the contract is performed or signed; (iii) the disputed subject matter is located; or (iv) any other place connected to the dispute.
2.2.2 Legally speaking, a jurisdiction clause or a stand-alone jurisdiction agreement does not affect the jurisdiction of the PRC courts to hear applications for interim measures.13 However, in practice PRC courts are often reluctant to accept applications for interim measures if there is a foreign court jurisdiction clause, unless the jurisdiction clause expressly excludes the jurisdiction for interim measures.
2.3 Subject matter jurisdiction
2.3.1 In addition to the general courts known as People’s Courts, the PRC has three more specialised court systems – the military, railway transport and maritime courts. These specialised courts have exclusive jurisdiction over disputes relating to certain subject matters determined by the Provisions of the Supreme Court on Several Issues Concerning the Jurisdiction of Military Courts over Civil Cases, the Several Provisions of the Supreme Court on the Jurisdiction of the Railway Transport Courts and the PRC Special Maritime Procedure Law.
2.4 Choice of venue if more than one court has jurisdiction
2.4.1 Where a dispute does not fall within the scope of the specialised court systems set out above and in the event that more than one court could have jurisdiction, the claimant may institute an action in any one of the available courts (as outlined in paragraph 2.1.3 above).
2.4.2 If a claimant institutes the same action in two or more courts which could have jurisdiction over the action, then the court which accepts the case first will be deemed to have jurisdiction over the action.14
2.4.3 Foreign parties and parties with foreign owners or investors should take into account the fact that courts located where domestic Chinese parties are domiciled may be inclined to protect the local party. This is particularly the case outside established international business regions. This should be a practical consideration before choosing a venue, if more than one is available.
3. Types of Interim Measures and their Criteria
3.1 Article 100 and article 101 of the CPL
3.1.1 The two main articles that govern interim measures are articles 100 and 101 of the CPL. Interim measures under article 100 are only available during the course of litigation, i.e. after the case has been accepted by the court and before the final judgment has been given. In contrast, interim measures under article 101 are only available before an action has been instituted or before applying for arbitration. This distinction is important as different procedures and criteria will apply, depending on whether the party applies for an interim measure before or after instituting proceedings.
3.2 Types of interim measures
3.2.1 Under PRC law, there are four types of interim measure, specifically:
  • measures relating to the preservation of property;
  • prohibitory injunctions (orders prohibiting a party from carrying out certain acts);
  • mandatory injunctions (orders requiring a party to perform certain acts); and
  • measures relating to the preservation of evidence.

3.3 Preservation of property
3.3.1 Under article 102 of the CPL, “property” is limited to property within the scope of the dispute (for example the subject matter of the contract, payment due under it, etc.).
3.3.2 Under article 103 of the CPL, property can be preserved by the court by means of seizure, impounding, freezing of accounts or any other means prescribed by the law. The court has a specialised enforcement department who will enforce the court’s order for seizure, impounding of assets etc.
3.3.3 When applying for property preservation, the applicant shall submit his application to the court along with the relevant evidential materials. An application shall set out the following items:
  • the identity, delivery addresses, and contact information of the preservation applicant and the person against whom preservation is adopted;
  • the claims as well as the facts and reasons they are based on;
  • the amount of the property concerned or the subject matter of the dispute concerned;
  • clear information on, or specific clues to, property under preservation;
  • information or credit certification on the security to be provided for property preservation, or reasons why it is unnecessary to provide security; and
  • other matters that need to be set out. 15

During litigation proceedings
3.3.4 The preservation measures under article 100 of the CPL are only available to parties to ongoing litigation. The court may order an interim measure for the preservation of property upon the application of either party or at its own discretion. This will be done where the court determines that it may be difficult to enforce a judgment due to the behaviour of a party or because not issuing an interim measure may cause damage to a party, or for some other reason.
3.3.5 Where a party has applied for an interim measure, the court may require the applicant to provide security as a pre-condition to issuing its order. Should the applicant fail to provide such security when requested by the court, the application will be dismissed.
3.3.6 Where a court accepts an application for property preservation, it shall decide whether to award an interim measure to preserve property within five days; if a security needs to be provided, it shall decide within five days upon provision of the security; if it rules to adopt preservation measures, such measures shall be implemented within five days. In urgent situations, a court must decide whether to award an interim measure to preserve property within 48 hours of accepting the application; if preservation measures are decided to be adopted, such measures shall be implemented immediately.16
Prior to litigation proceedings
3.3.7 The property preservation measure under article 101 of the CPL is only available to parties who have not yet commenced litigation or applied for arbitration. The circumstances must be such that the lawful rights and interests of the applicant would be irreparably damaged should the application for the preservation measure be refused.
3.3.8 The applicant must provide security equivalent to the value of the property to be preserved, otherwise the application will be dismissed. If the applicant fails to institute a court action or apply for arbitration within 30 days of the preservative measure being granted, the court shall revoke the preservation order ex officio.
3.3.9 Under article 101 of the CPL, a court must always issue a ruling within 48 hours of accepting an application.
3.3.10 Once a property preservation measure is issued by the court under either articles 100 or 101 of the CPL, it should be executed immediately (as set out in paragraph 9.1.2 below).
Duration
3.3.11 Once a court has issued a preservation measure, no entity may revoke it within its validity period (called the preservation period), except for the issuing court or a superior court.17
3.3.12 A preservation measure may be revoked where:
  • it is deemed to have been wrongly granted;
  • the applicant withdraws its application for the preservative measure;
  • the litigation or the applicant’s claim fails; or
  • the court deems that the preservative measure should be revoked due to other relevant circumstances.18

3.3.13 Furthermore, if the creditor fails to apply for enforcement within five days of the expiry of the enforcement period (which is stipulated in the judgment), the court shall revoke the preservation measure.19
Reconsideration – no appeal
3.3.14 Where a party objects to a property preservation order, it may apply for reconsideration of the order by the court.20 An application for reconsideration must be submitted within five days of receiving the preservation order.21 If the court considers that the property preservation was incorrectly granted, the court may modify or revoke the original order.22 The application for reconsideration and subsequent process will not suspend or postpone execution of the order.
3.3.15 A property preservation ruling cannot be appealed.23Therefore, any property preservation ruling that is not reconsidered or is reconsidered and subsequently affirmed will be legally effective.24
Substitution of property
3.3.16 According to article 104 of the CPL, if a party that is subject to a property dispute provides alternative property in substitution of that initially preserved, the court may revoke the interim preservation measure and release the previously preserved property.
3.3.17 The property provided in substitution may comprise of any asset, for example real estate, or cash etc. However, such assets must be regarded by the court as being sufficiently easy to enforce against.25
3.3.18 Where the person against whom preservation is adopted has several items of property available for preservation, as long as the preservation purpose can be achieved, the court shall choose to preserve the property with minor impact on the production and operating activities of the person affected.26
3.3.19 It is recommended that, in practice, foreign parties provide property located in the PRC as a substitute for initially preserved property when aiming for its release. It is not recommended that foreign parties provide cash funds for substitution. Due to the PRC’s foreign exchange control policy, it is often difficult, or even impossible, for the courts to remit back abroad any money provided for substitution after the property preservation measure has been removed.
Compensation
3.3.20 Where an application for a property preservation measure is successful, but is subsequently found to be unjustified or erroneous, the applicant must compensate the respondent for any losses incurred.27
Security
3.3.21 According to article 100 of the CPL, the court is not obliged to require security from the applicant but is entitled to do so at its own discretion.
3.3.22 Where a court orders a preservation applicant to provide security in accordance with article 100 of the CPL, the amount of the security shall not exceed 30% of the applied preservation amount; if the property involved in an application for preservation is the subject matter of a dispute, the amount of the security shall not exceed 30% of the value of the subject matter of the dispute.28
3.3.23 In contrast, an applicant making use of article 101 of the CPL must provide security, otherwise the court will be obliged to dismiss the application. The security must be of equivalent value to that of the property to be preserved. Only in special circumstances may the court determine an alternative amount.29 No guidance is given in the legislation on what “special circumstances” may include.
3.3.24 During the property preservation period, where the security provided by a preservation applicant is insufficient to compensate the possible losses caused to the person against whom preservation is adopted, the court may order the applicant to provide additional guarantees accordingly; if the applicant refuses to do so, the court may order release of the preservation wholly or partially.30
3.3.25 The court can order the applicant to provide security by written notice.31
3.3.26 Any asset class may be suitable security and may be accepted by the court by means of seizure, detention or freezing.32 In practice, the PRC courts accept various categories of property as security e.g. bank guarantee letters, letters of undertaking by insurance companies, movable assets, real estate, etc.
3.3.27 Foreign applicants should carefully consider the risks of being caught by foreign exchange controls before providing cash as security. As referred to above, it is often difficult, or even impossible, for the courts to remit the cash used as security abroad after termination of the litigation proceedings. A practical solution is to ensure that a foreign-invested enterprise (FIE) is established in the PRC with investment by the foreign applicant. Upon the authorisation and on behalf of the foreign applicant, this FIE may then receive the cash used as security once it is no longer required. A court transferring cash to an FIE would not fall within the scope of foreign exchange controls.
3.4 Prohibitory and mandatory injunctions
3.4.1 Since 1 January 2013, parties have been able to apply for prohibitory and mandatory injunctions under articles 100 and 101 of the CPL.
3.4.2 Under article 102 of the CPL, the prohibitory or mandatory injunction sought must relate to the underlying proceedings and be required in order to protect the underlying claim. Different rules apply depending on whether the parties have already commenced litigation proceedings.
During litigation proceedings
3.4.3 Prohibitory and mandatory injunctions under article 100 of the CPL are only available to the parties to ongoing litigation. The court may grant a prohibitory or mandatory injunction upon an application by either party. As set out in paragraphs 3.3.4 to 3.3.6 above, the court retains discretion to grant an interim order of this nature and may require the provision of security. In emergency situations, the court must issue a ruling within 48 hours of accepting the application.
3.4.4 The court may grant a prohibitory or mandatory injunction upon the application of either party or of its own initiative. Further, the court may also require the applicant to provide security as a condition for issuing the injunction. Should the applicant fail to do as requested, the application will be dismissed.
3.4.5 If the circumstances are urgent, the court must issue a ruling within 48 hours of accepting the application.33 Once a prohibitory or mandatory injunction is granted by the court, it should be executed immediately.
Prior to litigation proceedings
3.4.6 Before parties have commenced litigation or arbitration, article 101 of the CPL offers the same relief as article 100 (applicable during ongoing litigation), provided that the lawful rights and interests of an interested or concerned party would otherwise be irreparably damaged should the application be refused.
3.4.7 Article 101 of the CPL does not explicitly list prohibitory and mandatory injunctions as possible interim measures, rather it more generally lists “preservative measures”. The fact that article 101 enables an applicant to apply for the same measures as article 100 has been expressly confirmed by the Interpretation.34
3.4.8 As set out in paragraphs 3.3.8 and 3.3.9 above, the applicant must provide security otherwise the application will be dismissed. The value of security required shall be decided by the court according to the specific facts of the case.35 The applicant must also institute proceedings or apply for arbitration within 30 days of the prohibitory or mandatory injunction being granted.
3.4.9 A court must issue a ruling within 48 hours of accepting the application.36 Once a prohibitory or mandatory injunction is granted by the court, it should be executed immediately.
Types of prohibitory and mandatory injunctions
3.4.10 Since prohibitory and mandatory injunctions are relatively new instruments under the PRC law, there are few practical examples of such injunctions being awarded. In general, such injunctions include prohibiting the respondent from disposing of the subject matter of a contract or forcing the respondent to cease committing a tortious act.37 In principle, restraining a party from a breach of contract could also be the subject of a prohibitory injunction.
3.4.11 In intellectual property-related litigation, prohibitory and mandatory injunctions have been available for a considerable amount of time under articles 57 and 58 of the PRC Trademark Law, articles 66 and 67 of the PRC Patent Law and articles 50 and 51 of the PRC Copyright Law. Such injunctions include attachment orders relating to the preservation of property and evidence, including cease-and-desist injunctions to stop certain acts being committed by a defendant that infringes intellectual property rights and orders to remove certain published content. It is likely that similar types of injunctions will be adopted in general civil litigation under articles 100 and 101 of the CPL.
Compensation
3.4.12 If an application for a prohibitory or mandatory injunction was successful but the injunction is subsequently determined to be unjustified or erroneously granted, the applicant shall compensate the defendant for any losses incurred.38
Reconsideration – no appeal
3.4.13 Where a party objects to a prohibitory or mandatory injunction, it may apply for reconsideration by the court.39 The process is the same as for orders for the preservation of property, see paragraphs 3.3.14 to 3.3.16 above. As for property preservation orders, a prohibitory or mandatory injunction ruling cannot be appealed.40 Therefore, any ruling that is not reconsidered or is reconsidered and subsequently affirmed will be legally effective.41
3.5 Preservation of evidence
3.5.1 Parties may apply for the preservation of evidence under article 81 of the CPL. However different rules apply depending on whether litigation proceedings have already commenced.
3.5.2 According to article 81 of the CPL, the provisions of chapter 9 of the CPL on preservative measures (articles 100 et. seq.) shall also apply to the preservation of evidence.
During litigation proceedings
3.5.3 According to article 81 of the CPL, the court may issue an evidence preservation order during litigation proceedings if it decides that any evidence may be destroyed or be harder to obtain at a later time. The court may issue an evidence preservation order on the application of a party to the proceedings or on its own initiative.
Prior to litigation proceedings
3.5.4 An interested party who has not yet commenced litigation or arbitration proceedings may also apply to the court for an evidence preservation order. To grant such an application, in addition to finding that any evidence is likely to be destroyed or harder to obtain at a later time, the court must also determine that the circumstances are urgent.
3.5.5 If the applicant fails to commence court proceedings or apply for arbitration within 30 days of the evidence preservation measure being granted, the preserved evidence shall be released ex officio.
3.5.6 A court must issue a ruling within 48 hours of accepting an application for the preservation of evidence. Once a prohibitory or mandatory injunction is granted by the court, it should be executed immediately.
3.6 Interim measures during appeal procedure
3.6.1 If, in an appeal against a first instance judgment, and before the court of second instance receives the appellate case, a party removes, conceals, sells or damages assets and preservative measures appear necessary, the court of first instance must take measures to prevent such conduct either on the application of the other party or ex officio. The ruling of the court of first instance on preservative measures must be reported promptly to the court of second instance.42
3.7 Interim measures during enforcement procedure
3.7.1 After a judgment has been handed down, a party may apply to the enforcing court to issue preservative measures. To be successful in its application, the applicant must prove that the other party is transferring assets and that the judgment might not be enforced, or that it will be difficult to enforce without obtaining the requested preservative measures.43
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
4.1.1 All the types of interim measures set out in this chapter may be granted by a court upon application by a party (or future party to proceedings). If litigation proceedings have already commenced, the court may also grant an interim measure on its own initiative. In practice, the courts rarely impose interim measures without an application being made.44
Form of the application
4.1.2 There are no specific requirements which an application for an interim measure must meet in the CPL. However, several provincial level courts in municipal cities have stated that applications must be in writing.45
4.1.3 A practical obstacle to fast and efficient injunctive relief before Chinese courts for foreign applicants is that if an applicant appoints a lawyer or another PRC citizen as an agent ad litem, the applicant must file a power of attorney. Further, where the applicant for injunctive relief is a foreigner, stateless person, foreign enterprise or foreign organisation without a domicile within PRC territory, its power of attorney will only become effective:
  • after it has been notarised by a notary public from the applicant’s own country; and
  • when it has been authorised either by the PRC embassy or a consulate in that state, or has been certified under the procedures provided in the relevant treaty between the PRC and the issuing country.46

4.1.4 In addition, where a foreign applicant is a body corporate, its certificate of incorporation and a certificate evidencing its legal representative must be submitted to the court. To the extent that these documents are of foreign origin, the above notarisation and authentication procedures applicable to powers of attorney will again apply.47 This process may take several weeks. As it is not possible to expedite this process, even in the event that an urgent injunction is sought, the above formalities constitute a major obstacle for efficient injunctive relief.
Content of the application
4.1.5 There are no specific requirements relating to the content of an application for a preservative measure in the CPL. However, several provincial level courts in municipal cities have stated that applications must include the following information:48
  • basic information regarding the applicant and the respondent;
  • a description of the preservative measure applied for;
  • facts relevant to and reasons for the application; and
  • when applying for the preservation of property, details of the property including its name, description, quantity (where there is more than one property in question), value, owner, location and any other relevant evidence.

4.1.6 Since prohibitory and mandatory injunctions were newly introduced by the CPL Amendment 2013, no guidance has been provided regarding such applications by any higher courts. In the meantime, it would be advisable to include the details listed in paragraph 4.1.5 in any application.
4.2 Implementation of the procedure
4.2.1 The CPL does not grant the respondent the automatic right to present counter-arguments and evidence before the interim measures have been granted. The court may rule on the interim measure ex parte, based on the evidence presented by the applicant only, without notice given to the respondent. If the case is not urgent, the court may, in its discretion, give notice to the respondent to present himself at the court and submit counter-arguments regarding whether it is appropriate to grant the interim measure.49
4.2.2 Where interim measures have been granted, the court must inform the respondent. The respondent may apply for reconsideration of the ruling as set out in paragraphs 3.3.14 to 3.3.15 above.
4.3 Evidential requirements
4.3.1 As a general rule the PRC courts prefer written, contemporaneous supporting evidence over witness statements. It is therefore advisable to support any application in this way, for example by evidencing the behaviour of the opposing party to the dispute, or by showing the court why it would be difficult to enforce a judgment or to compensate for the type of damage which would be caused to the applicant if the application was refused.50 PRC law does not require the negative effects of not granting an interim measure on the applicant to outweigh the negative effects of imposing an interim measure on the respondent. However, in practice this may be taken into consideration by PRC courts when deciding whether to grant an interim measure. Thus, an applicant may also wish to include arguments of this nature in its submissions.
4.3.2 Often the courts are willing to grant an interim measure as long as valuable security is provided, rather than overly scrutinising the legal requirements.
5. Legal Safeguards for the Respondent
5.1 Rights to present counter-arguments and evidence
5.1.1 While the CPL does not grant the respondent the automatic right to present counter-arguments and evidence before the interim measures have been granted, the respondent may present its counter-arguments and evidence by applying for reconsideration of the ruling as set out in paragraphs 3.3.13 to 3.3.14 above.
5.2 Security
5.2.1 During litigation proceedings the court may require the applicant to provide security as a pre-condition for issuing the requested interim measure. Where an applicant applies for preservation measures before litigation has commenced, the applicant must provide security regardless of whether the court orders it.
5.2.2 Should the applicant fail to provide security in any of the above situations, the court must dismiss the application for the preservation measures. Further details regarding security are set out in paragraphs 3.3.21 to 3.3.27 above.
5.3 Damages for unjustified interim measures
5.3.1 The respondent has the right to seek compensatory damages in the event of an unjustified interim measure being granted. Under article 105 of the CPL, the applicant must compensate the respondent for any losses incurred due to the granting of an interim measure which is later found to be unjustified or erroneously granted. Such damages cannot be raised as a counterclaim in the ongoing litigation, rather the respondent must commence separate court proceedings subsequently to recoup his loss.
6. Timing of Interim Measures
6.1 Similarities and differences when filing an application before or during the substantive litigation
6.1.1 If an applicant files for an interim measure before litigation has commenced, he will have a greater choice of court in which to make an application.51 Where the applicant is granted an interim measure prior to the commencement of litigation, he is subject to a time limit of 30 days to institute an action or apply for arbitration.52
6.1.2 Applicants who have already commenced court proceedings are not subject to a corresponding time limit.
6.2 Duration of an interim measure procedure
6.2.1 Applications for interim measures that are filed before instituting litigation or applying for arbitration are generally granted faster in practice than applications that are filed during court proceedings.
6.2.2 Where the applicant has not yet instituted court proceedings, once the court has accepted the application it must issue a ruling within 48 hours. Where the court decides to grant the interim measure, it must be executed immediately.53
6.2.3 Where applicants have already instituted proceedings, the 48-hour time-limit only applies in urgent circumstances.54 No guidance is given on what circumstances are urgent when deciding on interim measures. However, article 170 of the Interpretation contains criteria for circumstances to be regarded urgent when deciding on the provisional enforcement of judgments and these criteria may be taken into account by the courts when deciding on the urgency of interim measures. The court may determine the circumstances to be urgent if it is necessary to:
  • immediately stop infringement or remove an obstacle;
  • immediately stop a certain act;
  • obtain compensation by claiming on an insurance policy which is urgently needed to restart production or business operations;
  • immediately return social insurance payments and social assistance funds; and/or
  • return monies immediately where the failure to do which would severely affect the life, production and/or business operation of the respective party.55

7. Costs
7.1 Court costs and compensation for professional representation
General court fees
7.1.1 Under article 6 of the Measures for the Payment of Court Costs (Measures), the parties to court proceedings must pay for court costs which consist of the following:
  • acceptance fees;56
  • application fees;
  • travelling, lodging, meal expenses and compensation for absence from work for relevant witnesses of fact, payments to expert witnesses, translators or interpreters and adjuster’s costs of appearing before the courts;57 and
  • expenses for copying archived materials and legal documents of the case.

These expenses are payable only after the reason for payment has arisen.58
7.1.2 The court costs will be borne by the losing party in the final proceedings, unless the successful party volunteers to pay the costs.59
Application fee
7.1.3 The application fee for interim measures is separate from the application fee for the main litigation under the Measures. For the time being, it is understood that application fees should also be paid for prohibitory and mandatory injunctions, despite them not being included in the scope of the current Measures.
7.1.4 For preservative measures, the application fee payable is RMB 30 for each application provided that the value of the property to be preserved does not exceed RMB 1,000 or if no quantifiable property is involved. Where the value of property exceeds RMB 1,000, the application fee will be 1% of the portion of the property which exceeds RMB 1,000 but does not exceed RMB 100,000, and 0.5% of the portion exceeding RMB 100,000. The application fee is capped at RMB 5,000.
7.1.5 The application fee for an interim measure is payable by the applicant.60 If the applicant is also the party that commences the main proceedings, the applicant can seek compensation of both application fees in the main proceedings from the other party.61
Compensation for professional representation
7.1.6 As a matter of principle, lawyer’s fees incurred by the winning party must be borne by the winning party itself. Under PRC law, there is generally no legal basis for the courts to award the winning party compensation for lawyer’s fees. Exceptions are detailed in paragraphs 7.1.7 to 7.1.9 below.
7.1.7 Under the PRC Copyright Law, the infringer of a copyright or copyright-related right must compensate the copyright owner for his actual losses.62 Compensation will include the reasonable expenses of the innocent party – this has been interpreted to include lawyers’ fees incurred in investigating and collecting evidence in respect of the infringement, provided that the fee complies with the relevant laws and regulations.63 Although not explicitly stated in the law or in any publicly available court judgments, it is reasonable to conclude that the above also covers lawyer’s fees incurred in relation to copyright-related interim measures.
7.1.8 Similarly, under the PRC Trademark Law, damages for infringing a trademark will be equal to the benefits gained by the infringing party or losses suffered by the infringed party.64 The losses suffered include reasonable expenses incurred by the infringed party in stopping the infringement which has been interpreted to cover lawyers’ fees.65
7.1.9 Paragraphs 7.1.7 and 7.1.8 also apply in patent infringement cases under the PRC Patent Law.66
7.2 Decision on costs and cost shifting
7.2.1 As set out above, subject to limited exceptions, a wining party will usually pay its own costs. Where a party partially loses the case, the court will determine the amount of court costs to be borne by each party respectively.67
7.2.2 Where it is difficult for a party to pay their litigation expenses, the party may apply to the court for a postponement, reduction or waiver of the amount due.68
8. Remedies Against the Decision on Interim Measures
8.1 Reconsideration
8.1.1 As mentioned above, if the respondent is dissatisfied or disagrees with the ruling on interim measures it may apply for reconsideration of the ruling.69 This application must be submitted within five days of receiving the order.70 However, the enforcement of the ruling will not be suspended during the period of reconsideration. The court must consider its ruling within ten days of receiving the application for reconsideration. If the court decides that the ruling on interim measures was incorrectly granted, the court will modify or revoke the original order. Otherwise it will reject the application for reconsideration.71
8.2 Appellate Remedies
8.2.1 It should be noted that there are no appellate remedies available for interim measures in the PRC. Once the court has reconsidered the ruling on interim measures and has denied this application, the ruling is considered to be effective.72 Article 154 of the CPL confirms this by excluding rulings on interim measures from the list of appealable rulings.
9. Enforcement of an Interim Measure
9.1 Enforcement of interim measures issued by national courts
Effective rulings
9.1.1 A ruling on interim measures falls under the scope of article 154 of the CPL. Since it is not appealable, unless a ruling on interim measures has been reconsidered and consequently revoked, it will be an effective ruling.
9.1.2 Once the ruling on interim measures is made by the court, such ruling shall be enforced immediately.73
Preservation of Property
9.1.3 Under article 103 of the CPL, a preservation ruling may be executed by seizure, impoundment, freezing of an account, or by any other means prescribed by law. After the property is preserved, the court is required immediately to issue a notification to the person whose property is preserved.
9.1.4 As a matter of principle, the court keeps the preserved property in custody. In the event it is not appropriate for the court to keep the property, the court may order the party against which the preservation is issued or other parties to retain it.74 The Interpretation does not provide guidance on what ‘not appropriate’ means. Where the property which has been preserved is seasonal, fresh or perishable goods, or other items with a short shelf-life, the court may order the party subject to the order to sell such items or organise their sale, after which the proceeds will be kept by the court as preserved property.75 During the preservation period, if the continued use of the preserved property would have no significant impact on its value, then the person subject to the court order may use the property.76
9.1.5 Mortgaged or pledged property can be subject to preservation, but the court will not impede the rights of the mortgagee or pledgee.77 The court may take preservative measures over the proceeds to be collected from financial institutions by the party subject to the preservative measure. In this case, the court would restrict the transfer or withdrawal of such proceeds by issuing a notice to the respective financial institution.78 If the party against which the preservation is issued has outstanding claims against third party debtors, the court may rule that the third party debtors must make payments to the court, rather than to the creditor.79
9.1.6 Where a measure on property preservation has been issued prior to the commencement of litigation or arbitration, and has not been revoked by the time that the enforcement procedure in the main proceedings begins, the property preservation measure will be automatically converted into seizure, detention or freezing as part of the enforcement process to ensure the court order can be enforced.80
Mandatory and prohibitory injunctions
9.1.7 There are no special rules on the enforcement of mandatory and prohibitory injunctions and it is uncertain when further guidance will be issued. Until further guidance is issued by the higher courts, the rules on enforcing property preservation measures set out above in paragraphs 9.1.4 to 9.1.6 apply where possible.81
9.2 Enforcement of interim measures issued by foreign courts
9.2.1 A party wanting to enforce an effective judgment or ruling of a foreign court before a court of the PRC will have to apply directly to an intermediate level court which has jurisdiction for recognition or enforcement.82 Alternatively, the foreign court may directly request that the PRC court recognises or enforces the foreign judgment or ruling.83 In both cases, whether the PRC courts will allow enforcement will be determined in accordance with the provisions of the relevant international treaty concluded or acceded to by the PRC or under the principle of reciprocity.84
9.2.2 The court must consider the following criteria when deciding whether to recognise a foreign judgment or ruling and to issue an order for enforcement:
  • the ruling by the foreign court must have become legally effective;
  • the country in which the foreign court is located and the PRC must have concluded or acceded to the same international or bilateral treaty relating to the mutual recognition or enforcement of court judgments or rulings or have a reciprocal relationship of recognition and enforcement of court judgments or rulings (principle of reciprocity); and
  • the judgment or ruling must not violate the basic principles of the laws of the PRC and its sovereignty and security or the public interest.

9.2.3 As foreign interim injunctions fall under the same definition as a foreign judgment or ruling, they would be subject to recognition and enforcement in the PRC in accordance with the above principles.
9.2.4 In practice, interim injunctions issued by foreign courts are unlikely to be recognised and enforced in the PRC. The PRC has not acceded to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters or any other similar international treaties which would require the PRC to recognise and enforce interim measures granted in other countries. In addition, there has yet to be a publicised case in which a PRC court has found that the PRC has reciprocal interests with another country.
9.2.5 Therefore, it appears that interim measures can only be recognised or enforced in countries that have bilateral treaties with the PRC relating to the recognition and enforcement of judgments. However, even where bilateral agreements are in place relating to the recognition and enforcement of judgments, many do not cover interim measures and some expressly exclude them, for example the bilateral treaties between the PRC and Kuwait and the UAE and Tunis.85 Furthermore, several bilateral treaties fail to define the scope of the term “judgment” and whether it covers interim measures. The PRC courts will therefore have discretion to reject or grant the interim measure depending on their interpretation of the treaty. In practice, it is rarely possible for parties to have interim injunctions, which have been issued by foreign courts, recognised or enforced in the PRC.
10. Interim Measures in International Commercial Arbitration
10.1 Interim measures by state courts
10.1.1 Arbitration before international arbitral institutions seated in the PRC is a very common dispute resolution method between foreign and Chinese parties.86 However, at present, there is no established mechanism by which international arbitral institutions can directly issue enforceable interim measures via those arbitration institutions.
10.1.2 Where a party submits an application for an interim measure to an international arbitral institution of the PRC, article 272 of the CPL requires the institution to submit the application to the Intermediate Court at the place the respondent is domiciled or the respondent’s property is located.
10.1.3 The China International Economic and Trade Arbitration Commission (CIETAC), South China International Economic and Trade Arbitration Commission (SCIA) and Shanghai International Arbitration Centre (SHIAC) Arbitration Rules require the arbitral institutions to forward applications for interim measures to a competent court designated by the applicant.87
10.1.4 Before the commencement of arbitration proceedings, the parties subject to an arbitration agreement can apply directly to the competent court for interim measures. The wording of the law leaves it open whether such right to apply directly to a court for interim measures before the commencement of arbitration proceedings requires the arbitration to be seated in the PRC. Article 101 of the CPL refers to ‘arbitration’ which could be interpreted as referring to domestic and/or foreign arbitration. However, the strong opinion of scholars and practitioners is that article 101 is limited to arbitrations with their seat in the PRC and that the court would reject an application for pre-trial interim measures in disputes sat outside the PRC.88 Certain PRC Maritime Courts are more generous and accept applications for interim measures under article 101 of the CPL before commencement of foreign arbitration proceedings. After the commencement of arbitration, the parties shall file a request for interim measures with the arbitration institution which will forward it to the court.
10.2 Interim measures by international arbitral institutions of the PRC
10.2.1 CIETAC and SCIA may, in accordance with their respective arbitration rules, issue their own interim measures upon the request of a party.89 The arbitral tribunal also has the right to require the party applying for the interim measures to provide appropriate security.90 However, the CPL does not yet recognise the authority of the CIETAC and SCIA. Therefore, no PRC court will enforce interim measures issued by these organisations, which makes them of very limited use in practice.
10.3 Interim measures by arbitral tribunal with seat abroad
10.3.1 Interim measures issued by arbitration tribunals with seats abroad are not recognised or enforced in the PRC. The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) governs the recognition and enforcement of foreign arbitral awards in the PRC.91 However, it does not apply to the enforcement of interim measures as interim measures decisions do not qualify as awards enforceable under the New York Convention. Furthermore, the CPL fails to define the term “award” so it is not clear if an interim measure decision qualifies as an award under the CPL either.
11. Contact
CMS, China
Room 1909, China Youth Plaza
No. 19 Dongsanhuan North Road
Chaoyang District
Beijing 100026, China
12. References
  • The following refers to the law of the PRC. It does not cover or purport to cover the law applicable to the Special Administration Regions of Hong Kong and Macao or the law of Taiwan.
  • Such as the requirements for making an application for an interim measure, the security to be provided by the applicant and the property preservation methods which can be adopted by the court.
  • CPL, art 265.
  • Interpretation, art 522: a case which falls within any of the following circumstances shall be deemed to be a foreign-related civil case: (i) a party or both parties involved in the case are foreigners, stateless persons, foreign enterprises or foreign organisations; (ii) a party or both parties involved in the case have their habitual residence outside the territory of the People’s Republic of China; (iii) the subject matter of the case is outside the territory of the People’s Republic of China; or (iv) the legal fact that establishes, changes or terminates the civil relations occurs outside the territory of the People’s Republic of China. If there are any other circumstances under which a case may be deemed a foreign-related civil case, it will be deemed as such.
  • CPL, art 101.
  • CPL, art 18, 19, 20: the intermediate people’s courts have jurisdiction as courts of first instance over the following types of civil cases: (i) major cases involving foreign parties; (ii) cases with significant impact in the areas over which the courts exercise jurisdiction; and (iii) cases determined by the Supreme People’s Court to come under the jurisdiction of the intermediate people’s courts. Higher people’s courts shall have jurisdiction as courts of first instance over civil cases with significant impact in the areas over which they exercise jurisdiction. The Supreme People’s Court shall have jurisdiction as the court of first instance over the following types of civil cases: (i) cases with significant impact on the whole country; and (ii) cases that the Supreme People’s Court deems it should handle itself.
  • Although the term “interested party” is repeatedly used in the CPL and the Interpretation, no precise definition exists in PRC law or guidance as to its meaning.
  • Interpretation, art 160.
  • Official Reply to Issues concerning the Disposal of Seized Property by Courts First Enforcing the Seizure and Those Executing Priority Claims, art 1.
  • For example, the China International Economic and Trade Arbitration Commission (CIETAC), China Maritime Arbitration Commission (CMAC), etc.
  • CPL, art 272; see paragraph 10.1.2 below.
  • Interpretation, art 29.
  • This general principle is stipulated in the PRC Special Maritime Procedure Law, art 14. It can be concluded that the same principle applies to general civil litigation. For general litigation, the same principle is suggested by commentators in legal literature, e.g. Wei Hongbo, Perfection of Jurisdiction Principles in Property Preservation, Shanghai Jiaotong University, p 17, http://cdmd.cnki.com.cn/Article/CDMD-10248-2010206632.htm, Xiang Hong, On the Defects of Property Preservation System and Its Improvement, Shanghai Jiaotong University, p 18, http://cdmd.cnki.com.cn/Article/CDMD-10248-1012035309.htm.
  • CPL, art 35.
  • Provisions, art 1.
  • Provisions, art 4.
  • Interpretation, art 165.
  • Interpretation, art 166.
  • Interpretation, art 163.
  • CPL, art 108.
  • Interpretation, art 171.
  • Interpretation, art 171.
  • CPL, art 154.
  • CPL, art 155.
  • Interpretation, art 167.
  • Provisions, art 13.
  • CPL, art 105.
  • Provisions, art 5.
  • Interpretation, art 152.
  • Provisions, art 5.
  • Interpretation, art 152: the express requirement to provide a written notice for the security is to prevent the practice of many Chinese courts of entering into oral communications with the parties on various issues, including where those issues are substantial.
  • Interpretation, art 164.
  • For further details on situations which are deemed to be urgent please refer to paragraph 6.2.3 below.
  • Interpretation, art 152.
  • Interpretation, art 152.
  • CPL, art 101.
  • Legislative Affairs Commission of Standing Committee of the National People’s Congress, Interpretation on PRC Civil Procedure Law (2012), p 229.
  • CPL, art 105.
  • CPL, art 108.
  • CPL, art 154.
  • CPL, art 155.
  • Interpretation, art 161.
  • Interpretation, art 163.
  • Legislative Affairs Commission of Standing Committee of the National People’s Congress, Interpretation on PRC Civil Procedure Law (2012), p 234.
  • For example, Beijing High Court Provisions on Several Issues regarding Property Preservation, art 2.
  • CPL, art 264.
  • Several Provisions of the Supreme Court on Evidence in Civil Procedure, art 11.
  • For example the Shanghai High Court Several Provisions on Property Preservation of Shanghai Court, art 12.
  • Legislative Affairs Commission of Standing Committee of the National People’s Congress, Interpretation on PRC Civil Procedure Law (2012), p 233.
  • CPL, art 100 and 101.
  • CPL, art 101.
  • CPL, art 101.
  • CPL, art 101.
  • CPL, art 100.
  • Interpretation, art 170.
  • Acceptance fees are fees payable to the court when it accepts the claim. The fees are payable for the main proceedings, not specifically for interim measures. For interim measures, application fees must additionally be paid (see paragraph 7.1.3 below).
  • Whilst there is no exact definition of an “adjuster” under the PRC law, the term usually refers to “Average Adjusters” who are experts in marine insurance and maritime law. Under the Special Procedure Law of the People’s Republic of China on Admiralty, the court will appoint an Average Adjuster to generate an adjustment report and will use such a report as the basis for deciding the contribution of liabilities between two parties to a dispute under maritime law.
  • Measures, art 11 and 20.
  • Measures, art 29: no costs order will be made when the court rules on the interim application. The winning party must wait until the end of the court proceedings before recovering the cost of applying for an interim measure.
  • Measures, art 14(2) and 38.
  • Measures, art 38.
  • PRC Copyright Law, art 49.
  • Interpretation of the Supreme Court on Certain Issues Concerning the Application of Law in the Trial of Civil Cases Involving Copyright Disputes, art 26. There are local government regulations on standard amounts of lawyers’ fees. Only an amount up to this standard can be claimed as compensation.
  • PRC Trademark Law, art 56.
  • Interpretation of the Supreme Court on Certain Issues Concerning the Application of Law in the Trial of Civil Cases Involving Trademark Disputes, art 17.
  • PRC Patent Law, art 65.
  • Measures, art 29.
  • CPL, art 118.
  • CPL, art 108.
  • Interpretation, art 171.
  • Interpretation, art 171.
  • CPL, art 108, 154 and 155.
  • CPL, art 100 and 101.
  • Interpretation, art 154.
  • Interpretation, art 153.
  • Interpretation, art 155.
  • Interpretation, art 157.
  • Interpretation, art 158.
  • Interpretation, art 159.
  • Interpretation, art 168.
  • Most of the articles in paragraphs 9.1.4 to 9.1.6 apply specifically to property. Thus, in cases of mandatory and prohibitory injunctions where no property is involved, for example, an order to carry out or refrain from a certain type of behaviour, these rules will not apply.
  • CPL, art 281.
  • CPL, art 281: if a foreign country has concluded a treaty with China on the enforcement of judicial decisions, and these decisions also cover interim measures, depending on the specific clause in the treaty an applicant may apply directly to the PRC court to enforce the foreign court’s decision.
  • CPL, art 281.
  • For example, article 17(3) of the Civil and Commercial Judicial Assistance Treaty between China and Kuwait provides that “… this treaty does not apply to preservation measures or provisional measures excluding those involving payment of living expenses.”
  • For details please refer to CMS Guide to Arbitration, Vol. 1, Arbitration in the People’s Republic of China.
  • CIETAC, art 23(1), SCIA art 24, SHIAC, art 18.
  • For example Arvin Lee, Deputy Head (China) and Counsel at the Singapore International Arbitration Centre, China Business Law Journal, March 2013, p 23.
  • CIETAC, art 21(2), SCIA art 25.
  • CIETAC, art 21(2), SCIA, art 25.
  • The PRC has declared a reservation to the New York Convention and, thus, only acknowledges arbitration awards issued in another contracting state of the New York Convention, and only on commercial matters. For further details please refer to CMS Guide to Arbitration, Vol. 1, Arbitration in the People’s Republic of China, paras 11.2.4 and 11.2.5.

England & Wales
Authors: Phillip Ashley, Louise Boswell
1. Applicable Law
1.1 The Civil Procedure Rules
1.1.1 The two primary statutory sources of law governing court procedure in England and Wales are the Senior Courts Act 1981 and the County Courts Act 1984. The Senior Courts Act 1981 governs the High Court and the Court of Appeal (based in London). The County Courts Act 1984 governs the local county courts (of which there are approximately 220 in England and Wales). Both statutes are expressed in wide terms and leave the detailed procedures to be set out in separate rules that are made by a body known as the Civil Procedure Rule Committee.1 The Civil Procedure Rules (CPR) are the rules of civil procedure used by the English courts in civil cases.
1.1.2 The CPR commences with a statement of the CPR’s “overriding objective” which requires the court to deal with cases justly and at proportionate cost,2 both to aid in the application of specific provisions and to guide behaviour where no specific rule applies.3 In light of the “overriding objective”, courts will aim to deal with applications for interim measures in a way which is proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial situation of each party.4 CPR 25.1(1) lists some of the interim measures which the court, in the exercise of its discretion, may grant.
1.2 Common law
1.2.1 The court’s power to make interim orders is not limited to the remedies listed in CPR 25.1(1); the court has an inherent discretion, such that the expressions “interim measure” or “interim remedy” do not have a statutorily prescribed or restricted meaning. Accordingly, this chapter addresses the main interim measures listed in CPR 25.1(1), together with the remedies that have sprung from case law and/or statute, and the inherent jurisdiction of the court to grant an anti-suit injunction.
2. Jurisdiction
2.1 International and geographical jurisdiction – the venue
2.1.1 An application to the court for an interim measure can be made at any time, including before a claim has been commenced and after judgment has been entered. Generally, an application for an interim measure should be made in the court in which the substantive proceedings have been, or are likely to be issued, unless there is a good reason to make the application to a different court.
2.1.2 The courts have a general discretion to grant an injunction (whether interim or final) in all cases in which it appears to the court to be just and convenient to do so.
2.1.3 The court may grant an interim measure in support of court proceedings anywhere in the world.5 However, the courts of England and Wales will only exercise their discretion to order an interim measure in circumstances where it would be expedient to do so. The factors that the courts will take into account include whether it is the policy in the primary jurisdiction not to grant the relief sought; whether there is a danger that the order would cause confusion or a risk of conflicting or overlapping orders in other jurisdictions; whether there is likely to be a potential conflict over jurisdiction (such that it would be inappropriate to make a worldwide order); and whether the order could be enforced.6
2.2 The effect of jurisdiction clauses
2.2.1 If the parties have agreed that a court in an EU Member State has jurisdiction to settle a dispute, then the case on the merits must be brought before those courts.7 Article 35 of the Brussels I Regulation, however, provides that “Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.” As a result, if the provisional measures are executed in one Member State, the courts in that Member State might have jurisdiction, based on its own law, concerning the provisional measure sought, even if the courts of another Member State have jurisdiction on the merits pursuant to an exclusive jurisdiction clause.
2.3 Subject-matter jurisdiction
2.3.1 In general, cases with an estimated value of GBP 100,000 or less will be dealt with in the applicable county court,8 whilst the High Court in London will deal with more complex, higher-value cases. The High Court has the power to order an interim measure when it appears “just and convenient to do so” and may make such order unconditionally or on such terms and conditions as the court thinks just.9
2.3.2 A county court may make interim orders in certain circumstances.10 Section 38 of the County Courts Act 1984 confers a general power, subject to regulations, for a county court to make any order which could be made by the High Court as if the proceedings were in the High Court. However, county courts’ jurisdiction to grant search orders11 is expressly restricted.12 The granting of freezing injunctions had previously been restricted but this prohibition has since been lifted following the entry into force of the County Court Remedies Regulations 2014.13
3. Types of Interim Measures and their Criteria
3.1 Interim measures available under the CPR
3.1.1 CPR 25.1(1) provides for the following interim measures:
  • interim injunctions;
  • interim declarations;
  • orders regarding detention, custody, preservation, inspection, sampling, sale of or payment regarding a property;
  • orders authorising the entry into any land or building;
  • orders to give up goods;
  • freezing orders and orders directing that a party provide information about the location of any property or assets which are the subject of such freezing order;
  • search orders;
  • orders for disclosure of documents or inspection of property prior to a claim being made against either an actual or potential opposing party and/or against an entity which is not party to the proceedings;
  • orders for interim payment on account of any damages, debt or other sum the court may hold the defendant liable to pay;
  • orders regarding the payment of monies in to the court pending the outcome of proceedings;
  • orders directing a party to file an account or directing an account/inquiry be made by the court; and
  • orders regarding the enforcement of intellectual property proceedings.
More information on the main types of interim measures is set out below.
3.2 Interim injunctions14

3.2.1 An injunction is an order of the court that requires a party to: (i) refrain from doing a specific act or acts i.e. a prohibitory injunction; or (ii) do a specific act or acts i.e. a mandatory injunction.
3.2.2 A prohibitory injunction is usually sought where no actionable wrong has yet been committed or before any legal rights have been infringed (a quia timet injunction). Its purpose is to prevent the occurrence or repetition of an actionable wrong.15 This is the most common category of interim injunction. The applicant must show that there is a real risk that an actionable wrong will be committed. Usually this will be by evidence that the defendant has threatened to do the particular wrongful act. It can be used to prevent a claimant pursuing legal proceedings, or to restrain a breach of contract.16
3.2.3 A prohibitory injunction may be: (i) interim – a provisional measure taken at an early stage in the proceedings which remains in force until discharged by the court; or (ii) final – granted after the conclusion of proceedings to last perpetually or until a specified date.
3.2.4 A mandatory injunction requires the performance of a specific act. Courts are generally reluctant to grant mandatory injunctions as they are, by their nature, likely to be harsh and intrusive. As such they will usually only be granted at an interim stage and where there are special circumstances.17
3.2.5 Even where the court is unable to obtain any high degree of assurance that the applicant will establish its right in the main proceedings, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interim stage. Those circumstances will exist where the risk of injustice, if an injunction is refused, sufficiently outweighs the risk of injustice if it is granted.
3.2.6 The court needs to be satisfied that a mandatory injunction will be capable of enforcement.18 It is established law that a court will not grant an injunction requiring a respondent to: (i) perform services;19 (ii) do repairs;20 (iii) do an act which requires the continuous employment of people;21 or (iv) carry on a business,22 except in exceptional circumstances.23
Criteria

3.2.7 The first step is for an applicant seeking an interim injunction to show that there is a “serious issue to be tried”.24 The evidence must show that the applicant has a real prospect of succeeding in its claim for a permanent injunction at the final trial. Once the applicant has established this, the court should consider whether:25
  • if the applicant were successful at a final trial, damages would be an adequate remedy. Damages may not be an adequate remedy for the applicant where there would be great difficulties involved in assessing them,26 if the refusal of an injunction would lead to the destruction of the applicant’s business,27 or where the respondent has no assets against which a judgment could be readily enforced; and
  • if the respondent were successful at trial, damages under a cross-undertaking to pay damages by the applicant in return for an interim injunction would be an adequate remedy. If damages would be an adequate remedy, and the applicant would be in a financial position to meet the cross-undertaking, there would be no reason to refuse an interim injunction.

3.2.8 If there is any doubt as to the adequacy of the remedy of damages to either or both parties, the court must consider the “balance of convenience” and the individual facts of the case. In weighing up the various factors, the fundamental objective of the court is to take the course which ultimately involves the least risk of injustice, should the court’s decision to grant or refuse an injunction turn out to be wrong. Where the factors are evenly balanced, the courts have been inclined to preserve the status quo. If damages are shown to be an adequate remedy, an injunction will not normally be granted.
Court’s discretion

3.2.9 The court can refuse an application on discretionary grounds and as such, considerations such as delay, misconduct and wilful or other breach of contract may be relevant. The court can also consider matters of public policy or public interest,28 or the effect of the injunction on third parties.
3.2.10 It is generally accepted that the applicant should apply promptly for an interim injunction, and the court will consider delay as a discretionary matter when weighing the balance of convenience. Delay raises questions as to whether the applicant really needs an injunction pending trial, the quality of the applicant’s case and whether the delay has affected the respondent.
3.2.11 The court may also merely restrict the respondent’s activities in some way rather than prohibit them entirely.29 However, an injunction must be capable of being framed with sufficient precision so as to enable the parties subject to it to fully understand what is prohibited and what is allowed.30
3.3 Freezing orders
3.3.1 The court may grant a freezing order:31 (i) restraining a party from removing assets located in the jurisdiction; or (ii) restraining a party from dealing with assets whether located within the jurisdiction or not.32 The order is designed to ensure that a respondent retains assets against which the applicant may enforce a judgment if the claim is ultimately successful.
Special application requirements

3.3.2 An application for a freezing order is made by filing an application notice in accordance with CPR Part 25, as modified by CPR Part 23. The applicant must put the claim form or a draft claim form before the court, together with an affidavit and draft order.
3.3.3 A freezing order takes effect at the moment it is made by the court, even though the order has not been drawn up or served on the respondent. In most cases, the freezing order will remain in force up to, and including, a specific date set by the court when the application shall come back to the court for further hearing. Notice must be given to the respondent and third parties in control of the assets, by telephone, fax or email, as soon as possible following the hearing, unless the judge has allowed later notification. A copy of the sealed order should be sent on later and the original must be served in accordance with the terms of the order.
Criteria

3.3.4 In order to obtain a freezing order, the applicant must:33
  • have a good arguable case as to the merits of the legal or equitable right of its substantive claims - “one which is more than barely capable of serious argument, but not necessarily one which the judge considers would have a better than 50% chance of success”;34
  • show that there is a real risk that without an injunction the respondent may put its assets beyond the reach of the applicant with the consequence that a judgment or arbitral award in favour of the applicant would remain unsatisfied. The courts have recently emphasised the need for strong evidence of a “real risk” of dissipation of assets;35 and
  • show that in all the circumstances of the case, it is just and convenient for the court to exercise its discretion in favour of the grant of the freezing order. In determining what is “just and convenient”, the court must consider whether the harm caused to the respondent and/or third parties outweighs the benefit that would be gained by the applicant. The court will take into account whether the applicant has conducted itself in a reasonable and conscionable way and without undue delay. The court should be satisfied before granting the relief that the likely effect of the injunction will be to promote the doing of justice overall, and that it will not be unfair or oppressive. This means taking into account the interests of both parties and the likely effects of such an order on the respondent.

3.3.5 In support of the request, the applicant should include in its affidavit the objective facts from which it may be inferred that the respondent is likely to move or dissipate its assets. Unsupported statements or mere expressions of fear have little weight.36 While each case will depend on its own facts, the following factors may be relevant:
  • the nature of the assets which are to be the subject of the proposed freezing order, and the ease or difficulty with which they could be disposed of or dissipated. For instance, the applicant may find it easier to establish the risk of dissipation of funds in a bank account than of real estate;
  • the nature and financial standing of the respondent’s business. For instance, the courts have noted the risks associated with dealing with companies incorporated in off-shore jurisdictions or tax havens;37
  • the availability of any process for the reciprocal enforcement of English judgments or arbitral awards;
  • the respondent’s behaviour in relation to the applicant’s claims or related claims. In particular, if there is evidence to support an allegation that the respondent has acted fraudulently or dishonestly, then it is often unnecessary for there to be any further specific evidence of the risk of dissipation; and
  • the respondent’s past or existing credit record. A history of default may be a significant factor, particularly if the respondent company is the subsidiary of a foreign company which has allowed other subsidiaries to default on awards or judgments, or go into liquidation owing money to creditors. However, the risk of insolvency alone will not justify the granting of a freezing order.38

The scope of the order

3.3.6 In most cases, all of the respondent’s tangible and intangible assets are potentially within the scope of the freezing order, so long as they are in the legal or beneficial ownership of the respondent, and not subject to legal or equitable interests of third parties. Thus, the subject matter of the order may include land, vehicles and other chattels, bank accounts, ships and aircraft, and even goodwill.39 World-wide orders against assets outside the jurisdiction may also be granted, even where there is no substantive claim on the merits in the jurisdiction.
3.3.7 In many cases the order will require the respondent to provide information about its assets.40 Such information may be helpful to an applicant as it allows it to plan the recovery of any eventual judgment debt. In light of this, and for reasons of confidentiality, a respondent will often argue against the provision of detailed information, or offer an undertaking to the court to provide security in place of the order, on the condition that the asset list requirement is waived.
3.3.8 It should be noted that the purpose of a freezing order is to prevent a party from disposing of or dealing with its assets before judgment can be obtained and enforced. It does not provide the claimant with security for its claim.41
Variation to enable payments to be made

3.3.9 A respondent is prima facie entitled to pay normal debts arising in the course of business, and the standard form of a freezing order permits such payments.42 However, the respondent must show that it has no other funds from which the payments can be made; it cannot choose to reduce the frozen funds when it can meet its liabilities in other ways. Further, a freezing order granted against an individual respondent must always make suitable provision for the respondent to pay the ordinary living expenses of it and its family unless there is reason to believe that it has other assets to which the injunction does not apply and which would be available for that purpose.
3.4 Search orders43

3.4.1 A search order44 may be made ex parte (without notice to the respondent) designed to preserve evidence that may otherwise be removed, destroyed or concealed. The order requires permission to be given for certain representatives of the applicant to enter premises under the control of the respondent for the purpose of: (i) inspecting documents or other articles; or (ii) taking custody of documents or other articles pending trial of the action or in aid of execution.45
3.4.2 It is harsh and extreme relief because, when the respondent is served with a search order and following a short period of time allowed for it to take legal advice,46 the respondent becomes under an immediate obligation to comply with the order. Such compliance will involve the applicant’s representatives entering the respondent’s premises and searching it before the respondent has put its side of the case to the court and in circumstances capable of causing serious damage to the respondent’s reputation. Contempt proceedings may be brought against a person who disobeys a search order.47
Criteria for a search order

3.4.3 In order to obtain a search order:48
  • there must be an “extremely strong prima facie case”;
  • the “potential or actual” damage to the applicant’s interest must be “very serious”; and
  • there must be “clear evidence” that the respondent has “incriminating documents or things” in its possession, and there is a “real possibility” that it may destroy such material before an application on notice can be made.

3.4.4 Further, the applicant must establish that the harm likely to be caused to the respondent is not excessive or disproportionate to the legitimate aim of the order.
Control by the court and supervisory solicitors

3.4.5 In light of the harsh nature of the relief, an applicant has special duties to the court (see further section 4.2) and is required to give undertakings as to how the order will be executed.
3.4.6 The search order must be served by a supervising solicitor, and carried out in the supervising solicitor’s presence and under his supervision.49 The supervising solicitor should be experienced, have some familiarity with the operation of search orders and not be a member or employee of the firm acting for the applicant. The supervising solicitor must advise the respondent of its right to legal advice, its right to vary or discharge the order and its potential entitlement to legal professional privilege or privilege against self-incrimination.50 The supervising solicitor must also provide a report to the applicant’s solicitors on the carrying out of the search order. As soon as the applicant’s solicitors receive the report, they must serve the report on the respondent and file a copy with the court.51
3.4.7 In addition, the respondent’s premises may not be searched and no items may be removed except in the presence of the respondent or a person who appears to be a responsible employee of the respondent.52
3.4.8 Failure to adhere to the requisite standards may result in criticism from the court, penal orders in relation to costs and possibly a disciplinary complaint.
3.5 Interim declarations
3.5.1 The court may grant a declaration as a final remedy at trial, including at the trial of a preliminary issue, and in interim proceedings.53
3.5.2 In most cases the court has used interim declarations to provide guidance to parties on the meaning or effect of a piece of legislation, or the lawfulness of a decision pending the final hearing of an application for judicial review.
3.5.3 In determining whether to make an interim declaration, the court should consider justice to the applicant, justice to the respondent, whether the declaration would serve a useful purpose 54 and whether there are any other special reasons why the court should or should not grant the declaration.55 If a result can be achieved by an application for summary judgment, an interim injunction or an early trial, the court will be very hesitant to issue an interim declaration. An interim declaration is not punishable by contempt if not adhered to.
3.6 Interim payment orders
3.6.1 The court may grant an interim measure in the form of an order:
  • for payment by a respondent on account of any damages, debt or other sum which the court may hold the defendant liable to pay (interim payment);56
  • for a specified fund to be paid into court or otherwise secured, where there is a dispute over a party’s right to the fund;57 or
  • permitting a party seeking to recover personal property to pay money into court pending the outcome of the proceedings and directing that, if successful, the property is given to him.58

3.6.2 The jurisdiction to order an interim payment is subject to the strict restrictions set out in CPR 25.7.1, which provide that the court may only make an order for interim payment if:
  • the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;
  • the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed; or
  • it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom it is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim.

3.7 Orders in relation to relevant property
3.7.1 The court may grant a number of different orders relating to “relevant property” as an interim measure.59 “Relevant property” means “property (including land) which is the subject of a claim or as to which any question may arise on a claim”.60 Such orders may include orders for the detention, preservation, inspection, sampling and sale of property.
3.8 Orders for disclosure
3.8.1 The court may grant an interim measure in the form of an order for disclosure of documents:
  • before proceedings are commenced by “a person who appears to the court to be likely to be a party to the proceedings”;61 or
  • after proceedings have commenced by a non-party.62

3.8.2 The court may also order a non-party to produce documents that are in its possession, custody or power to the applicant or others, such as the applicant’s legal advisers.
3.8.3 The applicant must show at least a prima facie case of entitlement to the substantive relief.63 In respect of non-parties, the court will only make an order where:
  • the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
  • disclosure is necessary in order to dispose fairly of the claim or to save costs.

3.8.4 The application notice should carefully describe the documents or classes of documents and the application should be limited only to the documents that are strictly necessary.64 Further, an applicant must show that it is more probable than not that the documents are within the scope of standard disclosure, should court proceedings commence.
3.9 Norwich Pharmacal jurisdiction
3.9.1 In addition to the interim measures outlined above, a separate “Norwich Pharmacal” jurisdiction has been developed in case law,65 which requires a respondent to disclose certain documents or information about the applicant.
3.9.2 The procedure is different from applications for pre-action and non-party disclosure (see section 3.8 above), which provide only for the disclosure of documents, and not information (which is available under the Norwich Pharmacal jurisdiction). A Norwich Pharmacal order can be obtained pre-action, during the course of an action, and post-judgment. A Norwich Pharmacal order can also be obtained against a third party, i.e. a non-defendant.
3.9.3 In order to obtain Norwich Pharmacal relief, the following criteria must be met:
  • a wrong has been carried out, or at least arguably carried out, by a wrongdoer;
  • the applicant intends to assert its legal rights against the wrongdoer;
  • there is the need for an order to enable an action to be brought against the wrongdoer, usually to enable the claimant to identify the wrongdoer. In other words, an order is necessary to assist the claimant in achieving justice and there is no other practical source of information, or it is just and convenient to make the order sought; and
  • the respondent is a person who was involved in, or facilitated the wrongdoing (even if innocently) or has some relationship with the wrongdoer sought to be identified and is able to provide the information necessary to enable the wrongdoer to be identified or sued.

The court’s residual discretion

3.9.4 A Norwich Pharmacal order is an equitable remedy and the court has discretion as to whether it should be granted in all the circumstances. In this respect, the court may balance any interest in disclosure against any other public (e.g. freedom of the press) and private (e.g. confidentiality and personal privacy) interest in order to decide whether, in all the circumstances, it is appropriate to order disclosure.
3.9.5 The court may consider the usual factors relevant to whether an interim injunction should be granted, as set out in section 3.2 above.
Norwich Pharmacal relief in support of foreign proceedings

3.9.6 Case law indicates that a Norwich Pharmacal order may be granted for the purpose of proceedings in another jurisdiction. Further, a Norwich Pharmacal order may be used to obtain documents that are subsequently used in proceedings in a foreign jurisdiction.66 Permission is probably not required from the English courts before using documents disclosed under a Norwich Pharmacal order in foreign proceedings.67
Application

3.9.7 There is no set procedure for applying for a Norwich Pharmacal order, but the suggested approach is, if substantive proceedings have already been commenced, to issue an application under CPR Part 23; or where no substantive proceedings have been commenced, to issue a claim under CPR Part 8; or (iii) if the application is likely to be uncontested, it may be possible to dispense with issuing a claim form and instead issue an application to the court under CPR Part 23.
3.9.8 A Norwich Pharmacal application must be supported by evidence, usually in the form of a witness statement. The applicant is obliged to give disclosure of all material facts, particularly if the application is made without notice.
3.9.9 The draft order to be attached to the application should clearly set out the documents or categories of documents sought from the respondent and the time within which the respondent must provide those documents. The scope of the order should be drafted as narrowly as possible. The draft order generally contains an undertaking in damages to be provided by the applicant. A penal notice68 should be prominently endorsed on the front page; without such a notice the order may not be enforced by committal proceedings.
Costs

3.9.10 It is generally accepted that, in most cases, the applicant will be ordered to pay the costs of the party making the disclosure as well as its own costs.69
3.10 Anti-suit injunctions
3.10.1 The court may grant an injunction restraining a person from continuing or commencing proceedings in a foreign court, if it is inequitable to do so. Such injunctions will be granted only when justice requires it, such as when the foreign proceedings amount to unconscionable conduct (meaning that they are either vexatious or oppressive or interfere with the due process of the English court) or where the institution of the foreign proceedings is a breach of a binding contract, such as breach of an exclusive or non-exclusive jurisdiction clause or an arbitration agreement.70
3.10.2 However, where a court of one member state has taken jurisdiction falling within the scope of the Brussels I Regulation,71 the English court cannot grant an anti-suit injunction against that member state,72 as to do so would undermine the principal of mutual trust that underpins the Brussels I Regulation.73 The same is not true of private arbitral tribunals.
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
4.1.1 Proper adherence to the procedural requirements governing the grant of interim measures is vital.74 Failure to comply with the procedural requirements of the court may: (i) render any measure granted as a result of the flawed application improper and susceptible to immediate discharge; (ii) expose the applicant to an adverse costs order; and (iii) be a breach of the advocate’s duty to the court.
The application notice

4.1.2 An application for an interim measure is made by application notice and should be filed with the court where the claim was started or is likely to be started.75 It must state:76
  • the order sought from the court; and
  • briefly, why the applicant is seeking the order.

4.1.3 The application notice should be accompanied by the following documents:
  • a claim form (if not already issued);
  • witness statements or, where appropriate, affidavits and exhibits (as discussed at section 4.2 below); and
  • a draft order.

The draft order

4.1.4 Paragraph 5 of the Practice Direction to CPR Part 25 sets out those matters which must, unless the court orders otherwise, be contained in an order for an injunction. They are:
  • an applicant’s cross-undertaking in damages;77
  • an applicant’s undertaking (where the application is made without notice) to serve on the respondent as soon as practicable the application notice, evidence in support and any order;
  • a “return date”78 (where the application is made without notice to the respondent);
  • an applicant’s undertaking (where the application is made before the filing of application notice) to file and pay the appropriate fee on the same or next working day;
  • if a claim form is not served, directions for commencement of claim; and
  • a clear statement of what the respondent must or must not do.

4.1.5 Annexed to the Practice Direction to Part 25 are examples of a freezing order and a search order. These may be modified as appropriate, but any departure from the standard wording must be drawn to the attention of the judge.
4.2 Implementation of the procedure
Service

4.2.1 If the application is to be “on notice” (that is, where the respondent is aware of the application before it is decided upon by the court), the relevant documents must be served on the respondent as soon as practicable after being issued by the court, and not less than three days before the court is due to hear the application.79
4.2.2 Skeleton arguments should also be lodged at the court (together with any supporting documents) in advance of the first oral hearing, except in cases of extreme urgency.
Hearing

4.2.3 Generally an application for an interim measure will require a hearing except where:
  • the parties agree to the terms of the order;
  • the parties agree that the court should dispose of the application without a hearing; or
  • the court does not consider that a hearing would be appropriate.
In such cases, the court will treat the application as though it were proposing to make an order on its own initiative.
4.2.4 Generally a hearing will take place at court. However, exceptionally urgent applications and applications made without notice may be dealt with by telephone.80
4.2.5 CPR 39.2 provides that the general rule is that a hearing should be in public. However, CPR 39.2(3) lists the circumstances in which a hearing, or part of it, may be in private. Such circumstances include where: publicity would defeat the object of the hearing; the hearing involves confidential information and publicity could damage the confidentiality; or it is a hearing without notice (“ex parte”) and it would therefore be unfair to the respondent for any member of the public to be in attendance.81
4.3 Evidential requirements
4.3.1 CPR 25.3(2) provides that an application for an interim measure must be supported by evidence unless the court orders otherwise. The general rule is that evidence “is to be by witness statement (rather than by affidavit) unless the court, a practice direction or any other enactment requires otherwise”.82 However, it is well established that a party may, in support of its application, rely solely on the matters set out in: (a) their statement of case; or (b) its application notice; provided that the statement of case or application notice is verified by a statement of truth.
Without notice (“ex parte”) applications

4.3.2 As a matter of principle, no order should be made in civil proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice must be given. The court has held that to grant an interim measure in the form of an injunction without notice “is to grant an exceptional remedy”.83 Thus, the court should not make an order without notice unless giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a freezing order or search order), or where there is some exceptional urgency, which means there is no time to give notice before the injunction is required to prevent the threatened wrongful act.84
4.3.3 When a party makes an application for injunctive relief on a without notice basis it has a duty to investigate the facts and legal issues fairly, so as to present evidence and submissions to the court in the knowledge that the judge does not have the benefit of submissions on factual and legal issues from the respondent. This includes disclosure of relevant legal principles, factual matters and/or a defence to the application even if it is adverse to the applicant’s case. The reason for this requirement of “full and frank disclosure” is because the court is wholly reliant on the information provided by the applicant.
4.3.4 The duty applies to facts that would have been known to the applicant had proper enquiries been made, and to facts actually known to the applicant.85 To this end, it is incumbent on the applicant’s legal advisers to make proper enquiries as to the evidence relied upon and the background of the dispute and, if necessary, a solicitor should give evidence as to the enquiries made. The extent of those enquiries depends upon the circumstances of the case, including: (i) the nature of the case; (ii) the probable effect of the order on the respondent; and (iii) the degree of legitimate urgency and time available for making such enquiries. It is also the particular duty of counsel to ensure that the correct legal procedures and forms are used, and that at the hearing the court’s attention is drawn to any unusual features of the evidence adduced, to the applicable law, and to the formalities and procedures to be observed.86
4.3.5 Aside from applications for a freezing or search order, applications for an injunction sought without proper notice have to include a statement supported by facts explaining fully and honestly why proper notice could not have been given and how the duty to give full and frank disclosure has been complied with.87 This obligation of disclosure to the court continues until the first hearing on notice to the other party.88
Consequences of non-disclosure

4.3.6 If an applicant fails to make full and frank disclosure, the court may discharge the injunction. It is no excuse for an applicant to say that it was not aware of the importance of the matters it omitted to state.
4.3.7 The obligation of full disclosure is owed to the court itself. Thus, in the event of any substantial breach, the court strongly inclines towards setting the order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given them.89
4.3.8 However, the court will not automatically discharge an order. In considering the consequences of any breach the court will take into account all the relevant circumstances, including: (i) the gravity of the breach; (ii) the applicant’s explanation for failing to disclose; (iii) the severity and duration of any prejudice caused; and (iv) whether the consequences of the breach were remediable and have been remedied.
With notice applications

4.3.9 A point that has yet to be determined is whether either party owes a duty of full and frank disclosure to the other on a with notice hearing.90 It can be argued that once the matter is contested each side should adduce whatever evidence is in its opinion necessary for its case.
4.3.10 However, it is generally accepted that a higher duty exists on the part of legally represented applicants when dealing with an unrepresented respondent who is the subject of a freezing order. In such a situation it can be argued that counsel’s duty (and that of the solicitor) is to the court as well as to their own client. If the applicant’s lawyers obtain evidence or information that is adverse to the applicant’s case, they must not advance a positive case knowing that such a case is false.
4.3.11 Where the application is made on notice, the respondent may file evidence in opposition to the application.91 Respondents are not under any specific duty under the rules to disclose their evidence in advance of the hearing. However, deliberately withholding evidence is likely to be frowned upon, and therefore where possible, evidence should be served prior to a hearing.
Standard of proof

4.3.12 The applicant must satisfy the court of the likelihood of its case on a “balance of probabilities”.92 The more serious the allegation (e.g. fraud or dishonesty), the higher the degree of proof and the more convincing the evidence required. The standard of proof will not itself be different, but rather the seriousness of the issue will become part of the circumstances to be considered by the court in deciding whether or not the burden of proof has been discharged.93
Oral evidence

4.3.13 Generally witnesses are not called to give oral evidence; an interim application is decided on the papers, and usually after a hearing.94
5. Legal Safeguards for the Respondent
5.1 Applicant’s undertaking in damages
5.1.1 When an interim injunction, freezing order or search order is granted the applicant is almost always required to give an undertaking in damages. This is because such interim orders are usually granted before trial, and before the merits of the case have been finally determined. The applicant undertakes to compensate the respondent if it is subsequently determined that the applicant was not entitled to the interim measure granted.95 The undertaking is often referred to as a “cross-undertaking” so as to indicate that it is given by the applicant.
Extent of the undertaking

5.1.2 The undertaking need not be limited to the respondent; the court may also require the undertaking in damages to extend to any person other than the respondent who may suffer loss as a consequence of the order.
5.1.3 The amount of the undertaking in damages may be unlimited96 or limited to a fixed sum (for example where the claimant is insolvent, limited to the sums held in the insolvent estate of the claimant).
5.1.4 The fact that an applicant is of limited means should not preclude the grant of an order for an undertaking as to damages. If there are concerns about an applicant’s financial resources the court may require either security or the payment of money into court to fortify the undertaking. Alternatively the court may require an undertaking from a more financially secure person or body who is not a party to the proceedings, such as the applicant’s parent company.
5.1.5 On an application to fortify an undertaking, the court will attempt to estimate the harm that the respondent might suffer in the event that the injunction was found to be wrongly granted, although it will often not be possible for an accurate analysis to be undertaken. In some cases (particularly freezing orders) it may not be possible to predict what loss will be caused, although it is clear that there is a risk of loss that justifies the fortification of the undertaking.97 If the application is made without notice, the applicant has a continuing duty to disclose to the respondent any changes in its financial circumstances which may impact on its ability to meet a damages award.98
5.1.6 There are two exceptional cases where the applicant will not be required to give an undertaking to the respondent:
  • cases brought by the Crown, local authorities and similar law enforcement agencies (such as the Financial Conduct Authority) acting in the public interest to enforce the law;99 and
  • matrimonial cases not involving property rights.

5.1.7 The undertaking is enforced by an enquiry into what loss the respondent (or third party) suffered because of the injunction. The court has an unfettered discretion as to whether or not to enforce the undertaking. Factors that the court may take into account include: (i) delay in seeking the enquiry into damages; (ii) inequitable conduct by the respondent; and (iii) good faith of the applicant.
5.2 Additional “without notice” requirements
5.2.1 The CPR provide that any order for an injunction, unless the court orders otherwise, must contain, if made without notice to the other party, an undertaking by the applicant to the court to serve the application, evidence in support and any order made on the respondent as soon as practicable.
5.2.2 In addition, applicants for an interim measure on a without notice basis are under a duty to provide full notes of the hearing to any party that would be affected by the relief sought, and a failure to do so may result in an award of indemnity costs in favour of the party affected.100
6. Timing of Interim Measures
6.1 When an interim application may be made
6.1.1 An order for an interim measure may be made at any time, including before proceedings are started and after judgment has been given.101
Before commencement of proceedings

6.1.2 An interim measure can only be granted before a claim has been made (and therefore proceedings are commenced) if the matter is urgent or it is otherwise necessary to do so in the interests of justice.102 Where no claim form has been issued, the applicant will be required to undertake to the court that it will issue a claim form immediately or as directed by the court.103
6.1.3 Freezing orders are often sought before substantive proceedings have been issued although the applicant must establish some underlying cause of action in which any judgment could be enforced against the intended respondent’s assets.
6.1.4 While the general rule is that an order for an interim measure may be made at any time, the respondent may not apply for any of the orders listed in CPR 25.1(1) before it has responded to the claim by filing either an acknowledgment of service or a defence, unless the court orders otherwise.104 This rule has limited application because most of the interim measures are remedies available to the applicant only.
Urgent applications

6.1.5 It is well established that an applicant for an interim measure should act expeditiously105 and any unexplained delay may tilt the balance in favour of not granting the relief sought by the applicant.106 This will especially be the case where the respondent has changed its position on the basis of the applicant’s apparent lack of concern as to the state of affairs at issue or where the respondent has otherwise been lulled into a false sense of security.
6.2 Duration of an interim measure procedure
6.2.1 Generally, interim measures may be obtained within a few working days. However, it is possible to obtain an interim order (including an interim injunction) at a few hours’ notice if the urgency of the matter justifies it.
6.3 Validity of an order
6.3.1 An order will generally take effect from the day when it is given or made, unless the court specifies a later date.107 Once it is served on the respondent or any third party,108 they will have to comply with its terms, or the order can be enforced against them (see section 9 below).
7. Costs
7.1 Court costs and compensation for professional representation
7.1.1 The costs of applying for or resisting an injunction are notoriously difficult to predict and depend entirely on the facts and circumstances of the individual case. However, by their nature, injunctions are a time-consuming and expensive remedy. Costs will include the costs of legal representation, as well as the court fee for issuing an application.109 Factors that will impact on costs include the urgency of the application; the number of witnesses involved and whether the application is made with or without notice.
7.2 Advance on costs and security for party compensation
7.2.1 Please see generally paragraph 5.1 in relation to an applicant’s obligation to give an undertaking in damages when an interim measure is granted.
7.3 Decision on costs and cost shifting
7.3.1 The court has a discretion to decide whether costs are payable, the amount of such costs and when they are to be paid.110 Generally, the unsuccessful party will be ordered to pay the costs of the successful party,111 but the court will not approve disproportionate or unreasonable costs.112 The court may decide to award “costs in the case”, being costs in favour of the overall “winner” once the case has been tried at a final hearing.
8. Remedies Against the Decision on Interim Measures
8.1 Circumstances in which an injunction may be discharged
8.1.1 The court has a residual discretion to discharge an injunction at any time. Typically, injunctions are discharged on: (i) the settlement of the claim; or (ii) the provision of an undertaking in terms corresponding to those of an injunction. Such an undertaking has the same effect as an injunction, and if it is broken by the respondent, it will automatically be in contempt of court.
8.2 Appellate remedies
Challenging an injunction

8.2.1 Both the party against whom an interim measure is ordered, and the party whose request for an interim measure was not granted may appeal to a higher court to seek to overturn the order from the first instance court. In addition, a person who is not a party but who is directly affected by any order113 may also apply to have the order set aside or varied.114
Permission to appeal

8.2.2 The proposed appellant will in most cases need to obtain permission to appeal from the court that made the first instance decision.115 The appellant will usually need to seek permission within 21 days of the date of the initial decision.116 Where the lower court refuses an application for permission to appeal, a further application may be made to the appeal court.117 Either way, permission will only be granted where the appeal has a real prospect of success, or where there is some other compelling reason why the appeal should be heard.118
The powers of the appellate court

8.2.3 The appeal court has the power to affirm, set aside or vary any order made by the lower court, refer any issue for determination by the lower court or order a new hearing.119
8.2.4 The Court of Appeal rarely interferes with the exercise of a judge’s discretion in a freezing order and other discretionary orders unless it can be shown that the judge: (i) did not apply the proper tests; (ii) misdirected himself as to the law; (iii) took into account irrelevant points or (iv) failed to take account of matters which should have been noted.120 The fact that the Court of Appeal would have come to a different conclusion is not in itself a reason to allow an appeal.
9. Enforcement of an Interim Measure
9.1 Enforcement of interim measures issued by national courts
9.1.1 Where a person is required by a court order to do a certain act within a specified time and refuses or neglects to do so, or a person disobeys a court order requiring him to abstain from doing an act, an applicant can enforce the order in three ways:
  • notification: the applicant can notify the court in which the order was made of the respondent’s failure to comply with the order. The court may order that the act that was required to be done by the respondent be carried out by the applicant who obtained the order or some other person appointed by the court, and that the costs of carrying out the action be paid by the respondent.121
  • order for committal for contempt of court: can be sought.122 Generally, the applicant will need to apply to the court in which the order for an interim measure was made.123 Alternatively, the court has the power to make an Order for Committal of its own initiative.124 The person in breach of the order may be imprisoned, fined or have its assets seized. An Order for Committal must contain a penal notice warning of the consequences of disobeying the order125 and must be served personally on the person in default.126
  • writ of Sequestration: Sequestrators may take control of property belonging to the party against whom the writ is ordered until that party has complied with the court order. Where a body corporate is concerned, the property can be that of the corporate body or of any director or officer of the corporate body.127

9.2 Enforcement of interim measures issued by foreign courts
9.2.1 The Brussels I Regulation and the Lugano Convention apply to judgments within the European Union, as well as Iceland, Switzerland and Norway.128 The Brussels I Regulation permits the enforcement of interim orders in England and Wales from other EU member states without any declaration of enforceability being required.129 However, pursuant to the Lugano Convention in the case of judgments from Iceland, Switzerland and Norway, an application for registration and enforcement to the court is required.130 There are currently no rules governing the enforcement of interim orders in jurisdictions other than those listed.131
9.2.2 For judgments from Iceland, Switzerland and Norway the applicant needs to take the following practical steps to enforce an interim order:
  • make an application to the High Court without notice to enforce and register the foreign interim order;132
  • the application should include: (i) the authenticated order for which enforcement is sought;133 (ii) a translation into English of the same (if in another language);134 (iii) a certificate set out in the form of Annex V to the Lugano Convention, produced by the court of the issuing member state;135 and (iv) where interest is recoverable under the foreign law, the amount and rate of the interest, and the date from which it is recoverable and on which it ceases to accrue;136 and
  • when an order granting permission to register an order is awarded, it must be served on the person against whom the original order was made, and must state a period within which an appeal may be made.137 Once that period has expired, the registered order may be enforced.138

9.2.3 For the purposes of enforcing an order from an EU member state, the Brussels I Regulation distinguishes between “provisional, including protective, measures” and other interim measures. The distinction is relevant since, pursuant to Article 42(2) of the Brussels I Regulation and no. 33 of its preamble, “provisional, including protective, measures” can only be enforced in other countries if the court issuing the order has jurisdiction as to the substance of the matter. While the term “provisional, including protective, measures” is not defined in the Brussels I Regulation, it has been held to mean measures intended to preserve a legal or factual situation in order to safeguard rights which are the subject of a substantive legal action.139 Presumably most interim measures would be regarded as provisional measures under the Brussels I Regulation140.
9.2.4 In order to enforce a judgment ordering a provisional, including protective, measure the applicant needs to provide the competent enforcement authority with:141
  • a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
  • a certificate from the court of origin in the form set out in Annex I of the Brussels I Regulation containing a description of the measure and certifying that: (i) the court has jurisdiction as to the substance of the matter; and (ii) the judgment is enforceable in the member state of origin; and
  • where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment.

9.2.5 The enforcement authority may require the applicant to provide a translation or a transliteration of the contents of the certificate referred to in paragraph 9.2.4 above.142 Except in the case of protective measures, this certificate (along with the judgment if not already served on the respondent) must be served on the respondent prior to the first enforcement measure.143 The respondent may also request a translation of the judgment.144
9.2.6 Court orders obtained without notice to the respondent are not recognised under the Brussels I Regulation or the Lugano Convention, and therefore are not enforceable.145
10. Interim Measures in International Commercial Arbitration
10.1 Interim measures by state courts
10.1.1 The Arbitration Act 1996 (Act) governs arbitration proceedings in England and Wales. One of its aims is to minimise court intervention in arbitration;146 the court can intervene to support the arbitral process but not displace it.
10.1.2 The court will only intervene in arbitral proceedings where the arbitral tribunal has no power or is unable at that time to act effectively.147 Thus, in practice, the court is most commonly called upon to exercise its power to order interim measures where the arbitral tribunal has not yet been constituted.
10.1.3 The court may order that any interim measure granted will cease to have effect on the order of an arbitral tribunal or other institution having the power to act in relation to the subject-matter of the order.148
10.1.4 Subject to the parties agreeing otherwise,149 the courts of England and Wales may grant interim measures also in support of arbitral proceedings where the seat of the arbitral proceedings is in another jurisdiction, or where no seat has been determined.150 For instance, the court may issue a freezing order in support of arbitral proceedings where the seat of the arbitration is not in England or Wales, particularly if the respondent has assets in, or the applicant is based in, England and Wales.
10.1.5 The court may order such remedies where there is a good reason for the court to intervene and exercise its discretion. Courts are less inclined to intervene if the arbitration has a foreign seat and/or the proceedings are governed by foreign law, especially if there are few similarities between that foreign law and English law.151
10.1.6 The party seeking an interim measure from the English courts should complete an arbitration claim form setting out the relief sought and the grounds upon which the application is made. The arbitration claim form will usually be filed with, and supported by, a witness statement. An application for a freezing order must be supported by an affidavit.
10.1.7 If the arbitration claim form cannot be served on the respondent within the jurisdiction, the applicant will need to apply to the court for permission to serve out of jurisdiction. The court may give permission to serve out of jurisdiction if the claim is for an order in support of arbitral proceedings under section 44 of the Act.152 Once permission is granted, the applicant may serve the arbitration claim form on the respondent. Service must be effected by a method outlined in the CPR.
10.2 Interim measures by arbitral tribunal with its seat in England and Wales
10.2.1 Provided the parties have not agreed to the contrary, the arbitral tribunal has the power to grant interim relief. In that case, both the arbitral tribunal and the state courts have jurisdiction to impose interim measures. However, an arbitral tribunal has no power to compel compliance with any interim measures which it orders. This can be problem, particularly where the order affects third parties, for example in the case of freezing injunctions. A court can compel compliance (both by the parties to the arbitration, and third parties) by imposing sanctions if a party does not comply. If one of the parties does not comply with the tribunal’s order, the tribunal may request the assistance of the state court at the place where the interim measure is to be enforced, although this may be a slow process.
10.3 Interim measures by arbitral tribunal with its seat abroad
10.3.1 The recognition and enforcement of foreign arbitral awards is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). According to the New York Convention interim orders are not final and therefore do not qualify as enforceable awards. Foreign arbitral tribunals may also seek the assistance of the state court at the place of enforcement if a party does not voluntarily comply with an order for an interim measure.
11. Contacts
CMS Cameron McKenna Nabarro Olswang LLP
Cannon Place
78 Cannon Street
London EC4N 6AF, United Kingdom
Louise Boswell
T +44 20 7367 3725
E louise.boswell@cms-cmno.com

12. References
  • By the power given to it in the Civil Procedure Act 1997, s 2.
  • CPR 1.1.
  • CPR 1.2.
  • CPR 1.1(2); A v B (A Company) [2002] EWCA Civ 337.
  • Civil Jurisdiction and Judgments Act 1982, s 25 (as extended by the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (SI 1997/302) and the Civil Jurisdiction and Judgments Regulations 2009 (SI 2009/3131)).
  • Motorola Credit Corporation v Uzan and others [2003] EWCA Civ 752.
  • Article 25 Brussels I Regulation.
  • High Court and County Courts Jurisdiction Order 1991, s 4A.
  • Senior Courts Act 1981, s 37(1) and (2).
  • County Courts Act 1984, s 38.
  • See section 3.4 below.
  • County Courts Remedies Regulations 2014.
  • The County Court Remedies Regulations 2014 came into force on 22 April 2014.
  • CPR 25.1(1)(a).
  • Proctor v Bayley (1889) 42 Ch.D 390 at 398.
  • Araci v Fallon [2011] EWCA Civ 668.
  • See, for example, Parker v Camden London Borough Council [1986] Ch 162, [1985] 2 All ER 141, CA, where it was found that a real risk to the health of tenants could amount to such special circumstances.
  • Locabail International Finance v Agroexpert (The Sea Hawk) [1986] 1 W.L.R. 657.
  • Ibid.
  • A-G v Staffordshire County Council [1905] 1 Ch 336.
  • Powell Duffryn Steam Co v Taff Vale Rly Co (1874) LR 9 Ch App 331.
  • A-G v Colchester Corporation [1955] 2 QB 207.
  • See, for example, Greene v West Cheshire Rly Co (1871-72) LR 13 Eq 44.
  • Eng Mee Yong v Letchumann [1980] AC 331 at 337C-D.
  • American Cynanamid Co. v Ethicon Ltd [1975] AC 396; Lumley v Wagner (1852) 1 De G M & G 604.
  • Evans Marshall & Co v Bertola SA [1973] 1 WLR 349 at 379 – 380.
  • J. Lyons & Sons v Wilkins [1896] 1 Ch 811 at 827.
  • Attorney-General v Guardian Newspapers [1987] 1 WLR 1248.
  • Kennaway v Thompson [1980] 3 All ER 329, CA.
  • Lawrence David v Ashton [1989] ICR 123, 132.
  • Sometimes referred to as a “Mareva” injunction after the case that established the basic principle, Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213.
  • CPR 25.1(1)(f)
  • Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213.
  • Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft GmbH (The Niedersachsen) [1983] 2 Lloyd’s Rep, 600 at 605.
  • Rossetti Marketing Ltd v Diamond Sofa Company Ltd and other [2012] EWHC 354 (QB).
  • Rosen v Rose [2003] EWHC 309 (QB).
  • See the Third Chandris [1979] QB 645, CA, p 671.
  • Midas Merchant Bank v Bello [2002] EWCA Civ 1496.
  • Darashah v UFAC (UK) Ltd, [1982] CAT, 349.
  • CPR 25.1(1)(g).
  • Emmott v Michael Wilson and Partners Ltd [2015] EWCA Civ 1028
  • Para 11(2) of the example freezing injunction appended to CPR Practice Direction 25A.
  • CPR 25.1(1)(h).
  • Sometimes referred to as an “Anton Piller” order after the case that established the basic principle, Anton Piller KG v Manufacturing Processes Ltd [1976] Ch. 55.
  • CPR 25.1(1)(h).
  • Para 10 of the example search order appended to CPR Practice Direction 25A allows the respondent to seek legal advice and to ask the court to vary or discharge the search order. Whilst doing so, he may ask the supervising solicitor to delay starting the search for up to 2 hours or such other longer period as the supervising solicitor may permit.
  • See CPR 81.4 and CPR Practice Direction 40B para 9.
  • Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55, at 62.
  • Universal Thermosensors Ltd v Hibben [1992] FSR 361.
  • CPR Practice Direction 25A para 7.4(4). This form of privilege exempts a person from being compelled to produce documents or provide information which might incriminate him in criminal proceedings and/or expose him to a penalty. If such privilege is invoked, then a respondent is entitled to decline to produce incriminating materials, and also to decline to permit persons from entering the premises to search for them.
  • CPR Practice Direction 25A paras 7.5(11) and (12).
  • CPR Practice Direction 25A para 7.5(2).
  • CPR 25.1(1)(b).
  • Hawes v Cuddy (2007) Times, 13 November, [2007] EWHC 1789 (Ch).
  • Financial Services Authority v Rourke [2002] CP Rep 14 quoted in Office of Fair Trading v Foxtons Ltd [2009] EWCA Civ 288 at para 57.
  • CPR 25.1(1)(k). See also the Senior Courts Act 1981, s. 32 and the County Courts Act 1984, s. 50.
  • CPR 25.1(1)(l).
  • CPR 25.1(1)(m).
  • CPR 25.1(1))(c).
  • CPR 25.1(2).
  • CPR 25.1(1)(i).
  • CPR 25.1(1)(j) and CPR 31.17.
  • Mars UK Ltd v Waitrose [2004] EWHC 2264 (Ch); [2004] All ER (D) 136.
  • Snowstar Shipping Co Ltd v Graig Shipping Plc [2003] EWHC 1367 (Comm); [2003] All ER (D) 174 (Jun).
  • Originally established in the case of Norwich Pharmacal Co. v Customs and Excise Commissioners [1973] 2 All ER 943.
  • Omar v Omar [1995] 1 WLR 1428.
  • Shlaimoun and another v Mining Technologies International Inc [2011] EWHC 3278 (QB).
  • A penal notice is a notice on a court order providing that a respondent will be guilty of contempt of court if it fails to comply with the terms of the order.
  • Totalise plc v Motley Fool Ltd and another [2001] EWCA Civ 1897.
  • White Book 2015, vol 2, s 15 Interim Remedies, para 15-94.
  • Council Regulation (EC) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
  • Case C-159/02 Turner v Grovit [2004] ECR I-3565; Case C-185/07 Allianz SpA v West Tankers Inc [2009] 1 AC 1138.
  • Allianz SpA v West Tankers Inc [2009] 1 AC 1138, paragraph 30.
  • The rules governing the procedural requirements of the interim remedies are contained in CPR 23 and 25.
  • In very limited circumstances, an application may be made without filing an application notice where it is permitted by the CPR or where the court dispenses with the requirement – CPR 23.3(2).
  • CPR 23.6.
  • Being an undertaking given by the applicant to the respondent to compensate the respondent if it is subsequently determined that the applicant was not entitled to the relief granted by the court, as is explained in more detail in section 5.1 below.
  • Being the date on which the parties are to return to the court for a hearing, at which both parties are able to make their arguments for and against the application.
  • CPR 23.7(1) and CPR Practice Direction 25A paras 2.1-2.2.
  • CPR Practice Direction 25A para 4.2.
  • Polly Peck International Plc v Nadir, The Times November 11, 1991.
  • CPR 32.6(1).
  • Moat Housing Group-South Ltd v Harris [2005] EWCA Civ 287; [2006] QB 606, CA, paras 63 and 71.
  • National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16; [2009] 1 WLR 1045. See also CEF Holdings Ltd & Ors c Brian Mundey & Ors [2012] EWHC 1524 (QB). The usual notice period required is three clear days. A ‘clear day’ is a complete day, not including the day on which the period begins, or, if the end of the period is defined by reference to an event (for example, a hearing), the day of that event. All periods of time expressed as a number of days in the CPR, a Practice Direction, judgment or order will be calculated as clear days (CPR 2.8).
  • Brink's-MAT Ltd v Elcombe and others [1988] 1 W.L.R. 1350, at 1356.
  • Memory Corporation v Sidhu (No. 2 ) [2000] 1 WLR 1443 CA.
  • Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd’s Rep 428.
  • Commercial Bank of the Near East plc v A [1989] 2 Lloyds’ Rep 319.
  • Re OJSC Ank Yugraneft [2008] EWHC 2614 (Ch); [2009] 1 BCLC 298.
  • Hoyle, Mark S.W., Freezing and Search Orders, Fourth Edition (2006), para 5.20.
  • CPR Practice Direction 23A, para 9.4.
  • Miller v Minister of Pensions [1947] 2 All ER 372 at 374, per Denning J.
  • Re H and R (minors) (sexual abuse: standard of proof) [1996] AC 563, at 586, per Lord Nichols.
  • CPR 32.2(1)(b).
  • CPR Practice Direction 25A, para 5.1(1).
  • See the standard form freezing injunction annexed to CPR Practice Direction 25A.
  • Sinclair v Cushnie [2004] EWHC 218 (Ch).
  • Staines v Walsh [2003] EWHC 1486 (Ch).
  • Cf FSA v Sinaloa Gold plc and others [2011] EWCA Civ 1158.
  • Interoute Telecommunications (UK) Ltd v Fashion Gossip Ltd, The Times, 10 November 1999.
  • CPR 25.2(1).
  • CPR 25.2(2)(b).
  • CPR 25A Practice Direction para 4.4(1).
  • CPR 25.2(2)(c).
  • CPR Practice Direction to Part 25.
  • AAH Pharmaceuticals Ltd & Ors v Pfizer Ltd & Anr [2007] EWHC 565 (Ch).
  • CPR 40.7.
  • A “third party” may include a party who is not party to the proceedings in question, but who appears to the Court likely to have in his possession, custody or power any documents which are relevant to an issue arising out of said claim (Senior Courts Act 1981, s 34(2)).
  • An application with notice currently costs £155, whilst an application without notice costs GBP 55 – Schedule 1 of the Civil Proceedings Fees (Amendment) Order 2014, s 2.4 and 2.5.
  • CPR 44.3(1).
  • CPR 44.2(2).
  • CPR 44.4; and Practice Direction 44, para 9.10.
  • For example, a tenant of a property in question or employees/agents of a respondent.
  • CPR 40.9.
  • CPR 52.3(2), (3).
  • CPR 52.4(2).
  • CPR 52.3(3).
  • CPR 52.3(6).
  • CPR 52.10(2).
  • CPR 52.11(3); and Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft m.b.H. und Co. K.G (The Niedersachsen) [1983] 1 WLR 1412, CA.
  • CPR, 70.2A.
  • CPR 81.4 and CPR Practice Direction 81, para 1. In relation to search orders, a respondent will be in contempt of court if it wilfully disobeys the order, even if there is no material effect on the order or on the claimant’s ability to recover the relevant material (Nokia France SA v Interstone Trading Ltd [2004] EWHC 272 (Comm)).
  • CPR 81.13.
  • CPR 81.2.
  • CPR 81.9, for example, freezing injunctions and search orders.
  • CPR 81.10(4).
  • CPR 81.20(3).
  • Council Regulation (EC) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast); and Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 30 October 2007.
  • Brussels I Regulation, art 39.
  • Lugano Convention, art 38.1; Brussels I Regulation, art 73.
  • Judgments or orders under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the common law rules must be for a fixed sum of money in order to be enforceable, and accordingly do not allow the enforcement of foreign interim remedies.
  • CPR 74.3(2).
  • Lugano Convention, art 53.
  • CPR 74.4(6), CPR 74.4(1)(b).
  • Brussels I Regulation, art 54; Lugano Convention, art 54.
  • CPR 74.4(6), CPR 74.4(2)(e).
  • CPR 74.6(3)(d).
  • CPR 74.9(2).
  • Reichert v. Dresdner Bank [1992] I.L.Pr. 404. Please also see the partial definition of the term “provisional, including protective, measures” in no. 25 of the preamble to the Brussels I Regulation.
  • This is supported by the terminology used in article 35 of the Brussels I Regulation and in no. 33 of the preamble to the Brussels I Regulation.
  • Brussels I Regulation, art 42(2) and CPR 74.4A.
  • Brussels I Regulation, art 42(3).
  • Brussels I Regulation, art 43.
  • Brussels I Regulation, art 43(2).
  • Brussels I Regulation, art 45(1)(b); Lugano Convention, art 34.2.
  • Cf e.g. Act, s 1(c).
  • Act, s 44(5).
  • Act, s 44(6).
  • S 44 of the Act is a non-mandatory provision.
  • Act, s 44(1).
  • Econet Wireless Ltd v Vee Networks Ltd [2006] EWHC 1568 (Comm).
  • CPR 62.5(1)(b).

France
Authors: Xavier Vahramian, Michael Mladenović
1. Applicable Law
1.1.1 The French Civil Procedure Code (CPC) is the key legal text governing interim measures available in the French courts.
1.1.2 In addition, the seizure or freezing of assets and methods of enforcement are governed by the French Civil Enforcement Proceedings Code.1
1.1.3 For international matters within Europe, the Brussels2 and Lugano3 Conventions apply. Their provisions relate above all to jurisdiction and enforcement.
2. Jurisdiction
2.1.1 Before applying for an interim measure, the claimant must select the court that has jurisdiction. This is first and foremost a question of which court has jurisdiction based on the rules governing territorial or geographical jurisdiction. It then becomes a question of which court is competent to rule on the particular subject matter or the particular type of measure requested.
2.2 International and geographical jurisdiction – the venue
2.2.1 As a general principle, unless otherwise provided by a contract, the court with territorial jurisdiction in domestic cases is the court of the district where the respondent resides.4 The main exception is where the parties have agreed in a jurisdiction clause to submit their dispute to a court in another district (see further section 2.3).
2.2.2 The respondent’s place of residence is defined as the domicile of a natural person or the registered office of a legal entity.5 French case law has introduced a fundamental exception to this rule, known as the “central stations” exception. According to this exception, a legal entity having secondary offices or branches may be summoned to appear before the courts having jurisdiction over the territory where any of its secondary offices or branches are located, or before the court having jurisdiction over the territory where its registered office is located.
2.2.3 If more than one court has jurisdiction, the claimant may have several additional legal options for selecting the territorially competent court. For example:6
  • In non-contractual disputes, the claimant may also summon the respondent to appear either before the court having jurisdiction where the respondent resides or before the court having jurisdiction where the damage occurred.
  • In contractual disputes, the claimant may bring a claim before the court where the service was performed.
  • In cases involving real estate, the court where the land or the building concerned is located may also have jurisdiction.

2.2.4 In the case of conservatory measures (discussed in paragraph 3.1), the competent judge will always be a judge in the place where the respondent resides. This is discussed further in paragraph 2.4.3.
2.2.5 European law governs jurisdictional questions when the parties are in different EU Member States.7 These rules do not apply to questions of the status and legal capacity of natural persons, wills and testaments, social security, bankruptcy proceedings or arbitration.
2.2.6 The Brussels Convention allows the courts of a contracting state to have exclusive jurisdiction in certain circumstances regardless of the domicile of the parties.8 In particular, in enforcement proceedings relating to assets in a particular country, or proceedings relating to real property in a particular country, the court of that particular contracting state will have exclusive jurisdiction.
2.3 The effect of jurisdiction clauses
2.3.1 As mentioned in paragraph 2.2.1, the parties may depart from the rules governing territorial jurisdiction in a jurisdiction clause.
2.3.2 Such agreements are only valid under French law if all the parties are commercial entities.9 A jurisdiction clause selecting a court in a different district to the one that would normally have jurisdiction is not enforceable against a consumer if the claimant is a commercial entity or professional. The purpose is to protect a weaker party from being summoned before an inconvenient and potentially expensive court.
2.3.3 The parties’ agreement to grant a particular court territorial jurisdiction must also be “expressed very clearly”.10 As a result, it is essential that such agreements be expressed in writing in the contract. The parties should not insert an agreement of this nature in invoices that they later send when performing the contract.
2.4 Subject-matter jurisdiction
2.4.1 Once the courts with international or territorial jurisdiction have been established, the court with jurisdiction over the particular subject matter must be determined. The court that has “subject-matter” jurisdiction can depend on either the substance of the underlying dispute, or on what particular interim measure is being requested.
2.4.2 There are several types of civil and commercial courts in France, each having a particular area of expertise. A request for an interim measure must usually be made to the president of the court that is competent to rule on the substance of the underlying dispute. In general, the president of a regional court (le président du tribunal de grande instance) has a general jurisdiction over any civil law matter, although there are exceptions. The president of a district court (tribunal d’instance) or of a commercial court (tribunal de commerce) may also rule in urgent matters.
2.4.3 In the case of the conservatory measures (discussed in paragraph 3.1), the competent judge is usually a special category of judge who is responsible for enforcement matters (juge de l’exécution) in the area in which the respondent resides.11 In commercial cases, the claimant can also choose to request that the president of the commercial court where the respondent resides grants the conservatory measure.12
3. Types of Interim Measures and their Criteria
3.1 Three Categories
3.1.1 Under French law, there is a distinction between:
  • Interim injunctions ordering a party to do something or to stop doing something (mesures provisoires);
  • Evidential measures (référé probatoire) for preserving or establishing factual evidence; and
  • Asset-preserving measures (saisie conservatoire/sureté judiciaire) to preserve assets that would satisfy the claimants’ claim pending a final decision at trial.

3.2 Provisional measures
3.2.1 Provisional measures are temporary measures ordered by a judge in an emergency or if a point is simple to rule on. Such cases do not require a long appraisal from the judge and are meant to secure the rights of the parties until a decision is made on the substance of the claim by the competent court.
3.2.2 Such measures can later be challenged and overruled by the court competent to rule on the substance.
3.2.3 Provisional measures can either be mandatory (an order to do something) or prohibitive (an order to stop doing something). They can apply in a wide range of cases concerning, for instance:
  • the payment of a debt;
  • the performance of a contract in kind;
  • the unauthorised use of intellectual property;
  • unfair competition;
  • defamatory statements; and
  • eviction.

3.2.4 In the case of mandatory orders, the order may impose a reasonable deadline for compliance. It may be accompanied by an order to pay a fine for every day of non-compliance following the deadline.
3.2.5 A provisional measure may be obtained when the claimant is able to demonstrate that his claim:
  • must be decided as a matter of urgency; or
  • that there are no serious grounds to challenge his claim.

3.2.6 “Urgency” can be demonstrated if there is an imminent risk to the claimant’s property or interests, or if irreparable damage is likely to be done. Damage would be irreparable in a defamation case, for example, where no amount of damages would compensate the claimant for a loss of reputation.
3.3 Conservatory measures preserving or establishing factual evidence (référé probatoire)
3.3.1 In court proceedings in France, each party has a duty to gather evidence that is likely to support its claim and must exchange this evidence with the opposing party. This requires the full participation of both parties in the proceedings.
3.3.2 The CPC includes a series of investigative measures which can be ordered by the court if the party making the request lacks crucial evidence to prove its claims.
3.3.3 Investigative measures may be requested during the pre-trial phase or before any trial if there is a legitimate need to discover or to preserve evidence which may influence the decision of the court.13
3.3.4 The most common investigative measure is expert analysis. The experts are completely independent and selected from a list of expert witnesses held by the Court of Appeal (Cour d’appel). In France, independent court-appointed experts play a significant role in the process of gathering evidence and proving facts.
3.3.5 The claimant is usually ordered by the court to make an advance payment to cover the expert’s fees. However, the expert’s fees, costs and expenses are generally borne in full by the unsuccessful party at the end of the proceedings.
3.3.6 In situations where it is essential that the investigative measures be kept secret, they can be sought by the claimant without giving notice to the respondent (sur requête).14 For example, a bailiff may be appointed to enter a potential respondent’s place of business and compile an official statement of certain categories of documents or other items present there. If the bailiff is not permitted access to the premises, the court is permitted to draw adverse inferences unless there is an alternative explanation. Where access is unlikely to be permitted, additional measures may be granted to assist the bailiff, such as the appointment of a locksmith to accompany him.
3.4 Asset-preserving measures
3.4.1 Asset-preserving measures are ordered by the judge to preserve assets that would satisfy the claimant’s claim pending a final decision at trial. The same measures apply whether the claim is contractual or non-contractual.
3.4.2 There are two types of asset-preserving measures:
  • Freezing orders (saisies conservatoires) – This is the most common asset-preserving interim measure. It is an order to freeze assets that is granted prior to judgment. If the claimant is successful at trial, after the judgment has been rendered the freezing order converts into a final order for the seizure of assets, which is executed by a bailiff. This is a significant benefit that comes with a saisie conservatoire, as it allows the respondent’s assets to be seized very quickly following judgment.
  • A judicial encumbrance (sureté judiciaire) – This is a type of encumbrance that is ordered by a judge over assets such as buildings, businesses, securities or other property, either tangible or intangible. Such assets act as security for the claimants’ claims pending judgment. They are especially useful if the respondent files for bankruptcy or goes into liquidation.

3.4.3 In general, it is necessary to satisfy two requirements to be granted an asset-preserving order.
3.4.4 First, the claim must “seem well-founded in principle”.15 A claimant need not prove its underlying claim for the judge to order that the respondent’s assets be frozen. The claimant must submit to the judge all the material evidence supporting its claim, so that the judge may assess its prospects of success. The judge then decides whether the evidence submitted by the claimant suggests that the claim has strong prospects of success. If he decides that it does, he will grant the measure.
3.4.5 The second requirement is that there must be a serious risk that following judgment, it will no longer be possible to recover the assets required to satisfy the claim. The claimant must provide evidence that such a risk exists. For instance, there may be evidence that the respondent is either moving money out of the reach of the French courts, or is in great financial difficulty. The claimant may, for example, have sent the respondent several notices requiring payment, and received no positive response. Or the respondent company may have significant debts, be making a number of redundancies, or making arrangements for its liquidation.
3.4.6 It is not necessary to demonstrate any urgency to obtain a saisie conservatoire/freezing order.
3.4.7 In most cases asset-preserving measures are sought without notice. The respondent is then notified about the ruling by a bailiff and can contest the measure only during a second stage of the procedure.
3.4.8 There are certain circumstances in which it is not necessary to obtain a court judgment to execute an asset-preserving measure, or even to make an application demonstrating that the claim is well-founded and that there is a serious risk to recovery. This is the case where:
  • The parties have signed a contract before a notary;
  • The respondent has not paid a cheque, promissory note or accepted bill of exchange; or
  • The claimant has already obtained a court decision in its favour.

3.4.9 In these cases, the claimant can enlist the services of a bailiff directly to seize or freeze assets to satisfy its claim.
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
4.1.1 The procedure for requesting an interim measure differs according to the type of measure is requested.
4.1.2 If an interim injunction or evidential measure is being requested, then the rules for summary proceedings apply (procédures de référé). Usual practice is for the claimant’s lawyers to draft a notice (assignation) which is then delivered to the respondent by a registered bailiff (huissier de justice). The assignation must respect certain formal requirements, including a request that the respondent appear before a competent judge and attaching supporting evidence.16 Once it has been delivered by the bailiff, the claimant lodges the assignation with the court.
4.1.3 An alternative method for requesting injunctions and evidential measures is used in certain employment or lower value claims. It involves filing a request for the measure directly with the court. This method does not require the request to be in a particular form, such as the assignation, or to be delivered by a bailiff.
4.1.4 If a freezing order or judicial encumbrance is being requested, then the claimant must submit both a formal request and a draft order. These must be submitted to the competent judge (juge de l’exécution).
4.1.5 Whatever the type of interim measure being requested, the initial notice or request must include a comprehensive plea for interim relief and detail the grounds on which the request is based. The court cannot grant the parties more than they request.
4.2 The development of the procedure
4.2.1 The development of the procedure also differs according to the type of interim measure being requested.
4.2.2 If an interim injunction or evidential measure is being requested (i.e. where there is a procédure de référé), an oral hearing is held. However, the parties (or their representatives) can always exchange and submit written briefs containing their pleadings in advance of the oral hearing.
4.2.3 If an asset-preserving measure is being requested, then the procedure will generally be without notice. An oral hearing will not be needed as the judge has the power to make his decision solely on the basis of the claimant’s written submissions. Whether there is an oral hearing or not is at the judge’s discretion.
4.2.4 Asset-preserving measures also have to be executed within three months of the date of the court order after which they are no longer valid.17
4.2.5 Once the claimant has obtained an asset-preserving order, it must bring a substantive claim before the competent court. It must do so within a month of enforcing the asset-preserving order. Asset-preserving measures are meant to be temporary solutions pending resolution of the dispute at trial. If the claimant fails to bring a substantive claim, the asset-preserving order falls away.18
4.2.6 There are no similar time or other constraints on the execution of an interim injunction or evidential measure. They can be executed for up to ten years after they are rendered19.
Asset-preserving measures
4.2.7 In addition to satisfying the requirements for granting an asset-preserving measure (see section 3.4), in most cases, the claimant must obtain authorisation to execute the measure from the judge.
4.2.8 In six specific cases, the creditor has no obligation to obtain such authorisation from the judge. The first two cases where the judge’s authorisation is not necessary are when the claimant has already obtained:
  • An order for enforcement,
  • A judicial decision that is not yet enforceable.20

The enforceability of a decision is subject to two conditions.21 Firstly, the enforceability criteria must have been included in/appended to the court’s decision and secondly, the party concerned must have been previously notified about the decision.
4.2.9 The third, fourth and fifth cases where the judge’s authorisation is not required to execute a conservatory order are when the respondent has not paid:
  • An agreed bill of exchange.
  • A promissory note.
  • A cheque.

The judge’s authorisation is not needed in these cases as the documents themselves are evidence enough.
4.2.10 The sixth case in which no authorisation is required is when a lessor, who is a party to “a written lease regarding an immovable asset” claims that rent is owed/outstanding.22
4.2.11 In all other cases, an authorisation to carry out a conservatory order must be granted by the judge in the form of a without notice injunction.
4.2.12 It is assumed that the judge has proceeded to a preliminary assessment of the merits of the claim when delivering the authorisation for a conservatory order.
4.2.13 Moreover, even if prima facie the claim has grounds, the creditor always has to justify the actual existence of circumstances which may endanger the enforcement of his claim (see paragraph 3.3).
4.2.14 The judge must fix the amount of assets to be frozen or seized. He must also specify the nature of the goods to be secured, otherwise the injunction is invalid.23
4.2.15 After authorising the conservatory measure, the judge may decide to overturn his decision or the conditions of its enforcement at a hearing where both parties are present.
4.3 Evidential requirements
4.3.1 In principle, only documentary evidence is permitted in summary proceedings. The concept of documentary evidence is interpreted in a broad way, including every document that can prove relevant facts, such as papers, drawings, plans, photos and printed e-mails.
4.3.2 Evidence must have been collected in accordance with the general rules governing the gathering and production of evidence. According to these rules, evidence that has been obtained in breach of privacy rights or confidentiality obligations is not admissible.
4.3.3 Written evidence in the form of a deed or a signed private agreement is mandatory for all claims in which the amount at stake exceeds EUR 1,500. The law on evidence has been updated to include documents transmitted electronically or on electronic support.24 When the amount at stake is less than EUR 1,500, evidence may be produced by any admissible means.
4.3.4 When witness evidence is required, the court may hear third parties and gather written statements or expert reports likely to clarify certain issues. Anyone may be heard as a witness, except those lacking legal capacity to testify before the court. Witnesses swear an oath to tell the truth. Any witness found guilty of perjury may be punished by a fine and/or imprisonment.
4.3.5 In practice, French judges do not hear oral witness evidence frequently. Contrary to common law jurisdictions where the parties are free to call witnesses, only judges have the authority to do so in France. The parties may nevertheless propose that certain people be heard.
4.3.6 French procedural rules do not impose any formal requirements on evidence presented to a court, or any requirements for introducing witness evidence. Unlike in common law jurisdictions, witnesses are not cross-examined as this is not permitted. Witness evidence is not deemed particularly credible and is therefore generally not relied on by the courts in civil and commercial proceedings. Documentary evidence carries more weight in the French courts.
5. Legal Safeguards for the Respondent
5.1 Right to present counter-arguments and evidence
5.1.1 Any party to a dispute has the right to be heard. A party on which a summons has been served can always issue a response. When the respondent is represented by a lawyer, the lawyer must in most cases prepare written pleadings and submit evidence in support of these prior to the hearing.
5.1.2 If a written pleading is served on a party without leaving the other party sufficient time to respond, a judge has two options. The judge can either delay the hearing, or dismiss the written pleadings and supporting evidence that were submitted late.
5.1.3 Written pleadings must include a limited amount of compulsory information. They must include contact details for the parties, such as their name and address; the lawyer’s signature; and the list of exhibits submitted to the court.
5.1.4 In its written response, the respondent must put forward its substantiated case in order to undermine the credibility of the claimants’ allegations.
5.1.5 Interim injunctions can be overturned on appeal or on a hearing of the merits. This is discussed further in section 8.
5.1.6 The court must provide reasons for its decision, especially in the case of without-notice proceedings.25
5.1.7 The judge may, at any time, order a conservatory measure to be lifted, if it appears that the legal requirements have not been met (i.e. the claim no longer appears prima facie to have grounds or there is no risk of enforcement26). This is most likely to happen when a preliminary authority is not required to seek an interim measure, as in the cases under paragraph 4.2.27 The judge lifts the measure on the basis of factual evidence submitted by the respondent. At that stage, the judge must hear both parties, so the claimant that originally applied for the conservatory measure has to be heard or at least notified of the hearing.
5.1.8 The judge may also substitute the initial conservatory measure with a more appropriate measure, to safeguard the interests of the parties, for example, by requesting the submission of an irrevocable bank guarantee. Such a substitution also lifts the conservatory measure.
5.1.9 If the conservatory order is related to a commercial claim, a request to have the order lifted should be filed with the commercial court that granted the order.
5.2 Damages for unjustified interim measures
5.2.1 For a long time, judges responsible for granting interim remedies did not have the power to award damages for abuse of process.
5.2.2 However, the Supreme Court (la Cour de cassation) has since changed its position. Judges can now award damages for unjustified or inappropriate proceedings.
6. Timing of Interim Measures
6.1 Similarities and differences when filing a request before or after a claim on the merits
6.1.1 A request for an interim measure must satisfy the same requirements, whether or not the substantive claim has already been issued. However, the applicant has a greater choice of courts before the substantive claim is made.
6.1.2 When the substantive claim is already issued at a regional court (tribunal de grande instance) or the Court of Appeal (Cour d’appel), the pre-trial proceedings are heard by a pre-trial judge (juge de la mise en état) or the pre-trial counsel (Conseiller de la mise en état). Once a pre-trial judge has been appointed, he will be the only competent judge to rule on an interim injunction application related to the case.28
6.2 Duration of interim proceedings
6.2.1 Interim applications are fast-track proceedings. However, the courts have a wide discretion to decide whether an application should be expedited.
6.2.2 Interim applications may be heard during the courts’ vacation period if necessary. Interim applications do not need to wait their turn in the court’s diary, but may be heard immediately.
6.2.3 As a rule, requests for interim measures are decided quickly. This is particularly true in the case of without-notice applications. If the matter is clearly urgent, the court will issue its order within one or two working days, or possibly within hours.
7. Costs
7.1 Court costs and compensation for professional representation
7.1.1 A distinction should be made between lawyers, whose remuneration is agreed freely with the client, and public officials, whose remuneration is fixed by the regulations.
7.1.2 Although a claimant has to pay a costs advance when making an interim application, the costs of the application are paid by the losing party.29 Enforcement costs are subject to a scale of costs whereby bailiffs receive fixed remuneration for each act of enforcement and each conservatory measure.
7.1.3 The remuneration scale for bailiffs comprises a fixed amount, and a proportional amount based on the value of the case and in addition, where appropriate, a special charge for serving the proceedings.30
7.1.4 In the case of conservatory measure, the proportional charges are calculated on the basis of the amounts recovered and are payable only if the bailiffs are instructed to recover the sums owed. Freely negotiated additional fees are prohibited in most cases 31.
7.1.5 Other costs include court fees [(approximately EUR 300 – 500) – can this be said to be accurate in terms of cost?], costs of translating documents (where this is required by statute or by international undertaking), witness expenses, remuneration of expert witnesses, lawyers’ fees, and interpreting and translation costs.32
7.1.6 Most of the time these costs are born by the losing party or at the judge’s discretion by the parties he deems at fault in the dispute.
8. Remedies Against Interim Measures
8.1 Modification and revocation
8.1.1 Once an interim measure has been granted by a court, the parties may always bring a claim for a final decision to either confirm or overturn the interim decision.33 The parties may apply for an interim measure to be modified or withdrawn by making another interim application if there are new supervening circumstances34.
8.1.2 New supervening circumstances are any changes on the facts or legal arguments that led to the initial decision35. Such an application may only be brought before the judge who granted made the contested measure. The judge must decide whether he/she would have made the same decision if he/she had known the new information at the time.
8.1.3 This remedy is specific and exclusive of others.
8.2 Appellate remedies
8.2.1 A party has fifteen days to appeal against an interim measure, or apply for it to be set aside.36 An appeal is not permitted if the measure was granted by the first president of the Court of Appeal.
8.2.2 In most cases, parties must be represented by a lawyer.
8.2.3 The Court of Appeal, which hears appeals against interim injunctions, can only decide to the extent that it was within the powers of the judge responsible for the urgent conservatory proceedings, i.e. cases listed under section here above 3.2.5[correct reference?].
8.2.4 Appeals can, like interim applications, be heard urgently.37
8.2.5 An interim measure that is being appealed continues to be effective until a judge lifts it or declares it invalid.
9. Enforcement of an Interim Measure
9.1 Enforcement of interim measures issued by national courts
Provisional measures
9.1.1 Interim measures are provisionally enforceable as of right.38 In France, only bailiffs can enforce domestic judgments.
Precautionary measures
9.1.2 As mentioned in para 4.2.14, asset-preserving measures must be enforced within three months from the date the injunction was issued by the judge. Otherwise, the measure becomes null and void.
9.1.3 Except in cases where the asset-preserving measure has been granted by a court, the creditor must fulfil the formalities which are needed in order to obtain a court order, within a month of the date of enforcement. Otherwise, the protective measure becomes null and void.39
9.1.4 The respondent must be notified of the asset-preserving measure within eight days of its enforcement. The respondent may then contest the measure.
9.1.5 In principle, the respondent’s application to have the conservatory measure set aside is admissible provided the measure has not been confirmed by a court order (i.e. through a summary or an ordinary procedure). A court order would allow the creditor to convert the conservatory measure freezing assets into a permanent seizure.
9.2 Enforcement of interim measures issued by foreign courts
9.2.1 Article 509 of the CPC provides that the French courts enforce judgments issued by the courts of another EU state, Iceland, Norway or Switzerland “in the manner and under the circumstances specified by law”.
9.2.2 Petitions for recognition of EU judgments in civil and commercial matters in France, must be presented to the chief clerk of the High Court (Tribunal de Grande Instance) of the district in which the respondent is domiciled or his/her assets located.40
9.2.3 The petition must be issued in duplicate. It must include the precise information of all the evidential documents mentioned (in the petition) and appended to such petition.
9.2.4 There must be good reasons for rejecting the enforcement of a foreign judgment or judgment rendered in another EU state41.
10. Interim Measures in International Commercial Arbitration
10.1.1 The law relating to domestic and international arbitrations in France was reformed in 2011.42 The main objective of the reforms was to reinforce the attractiveness of arbitration in France for both domestic and international parties by strengthening and clarifying the rules relating to arbitration. The new arbitration rules apply to both interim measures and to substantive claims settled by the courts of arbitration.
10.2 Interim measures by state courts
10.2.1 Arbitration bodies in France include:
  • The International Court of Arbitration of the International Chamber of Commerce (ICC), the headquarters of which is located in Paris;
  • The Paris Mediation and Arbitration Center;
  • The French Arbitration Association;
  • The Paris Chamber of Arbitration; and
  • The Paris Maritime Arbitral Chamber.

10.2.2 Specialised bodies with expertise in particular areas include the Centre français d’arbitrage de reassurance et d’assurance (CEFAREA) for insurance and reinsurance.
10.2.3 The following measures may be available from the French courts in support of an arbitration:
  • Injunctive relief;
  • Security for a party’s costs;
  • Security for the amount in dispute;
  • Pre-arbitration disclosure of documents;
  • Specific disclosure; or
  • Preservation of evidence.

10.2.4 Depending on the terms of the arbitration agreement, or on the rules selected to govern the arbitration process, arbitrators may order interim measures by means of interim awards, which may be enforced during the course of the proceedings and separately from any award on the merits of the case.
10.2.5 In domestic arbitration, well-established case law in France provides that the existence of an arbitration agreement cannot prevent French courts from granting interim relief where the claimant has demonstrated the need for urgent relief. French case law has extended the principle to international arbitration, subject to the applicable arbitration rules.
10.2.6 Before a matter is submitted to the arbitral tribunal, the courts have wide powers to order interim measures. These may include recourse to the French measure of référé-provision, which allows a court to order payment of an undisputed amount on a provisional basis. However, once the arbitral tribunal has been constituted, the power of the courts to order interim measures may be restricted by the terms of the arbitration agreement.
10.3 Interim measures by arbitral tribunals with seats abroad
10.3.1 France is party to the New York Convention and as such, it recognises and enforces awards made in other contracting states.
10.3.2 Interim orders are not final and, for this reason, do not qualify as awards enforceable under the New York Convention.
10.3.3 However, enforcement of the award may entail conservatory measures involving asset-freezing or asset seizures. Conservatory measures may also be available on a provisional basis if the enforcement proceedings are stayed.
11. Contacts
CMS Bureau Francis Lefebvre Lyon
174, rue de Créqui
CS 23516
69422 Lyon Cedex 03, France
12. References
  • This was introduced on 1 June 2012 and codified Law No 91-650 dated 9 July 1991 and Decree 92-755 dated 31 July 1992, which fleshes out certain provisions of Law No 91-650 in more detail.
  • Please note that although the Brussels Convention of 1968 still applies, it was replaced by EU Regulation No 1215/2012 of the European Parliament and the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, regarding most Member States.
  • The Lugano Convention of December 21st 2007: Strengthening cooperation with Switzerland, Norway and Iceland.
  • Art 43 of the CPC.
  • Art 43 of the CPC.
  • See arts 44 and 46 of the CPC.
  • See in particular EU Regulation 2015/2012 of 12 December 2012, which replaced the Brussels Convention.
  • Art 16 of the Brussels Convention.
  • Art 48 of the CPC.
  • Art 48 of the CPC.
  • Art L.511-3 of the French Civil Enforcement Proceedings Code.
  • Art L.511-3.
  • See art 145 of the CPC.
  • Art 145 of the CPC.
  • Art L. 511-1 of the Civil Enforcement Proceedings Code.
  • Art 56 of the CPC. The requirements of art 648 CPC must also be satisfied.
  • Art R. 511-4 of the Civil Enforcement Proceedings Code.
  • Art R. 511-7 of the Civil Enforcement Proceedings Code.
  • Art. L. 111-4 of the Civil Enforcement Proceedings Code.
  • Art L. 511-2 of the Civil Enforcement Proceedings Code.
  • Arts 502 and onwards of the CPC.
  • Art L. 511-2 of the Civil Enforcement Proceedings Code.
  • Art R. 511-4 of the Civil Enforcement Proceedings Code.
  • Law of 13th March 2000, adapting the Law on evidence to new technologies and regarding electronic signatures (Loi n° 2000-230 du 13 mars 2000 portant adaptation du droit de la preuve aux technologies de l'information et relative à la signature électronique)
  • Art 495 of the CPC.
  • As explained above under paragraph 3.3 – art L. 511-1 of the Civil Enforcement Proceedings Code.
  • Such exemptions are provided by art L.511-2 of the Civil Enforcement Proceedings Code.
  • Art 771 of the CPC.
  • Art 700 of the CPC.
  • Decree No. 96-1080 of 12 December 1996.
  • Decree No. 96-1080 of 12 December 1996, Article 24.
  • Art 695 of the CPC.
  • Art 488 of the CPC.
  • Also Art 488 of the CPC.
  • Cass. 3e, 11 oct. 1977 : Bull. civ. III, n°337 ; Com. 6 juill. 1993 : Bull. civ. IV,n°288, etc.
  • Art 490 of the CPC.
  • See arts 910 and 917 of the CPC.
  • Art 514 CPC.
    R. 511-7 of the Civil Procedure Enforcement Code.
  • Pursuant to Council Regulation (EC) n°44/2001 of 22 December 2000 and Art. 509 of the CPC.
  • Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Article 34.
  • By Decree no. 291-48 of Law 13 2011, which introduced arts 1442 to 1527 of the CPC.

Hungary
Authors: Zsolt Okányi, Péter Szilas, Gergely László, Péter Bibók
1. Applicable Law
1.1.1 Under Hungarian law, interim measures are available in three major forms: (i) injunctive relief (“ideiglenes intézkedés”), (ii) security measures (“biztosítási intézkedés”) and (iii) preventive evidence taking (“előzetes bizonyítás”) (evidence taking which is conducted prior to the ordinary evidence taking process within the framework of the underlying proceedings). In addition, since the preliminary enforceability (“előzetes végrehajthatóság”) of orders and judgments may serve similar purposes, it will also be regarded hereinafter as an interim measure.
1.1.2 Except for security measures, all types of interim measures are governed by Act III of the 1952 Civil Procedure Code (Civil Procedure Code). In 1995, the main rules applicable to injunctive relief changed significantly and, as those rules have not been amended since, the case law developed by state courts since 1995 is a key source of guidance in this area. In addition, the 1994 Act LXXI on Arbitration (Arbitration Act) contains several provisions on interim measures relating to arbitral proceedings. Security measures are governed by the 1994 Act LIII on Judicial Enforcement (Judicial Enforcement Act).
1.1.3 Although interim measures are mainly regulated by the Civil Procedure Code, in cases involving a specific subject matter, other pieces of legislation might be also relevant. For instance, the 1999 Act LXXVI on Copyright (Copyright Act), the 1995 Act XXXIII on Patents (Patent Act) or the 1997 Act XI on Trademarks (Trademark Act) set out a number of specific provisions regarding injunctive relief in disputes relating to intellectual property (IP) matters.
1.1.4 In international cases, provisions of the 1979 Decree No. 13 on Private International Law (Private International Law Decree), Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brussels I Regulation) and international treaties, in particular the Lugano Convention,1 supersede the Civil Procedure Code. These provisions mostly relate to issues of jurisdiction and judicial enforcement of foreign decisions. In arbitration proceedings the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (New York Convention) is applicable.
2. Jurisdiction
2.1 Injunctive relief
2.1.1 As a general rule,2 injunctive relief may be requested from the court where the substantive claim is pending and such request may not be submitted before the statement of claim is filed. Hence, jurisdiction in respect of interim measures aligns with jurisdiction over the substantive claim.
2.1.2 Within Hungary, the existence of subject matter jurisdiction and territorial jurisdiction over the substantive claim is also a pre-requisite for granting injunctive relief. Courts lacking subject matter jurisdiction and/or territorial jurisdiction for a given dispute are obliged to transfer the case to the court which has jurisdiction. Injunctive relief may not be ordered before such transfer of the case is affected and the statement of claim is found to be formally eligible for a hearing of the merits.3
2.1.3 There are a few exceptions to the general rules existing in Hungarian law. For instance, in disputes arising from copyright, patent or trademark infringement, injunctive relief may be requested even before the statement of claim is submitted.4 In such a case, the request is decided in uncontested proceedings – i.e. where the respondent does not have the opportunity to contest the application – by the same court that is entitled to decide on the substantive claim (if the statement of claim is not filed within 15 days from the date the court communicated its decision on the injunctive relief, the court – at the request of the counter party – shall set aside the injunctive relief).
2.2 Security measures
2.2.1 Security measures are ordered by the court having jurisdiction to issue the enforcement certificate (the document with which the court orders the enforcement of a claim confirmed by an enforceable judgment).5 As a general rule, in civil proceedings such competence is conferred upon the first-instance court hearing the claim.
2.2.2 Requests for security measures may also be granted in contentious proceedings heard by Hungarian arbitral tribunals.6 In such cases the request for ordering a security measure is submitted to the state court that would have territorial jurisdiction to hear the dispute in accordance with the Civil Procedure Code.7
2.3 Preventive evidence taking
2.3.1 Preventive evidence taking may be ordered upon the request of any interested party before the start or even during the course of the litigation proceedings, and – as a general rule – shall be requested at the court hearing the claim. If the claim has not yet begun, the order for preventive evidence taking may be requested at the district court having territorial competency in light of the applicant’s place of residence, or at the district court where it would be most practical for the application to be heard.8
2.3.2 Though preventive evidence taking essentially falls within the competency of the state courts, public notaries also have the power to carry out this type of procedure.9 Jurisdiction lies wherever the applicant’s place of residence is located, although a public notary also has jurisdiction if the preventive evidence taking is to take place within its jurisdiction.10
2.4 Preliminary enforceability
2.4.1 Preliminary enforceability shall be declared by the same court making the judgment or final order in a given dispute.11
3. Types of Interim Measures and their Criteria
3.1 The main categories of interim measures
3.1.2 As mentioned above, there are two main types of interim measures: injunctive relief and security measures. Nonetheless, in order to get a full picture of the interim measures system, preventive evidence taking and preliminary enforceability of orders and judgments should also be considered.
3.2 Injunctive relief
3.2.1 Injunctive relief is an order of the court which obliges the respondent (defendant) to satisfy, fully or partially, the applicant’s (claimant’s) claims before the final decision on the merits of the case is made. It is also possible to grant injunctive relief in respect of a defendant’s counterclaim.12
3.2.2 Injunctive relief may only be issued if (i) it is necessary in order to prevent imminent damage, for the conservation of the status quo in relation to the subject matter of the dispute or for the need for equitable protection of the applicant’s rights and (ii) the disadvantages caused by the interim measure do not exceed the advantages gained thereof. The applicant is only required to demonstrate the likelihood of the relevant facts on which the request is based,13 and is not required to conclusively evidence each fact.
3.2.3 The first instance order granting injunctive relief may be appealed. However, in order to achieve its aims, i.e. prevention of imminent damage, conservation of the status quo or protection of one party’s equitable interest, such an order is preliminarily enforceable irrespective of the eventual outcome of the appeal.14 The injunctive relief may be overruled or modified either in the final judgment regarding the substantive claim and/or by another order of the court because it does not result in a res iudicata.
3.2.4 By granting injunctive relief, the court may only impose an obligation on the respondent if that obligation may also form part of the final judgment. For example, although injunctive relief may be requested to conserve the status quo, the court may not impose a prohibition on disposal over an asset if the subject matter of the legal dispute is the ownership of such asset, because the final judgment recognising the ownership of one of the parties would not contain a prohibition on disposal.15 Note that in disputes related to infringements of intellectual property rights, the relevant laws provide for specific obligations to be imposed on the defendant in the form of injunctive relief.
3.2.5 Both state courts and arbitral tribunals may issue injunctive relief;16 but injunctive relief issued by arbitral tribunals may not be enforced via judicial enforcement.17 Nevertheless, state courts may also decide on requests for injunctive relief even if the substantive claim is pending in arbitration proceedings.18
3.3 Security measures
3.3.1 The objective of security measures is to secure and safeguard the enforceability of the claimant’s civil law claims. If the claimant can demonstrate a likelihood that enforcement of its claim is in jeopardy, the court may order:
  • securing the claimant’s pecuniary claims; or
  • seizure of the defendant’s assets.

3.3.2 Securing the claimant’s pecuniary claims is usually implemented through a freezing order on the defendant’s bank account or the court bailiff obliges the defendant to pay the amount to the bailiff’s trust account, while seizure of assets means that the defendant’s assets are partly or entirely registered by the court bailiff and henceforth the disposal of such assets is prohibited.
3.3.3 Security measures can be rendered either in situations where (i) an order or judgment has already been made in favour of the claimant but it is not yet enforceable (typically: it is not yet final and binding), or if (ii) litigation or arbitration proceedings are ongoing in relation to the claim to be secured but no decision has yet been made.
3.3.4 The effect of the security measure lasts until the enforcement is ordered in the underlying proceedings, unless the court withdraws it earlier.
Securing claims under not yet enforceable resolutions

3.3.5 As described in Section 2.2 above, security measures securing claims granted in decisions which are not yet enforceable may be ordered by the court with jurisdiction to issue the enforcement certificate, should the relevant decisions be eligible for enforcement. Claimants may submit a request for security measures if:
  • the relevant decision is not yet final and binding and is not subject to preliminary enforcement; or
  • the resolution is final and binding, but the relevant payment has not yet become due.19

Securing claims under ongoing litigation or arbitral proceedings

3.3.6 If litigation proceedings relating to matrimonial property20 or intellectual property rights21 are pending, the claimant may request that the court secures the assets from which its claims can be satisfied after the submission of the statement of claim has taken place. Note that security measures granted in intellectual property disputes are subject to specific preconditions similar to those of injunctive relief.22
3.3.7 In addition, applying for security measures is generally permitted if a statement of claim has been submitted to the court and the claimant proves the existence, quantum and the due nature of its claim with an authentic public instrument (a notarial deed) or a private document with full probative force (e.g. an original contract duly executed by the representatives of the two companies).
3.3.8 Finally, state courts may also grant security measures if arbitration proceedings are in progress before a Hungarian arbitral tribunal, provided that the applicant proves that the arbitration proceedings have been started; and also the existence, quantum and the due nature of its claim with an authentic public instrument (practically a notarial deed) or a private document with full probative force (e.g. an original contract duly executed by the two companies).23
3.4 Preliminary enforceability of orders and judgments
3.4.1 In general, enforcement in Hungary is only available for final and binding orders and judgments.24 There are several cases however, where the claimant’s (or in the case of counterclaims, the defendant’s) interest in enforcing the preliminary (not yet final) decision shall prevail.
3.4.2 The Civil Procedure Code provides for the preliminary enforceability of judgments in the following:
  • awarding maintenance, annuities, and other similar periodic provisions;
  • for the termination of trespass;
  • awarding any claim recognised and acknowledged by the defendant;
  • awarding monetary claims on the basis of any commitment contained in an authentic public instrument or private document with full probative force, if all underlying circumstances had been evidenced by such documents; or
  • awarding non-monetary claims, if the claimant is likely to suffer unreasonably extensive damage or losses that would be difficult to ascertain, provided that the claimant deposits adequate security.25

3.4.3 In addition to the above, orders granting injunctive relief and security measures are also preliminarily enforceable.26
3.4.4 The court may deny granting preliminary enforceability (except for judgments awarding periodic provisions) if preliminary enforcement would result in a disproportionately greater burden upon the defendant than the burden the claimant would have to endure if preliminary enforceability is not granted (provided that the defendant submits a request for this before the hearing is closed).27 Judgments may also be declared partially enforceable.
3.4.5 Preliminary enforceability may be declared ex officio, hence no request is required from the parties. If an appeal was submitted against the judgment, the court of appeal may decide to suspend the preliminary enforceability if the above conditions were not met and thus preliminary enforceability should not have been granted.
3.5 Preventive evidence taking
3.5.1 In principle, evidence taking in Hungary is carried out during the course of the litigation proceedings, following the submission of the statement of defence by the defendant. There are situations, however, when any delay in the evidentiary procedure might risk the success of the whole proceedings. In order to avoid such risks and safeguard the interests of the parties, preliminary or preventive evidence taking by the court is allowed at any time, including prior to the start of the underlying proceedings, in circumstances where:
  • there is a reasonable cause suggesting that the taking of evidence could not be performed successfully during the hearing or at any later stage of the proceedings, or it would entail considerable difficulties (i.e. the evidence is at risk);
  • there is reason to believe that the preventive taking of evidence is likely to enable the hearing to be conducted and closed within a reasonable period of time;
  • the proceedings relate to warranty claims; or
  • preventive evidence taking is permitted by a specific legislation.28

3.5.2 Special legal provisions allowing the preventive taking of evidence can mainly be found in intellectual property laws. In addition, the Civil Procedure Code itself allows preliminary evidence taking in cases related to the establishment of paternity.
3.5.3 As shown, Hungarian law widely allows the preventive taking of evidence. The interested party is not required to prove the existence of the above conditions which serve as the basis for preventive taking of evidence; only a credible demonstration of the likelihood of their existence is necessary.
3.5.4 Evidence is at risk when it may cease to exist or may change before the ordinary evidentiary proceedings commence. An example of the evidence being at risk may be a fatally ill witness or a building very likely to collapse. Evidence may also be considered to be at risk if a witness intends to go abroad for a long time or if the evidence is perishable. Although every type of evidence gathering may be done preliminarily (hearing witnesses, on-site inspections, inspecting evidence at court), the most frequently used form of preventive evidence taking is the taking of expert evidence. The taking of expert evidence shall be ordered if items, documents or sites need to be analysed for the purpose of preparing the expert witness’s evidence and it will not be possible to carry out such analysis at a later stage of the proceedings.
3.5.5 As the court must safeguard the parties’ right to receive a decision in their dispute within a reasonable time, if it is credibly demonstrated that preventive taking of evidence could facilitate the proceedings, the court will not dismiss a request of a party to carry out such evidentiary procedure. It is to be noted that the evidence obtained by the preventive evidencing may be used by either of the parties during the proceedings.29
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
4.1.1 Requests for interim measures are subject to the general procedural rules applicable to requests and submissions. In most cases, the request is filed in writing, but injunctive relief, preventive taking of evidence and declarations of preliminary enforceability may also be requested orally at a court hearing.
Formal requirements of the request

4.1.2 In the event of a written request, the submission shall indicate the court to which it is addressed, the names and places of residence of the parties and the subject matter of the proceedings, and it shall also refer to the case number in ongoing proceedings. One copy of the submission shall be submitted for each of the parties involved in the case, plus one additional copy. Requests for security measures shall be submitted in as many copies as the number of the parties involved in the case plus three.30 Where parties are represented by the same representative, it is sufficient for those parties’ representative to receive one copy only. Attachments to the submission shall be provided with all copies of the submission. If represented by an attorney, the attorney shall sign each original copy of the submission.31
4.1.3 In the event of an oral application in ongoing proceedings the request shall be recorded in minutes taken before the court hearing the case, or the district court with territorial competency to hear the application based on the place of residence or the workplace of the applicant party.32
4.1.4 The Civil Procedure Code allows for electronic submission if the submission is provided with an electronic signature. For the time being, the option to file a writ electronically is rarely used as the technical procedure is often rather burdensome. Nevertheless, the role of electronic communication in court proceedings will necessarily increase in the future as since 1 January 2016 companies have been obliged to submit each and every request in electronic format in litigation proceedings, and court documents in litigation cases are to be served electronically as well.33
Content of the request

4.1.5 The request has to include both a comprehensive and an express petition for an interim measure, and indicate the relevant facts and circumstances on which the request is founded as well as the underlying evidence that demonstrates credibly that the preconditions for the grant of the interim measure are met. The requested interim measure should be suitable for the protection of the specified legal interest.
4.1.6 As a general principle, the court shall interpret the requests and statements made by the parties according to their content, rather than to their formal title. The court is also bound by the requests of the parties in a way that it should not award more than was requested (the principle of party autonomy).34
Attachments to the request

4.1.7 All supportive evidence shall be attached to the request for an interim measure. Though in most cases there is no need to fully prove the relevant circumstances, enclosing documentary evidence is usually necessary to demonstrate credibly the facts on which the request is based.
4.1.8 Enclosures must be attached to each and every submitted copy of the request.
4.2 Implementation
4.2.1 Before adopting a decision on the request for injunctive relief, the court shall hear the parties in person, or shall allow them to present their views relating to the request in writing. An oral hearing may only be omitted in cases of urgency, or if the party affected fails to show up at the hearing.35 In such cases the court is not even required to request a written statement from the parties.36 The same rules apply to preventive evidence taking. Additionally, it is to be noted that requests for security measures may be submitted within the framework of enforcement proceedings, which are not contested, hence such requests are decided ex parte. While the court shall decide on requests for injunctive relief as a matter of urgency (but without any specific deadline), requests for security measures must be decided within eight days.37
4.2.2 In connection with the decision to be made on the request for injunctive relief, evidence taking may only be conducted if it is deemed necessary due to the fact that according to the opinion of the court, the decision cannot be made otherwise.38
4.2.3 The court shall decide on the request for interim measures in the form of an order, which may be appealed.39 In the case of preventive evidence taking, the related order may only be appealed if it rejects the applicant’s request for evidence taking (i.e. if the preventive evidence taking is allowed and granted, the order may not be contested with an appeal). Preliminary enforceability is not declared in a separate order but within the respective judgment or order confirming the claim. The order of the court is preliminarily enforceable and remains in force until such time as it is repealed (if successfully appealed).40
4.3 Evidential requirements
4.3.1 Interim measures precede the final judgment on the merits of the case, and essentially serve the purpose of safeguarding a legally protected interest (preventing damage, ensuring the satisfaction or the enforceability of claims, preserving the status quo, protection of rights, etc.), the necessity of which usually arises in situations where steps must be taken without delay.
4.3.2 As a consequence, the standard of proof for granting an interim measure is generally lower than that relating to the final judgment on the merits of the case. The relevant facts underlying the necessity of the interim measures only have to be credibly demonstrated (i.e. the applicant need only demonstrate the likelihood of the factual ground of the request, and is hence not required to conclusively evidence each fact), and the taking of evidence may only be performed if deemed essential for reaching a decision.41 As to security measures, in certain cases – i.e. where the security measure is to be ordered for the enforcement of a claim for which another action has been filed either with a Hungarian court or a Hungarian arbitral tribunal – it is necessary to prove the existence, quantum and the due nature of the claim with an authentic public instrument (practically speaking, a notarial deed) or a private document with full probative force.42 As for preventive evidence taking, the general provisions on the taking of evidence – as provided for in Chapter X of the Civil Procedure Code – shall apply, while the existence of the preconditions for such evidentiary procedure needs to be credibly demonstrated.43
4.3.3 In the case of injunctive relief it shall also be demonstrated that the disadvantages caused by the requested measure do not exceed the advantages gained. This issue is subject to the discretion of the court as two hypothetical situations need to be evaluated and compared. The comparison of advantages and disadvantages is often the main obstacle to having the request granted.
4.3.4 In Hungarian law the lower standard of evidence is in many cases compensated for by the obligation on the applicant to provide appropriate security, or by the right of the respondent to demand such security from the applicant.44 The aim of the security is to provide financial coverage for the loss if the interim measure eventually proves to be unfounded. The amount of the security is determined by the court at its own discretion. Refusal to provide security serves as a basis for rejection.
4.3.5 Regarding judicial practice, it is to be noted that the attitude of courts is very strict and rigorous even though full proof of the underlying circumstances is not required by the law. Courts very rarely grant interim measures and in fact often require that the applicant offers substantive evidence to support its request. The balance between advantages and disadvantages is also a point where courts have a broad discretion and often follow a cautious approach in favour of the respondent.
5. Legal Safeguards for the Respondent
5.1 Principle of proportionality
5.1.1 Since interim measures are ordered in urgent situations without full proof of underlying circumstances, particular attention should be paid to the legal interests of both parties to the dispute. Hungarian law therefore provides a number of legal instruments for the respondent in order to safeguard its interests.
5.1.2 The system of interim measures is based on the principle of proportionality, which imposes the obligation on the court to take into consideration all relevant aspects of the case, which includes the careful balancing of the interests of both parties.
5.2 Right to present counter-arguments and evidence
5.2.1 Safeguards for the respondent particularly encompass the right to present counter-arguments and evidence, the right to make statements, request security, and to appeal against the decision of the court. As mentioned, injunctive relief may only be ordered without the respondent having been heard in cases of exceptional urgency or if any delay would cause irreparable harm or damage, hence ex parte decisions are exceptional,45 while in the case of security measures – where no hearing is held – it is primarily the right to appeal that is available as part of the due process.
6. Timing of Interim Measures
6.1 Similarities and differences when filing a request before or after the case on the substantive claim is pending
6.1.1 The main rule is that interim measures may be requested after the statement of claim is submitted to the court in the substantive dispute of the parties. That provision basically determines the timing of interim measures. As a consequence, the court first decides on the interim measure, and only deals with the merits of the case afterwards.
6.1.2 In exceptional cases, where injunctive relief may be requested before filing the statement of claim, there is a time limit (15 days) set for the requesting party to file its substantive claim with the court. Failure to meet the deadline entitles the court to repeal its decision to grant an interim measure upon the request of the respondent.46
6.2 Duration of an interim measure procedure
6.2.1 Since interim measures are typically requested in case of urgency, it comes as no surprise that requests for interim measures are decided within a short timeframe. Accordingly, as a general rule, the court shall decide on granting injunctive relief as a matter of urgency.47 The same deadline applies to requests for security measures, with the only difference being that the end of the deadline is precisely set to eight days running from the submission of the request.48 The court decision granting an interim measure is preliminarily enforceable and appeals do not suspend the order granting the interim measure.
6.2.2 In practice, court decisions on interim measures often take several weeks or even months. Moreover, the judicial enforcement of an interim measure further extends the timeframe. If there is an appeal against the decision and the first-instance court decides to suspend the enforcement of the order, enforcement may only be requested after the interim measure is confirmed in a final and binding decision, which may take 3-6 months at second-instance.
7. Costs
7.1 Court costs and compensation for professional representation
7.1.1 When applying for interim measures, the applicant should bear in mind the court costs that may arise and also the obligation to compensate the other party if the request for the interim measure is dismissed.
7.1.2 Litigation costs include all reasonable expenses of the parties that arise in connection with the case, including court duties, costs of expert evidence, interpreters, and also the fees of legal representatives.49
7.2 Advance on costs and security for party compensation
7.2.1 Court duty (a procedural fee) must be paid in order to initiate civil proceedings. In certain cases this is a fixed amount while in other situations the amount to be paid depends on the value of the subject matter of the dispute. The procedural fee also varies according to the type of proceedings. Procedural fees are advanced by the claimant (applicant) in the first instance, and the court will determine which party will ultimately bear those costs.
7.2.2 Non-EU resident applicants seeking interim measures are generally required to provide security/deposits if so requested by the other party to cover the eventual litigation costs.50
Injunctive relief
7.2.3 No procedural fee shall be paid for requesting injunctive relief if such request is submitted in litigation proceedings already in progress. However, if the request is submitted before the statement of claim (i.e. in the case of intellectual property related disputes), or the request is submitted during the course of ongoing arbitration proceedings, procedural fees must be paid with an application for injunctive relief. The procedural fee amounts to 3% of the value of the requested injunctive relief with a minimum fee of HUF 5,000 (approximately EUR 16) and a maximum fee of HUF 250,000 (approximately EUR 795).51 If the value of the requested injunctive relief cannot be determined, the procedural fee is HUF 6,000 (approximately EUR 19) or HUF 10,500 (approximately EUR 33) depending on whether the request is submitted to a district court or to a tribunal (county court).52
Security measures
7.2.4 Requesting security measures is considered as equivalent to initiating enforcement proceedings, thus the relevant procedural fee (1% of the value of the security measure) is paid with a minimum fee of HUF 5,000 (approximately EUR 16) and a maximum fee of HUF 350,000 (approximately EUR 1113).53 If the value of the requested injunctive relief cannot be determined, the procedural fee is HUF 5,000 (approximately EUR 16).54
Preventive evidence taking
7.2.5 The rules for requesting injunctive relief apply to an application for preventive evidence taking. Thus, if requested within the framework of ongoing court proceedings, no procedural fee shall be paid, while if the request is submitted before the start of the court proceedings, the amount of the procedural fee is 3% of the value of the amount in dispute. The minimum and maximum fees are the same as described above.55 As a way of encouraging preventive evidence taking, it is provided that if preventive evidence taking precedes the litigation proceedings, the procedural fee payable for initiating the litigation proceedings shall be 50% of the otherwise applicable duty fee.56
7.3 Decision on costs and cost shifting
7.3.1 If the interim measure is requested and decided in litigation proceedings (which is typically the case with injunctive relief and preventive evidence taking), the costs are determined and allocated by the court in the judgment or court order that concludes the case. However, if the interim measure is requested in separate uncontested court proceedings (e.g. in the case of security measures or injunctive relief related to a pending arbitration), the court decides on the procedural costs in the order granting or rejecting the interim measure.
7.3.2 While the court costs (procedural duties, costs of evidence taking, etc.) are determined and allocated ex officio, the costs of the parties may be determined upon and based on their own requests. As a principle, the litigation costs of the successful party shall be covered by the losing party.57 In the case of partial success, the litigation costs shall be shared. It is to be noted that Hungarian courts tend to underestimate the costs of legal representation, thus the amount of compensation granted very rarely reaches the actual costs of the successful party.
7.3.3 The principle of costs sharing applies both for court costs (e.g. court fees) and party compensation (e.g representation costs). Accordingly, where a request for an interim measure is fully granted, the respondent must bear all costs. If a request is partially admitted, the costs are shared proportionally. If the difference between the ratio of success and loss is not significant, the court may order the parties to bear their own costs.58
8. Remedies Against the Decision on Interim Measures
8.1 Modification and revocation
8.1.1 In the case of injunctive relief, the first-instance court is entitled to revise and amend its own order upon request or, if the claimant has decided to reduce its claim, even ex officio.
8.2 Appellate remedies
8.2.1 The decision of the court regarding the request for injunctive relief or security measure may be contested separately, i.e. independently from the judgment on the merits of the case.59 Appeals against the court’s decisions on interim measures are governed by the general rules of appeals. The deadline for submitting an appeal is fifteen (15) days from the date of service of the decision. The appeal shall be submitted at the first-instance court in writing, or recorded in minutes. If a decision may be appealed, any means of contest – other than requests for the correction of typos or a supplementary decision – shall be recognised as an appeal.60 The appeal has to be decided by the second-instance court without a formal oral hearing. The first-instance court shall serve a copy of the appeal on the respondent to the appeal, soliciting its comments within eight days. After the expiry of this deadline, the first-instance court shall forward the documents of the case to the second-instance court, including the respondent’s comments, if any.61
8.2.2 Court decisions made regarding requests for interim measures may be challenged by both parties; meaning that orders granting and refusing relief are subject to appeal, with the exception being preventive evidence taking where only the dismissing court order may be appealed.62
9. Enforcement of an Interim Measure
9.1 Enforcement of interim measures issued by national courts
9.1.1 The enforcement of injunctive relief and security measures show substantial differences. The reason for the difference is that injunctive relief is ordered in the course of or in connection with ordinary court proceedings, while a request for security measures is adjudged within the framework of enforcement proceedings, hence no separate enforcement shall be initiated.
Enforcement of injunctive relief

9.1.2 As described above, an order granting injunctive relief is always preliminarily enforceable. Hence, if the respondent fails to comply with the injunctive relief ordered, the claimant may initiate enforcement proceedings against the respondent. The rules applicable to the enforcement of injunctive relief are identical to those prescribed for final and binding judgments.
9.1.3 The applicant shall request enforcement from the court that granted the injunctive relief, by submitting a form to issue a certificate of enforcement (“végrehajtási lap”).63 A procedural fee in the amount of 1% of the value of the injunctive relief to be enforced shall be paid by the applicant.64
9.1.4 Based on the certificate of enforcement, the court bailiff enforces the injunctive relief by coercive measures. If the injunctive relief provides for the payment of money, the court bailiff may:
  • collect it from the wages of the respondent;
  • collect it from the bank account of the respondent; or
  • enforce it by selling movable or immovable property of the respondent.65

9.1.5 If the injunctive relief obliges the respondent to perform a specific action, the court bailiff calls upon the respondent for the voluntary performance of the action. If the respondent refuses to co-operate, the court bailiff notifies the competent court which may:
  • oblige the respondent to pay a sum equivalent to such action to the applicant;
  • authorise the applicant to perform the relevant action at the cost and risk of the respondent;
  • impose a fine on the respondent of up to HUF 500,000 (approximately EUR 1,590); or
  • enforce the performance of the specific action with police assistance.66

Enforcement of security measures

9.1.6 Once the court decides on granting the request for a security measure, one copy of the order is provided to the court bailiff.
9.1.7 Where the security measure is ordered in respect of pecuniary claims, the court bailiff delivers the order of the court to the respondent, and requests that the respondent pay the relevant amounts to the trust account of the court bailiff. Should the respondent refuse to do so, the court bailiff may:
  • freeze the bank accounts of the respondent;
  • seize the immovable and movable property of the respondent (seizure shall be terminated once the respondent pays the amount to be secured to the trust account of the court bailiff); and/or
  • collect the respondent’s wage to its trust account.67

9.1.8 With regard to securing movable or immovable assets, the court bailiff seizes the relevant assets by prohibiting any disposal over them. Perishable items shall be sold by the court bailiff.68
9.2 Enforcement of interim measures issued by foreign courts
9.2.1 If an order for an interim measure was issued in a contracting state of the Lugano Convention, enforcement follows this treaty. Interim measures issued in EU member states may be enforced based on the Brussels I Regulation. For all other cases, enforcement follows the rules of the Private International Law Decree.
Enforcement under the Lugano Convention

9.2.2 An interim measure ordered in a Member State of the Lugano Convention is recognised and enforced in Hungary under the provisions of the Convention. In order to achieve enforceability, recognition must be requested from the competent Hungarian court. The court recognises the foreign interim measure by issuing a certificate of recognition.69 After the certificate of recognition is issued, the order of the foreign court shall be deemed as having been issued by Hungarian courts for the purpose of enforcement. Based on the relevant case law70 enforcement of foreign ex parte interim measures, is not supported.
Enforcement under the Brussels I Regulation

9.2.3 According to the Brussels I Regulation,71 any judgments given in a Member State of the EU and enforceable in the state of issue shall also be enforced and recognised in all member states without any declaration of enforceability being required. The definition of a judgment of the Brussels I Regulation includes decrees, orders, decisions and writs of execution issued by the courts of the EU member states.72
9.2.4 If a certificate is issued by the court which ruled on the interim measure in line with the provisions of the Brussels I Regulation, the competent Hungarian court shall recognise it as if it were issued by a Hungarian court.73 That order may be appealed but annulment is only possible for the reasons exhaustively listed in Article 45 of the Brussels I Regulation. The most important reason for annulment is if the judgment was given ex parte. Thus, ex parte interim measures are not enforceable under the Brussels I Regulation.
Enforcement under the Private International Law Decree

9.2.5 The recognition and enforcement of the decisions made by courts of a state which is not a member of the Lugano Convention or of the EU is governed by the Private International Law Decree. Even if the Hungarian Supreme Court has never addressed the issue it may be derived from the Private International Law Decree that interim measures may be recognised and thus enforced in Hungary, if:
  • the court which made the decision had jurisdiction according to the Private International Law Decree to make such decision;
  • the decision is final and binding according to the laws of the state of origin;
  • there is reciprocity between Hungary and the state of origin (however, reciprocity is not required if the jurisdiction of the court issuing the interim measure was based on the parties’ agreement)74; and
  • no ground for denial exists.75

9.2.6 Although there are several grounds for the denial of the recognition of a foreign decision, for the purpose of this analysis the most important one is that no ex parte decision may be recognised.
10. Interim Measures in International Commercial Arbitration
10.1 Interim measures by state courts
10.1.1 Both the provisions of the Arbitration Act and of the Judicial Enforcement Act make it possible to file a request for interim measures with state courts, even if the parties referred their dispute to arbitration.
10.1.2 Injunctive relief may be requested from state courts both prior to the commencement of the arbitration proceedings and during the proceedings.76 Security measures may only be requested after the commencement of arbitral proceedings, as a certificate issued by the arbitral tribunal shall be attached to the request for security measures in addition to proving the existence, quantum and due nature of the claim with a public instrument or a private document with full probative force.77
10.2 Interim measures by arbitral tribunal with seat in Hungary
10.2.1 The Arbitration Act provides that arbitral tribunals have the power to issue interim measures unless the parties agree otherwise.78 The Arbitration Act does not restrict the scope of the interim measures which arbitral tribunals may grant, nor does it define any specific rules in this regard.
10.2.2 The downside is that interim measures issued by arbitral tribunals – if not performed on a voluntary basis – are not enforceable, as the Arbitration Act provides for enforceability (and recognition) only regarding arbitral awards and not regarding other decisions of arbitral tribunals.79 Therefore, even though non-compliance with an interim measure may be taken into account by the arbitral tribunal when rendering its final award, parties rarely seek to have interim measures in arbitration proceedings conducted under the Hungarian Arbitration Act.
10.3 Interim measures by arbitral tribunal with seat abroad
10.3.1 Hungary is a member state to the New York Convention. Article III of the Convention provides for the enforceability of foreign arbitral awards. As decisions ruling on interim measures may not be considered as arbitral awards, no enforceability is granted to them under the Convention. Accordingly, interim measures imposed by foreign arbitral tribunals are not enforceable in Hungary; the claimant may only rely on the voluntary performance of the defendant. Moreover, as the Hungarian Arbitration Act only applies to arbitrations where the seat of the tribunal is located in Hungary, auxiliary court proceedings enabling the claimant to request injunctive relief or security measures are not available for claimants involved in foreign arbitral proceedings.
11. Contacts
CMS Cameron McKenna Nabarro Olswang LLP Magyarországi Fióktelepe
YBL Palace
Károlyi utca 12.
1053 Budapest, Hungary
Péter Bibók
T +36 1 48348 00
E peter.bibok@cms-cmno.com
12. References
  • Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (signed on 30 October 2007; in force on 1 January 2010) OJEU L339, 21 December 2007, p 3. The Lugano Convention is largely identical to the Brussels I Regulation.
  • Civil Procedure Code, s 156(2).
  • Civil Procedure Code, s 124(1)-(3), 129(1).
  • Copyright Act, s 94/A(3), Patent Act, s 104(4), Trademark Act, s 95(4).
  • Judicial Enforcement Act, s 185 and 186.
  • Judicial Enforcement Act, s 188(1).
  • Judicial Enforcement Act, s 188(2) and s 16(d).
  • Civil Procedure Code, s 208 (1).
  • 2008 Act XLV on certain non-litigious procedures carried out by public notaries, s 17.
  • 2008 Act XLV on certain non-litigious procedures carried out by public notaries, s 18.
  • Civil Procedure Code, s 231-232.
  • Civil Procedure Code, s 156.
  • See section 4 below.
  • Civil Procedure Code, s 156(8). See section 3.4 below.
  • Court decision No. BH2002.441.
  • Arbitration Act, s 26.
  • See Section 9 below.
  • Arbitration Act, s 37(1).
  • Judicial Enforcement Act, s 186(1).
  • Judicial Enforcement Act, s 187(1) a).
  • Judicial Enforcement Act, s 187(1) b).
  • Copyright Act, s 94(A)(1), Patent Act, s 104(2), Trademark Act, s 95(2).
  • See Court decision No. BH1999.314.
  • Judicial Enforcement Act, s 13(1) b).
  • Civil Procedure Code, s 231.
  • Civil Procedure Code, s 156(8) and Judicial Enforcement Act, s 190(3).
  • Civil Procedure Code, s 232(1).
  • Civil Procedure Code, s 207.
  • Civil Procedure Code, s 211(1).
  • Judicial Enforcement Act, s 18(3).
  • Civil Procedure Code, s 93.
  • Civil Procedure Code, s 94.
  • Civil Procedure Code, s 394/C.
  • Civil Procedure Code, s 3(2).
  • Civil Procedure Code, s 156(4), 209(1).
  • Court decision No. BDT2011.2418.
  • Judicial Enforcement Act, s 190(1).
  • Civil Procedure Code. s 156(5).
  • Civil Procedure Code, s 156(6).
  • Civil Procedure Code, s 156(8).
  • Civil Procedure Code, s 156(1)(5).
  • Judicial Enforcement Act, s 187(1)c), 188(1)b).
  • Civil Procedure Code, s 210(1).
  • See Civil Procedure Code, s 156(1) and Arbitration Act, s 26(1).
  • Civil Procedure Code, s 156(4).
  • Copyright Act, s 94/A(7).
  • Civil Procedure Code, s 156(3).
  • Judicial Enforcement Act, s 190(1).
  • Civil Procedure Code, s 75.
  • Civil Procedure Code, s 89(1).
  • 1990 Act XCIII on Duties (the “Duties Act”), s 42(1)g).
  • Duties Act, s 39(3) and s 42(1)(g).
  • Duties Act, s 42(1)d).
  • Duties Act, s 39(3) and s 42(1)d).
  • Duties Act, s 42(1)g).
  • Duties Act, s 58(10).
  • Civil Procedure Code, s 78(1).
  • Civil Procedure Code, s 81(1).
  • Civil Procedure Code, s 156(6).
  • Civil Procedure Code, s 234.
  • Civil Procedure Code, s 257.
  • Civil Procedure Code, s 209(2).
  • Judicial Enforcement Act, s 15(1).
  • For further details, see s 7.3.2 above.
  • Judicial Enforcement Act, s 58-171.
  • Judicial Enforcement Act, s 174.
  • Judicial Enforcement Act, s 191.
  • Judicial Enforcement Act, s 194-195.
  • Judicial Enforcement Act, s 208.
  • Denilauer vs Couchet Frères, 21 May 1980, ECJ case no C-125/79.
  • Art 39.
  • Brussels I Regulation, art 2 a).
  • Brussels I Regulation, art 41, and Judicial Enforcement Act, s 208.
  • Private International Law Decree, s 73(2).
  • Private International Law Decree, s 72.
  • Arbitration Act, s 37(1).
  • Arbitration Act, s 37(2), Judicial Enforcement Act, s 188(1).
  • Arbitration Act, s 26(1).
  • Arbitration Act, s 58.

Portugal
Authors: Nuno Pena, Diogo Pereira
1. Applicable Law
1.1.1. Interim measures are mainly governed by the Portuguese Civil Procedure Code (CPC).1 Other provisions may apply to interim measures depending on whether:
  • the claim or interim measure has an international connection;
  • the claim or the interim measure is governed by any specific provisions in Portuguese law; and
  • there are special provisions in Portuguese law relating to the particular subject matter of the claim.

1.1.2. For international cases, the provisions of international treaties, namely Council Regulation (EC) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation), supersede the CPC. These provisions relate foremost to jurisdiction and enforcement.2
1.1.3. Further, certain provisions of other laws may apply depending upon the subject matter of the interim measure sought, specifically:
  • for claims governed by the Experimental Civil Procedure Act, the provisions of Decree-Law No. 108/2006 apply;3
  • for protective measures regarding insolvency claims, the provisions of the Portuguese Insolvency Act apply;4
  • for interim measures regarding child support and other forms of family maintenance, the provisions of the Jurisdictional Organisation of Minors Act apply;5
  • for interim measures regarding leasing contracts, the provisions of Decree-law No. 54/75 apply;6 and
  • for interim measures relating to intellectual property, provisions in a number of other laws are relevant including those in the Industrial Property Code.7

2. Jurisdiction
2.1. International and geographical jurisdiction – the venue
2.1.1. Pursuant to the Brussels Regulation, applicants may file requests for provisional, including protective, measures with any court that has jurisdiction over the substantive case or in a court which has another connection to the matter in question (i.e. usually the place where the interim measure is to be enforced).8 If a request is filed with a Member State court which does not have jurisdiction on the merits, the procedure is governed by the procedural law of that Member State court.
2.1.2. For domestic cases, before the substantive claim is issued, the applicant may file a request with any court that has territorial competence over the substantive case or with the court located where the interim measure will be enforced (e.g. the place of the assets to be attached).9 Once the main proceedings have been issued in respect of the substantive claim, the interim measure request can only be filed in the same court as the main proceedings.10
2.2. The effect of jurisdiction clauses
2.2.1. For cases within the scope of the Brussels Regulation, it is commonly understood from Portuguese jurisprudence and doctrine11 that an applicant may request interim relief from a Portuguese court even if the latter does not have jurisdiction over the substantive case on the merits pursuant to the applicable jurisdiction clause. The jurisdiction of the Portuguese court to issue an interim measure is dependent only upon the ability of the court to order, in due course, an immediately enforceable measure safeguarding the applicant’s rights that are at risk. Therefore the jurisdiction of the Portuguese court to issue an interim measure does not depend upon the validity or otherwise of the jurisdiction clause.
2.3. Subject-matter jurisdiction
2.3.1. Once international and geographical jurisdiction is established, functional and subject-matter jurisdiction must be determined.
2.3.2. In the event that the applicant requests interim relief before the substantive claim has been issued, the competent court is as follows:
  • for attachments, or the listing of assets to ascertain if attachments can be made, either: (a) the court that is competent to decide the main proceedings; (b) the court where the assets are located; or (c) in the event that the assets are in several locations, the court where some of the assets are located;12
  • for the suspension of works at a construction site, the court at the location where construction is taking place;13
  • for the anticipated production and disclosure of evidence, the court that is competent to decide the main proceedings;14 and
  • for any other interim measures, the court that is competent to decide the main proceedings.15

2.3.3. Once the main substantive proceedings are filed, the (already commenced) interim measure proceedings will be linked to those proceedings.16
2.3.4. Where the applicant requests interim relief when the main proceedings are pending, the interim measures will be filed in the same court as the main proceedings and appended to that court file.17 If the main proceedings are before an Appellate Court, the linking with the main proceedings will only be made after the application for interim relief has been decided by the first instance court or once the main proceedings return to the first instance court.
2.4. Choice of venue if more than one court has jurisdiction
2.4.1. If different courts have jurisdiction over the same interim measure, the choice of where to file the request is a tactical one and has to be carefully considered. The following aspects might be considered when choosing the venue:
  • the average duration of proceedings in the respective jurisdictions;
  • whether a commercial court exists in one of the jurisdictions; for a request for interim relief dealing with specific technical or commercial issues, it can be helpful to have a judge with the relevant knowledge. However, it should be noted that the commercial courts in Portugal are overloaded with work which may make it difficult to expedite proceedings; and
  • the wish to avoid long discussions about jurisdiction; the fewest problems as to jurisdiction will normally arise in the courts at the seat of the respondent and/or the place where the interim measure is to be executed.

3. Types of Interim Measures and their Criteria
3.1. Two categories and three purposes
3.1.1. In Portugal, interim measures are divided into two different categories: specific interim measures and common interim measures. The former are governed by specific provisions, whereas the latter are only triggered if there is no specific interim measure that applies to the circumstances of the case. Specific interim measures comprise the following: provisional restitution of possession;18 suspension of corporate resolutions;19 provisional child and family support;20 provisional compensation;21 attachment;22 suspension of works at a construction site;23 and listing of assets.24
3.1.2. Applicants should only seek common interim measures in the event there is no provisioned specific relief applicable to the subject matter of its claim.25 The legal provisions relating to common interim measures set out the criteria for interim relief (set out below).26
3.1.3. Specific or common interim measures may be subdivided into three different subcategories: preventive measures, regulatory measures and performance measures.
Preventive measures
3.1.4. A preventive measure is meant to secure a claim by “freezing” an existent factual or legal situation until the case has been decided. Such measures do not satisfy the applicant’s claim, but safeguard its future enforcement.
3.1.5. The most commonly used preventive measure is the seizure of assets, by which the respondent is prevented from disposing of the attached assets. This also means that the applicant’s rights over the asset are not affected by new encumbrances granted over or the sale of such assets.27
3.1.6. This category of measures includes specific interim measures such as the granting of attachments over assets to ensure the future enforcement of monetary claims or the listing of assets to ensure the future enforcement of non-monetary claims. A listing of assets will be applied in the event the applicant claims to be entitled to a certain asset and fears its loss or dissipation. In this case, the court will issue a freezing order over the assets based on the list which will include a description of the relevant assets, an evaluation of the value of the assets and a deposit of the assets with a depositary. The depositary acquires legal title in the assets while they are in its possession.
Regulatory measures
3.1.7. With a regulatory measure, the court orders the parties to a dispute to adhere to a certain way of operating within an on-going legal relationship. This is not usually limited to one single obligation, but regulates the entire relationship between the parties until the substantive case on the merits has been decided.
3.1.8. This category includes specific interim measures such as provisional restitution of possession; suspension of corporate resolutions; or the suspension of works at a construction site. At the respondent's request, the court can also order that construction may continue pending the outcome of the substantive proceedings, subject to the requirements or limitations set by the court.28
3.1.9. If there are no specific provisions applicable to the underlying substantive claim, then common protective measures pursuant to the general provisions of the CPC are available. The most typical examples are prohibitions on encumbering and alienating assets and forfeiture, bailment and other restraining orders, for example to prevent the triggering of a bank guarantee where there is evidence that the exercise of the said contractual right is not bona fides or is fraudulent.29
Performance measures
3.1.10. A performance measure orders the respondent to fulfil or partially fulfil an alleged obligation before the dispute has been decided. These injunctions are anticipatory in nature and do not supersede the final judgment.30 Specific interim measures such as provisional child and family support or provisional compensation are included in this category. In case the applicant loses in the substantive proceedings, the payments must be returned.31
3.1.11. If the underlying claim does not fall within a specific provision, the applicant may apply for a common interim measure for performance, which can either be a non facere (negative performance order prohibiting the respondent from doing something) or a facere (positive performance order).
3.2. Common interim measures
3.2.1. There is no exhaustive list of possible common interim measures in the CPC. Applicants may seek any kind of interim measure as long as the relevant criteria are fulfilled. Likewise the court may order any provisional measure suitable for preventing imminent harm from occurring, and may even order a provisional measure different from the one requested by the applicant.32 The court has a wide discretion when it comes to the form and content of an interim measure.
The criteria for interim measures
3.2.2. The applicant seeking to obtain an interim measure has to demonstrate credibly to the court that:
  • the applicant has some form of right or entitlement in the underlying substantive claim;
  • the respondent violated such a right or threatens to violate it;
  • such violation is likely to cause the applicant prejudice which is not (or not easily) repairable;
  • there is urgency; and
  • the requested measure is proportionate to the detriment caused to the respondent.33

The existence of a substantive claim (fumus bonus iuris)
3.2.3. The applicant must demonstrate credibly an underlying substantive right or claim (e.g. a debt owed or a right to performance).34 The interim measure must aim at safeguarding this underlying right. The underlying right invoked by the applicant may be dependent upon a later judicial decision.35
3.2.4. The CPC only requires sumario cognitio or a high-level, swift examination of the evidence of the underlying right. Therefore, if the interim measure is filed while the main proceedings are pending and there is already a decision unfavourable to the applicant, the fumus bonus iuris (likelihood of success on the merits) is not established.
The threat to the substantive claim
3.2.5. The underlying right must be threatened by possible harm caused by a positive or a negative action of the respondent. Where the respondent has already violated the applicant’s right in the past, there is a presumption that it will do so again in the future. Moreover, there must be an objective appraisal of whether the harm is likely to occur.
3.2.6. The interim measure must prevent further damage.36 Interim measures cannot be obtained in respect of damage that has already occurred.
The harm is not easily repairable
3.2.7. The applicant must demonstrate credibly that it would face an injustice which is not (or not easily) repairable if the interim measure is not ordered.37 Examples include:
  • loss of reputation;
  • loss of customers;
  • financial damage that is not easily repairable (for example the respondent is unlikely to be able to pay for the damage caused by its behaviour);
  • imminent harm that would later be difficult to judge, quantify or prove (for example harm caused by counterfeit products); or
  • enforcement becoming more complex if it is executed later.

3.2.8. Portuguese jurisprudence has consistently held that in order for an interim measure to be ordered, the applicant must prove that financial compensation is inadequate or that the respondent is unlikely to be able to pay for such damages in the future.38 Notwithstanding this, in the event there is no concern regarding the debtor’s ability to bear the damage caused, an interim measure will be granted if it is intended to prevent non-monetary damage.
Urgency (periculum in mora)
3.2.9. There must be a need for urgent action in order to avoid the imminent and irreparable (or not easily repairable) harm. An interim measure might be denied if the sole reason for urgency is that the applicant delayed filing the request without any valid reason for doing so. Conversely, an applicant cannot be blamed if: (i) it first tried to find an amicable solution; (ii) it initially imposed a deadline on the opposing party and waited until the deadline lapsed; or (iii) clarification of the factual or legal situation was necessary and time-consuming.
Principle of proportionality
3.2.10. The court has to observe the principle of proportionality when deciding which measure to order and how to ensure that the applicant’s right can be secured. Pursuant to the CPC, the court must balance the parties’ interests and deny the request for interim measures where there is even the mildest possibility that the interim measure inflicts considerably more harm to the respondent than it prevents from the applicant.39
3.2.11. If the opposing rights are of the same nature (monetary or non-monetary interests), the balance of interests is relatively easy to establish. However, whenever confronted with different types of interests, on principle the courts tend to protect absolute rights (e.g. personal or intellectual property rights) over monetary interests.40
Filing of the main proceedings
3.2.12. Aside from situations where interim proceedings are filed while the main proceedings are ongoing, the main action must be filed within 30 days of the outcome of a successful application for interim measures being notified to the respondent.41
3.2.13. The court may also release the applicant from commencing a claim if it is convinced of the existence of the underlying substantive right or claim and the interim measure is able to regulate the litigation with certainty (“inversão do contencioso” or “transfer of the burden of the filing of the main proceedings to the respondent”).42 Such release must be requested by the applicant before the end of the final hearing in the interim proceedings. If approved by the Court, in the event the respondent wishes to reverse the grounds of the final interim decision rendered, the burden of commencing the main proceedings is transferred to the respondent. If the interim measure was sought as an ex parte measure, the respondent may object to the transfer of this burden in its subsequent defence which it files within the scope of the interim proceedings.43
3.3. Specific interim measures
3.3.1. As stated above, specific interim measures are governed by specific provisions and, in their absence, by the regime governing common interim measures. However, there is one criterion for common interim measures which is not applicable to specific interim measures pursuant to the CPC: the principle of proportionality.44 Each specific interim measure is considered separately on its own merits. Yet, if the applicant seeks an attachment over more assets than the ones needed to guarantee its credit, the attachment order shall be reduced to its just limits.
The criteria for attachment orders
3.3.2. The attachment order is the most important specific interim measure and therefore discussed in more detail.
3.3.3. Pursuant to the CPC, a creditor may apply for the attachment of a debtor’s assets in the case of an unsecured claim (which need not necessarily be overdue) if it demonstrates to the court that the debtor is concealing its assets, absconding or making preparations to abscond in order to evade the fulfilment of its obligations.
3.3.4. The court at the place where the assets are located will issue an attachment order in an ex parte procedure if the creditor is able to present prima facie evidence that:
  • it has a claim;
  • the debtor is concealing its assets, absconding or making preparations to abscond; and
  • there are available assets belonging to the debtor.45

3.3.5. When granting an attachment order, the judge will entrust an enforcement officer with its execution. Once the assets are seized, the debtor and third parties may file an objection with the judge who issued the order within ten days of receiving notice of the order or, alternatively, they may appeal to the court where the decision was rendered within 15 days of notice of the order.46
3.3.6. If the creditor did not institute enforcement proceedings or bring a court action before applying for the attachment order, it must do so within ten days of serving the attachment order on the respondent.47 Otherwise, the seizure of the assets will be lifted.
3.4. Preventive taking of evidence
3.4.1. In Portugal – as in most civil law jurisdictions – the taking of evidence is administered by the court and done at a prescribed moment during the litigation process. To ease the drawbacks of this rigid system, the preliminary or preventive taking of testimonial or expert evidence by the court is allowed at any time, including prior to the start of the main proceedings, if the applicant can demonstrate that witness testimony or expert evidence is at risk.48
3.4.2. Witness testimony or expert evidence is at risk if it may cease to exist or may be altered before the commencement of ordinary evidentiary proceedings. Examples of evidence at risk are where a witness is fatally ill or where a building is likely to collapse.
3.4.3. The procedure regarding the preventive taking of evidence is the same as for other interim measures. The applicant need not conclusively prove, but must demonstrate credibly, the grounds for its request. The request can be filed at the venue that has jurisdiction as to the substantive claim or, alternatively, where the preventive taking of evidence has to be executed. The procedure is always ordered with due consideration to the principle of fair and equal treatment of the parties.
3.5. Ex parte measures
3.5.1. In principle, interim relief measures are ordered after the respondent has been granted the right to be heard, with the following exceptions:
  • if the applicant credibly demonstrates that the hearing of the respondent puts the effectiveness and the purpose of the interim measure at risk, in which case it shall be issued as an ex parte measure;49
  • provisional restitution of possession is always issued as an ex parte measure where the dispossession was the result of violence;50 and
  • attachments are also always issued as ex parte measures.51

3.5.2. In order to show that the effectiveness and the purpose of the interim measure would otherwise be put at risk, the applicant must demonstrate credibly that there is urgency or that granting the respondent the right to be heard would render the measure useless. Situations such as the inability to serve the respondent can also result in an ex parte hearing.
3.5.3. Promptly after ordering an ex parte measure, the court will give the respondent a short period in which to file a written statement of defence regarding the ordered measure or, alternatively, to appeal such a measure.
3.5.4. A written statement of defence may be filed if the respondent alleges facts or produces evidence that have not been taken into consideration by the court and that can affect the grounds of the measure or lead to its amendment or a reduction in its severity. If the respondent opposes the ex parte measure and if witness testimony is required the court will summon both parties to a hearing.52 Afterwards the court will either lift the measure or confirm that the interim measure will remain in place.53
3.5.5. Alternatively, if the respondent does not have further facts to allege or new evidence to produce, then it may appeal.54 The respondent may appeal if it considers that the court’s findings should not have led to the measure being granted.
4. Procedural and Evidential Requirements for Interim Measures
4.1. Procedural requirements
Form of the request
4.1.1. Interim measures are subject to the rules applicable to incidental proceedings within the scope of the main proceedings.55 The interim application is always filed in writing. The CPC also allows electronic writs incorporating an authorised electronic signature.
Content of the request
4.1.2. The request has to include a comprehensive prayer for interim relief and to name the grounds on which the request is based. The principle of party autonomy prevents the court from awarding more than the applicant requested. However, following the principles of a maiore ad minus and proportionality, the court can and should order a lesser measure if the applicant’s right which is at risk can be secured by such lesser measure.
4.1.3. As mentioned above, notwithstanding the applicant’s request, the court may order any provisional measure suitable to prevent the alleged imminent harm.56 The court has a wide discretion when it comes to the form of an interim measure.
Enclosures of the request
4.1.4. The applicant must attach all evidence to its request that it wishes to adduce in support of its application for an interim measure.57 As it is within the court’s discretion to conduct the case after it has received the interim application (e.g. to summon the parties to a hearing or to give the respondent a short time in which to file a written answer), the applicant might be prevented from producing testimonial evidence later.58
4.2. The implementation of the procedure
4.2.1. Interim measures are urgent proceedings. After the request is received and unless an ex parte measure is sought, the court will have to judge the interim measure within two months. If an ex parte measure is to be ordered, then the interim measure has to be decided within 15 days. Nonetheless, those deadlines are merely indicative, as there are no consequences for any party if such deadlines are not met.
4.2.2. If a request is obviously unfounded or inadmissible, the court will dismiss it without taking further action. If the respondent does not submit its statement of defence within the allocated time or does not appear at the hearing, the proceedings will continue without the respondent’s statement of defence or presence.59
4.3. Evidential requirements
Limitation of evidence
4.3.1. Both documentary and testimonial evidence are permitted.60
4.3.2. Documentary evidence is interpreted in a broad way, including every document suitable to prove the relevant facts, such as papers, drawings, plans, photos, films, audio recordings, electronic files and e-mail print-outs.61 Documentary evidence must be presented as part of the application for an interim measure or can be added at a later point in time to the case bundles as follows:62
  • The documentary evidence shall be filed with the application in which the corresponding facts are alleged;
  • If the documents are not added with the filed application, they can be filed up to 20 days before the date of the final hearing, but the party is required to pay a fine, except if that party can demonstrate that the documents provided could not have been filed earlier with the application; and
  • After 20 days before the hearing, the Court will only admit additional documents when it had not been possible to file until that time, as well as documents that have only become necessary following a subsequent event that could not have been foreseen at an earlier stage.

4.3.3. However, if the applicant cannot demonstrate to the court that the new documents being added are superseding or supervening documents, it will be required to pay a small fine (usually, between EUR 102.00 to EUR 204.00).
4.3.4. Testimonial evidence is limited to five witnesses from each party (each applicant and each respondent), without any limitation on the number of these five witnesses which can be heard for each alleged fact.63 Testimonial evidence must be requested in the initial application filed within the scope of the interim proceedings.
Standard of proof – “prima facie evidence”
4.3.5. The applicant has to produce evidence for the facts alleged in its application pursuant to the general requirements for the burden of proof.64 Moreover, the applicant has to provide sufficient facts to enable the respondent to understand the case against it and to present its defence. Otherwise, the application is considered to be null and void.
4.3.6. While the applicant has to produce the evidence according to the general requirements, the standard of proof subsequently applied to this evidence is lower. Pursuant to jurisprudence of the Portuguese Supreme Court, one of the consequences of the sumario cognitio or the swift examination of the cause of action is the standard of proof that is required of the applicant.65 The applicant does not have to fully prove the facts alleged in its application, it has only to summarily demonstrate them or demonstrate they are likely to be true, i.e. making a claim credible requires more than a simple allegation, but less than strict proof. The facts must be supported by some documentary evidence and the substantiation of the facts must be of such a quality that, following a prima facie assessment, the judge comes to the conclusion that the applicant’s allegation is likely to be true, without all doubts being ruled out. Some commentators refer to credibility as “the proof of likeliness” or “prima facie evidence”.66
4.3.7. The courts have substantial discretion when assessing whether or not the standard of proof is met. In many cases, it will simply come down to the judge’s instinct when considering whether a case is credible. This shows the importance of a convincing request and compelling evidence. It is therefore not surprising that, in many cases, the length of an interim measure request is not very different from a full statement of claim.
5. Legal Safeguards for the Respondent
5.1. Right to present counter-arguments and evidence
5.1.1. The respondent can present counter-arguments and evidence in a written statement of defence. In principle, the same restrictions as those relating to the applicant’s evidence apply. However, while the applicant has to make the facts of its case credible, the respondent needs only to effectively challenge the credibility of the facts alleged by the applicant.
5.2. Principle of proportionality
5.2.1. The court is required to apply the principle of proportionality as explained in paragraph 3.2.10 above.67
5.3. Security
5.3.1. After the interim measure order has been made, the respondent may request the substitution of the provisional measure by security.68 In its request, the respondent has to demonstrate that the security is sufficient to prevent further damage to the applicant or to guarantee the value of the applicant’s claim. Some commentators consider that it is not permissible to substitute a specific provisional measure by security (such substitution would only be allowed in the case of a common interim measure).69 Despite this view, such substitution is generally accepted by the jurisprudence.70
5.3.2. The court may also request such security of its own volition in cases involving common interim measures, attachment or enrolment proceedings (i.e. proceedings for the listing of assets).71
5.3.3. After filing its request, the respondent shall add proof that either it has the means to pay or has made payment to the case bundles.
5.3.4. If the interim measure is substituted by security, the interim order is immediately withdrawn.72
5.4. Damages for unjustified interim measures
5.4.1. The respondent’s interests are also safeguarded by its right to seek compensatory damages where an unjustified interim measure was granted.73
5.4.2. Even where the requirements for a compensatory damages claim are met, if the applicant is able to prove that it had sought the measures with the necessary caution, the court may reduce the damages or entirely release the applicant from liability.74 According to Portuguese jurisprudence, the application is considered to have been made with necessary caution if, at the time the application was made, it was justifiable for objective, factual reasons, even if the application is subsequently proven to be wrong.75 This threshold is not very high. However, the applicant cannot claim it acted in good faith if it withheld evidence that would have been unfavourable to its position.
5.4.3. A damages claim for unjustified interim measures must be brought within three years of the date on which the respondent became aware of such damage.76
6. Timing of Interim Measures
6.1. Similarities and differences when filing a request before or after the case on the substantive matter is pending
6.1.1. As explained in paragraph 2.1.2 above, before the substantive claim is pending, the applicant may file a request with any court that has territorial competence over the substantive case or with the court located where the interim measure will be enforced. Once the main proceedings are pending, the interim measure request can only be filed with the same court as the main proceedings.
6.2. Duration of an interim measure procedure
6.2.1. As stated in paragraph 4.2.1 above, pursuant to the CPC, interim measures are urgent proceedings that should be decided on within 15 days of the application if it is an ex parte order or within two months if the respondent files a defence. These deadlines are merely indicative, as there are no consequences for any party from the Court if such deadlines are not met. However, as a rule, requests for interim measures are decided quickly, even though the timelines contained in the CPC are not usually complied with. This is particularly true in the event of a request for an ex parte injunction. If the urgency is obvious, the court will issue its order within one or two working days.
6.2.2. There are cases where the issuance (or denial) of an interim measure can take considerably longer. Usually, this is because the court is not convinced that the matter is urgent and/or feels that the applicant could have filed its request much earlier but failed to do so without any apparent reason. In addition, varying standards of case management and sophistication of the local courts can result in differences as to the length of time taken for the court to issue an order.
6.3. Validity of an interim order
6.3.1. As stated in paragraphs 3.2.12 and 3.2.13 above, in the event the interim proceedings are not filed while the main proceedings are ongoing and there is no release to file the main action, then, the main action must be filed within 30 days of the outcome of a successful application for interim measures being notified to the respondent.77 Failing to do so will result in the automatic ineffectiveness of the ordered interim measure.
6.3.2. The interim measures will remain in place for so long as is necessary to the relevant measures to be carried out; until the substantive proceedings are concluded; or as otherwise ordered by the Court
7. Costs
7.1. Court costs and compensation for professional representation
7.1.1. Court costs for interim measures are not significant. The court fees that shall be paid when filing the initial application are as follows:
  • if the amount at stake is less than EUR 300,000, the court costs are EUR 306;
  • if the amount at stake is at least EUR 300,000.01, the court costs are EUR 816; and
  • if the specific interim measure filed comprises the provisional restitution of possession or provisional compensation, the advance on costs is EUR 102.

7.1.2. The respondent must pay the same court fee when he submits his answer to the application. If the respondent does not pay the fee, the court will disregard his response.
7.1.3. An applicant should also take into account the actual costs of its own representation.
7.1.4. The court does not reimburse the court fees paid by the parties. Rather, the successful applicant has to seek reimbursement of the court costs and the costs of professional representation from the losing party. Compensation for professional representation costs is limited to 50% of the total amount of court fees advanced by both parties as per paragraphs 7.1.1 and 7.1.2 above. If the losing party refuses to pay, the successful applicant will have to initiate enforcement proceedings.
8. Remedies Against the Decision on Interim Measures
8.1. Modification and revocation
8.1.1. Pursuant to the CPC, a provisional measure may be modified or revoked if:
  • the applicant fails to file the main proceedings within the specified time limit;
  • the main proceedings are suspended by the direct conduct of the applicant;
  • the main proceedings are dismissed on the grounds of res judicata; or
  • the subject/substantive matter has ceased to exist.78

8.1.2. In general, the request to modify or revoke the interim measure must be filed with the court that ordered the interim measure. However, if the main underlying claim is started in a different court, any application for modification or revocation of the interim measure should be brought before that court.
8.2. Appellate remedies
Outline of the Portuguese appellate system
8.2.1. The CPC provides for two main remedies against an interim measure decision: an appeal and a complaint. The main instrument is an appeal; the complaint functions as a subsidiary remedy where an appeal is not permitted.
Appeal
8.2.2. An appeal can be brought against the decision of the first instance court on the interim application (ex parte interim measure or not) if the amount at stake is at least EUR 5,000.01. The appellate court is vested with full powers to review the case, i.e. the appellant can challenge both the application of the law and the establishment of the facts.79
8.2.3. The appeal must be filed in writing directly before the originating court (the court of first instance), within 15 days of the notification of the order rendered by the Court.80 It is not possible to file an appeal of an interim measure to the third instance court, namely the Supreme Court of Justice.
8.2.4. The appeal does not automatically result in the suspension of the enforcement of the interim measure. However, on request and exceptionally, the court may suspend the enforcement of an interim measure if such enforcement would cause harm not easily repairable to the respondent and it submits a security/guarantee to the court.81
8.2.5. The responding party has 15 days to file its answer to the appeal.
9. Enforcement of an Interim Measure
9.1. Enforcement of interim measures issued by national courts
9.1.1. There is no separate enforcement procedure for enforcing interim measures as the court ordering the interim measure also has the power to order the necessary enforcement measures.82 However, it is up to the applicant to seek the relevant enforcement measures from the court if required.
9.1.2. Such enforcement measures may simply be notification of the decision to the respondent or it may require the attachment of the relevant assets which can be enforced by the notification to third parties or public entities. If the enforcement measure is reliant upon the cooperation of the respondent, the applicant may file enforcement proceedings if the respondent fails to perform the relief ordered.83
9.2. Enforcement of interim measures issued by foreign courts
9.2.1. If an order for an interim measure was issued in a contracting state of the Brussels Regulation, enforcement follows the provisions of this treaty. With regard to enforcement of interim measures issued by courts in Iceland, Switzerland or Norway, the Lugano Convention applies.84 For all other cases, enforcement follows the rules of the CPC.
Enforcement under the Brussels Regulation
9.2.2. An interim measure issued in a member state of the Brussels Regulation will be recognised and enforced in Portugal in accordance with the rules of the Brussels Regulation.85 In general, enforcement is swift and usually possible without any major issues or hurdles.
9.2.3. While the provisions of Portuguese law regarding the right to be heard do not require the foreign interim measure to be issued after a hearing, the respondent must have had the opportunity to express its view on the interim measure in the country of origin before enforcement in Portugal is sought.86 This case law frustrates the enforcement of foreign ex parte interim relief orders under the Brussels Regulation and a surprise cross-border raid is not possible. If an applicant wants to take the respondent by surprise, it will have to file a request for ex parte measures in Portugal.
Enforcement under the CPC
9.2.4. The recognition and enforcement of the decisions of courts in countries which are not members of the Brussels Regulation are governed by the CPC. An application for enforcement must be made in the Portuguese Courts.
10. Interim Measures in International Commercial Arbitration
10.1. Interim measures by state courts
10.1.1. Prior to the constitution of the arbitral tribunal, an application for interim measures may be filed with the state court.
10.1.2. There is no unanimous doctrine as to whether the competent state court has (alternative) jurisdiction after the constitution of the arbitral tribunal. We support the prevailing opinion that there is alternative jurisdiction of the state courts and the arbitral tribunal for interim measures, unless the parties have explicitly agreed to the contrary.
10.2. Interim measures by arbitral tribunals with seat in Portugal
10.2.1. After constitution of the arbitral tribunal, and unless otherwise agreed, the arbitral tribunal may grant any interim measures it deems necessary in relation to the subject-matter of the dispute upon the request of a party and after hearing the other party.
10.2.2. For the purposes of the Law on Voluntary Arbitration,87 an interim measure is a temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to:
  • maintain or restore the status quo pending determination of the dispute;
  • take action to prevent, or refrain from taking action, that is likely to cause harm or prejudice to the arbitral process itself;
  • provide a means of preserving assets out of which a subsequent award may be satisfied; or
  • preserve evidence that may be relevant and material to the resolution of the dispute.

10.2.3. Furthermore, interim measures shall be granted by the arbitral tribunal as long as:
  • there is a serious probability that the right invoked by the requesting party exists and the fear that such right will be harmed is sufficiently evidenced; and
  • the harm resulting from the interim measure to the party against whom the measure is directed does not substantially outweigh the damage the requesting party wishing to avoid with the measure.

10.3. Interim measures by arbitral tribunal with seat abroad
10.3.1. While the 1958 New York Convention (New York Convention) governs the recognition and enforcement of any foreign arbitral award in Portugal, interim orders are not final and, for this reason, do not qualify as awards enforceable under the New York Convention. However, arguably, foreign arbitral tribunals may also seek the assistance of the state court at the place of enforcement if a party does not voluntarily comply with an interim award.
11. Contacts
CMS Rui Pena & Arnaut
Rua Sousa Martins, 10
1050-218 Lisbon, Portugal
Nuno PenaT +351 21 09581 58
F +351 21 09581 55
E nuno.pena@cms-rpa.com
Diogo PereiraT +351 21 09581 02
F +351 21 09581 55
E diogo.pereira@cms-rpa.com
12. References
  • The Portuguese Civil Procedure Code was approved by Law No. 41/2013 of 26 June 2013, with all the amendments introduced up to and including the Law No. 122/2015 of 1 September 2015.
  • Pursuant to article 35 of the Brussels Regulation, with respect to interim measures, applicants may request provisional, including protective, measures from the courts of a Member State which does not have jurisdiction on the merits. Such interim measure shall be governed by the law of the relevant Member State.
  • Decree-Law No. 108/2006 of 8 June 2006, art 16. The Experimental Civil Procedure Act is only applicable to matters where the claim does not involve the payment of a particular sum.
  • Decree-Law No. 53/2004 of 18 March 2004, art 31.
  • The Jurisdictional Organisation of Minors Act was approved by Decree-Law No. 314/78 of 27 October 1978. See art 186 to 190 of the aforementioned act.
  • Decree-Law no 54/75 of 12 February, with the wording that has been introduced by Decree - Law No. 178-A/2005 28 October 2005.
  • The Industrial Property Code was approved by Decree-Law No. 36/2003 of 5 March 2003.
  • Brussels Regulation, art 35. See also, Portuguese Supreme Court of Justice, 16 December 2004, Case File No. 04B4076, www.dgsi.pt.
  • CPC, art 78 and 364(1) and (2).
  • CPC, art 78 and 364(1) and (2).
  • Portuguese Supreme Court of Justice, 16 December 2004, Case File No. 04B4076; Appellate Court of Lisbon, 3 March 2007, Case File No. 696/2007-7, both in www.dgsi.pt.
  • CPC, art 78(a).
  • CPC, art 78(b).
  • CPC, art 78(d).
  • CPC, art 78(c).
  • CPC, art 78(2) and 364(1) and (2).
  • CPC, art 364(1) and (3).
  • CPC, art 377 to 379.
  • CPC, art 380 to 383.
  • CPC, art 384 to 387.
  • CPC, art 388 to 390.
  • CPC, art 391 to 396.
  • CPC, art 397 to 402.
  • CPC, art 403 to 409.
  • CPC, art 362(3).
  • CPC, art 376.
  • Portuguese Civil Code, art 619 to 621.
  • CPC, art 401.
  • Portuguese Supreme Court, 14 October 2004, Case File No. 04B2883, in www.dgsi.pt. For instance, in a first demand bank guarantee contract, the guaranteed party may seek an injunction to prevent the guarantor from paying the beneficiary in the event that there is clear evidence of blatant abuse or fraud of the call of the guarantee.
  • Portuguese Appellate Court of Lisbon, 3 March 2009, Case File No. 3098/2005, in www.dgsi.pt.
  • CPC, art 390.
  • CPC, art 376(3).
  • CPC, art 362(1), and (2), 363 and 368(1)-(3).
  • CPC, art 362(1), 368(1), 388 no 2, 392(1) and 406(1).
  • CPC, art 362(2).
  • CPC art 362(1) and 368(2).
  • CPC art 362(1).
  • Portuguese Supreme Court of Justice, 28 September 1999, Case File No. 99A678, 15 September 2010, Case File No. 335/10.4TTFUN.L1-4. See also, Appellate Court of Coimbra, 22 November 2005, Case File No. 3025/05; and Appellate Court of Guimarães, 1 January 2012, Case File No. 122/08.0TBPTB-B.G1. See also A Geraldes, Temas da Reforma do Processo Civil (III) p 103.
  • CPC, art 368(2).
  • Portuguese Appellate Court of Évora, 2 February 2001, CJ vol I p 267.
  • CPC, art 373(1)(a).
  • CPC, art 369(1).
  • CPC, art 369(2).
  • CPC, art 376(1).
  • CPC, art 391 to 396.
  • CPC, art 372.
  • CPC, art 373.
  • CPC, art 419 and 420.
  • CPC, art 366(1).
  • CPC, art 365.
  • CPC, art 393.
  • CPC, art 366(6).
  • CPC, art 72(2).
  • CPC, art 372(1)(a).
  • CPC, art 365(3).
  • CPC, art 376(3).
  • CPC, art 293 ex vi art 365(3).
  • CPC, art 370(1).
  • CPC, art 366(5).
  • CPC, art 293 and 294 ex vi art 365(3).
  • Portuguese Civil Code, art 362.
  • CPC, art 423(1) and (2), and Portuguese Supreme Court of Justice, 9 February 1995, in BMJ 444.º/542. Initially, this question was debatable and there was some jurisprudence that established that the documents should be added to the case bundles solemnly with the Statement of Claim/Application for interim measures.
  • CPC, art 294(1).
  • CPC, art 362(1).
  • Portuguese Supreme Court of Justice, 19 December 2001, in www.dgsi.pt.
  • L de Freitas, Código do Processo Civil anotado (vol II) p 35; T de Sousa, Estudos sobre o novo processo civil p 233.
  • CPC, art 368(2).
  • CPC, art 368(3).
  • See A dos Reis, Código do Processo Civil Anotado (vol I) p 674.
  • Please see the judgment issued by the Appellate Court of Lisbon, 09 October 2008, Proc. No. 7813/2008-2, www.dgsi.pt; See also the judgment issued by the Appellate Court of Guimarães, 29 January 2009, Proc. No. 2819/08-1, www.dgsi.pt.
  • CPC, art 374(2) and 376(2).
  • CPC, art 373(2).
  • CPC, art 374(2).
  • CPC, art 374 no(1).
  • Please see the judgment issued by the Portuguese Supreme Court of Justice, 12 January 2012, Proc. No. 1472/06.5TVLSB.L1.S1, www.dgsi.pt.
  • Portuguese Civil Code, art 498(1).
  • CPC, art 373(1)(a).
  • CPC, art 373.
  • CPC, art 662.
  • CPC, art 638(1).
  • CPC, art 647(4).
  • CPC, art 362(1).
  • CPC, art 703(a) and 704.
  • Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 30 October 2007 (Lugano Convention).
  • Brussels Regulation, art 35.
  • Law No. 63/2011 of 14 December 2011, art 20.
  • Law No. 63/2011 of 14 December 2011.

Romania
Authors: Gabriel Zaharia Sidere, Horia Drăghici, Sabina Cârjan
1. Applicable Law
1.1.1 On 15 February 2013 a New Civil Procedure Code (NCPC) entered into force in Romania, replacing the former civil procedure code, which had regulated civil legal relationships for approximately 150 years. The NCPC significantly changed the litigation process in Romania, establishing new sets of rules as well as the various mandatory stages to be followed in the courts before a judgment is made.
1.1.2 Interim measures are mainly governed by the NCPC. In order to determine whether provisions other than the NCPC are also applicable to an interim measure, the applicant has to check two issues:
  • whether the claim or the interim measure has an international dimension; and
  • whether there are special provisions for the particular subject matter of the claim.

1.1.3 For EU-related cases, jurisdiction is established in accordance with Council Regulation (EC) No 1215/2012 (the Brussels Regulation).1 Provisions regarding the international jurisdiction of the Romanian courts are also included in the NCPC, especially for non-EU countries. These provisions primarily relate to jurisdiction and enforcement.
1.1.4 As for the applicable law when dealing with a dispute with an international dimension, the Romanian Civil Code contains rules on conflicts which establish the applicable law when there is a conflict of laws.
1.1.5 Further, certain provisions relating to the following areas are located in other sources of law, such as:
  • for protective measures regarding creditors that have submitted applications to register their claims with the list of creditors2 against insolvent debtors (e.g. a debt application), the provisions of the Insolvency Law3 apply;
  • the Romanian Criminal Procedure Code (RCPC) provides for interim measures such as freezing movable and immovable assets through sequester, in order either to repair criminal damage caused or to enforce the payment of fines;4
  • the Romanian Civil Code (RCC) provides for provisional measures regarding the protection of human rights;5 and
  • interim and provisional measures concerning the protection of industrial property rights are contained in special legislation.6

2. Jurisdiction
2.1 International and geographical jurisdiction – the venue
2.1.1 For international disputes, as a general rule and unless a mandatory national law provides otherwise, Romanian courts have jurisdiction when the respondent is domiciled, or its headquarters, secondary place of business or goodwill are in Romania at the date on which the application is submitted. Where there is more than one respondent, it is sufficient for one of them to be domiciled, have its headquarters, secondary place of business or its goodwill in Romania. However, Romanian courts will not have jurisdiction where the request is filed with the sole purpose of excluding a certain respondent from the jurisdiction of its domicile, headquarters or secondary place of business situated abroad.
2.1.2 Romanian courts also have jurisdiction concerning the usual activities carried out at a legal person’s secondary place of business when such company has its headquarters abroad, and such secondary place of business is located in Romania at the date on which the application is submitted.
2.1.3 With regard to rights under Romanian law that are not human rights, the parties may decide which court will have jurisdiction in the event that current or future litigation arises out of a legal relationship with an international dimension. The jurisdiction agreement must be concluded in writing, through telegram, telex, facsimile or any other means of communication allowing evidence of the written agreement’s text to be included therein.
2.1.4 The agreement on jurisdiction will be invalid if it results in improperly depriving one of the parties of the protection ensured by the court provided for by Romanian law (for example, if one of the parties is a consumer and the sole purpose of the agreement would be to prevent the consumer from enforcing his legal rights in court by choosing a foreign court). The agreement will likewise be ineffective when the court chosen to have jurisdiction is located abroad, but where the specific circumstances of the case mean that the Romanian courts have exclusive jurisdiction (for example, when the dispute concerns real estate located in Romania). The same applies when the chosen court is a Romanian court, but a foreign court has exclusive jurisdiction over the main proceedings.
2.1.5 The court chosen to have jurisdiction over a claim cannot reject such a claim, thus declaring itself incompetent, in the following situations:7
  • where one of the parties has its domicile or secondary place of business within the territorial scope of the chosen court; and/or
  • where the applicable law, according to private international law, is Romanian law.

2.1.6 A Romanian court also has jurisdiction over disputes which have a sufficient connection with the place of the court, where it is not possible to make an application abroad or where it cannot reasonably be argued that an application may be made abroad. If the application is filed either by (i) a Romanian citizen, (ii) a person without citizenship but domiciled in Romania, or (iii) a Romanian legal person, then the jurisdiction of the Romanian courts is mandatory.8
2.1.7 Although a different court may have jurisdiction over a specific matter, the parties may voluntarily extend jurisdiction in favour of Romanian courts, as follows:
  • where the parties have validly agreed that the Romanian courts shall have jurisdiction, such courts have exclusive jurisdiction over the matter without the parties specifying exclusivity; and
  • except when otherwise provided by the law, the Romanian courts will have jurisdiction in any case where the respondent appears before the court and formulates substantive defences without invoking the defence of a lack of jurisdiction of the forum at the latest by the time at which the available evidence has been analysed and the judge considers the case is sufficiently clear to move to the next stage of considering the merits of the case.


In cases (i) and (ii) above, the Romanian courts may refuse to reach a decision on the claim if the specific circumstances of the dispute show that such a dispute has an insufficient connection with Romania.
2.1.8 In urgent matters, Romanian courts have jurisdiction to order provisional measures concerning Romanian natural persons or assets situated in Romania (for example, measures relating to the conservation or enforcement of assets), at the date on which the application is submitted, even if, according to the NCPC, such courts shall not have jurisdiction on the substantive case. Moreover, in relation to immovable assets situated in Romania, the Romanian courts have exclusive jurisdiction, whether or not the dispute has an international dimension.
2.2 The effect of jurisdiction clauses
2.2.1 Whenever the parties have concluded a jurisdiction agreement, the court designated as competent in the agreement will also have jurisdiction over any application for interim measures.
2.2.2 As explained above, for those disputes with an international dimension, the Romanian courts also have jurisdiction in urgent matters to order interim measures concerning Romanian natural persons or assets situated in Romania at the date on which the application is submitted. This is the case even if, according to the NCPC, those courts do not have jurisdiction over the substantive case.
2.3 Choice of venue if more than one court has jurisdiction
2.3.1 For remedies such as distraint (upon property) and precautionary garnishment, the court that hears the case at first instance has jurisdiction.
2.3.2 The first instance court may be a district court (Judecătorii) or a county court (Tribunale) depending on the circumstances of the case and the criteria established by the NCPC. For example, if the subject of the main application is an asset amounting to more than 200,000 RON, the county court has jurisdiction, if the asset has a lesser value, the district court has jurisdiction.
2.3.3 For judicial sequester, if there is an ongoing litigation, the competent court is the one that has conduct of that litigation. In the absence of ongoing litigation, the location of the asset will determine the competent court to hear the application.

2.4 Choice of venue if more than one court has jurisdiction
2.4.1 If different courts have jurisdiction over the same interim measure, the choice of where to file the request is a tactical one and has to be carefully considered. The following factors might be taken into account when choosing the venue:
  • the average duration of proceedings in the respective jurisdictions;
  • the desire to avoid long disputes concerning jurisdiction. Jurisdiction will normally be less contentious when the court seised of the claim is at the seat of the respondent and/or the place where the measure has to be enforced;
  • small district courts are not often used to dealing with international law issues;
  • the standards required to obtain an interim measure tend to be stricter in courts that have more experience in these types of matters; and
  • court costs can vary from one district within Romania to another.

3. Types of Interim Measures and their Criteria
3.1 Interim measures (“Masuri asiguratorii”)
3.1.1 Precautionary measures are measures for preservation and conservation to prevent the other party from destroying or dissipating assets or from diminishing its assets or rights which are the subject of the claim on the merits, prior to or during the trial of the substantive claim.
3.1.2 The NCPC regulates three particular precautionary measures: distraint (upon property), judicial sequester, and precautionary garnishment.

The practical impact of these categories
3.1.3 The applicant has the right to choose which interim measure it pursues, taking into account the nature of the substantive claim, as well as the type of assets that it is seeking to freeze, i.e. monetary or non-monetary assets.
3.1.4 All interim measures are to be settled through a fast track court procedure, imposing certain special conditions as well as a high degree of expediency.
3.2 Distraint (upon property) (“Sechestru asigurator”)
3.2.1 The NCPC provides that a distraint upon property consists of freezing the debtor’s movable and/or immovable assets that may further the purpose of the enforcement. The assets remain in the debtor’s possession, or in the possession of a third party, until the creditor that has a monetary claim obtains an enforceable judgment.
3.2.2 In general, companies that are subject to insolvency/bankruptcy proceedings may not be subjected to interim measures. However, in specific cases under Romanian insolvency law, the insolvency judge may grant limited interim measures but only in relation to the assets of those directors of the company who allegedly caused the company’s insolvency.
Conditions for requesting a distraint (upon property)

3.2.3 A creditor may apply for a distraint upon a debtor’s assets, either movable or immovable, if:9
  • the creditor does not yet have enforceable title;
  • the creditor’s claim is evidenced in writing;
  • the sum owed is due and payable;
  • the claim consists of an amount of money; and
  • the creditor can show that it has filed the pleadings on the merits of the claim.

3.2.4 The court may order the applicant (creditor) to pay security in an amount set by the court of up to 20% of the value of the asset that is the subject of the application for interim measures. The security represents the amount of money that must be submitted by the party that intends to impose a distraint of property, with the purpose of indemnifying the respondent (debtor) for possible damage suffered as a result of freezing its assets.
3.2.5 Even if the applicant’s claim is not evidenced in writing, it may request setting a distraint upon the respondent’s assets, if it can prove that it has filed the substantive claim and submits with the application security in the amount of half of the value of its substantive claim. In such cases, the provision of security is mandatory, whereas as a general rule, security is at the court’s discretion.
3.2.6 Even if the sum owed is not yet due and payable to the applicant, the court may still agree to impose a distraint where the respondent has, through its actions, diminished the guarantees given to the creditor; has not given the promised guarantees; or where there is a threat that the respondent will evade enforcement, conceal its assets or dissipate its wealth. In such a situation all the other conditions mentioned above must be met, and the applicant must also pay security in the amount set by the court.
3.2.7 The applicant is not obliged to itemise the assets upon which it requests the distraint to be imposed, as the enforcement officer appointed by the claimant will decide which assets to seize – either those assets indicated by the applicant or any other assets he deems fit.
3.2.8 Failure to submit the amount of the security within the timeframe set by the court leads to the ceasing of the distraint by operation of the law, such that the respondent’s assets become “un-frozen”. This is established by a final judgment on paper (without a hearing).
3.2.9 The frozen assets may not be enforced upon until the applicant obtains enforceable title which will usually be following final judgment in the substantive proceedings.
3.2.10 The distraint may be lifted, at the respondent’s request, where the respondent offers adequate and sufficient security. Since the law does not specify the type of security that shall be deemed sufficient, the court shall decide, taking all the relevant circumstances into account including the amounts owed by the debtor and the proposed security. Such a request shall be considered in a closed hearing, after the parties have been summoned at short notice.10
3.2.11 The respondent may file an appeal against the judgment mentioned in paragraph 3.2.9 above within five days of the date of notification of the reasoned judgment to the parties. The appeal shall be considered by the court urgently.
3.2.12 The distraint shall also be lifted in circumstances in which the substantive claim (on the basis of which the request for interim measures was approved) has been annulled, rejected or has become obsolete, or where the applicant does not pursue the substantive claim. In such a case, lifting the distraint is a result of the applicant’s acts. For such a situation, the court shall issue an order that cannot be challenged, and which is given without a hearing.11
3.3 Judicial sequester (“Sechestru judiciar”)
3.3.1 Judicial sequester consists of freezing assets which are the subject matter of an ongoing dispute, or any other asset as provided by the law, by appointing a special administrator who will manage the seized asset.
3.3.2 Whenever there is ongoing litigation over property rights (in rem rights), over movable or immovable assets or any other real estate rights or rights over the possession or administration of a movable or immovable property asset, the court may, at the request of any interested party, allow judicial sequester of the asset in question, if such measure is necessary to preserve the right being litigated.12
3.3.3 In such a case the court may only sequester the assets that are the subject of litigation to the extent such a measure is necessary. For example, assets damaged by the respondent (debtor), assets which may be alienated, etc.
3.3.4 The court may allow a judicial sequester if there is no ongoing litigation, when such sequester is:
  • over an asset that the respondent itself offers to provide, in lieu of the asset which the claimant seeks to sequester;
  • over an asset which the applicant has reasonable grounds to fear will be stolen, destroyed, devalued or altered by its current owner; or over movable assets comprising the applicant’s security, where the applicant anticipates the respondent’s insolvency or when it has reasonable grounds to suspect that the respondent will circumvent possible future enforcement or fears theft or damage of the assets.

3.3.5 In this case, the applicant that obtained the sequester must submit its substantive claim to the competent court, initiate all necessary actions for establishing the arbitral tribunal (where applicable) or request the enforcement of its enforceable title within a maximum of 20 days from the date on which the court ruled that the judicial sequester should be imposed.
3.3.6 In the event that the applicant fails to do so, the judicial sequester shall cease by operation of law (ipso jure).
3.3.7 For any request on judicial sequesters over assets that are not the subject of existing litigation, the court with jurisdiction shall be the court where the assets are located.
3.4 Precautionary garnishment (“Poprire asiguratorie”)
3.4.1 A precautionary garnishment may be created over amounts of money, securities or other intangible movable property owed to the respondent (debtor) by a third party or that would be owed in the future under existing legal relations.
3.4.2 For a precautionary garnishment to be ordered, the applicant creditor must show that:
  • it does not yet have an enforceable title;
  • the claim is evidenced in writing;
  • the claim has become due and payable;
  • the claim consists of an amount of money; and
  • it has issued proceedings on the substantive case.

3.4.3 Paragraphs 3.2.3 to 3.3.7 above regarding a distraint (upon property) are also applicable to a precautionary garnishment measure.
3.5 Injunction Order (“Ordonanta presedintiala”)
3.5.1 Any interim measure may be subjected to an injunction order procedure. The relevant procedure requires that:
  • all measures taken must be provisional (until an award on the merits of the substantive case is made);
  • there must be urgency either for preserving a right that would be damaged by a delay, or preventing imminent damage that would not be reparable; and
  • the interim measure cannot deal with the substantive merits of the case.

3.5.2 In cases of extreme urgency, the injunction order may be rendered on the same day as the request is submitted, with the court giving its decision on paper, ex-parte, without a hearing.
3.6 Preventive taking of evidence
3.6.1 In Romania (as in most civil law jurisdictions), the taking of evidence is administered by the court and performed at specific times during the litigation process. To ease this burden, the preliminary or preventive taking of evidence by the court is allowed at any time, including prior to the start of the substantive proceedings, if:
  • the law so provides;
  • the applicant can credibly show that the evidence is at risk of destruction/alteration/removal from the jurisdiction etc.; and
  • there is a reason the evidence must be urgently protected.

3.6.2 Legal provisions allowing the preservation of evidence can mainly be found within the NCPC.14
3.6.3 Article 359 paragraph 1 of the NCPC states that anyone who has an interest in urgently:
  • ascertaining a person’s testimony;
  • ascertaining an expert’s opinion;
  • ascertaining the condition of movable or immovable assets; or
  • obtaining the recognition of a document, a fact or a specific right,

may request, either prior to and/or during trial, the taking of evidence if there is a danger of such evidence being destroyed or removed prior to the ordinary evidential proceedings, or being difficult to obtain in future.
3.6.4 The request for the preventive taking of evidence must be filed at the court that has jurisdiction in respect of the substantive claim for trial or, prior to the trial, at the court where the witness or the subject matter (e.g. real estate) to which the measure relates is located.
3.6.5 The request for the preventive taking of evidence should comprise:
  • a description of the evidence that is sought;
  • facts intended to be proved by such evidence;
  • grounds in support of seizing the evidence as is necessary for such an interim measure; and
  • defendant’s (debtor’s) consent, if any (if the defendant consents, the claimant does not have to prove urgency).

3.6.6 If the request is granted, the taking of evidence itself shall be done either immediately, or at a later date fixed specifically for the purpose of taking such evidence. The taking of evidence is carried out by the court and cannot be appealed.
3.6.7 Evidence taken by way of preventive interim measure will be reviewed by the court in the substantive proceedings, at which stage issues relating to admissibility, relevance and weight to be attributed to the evidence will be considered. The court may, if necessary and possible, proceed to take the same evidence again.
3.6.8 The evidence may also be used by any party to the substantive proceedings, not just the party who originally applied for the evidence to be taken. Any expense incurred during the taking of evidence (see section 7 below on costs) shall be taken into consideration by the court when assessing the case on its merits.
3.7 Urgently ascertaining a factual situation
3.7.1 If there is a factual situation that may cease in the future or that could change before evidence is taken, an enforcement officer (bailiff), at the request of any interested party, may ascertain the relevant factual situation there and then. The district in which the assessment of the factual situation is to take place will be determined by the district of the enforcement officer with jurisdiction in the matter.15
3.7.2 In some instances, the assessment can only take place with the consent of the opposing party or any other interested party. If the opposing party refuses to give its consent, the interested party may ask the court to waive the requirement for consent and to approve the assessment of the factual situation in the absence of the opposing party. The court may give its approval without summoning the person against whom the measure is requested, i.e. without notice to the respondent.
3.7.3 The enforcement officer then produces minutes setting out the factual situation. A copy of the minutes is provided to the person against whom the measure was taken, if that person was not present at the assessment of the factual situation. That minutes will have the evidential weight of an authenticated proof of a factual situation.16
3.7.4 In cases of urgency, both the “preventive taking of evidence” and the “urgent assessment of a factual situation” can be done on non-working days and outside business hours, with the express permission of the court.17
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
Form of the request
4.1.1 Interim measures are subject to the rules applicable to summary proceedings. In most cases, a hard-copy of the interim application is lodged with the relevant court. The NCPC allows electronic submissions incorporating an authorised electronic signature. For the time being, the option to file an electronic submission is rarely used as the technical procedure is often rather complicated and burdensome.

Content of the request
4.1.2 The request has to include a comprehensive prayer for interim relief and must name the grounds on which the request is founded. The court is prevented by the principle of non ultra petita from awarding more than the applicant requested. However, following the principles of a maiore ad minus and proportionality, the court can and should order a lesser measure if the applicant’s right which is at risk can be secured by a lesser measure.

Enclosures to the request
4.1.3 The applicant must attach all evidence in support to its request.
4.2 Implementation of the procedure
Specifics of each interim measure
4.2.1 With regard to distraint (upon property) and preventive garnishment measures, the court will not summon the parties and shall make its decision on an urgent basis on paper. The decision is recorded in an enforceable order that also establishes the extent/scope of the distraint/garnishment. Through the same court order, the court establishes the amount of the security requested (if such security is requested at all), as well as the timeframe for submitting such security to court by the applicant (creditor).
4.2.2 The court’s ruling on the application for a distraint/garnishment is communicated by the court to the respondent immediately. The imposition of such measures can only be challenged through an appeal, within five days of the order being notified, at the applicable higher court. The appeal shall be heard with urgency, and the parties will be summoned within a short time. Even if they do not attend the court hearing, the court will make a ruling which shall be made available to the parties by the court in its online public records. The ruling can be delayed for up to 24 hours, and the reasons for the decision shall be made available within 48 hours of the ruling.18
4.2.3 Both distraint (upon property) and preventive garnishment are enforced by the enforcement officer, who follows the enforcement procedure provided for by the NCPC. Once the court has approved the interim measure, there is no need for any other authorisation or approval for the measure to be implemented by the enforcement officer.
4.2.4 In relation to a distraint upon property, the enforcement officer shall go, as soon as possible, to the place where the assets to be distrained are located. The enforcement officer shall seize the respondent’s assets only to the extent necessary for the applicant’s claim to be met. In all cases, seizure takes place without warning or prior notice to the respondent.
4.2.5 Any seizure of assets that is to be subjected to publicity formalities so as to alert third parties is registered with the Land Registry (in respect of real estate), Trade Registry (in respect of shares), the Electronic Archive of Movable Securities (in respect of movable assets), or any other public register, as the case may be. Such registration shall make the seizure legally binding on any third parties that may acquire (further) rights over the said asset in addition to the parties to the order.
4.2.6 In relation to judicial sequester, the court must summon the parties to a hearing before ruling on the application19. The task of guarding the seized asset for the purpose of executing the “judicial sequester” measure falls to a person designated by the parties by mutual agreement. If the parties fail to agree, the court designates the guardian, which may be the guardian of the asset at the time the sequestration order is made. The enforcement officer will go to the place where the asset is located and gives the asset to the sequester-administrator. This is documented in a certificate of confirmation that is given to the court that approved the “judicial sequester”.
4.2.7 The sequester-administrator is entitled to do everything necessary for managing and conserving the asset. He shall also receive any incomes or amounts due, and may pay any debts due, as well as debts attested through an enforceable title. The sequester-administrator may sell the asset, with the prior approval of the court, in the event that its conservation is impossible or for any reason that requires the sale of such asset. Moreover, if the court approves it, the sequester-administrator may take the place of the parties as regards the seized asset at trial.
4.2.8 In urgent matters, the court may approve an interim administrator until the application for judicial sequester has been decided.
4.3 Evidential requirements
Limitation of evidence
4.3.1 In principle, only documentary evidence is permitted in summary proceedings. Documentary evidence is interpreted broadly and includes every document suitable to prove the relevant facts, such as papers, drawings, plans, photos, films, audio recordings, electronic files and e-mail print-outs.
4.3.2 Other evidence (such as questionnaires and witnesses) is only admissible if it does not substantially delay the proceedings; if the purpose of the proceedings requires such evidence; or if the court is obliged by law to establish the facts of the case ex officio.

Standard of proof – credibility
4.3.3 The applicant does not have to prove conclusively the conditions for each of the interim measures; the requirement is only to demonstrate them credibly. In summary, making a claim credible requires more than a simple allegation, but less than strict proof. The facts must be supported by some documentary evidence. The substantiation of the facts must be of such quality that, following a prima facie assessment, the judge comes to the conclusion that the applicant’s presentation is likely to be true, but not all doubts have to be ruled out. Some experts/commentators refer to this as “the proof of likeliness”.
4.3.4 The courts have substantial discretion when assessing whether or not the standard of credibility is met. In many cases, it will simply come down to the judge’s instinct when considering whether a case has been made credible. This shows the importance of a convincing application and compelling evidence.
5. Legal Safeguards for the Respondent
5.1 Right to present counter-arguments and evidence
5.1.1 In all cases where the respondent is summoned by the court, it shall receive a copy of the application and can present counter-arguments and evidence either in a hearing (in the case of judicial sequester) or in a written statement of defence. In principle, the same restrictions apply to the respondent’s evidence as to the applicant. While the applicant has to show that its case is credible, the respondent only needs to put forward substantiated allegations which are sufficient to overthrow the credibility of the facts alleged by the applicant.
5.1.2 The respondent also has an opportunity to challenge the decision of the court on the application for an interim measure once the decision has been made. The appeal must be filed within five days of the judgment being made (if the parties were formally summoned to a hearing) or notified to the parties (following an ex parte procedure). The reasons of the ruling have to be drafted within 48 hours since the date of the ruling.
5.2 Security
5.2.1 Distraint (upon property), judicial sequester and provisional garnishment may be conditional upon the payment of security by the applicant. The court has discretion whether or not to order security, which is as a general rule up to 20% of the value of the assets subject to the interim measure. In some cases, however, security is mandatory and the amount is set by law at 50% of the value of the underlying claim, as mentioned at paragraph 3.2.5 above.
5.3 Damages for unjustified interim measures
5.3.1 The respondent can challenge the enforcement of an interim measure. Interim measures are usually enforced through the enforcement procedure provided by the NCPC.20 Through such a challenge, the party suffering damage may request compensation, and if it is found that the interim measures were unjustified, the applicant may be obliged to pay damages to the respondent. However, although the NCPC sets out a fast track procedure for making applications requesting an injunction from the court (to obtain interim measures), challenges against the enforcement of such interim measures fall within the procedures applicable to trials on the merits of the case. This means that the court can take much longer to render its decision.
5.3.2 In addition to seeking damages by way of compensation, if the applicant has filed the request for an interim measure in bad faith, for example, by concealing evidence that would not have been in its interest to reveal, then the court may additionally order the applicant to pay a fine.
6. Timing of Interim Measures
6.1 Similarities and differences when filing a request before or after the case on the substantive matter is pending
6.1.1 The prerequisites for interim measures are the same whether or not the substantive case is already pending. Any request will be dealt with in fast track proceedings. However, before the substantive claim is issued, the applicant has a greater choice of jurisdiction, as set out in section 2 above.
6.2 Duration of an interim measure procedure
6.2.1 As a rule, requests for interim measures are decided quickly. If the urgency is obvious, the court may even issue its order within the same day, sometimes within hours (however, this is rarely seen in practice)..
6.2.2 There are cases where the issuance (or denial) of an interim measure takes considerably longer, depending upon the workload of the court. In addition, varying standards of case management and sophistication of the local courts can result in differences as to the length of time taken for the court to issue an order.
6.3 Validity of an interim order
6.3.1 Where a judicial sequester is issued before the main proceedings are pending, the applicant must file its substantive claim within 20 days of the date the interim measure was granted. Failing to do so will result in the automatic ineffectiveness of the interim measure. The deadline is fixed by the law, and cannot be extended by the court.
6.3.2 An interim measure will be in place for as long as the main (substantive) proceedings are in progress. If an order for an interim measure is made and then appealed, the court of appeal may stay enforcement up until it rules on the appeal only if the party asking for the stay of the enforcement provides security. The amount of the security will be set by the court.
7. Costs
7.1 Court costs and compensation for professional representation
7.1.1 Provisions regarding court fees are set out in the Government Emergency Ordinance no. 80/2013 on court fees. An applicant should take into account the actual costs of its own representation and that it may have to pay court costs in advance.
7.1.2 Court costs include the court fee and, where applicable, the costs of taking evidence and/or translations. For injunctions having a monetary value (“ordonante presedintiale”), the court fee calculation will be calculated on a scale determined by the amount in dispute, as provided by the Government Emergency Ordinance no 80/2013 on court fees.21 The court fees for setting a judicial sequester, distraint upon property or provisional (i.e. temporary) garnishments are of nominal value.
7.1.3 Party compensation includes compensation for professional representation and reimbursement of necessary expenses. The level of compensation for legal costs is determined by the court, based on the evidence produced by the party claiming reimbursement. The court analyses such costs and may award the entire amount, or a proportion of the amount, taking into account the complexity and novelty of the case. The court has sole discretion in setting the level of compensation for legal fees. In some cases, the compensation covers only a relatively small fraction of the successful party’s actual legal fees. If a party is not represented by a lawyer, compensation will not be awarded.
7.2 Advance on costs and security for party compensation
7.2.1 The applicant must pay the court fees in advance in order for its claim to be considered.22 In the absence of payment, the courts will dismiss the claim.
7.2.2 A successful applicant has to seek reimbursement of both the court costs and its legal fees, following approval by the court, from the respondent. If the respondent refuses to pay, the applicant will have to initiate enforcement proceedings for the costs.
7.2.3 The applicant seeking interim relief may be required to provide security to compensate the other party if it later becomes apparent that the interim measure should not have been granted (see paragraph 5.2.1 above).
7.3 Decision on costs and cost shifting
7.3.1 The court shall decide on costs when deciding on the application for the interim measure. Both court costs and any security required are determined when a request is filed by an interested party. The allocation of court and legal costs shall be decided by the court when rendering its judgment on the interim measures application.
7.3.2 Cost shifting applies for both court costs and party compensation. Accordingly, where a request for interim relief is fully granted, the respondent must bear all costs. If a request is partially granted, the costs are allocated proportionally.23 By way of example, if an applicant succeeds in 80% of its request, it will be ordered to pay 20% of the court’s costs, and the proportion of costs and compensation payable by the respondent will be correspondingly reduced.
8. Remedies Against the Decision on Interim Measures
8.1 Modification and revocation
8.1.1 The interim measure may be modified or revoked if the relevant circumstances have changed or if the measures have later been proven to be unjustified. Examples of changed circumstances are:
  • urgency which no longer applies;
  • grant of the interim measure causes higher damages than expected; or
  • the subject/substantive matter has ceased to exist (e.g. an intellectual property right has expired).

8.1.2 Any application for modification or revocation of the interim measure should be brought before the court that ordered the measure.
8.1.3 Although not specifically provided by law, the courts have ruled in practice that the alleged change of circumstances must have occurred after the day on which the interim relief was granted.
8.2 Appellate remedies
Outline of the Romanian appellate system

8.2.1 As a general rule, court decisions in Romania are subject to an appeal and a final appeal. Any parties may challenge the first instance decision on the basis of either the merits of the case and/or the lawfulness of the decision. The final appeal, however, can only be filed in certain circumstances relating to questions of law that are within the scope of the specific provisions of the NCPC.
The appeal

8.2.2 An appeal can be brought against the decision of the first instance court on the interim application.24 The appellate court is vested with the full power to review the case, i.e. the appellant can challenge both the application of the law and proof of the facts.
8.2.3 The appeal must be filed in writing with the court that has ordered the interim measure, and must set out the grounds for the appeal. The period in which to file an appeal is only five days following either notification of the reasoned decision to the respondent/applicant (in case of distraint or precautionary garnishment) or the date when the decision was rendered (in case of judicial sequester). The appeal does not automatically result in the suspension of the enforcement of the interim measure. However, on request and exceptionally, the court may suspend the enforcement of an interim measure if such enforcement would cause the respondent harm that is not easily reparable.
8.2.4 Such an appeal is decided through a fast track procedure, in which the parties are summoned to appear within a short period of time of between a few weeks and a few months, depending upon the court.
8.2.5 The other party will then be notified of the appeal and may then file a statement of defence, but it is not mandatory.25
9. Enforcement of an Interim Measure
9.1 Enforcement of interim measures issued by national courts
9.1.1 There is no separate enforcement procedure for interim measures that have been ordered by the court, and the enforcement process is the same as that applicable to the enforcement of a court order relating to the substantive claim. However, it is up to the applicant to apply for the relevant enforcement measures.
9.1.2 If the interim measure judgment is not complied with willingly, the enforcement officer shall enforce the judgment. The court enforcement officer may enter a person’s domicile or a company’s headquarters, with the help of public force (i.e. police, gendarmerie, etc.), if required.
9.1.3 Possible means of enforcement are:
  • imprisonment: The Romanian Criminal Code provides that failure to comply with a court decision and opposing the enforcement procedure by threatening the enforcement officer is punishable by imprisonment for between three months to two years. Criminal liability of companies can include criminal liability of the individual who has caused the company to commit a criminal offence. Moreover, the party resisting enforcement will also be ordered to pay damages in the event that it causes prejudice to the other party through its refusal to comply with the court’s decision;
  • a judicial fine: Article 627(3) NCPC provides that in the event that the debtor in an enforcement procedure refuses to appear before the enforcement officer to give the requested clarifications, or gives incomplete information in bad faith, then the chairman of the court may punish such debtor with a judicial fine of up to RON 1,000;
  • an order for performance by a third party: Where the respondent does not carry out an action as ordered, the court can, to the extent possible, order the execution of its order by substitution (i.e. authorise the applicant or another person to perform this action). In general, the applicant carries out the necessary actions in the name and on behalf of the respondent, the latter being liable to pay any costs incurred as a result of such substitution; and
  • the replacement of a party’s declaration by the other party’s declaration: where the respondent does not make a declaration (e.g. such as is needed for the entry of information into a public registry), the other party’s declaration is deemed sufficient for the required purpose.

9.2 Enforcement of interim measures issued by foreign courts
9.2.1 An order for interim measures obtained abroad in a member state of the European Union may be enforced in Romania under the specific conditions provided by the Brussels I Regulation.
26
The procedure for enforcement of the interim measure obtained abroad is governed by the law of Romania as the addressed member state.27
Enforcement under the Brussels Regulation
9.2.2 An interim measure order issued in a member state of the European Union may not be enforced in Romania.
9.2.3 In order to enforce such order the applicant needs to provide the competent enforcement authority in Romania with:28
  • a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
  • a certificate from the court of origin in the form set out in Annex I of the Brussels I Regulation containing a description of the measure and certifying that: (i) the court has jurisdiction as to the substance of the matter; and (ii) the judgment is enforceable in the member state of origin; and
  • where the measure was ordered without the defendant being summoned to appear, proof of service of the judgment.
Enforcement under the NCPC
9.2.4 Article 1102(2) of the NCPC provides that foreign decisions on interim measures, as well as any foreign decisions where the enforcement is temporary, cannot be enforced in Romania. However, with respect to EU courts’ decisions on interim measures, these should be enforced under the provisions of the Brussels Regulation.
10. Interim Measures in International Arbitration
10.1 Interim measures by state courts
10.1.1 If the party against whom the interim measures were ordered does not voluntarily comply, the arbitral tribunal may request that the competent court rule upon the interim measures, thus rendering an enforceable decision.29 The state court will only apply Romanian law.
10.1.2 The Geneva Convention provides that requesting interim or conservatory measures from a national court shall not be considered either incompatible with an arbitration agreement or as a way of awarding jurisdiction over the merits of the case.30
10.2 Interim measures by arbitral tribunals with a seat in Romania
10.2.1 Provided the parties have not agreed to the contrary, the arbitral tribunal has the power to grant interim relief. While the arbitral tribunal is not bound by Romanian law, it must treat the parties equally and observe the parties’ right to be heard. However, the arbitral tribunal cannot enforce its order or impose sanctions if a party does not voluntarily comply with the tribunal’s order. The NCPC provides that arbitral tribunals can ask for the competent court’s intervention if a party does not voluntarily comply with interim measures ordered by the arbitral tribunal, whether the party is domiciled in Romania or if the arbitral tribunal is seated in Romania.31
10.3 Interim measures by arbitral tribunals with a seat abroad
10.3.1 Since the NCPC expressly states that foreign court decisions on interim measures may not be enforced in Romania, foreign arbitral awards on interim measures are not enforceable in Romania either.
11. Contacts
CMS Cameron McKenna Nabarro Olswang SCA
S-Park
11-15 Tipografilor Street
B3-B4 Entrance, 4th Floor
District 1
013714 Bucharest, Romania

Gabriel Zaharia Sidere
T +40 21 4073 813
E gabriel.sidere@cms-cmno.com

Horia Drăghici
T +40 21 4073 834
E horia.draghici@cms-cmno.com

Sabina Cârjan
T +40 21 4073 884
E sabina.carjan@cms-cmno.com
12. References
  • Council Regulation (EC) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
  • List of creditors who filed petitions for relief in time so that the court has jurisdiction to determine what they are due in the event of insolvency.
  • Law no. 85/2014, Insolvency Law.
  • RCPC, art 163(1).
  • RCC, art 255, and human rights defined under art 252.
  • Government Ordinance No. 100/2005 on ensuring compliance with industrial property rights, art 9-11.
  • NCPC, art 1067(3).
  • RCPC, art 1070.
  • NCPC, art 952.
  • NCPC, art 956(1).
  • NCPC, art 956(2).
  • NCPC, art 972.
  • NCPC, art 969.
  • NCPC, art 359 to 363.
  • NCPC, art 364 (1).
  • NCPC, art 364 (4).
  • NCPC, art 365.
  • NCPC, art 953(1) to (4).
  • NCPC, art 974 (1).
  • NCPC, art 954(4).
  • Government Emergency Ordinance no 80/2013, art 1.
  • Government Emergency Ordinance no 80/2013, art 1.
  • CPC, art 106.
  • NCPC, art 997.
  • NCPC, art 998(1).
  • Brussels I Regulation, art 2(a)
  • .
  • Brussels I Regulation, art 41.
  • Brussels I Regulation, art 42(2).
  • NCPC, art 1116(2).
  • European Convention on International Commercial Arbitration (signed on 21 April 1961, ratified by Romania on 16 Aug 1963), art VI 4.
  • NCPC, art 1116(2).

Russia
Authors: Sergey Yuryev, Igor Sokolov
1. Applicable Law
1.1.1 The procedure for obtaining interim measures within disputes involving commercial entities heard by the state commercial (“arbitrazh”) courts of Russia is regulated by the Arbitrazh Procedure Code of the Russian Federation (APC).
1.1.2 In certain cases (e.g. involving the arrest of vessels etc.), the provisions of various international treaties are applied.
1.1.3 For cases adjudicated by international arbitration, provisions of the Russian Law on International Commercial Arbitration dated 7 July 1993 will apply together with the APC. As for domestic arbitration, the Federal Law on Courts of Arbitration in the Russian Federation dated 24 July 2002 will apply.
1.1.4 Further, certain legal provisions on interim measures are also provided in other laws:
  • Civil Procedure Code of the Russian Federation;
  • Commercial Maritime Code of the Russian Federation;
  • Tax Code of the Russian Federation;
  • Law on Insolvency (Bankruptcy).

1.1.5 For the purposes of this Guide, the provisions of the APC in respect of commercial entities will be referred to as they are the most relevant.
2. Jurisdiction
2.1 International and geographical jurisdiction – the venue
2.1.1 As interim measures are linked to a substantive underlying claim, the general venue rules provided by the APC equally apply to the corresponding request for interim measures.
2.1.2 According to the general rules, the claim should be filed with the court with jurisdiction over the respondent’s place of incorporation (i.e. the state registration of a company).
2.2 The effect of jurisdiction clauses
2.2.1 Under article 37 of the APC, the general venue rule outlined in paragraph 2.1.2 above applies. However, in cases where “exclusive jurisdiction” rules do not apply, the venue may be altered by a jurisdiction clause/agreement between the parties before the claim is filed with the court. If a binding agreement of this nature has been reached between the parties, the application to secure the claim must be filed with the court where the claim has been or is to be brought in accordance with the jurisdiction clause/agreement.
2.3 Subject-matter jurisdiction
2.3.1 Under Russian law, disputes involving commercial entities fall within the jurisdiction of arbitrazh courts under the APC. Thus, the venue rules provided in the APC are applicable in the event of commercial disputes, so a claim and/or an application for interim measures must be filed with the relevant arbitrazh court in accordance with the general venue rules set in chapter IV of the APC that provide that the claim must be filed at the court where the defendant is located (registered).
2.4 Choice of venue if more than one court has jurisdiction
2.4.1 When applying for an interim measure the applicant has the right to choose the competent court depending on the place where:
  • the defendant is located (registered);
  • the applicant is located (registered), or where the applicant’s rights have been violated, if preliminary interim measures are sought;
  • the assets to be the subject of the requested interim measures are located; or
  • in the event of a corporate dispute, where a legal entity involved in a corporate dispute is located (registered).

2.4.2 However, a court chosen by the applicant may refuse to grant the interim measure sought if it establishes that an interim measure granted by another court would be more appropriate to the circumstances of the case. Thus, when choosing a court, the applicant should consider the nature of the secured claim, the type of interim measure requested, as well as whether it is enforceable by the relevant court.
3. Types of Interim Measures and their Criteria
3.1 Three categories
3.1.1 In Russia, interim measures are divided into the following three major categories: (i) preliminary interim measures; (ii) measures to secure the claim; and (iii) enforcement measures. These different types of interim measures can be applied to monetary as well as non-monetary claims.
Preliminary interim measures (“Predvaritelnie obespechitelnie meri”)

3.1.2 A preliminary interim measure (i.e. an interim measure requested and granted prior to filing of a claim) may be granted if the applicant can prove at least one of the conditions outlined in article 90(2) of the APC:
  • the non-granting of such measures may seriously complicate enforcement of a court decision or make such enforcement impossible; or
  • the applicant may suffer material damage if an interim measure is not granted.

3.1.3 In addition to proving the criteria set out above, article 99(4) of the APC urges the applicant to provide counter security (by way of a bank guarantee, deposit etc.). Provision of counter security by itself does not however guarantee that an application for a preliminary interim measure will be granted.
3.1.4 If a request for a preliminary interim measure is granted, a court will issue an order indicating the timeframe for the applicant to file its substantive claim (within no more than 15 days). If the applicant fails to submit the claim within the timeframe set by the court, the court will cancel the preliminary interim measure that it granted.
3.1.5 Preliminary interim measures aim to secure assets before the substantive claim is brought. After the substantial claim is filed with the court, the preliminary interim measure remains in force as a measure aiming to secure the claim for the duration of the court proceedings.
Measures to secure the claim (“Meri v obespechenie iska”)

3.1.6 Under article 90 of the APC a court may order urgent temporary measures (such as an injunction) in order to secure a claim or the proprietary interests of an applicant. In order to obtain such measures, an applicant must prove that:
  • the non-granting of such measures may materially complicate the enforcement of a court decision or make such enforcement impossible; or
  • the applicant may suffer material damage if an interim measure is not granted.

3.1.7 In particular, serious complications in enforcing a court ruling may be connected with the respondent’s lack of assets or its activity aiming to reduce the amount of its existing assets in order to hinder enforcement.
3.1.8 The relief sought must be directly connected to the subject matter of the substantive dispute – for example, if the company’s title to a building is disputed, the applicant may ask the court to impose a temporary prohibition on the respondent taking any action in connection with the building, but it may not request that the court freeze the respondent’s bank accounts.
3.1.9 The relief sought must also be in proportion to the subject matter of the claim – for example, if a claim for the collection of USD 10,000 is filed, an applicant cannot seek to freeze or seize the respondent’s property worth USD 25,000.
Enforcement measures (“Meri obespecheniya ispolneniya sudebnikh actov”)

3.1.10 In accordance with article 100 of the APC, the rules governing measures to secure the claim are applied to enforcement measures in order to guarantee the enforcement of a court ruling resolving the substantive claim.
3.2 Types of interim measures available under Russian law
3.2.1 Article 91(1) of the APC sets out the following (non-exhaustive) list of interim measures:
  • freezing bank accounts, seizure of money in cash, seizing property and other assets (including bank accounts) of the respondent which are in the respondent’s own possession or in the possession of third parties;
  • placing a restriction order on the respondent and third parties prohibiting certain conduct or acts related to the subject matter of the claim;
  • obliging the respondent to perform certain acts in order to prevent spoilage and impairment of the property in dispute;
  • ordering the placing of property in dispute into the custody of the applicant or a third party;
  • suspending the enforcement of a writ of execution or any other enforcement document; and
  • suspending the sale of property if a claim on the release of property from seizure is filed.

3.2.2 When considering an application for the granting of interim measures, the court should make sure that an injunction would not make it impossible or extremely difficult for the respondent (if it is a company) to conduct its usual business activities or that the imposition of the interim measure would lead to any violation of Russian law by such a legal entity.1
3.2.3 The court may grant such other types of injunctions as it deems appropriate, as well as ordering several interim measures simultaneously. One interim measure may be replaced with another by application of the applicant or the respondent.2
3.2.4 However, the Russian court may only grant a “specific” injunction – e.g. freezing a particular bank account or property (such as a building, vessel or production facility). It is impossible to get injunction on “all properties and assets belonging to the respondent”.
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
Form of the request

4.1.1 An application for interim measures may be filed together with the main claim or during the course of the substantive proceedings, but no later than the date on which the case is decided by the court. The applicant may apply for interim measures when the case is being considered by the court of first instance, court of appeal and court of cassation as well as the Supreme Court of the Russian Federation as a “supervisory” (i.e. extraordinary appeal) instance.
4.1.2 A request for an injunction may be included in the statement of claim or filed as a separate document. Applications for interim measures should be filed in written form only. Applications cannot be filed electronically.
Content of the request

4.1.3 Under article 92(2) of the APC, applications for interim measures should provide the following details:
  • name of the court where the application is brought;
  • applicant’s and respondent’s name and legal address/place of residence;
  • subject-matter and amount of the substantive claim;
  • reasons for applying for interim measures;
  • an indication of the particular type of interim measure(s) requested; and
  • a list of documents enclosed with the application.

Enclosures of the request

4.1.4 The applicant should attach copies of relevant documents to the request. It may also provide counter-security when necessary. An application for interim measures should also be supported by a document evidencing payment of a state duty of RUB 3000 (USD 45 approx.).3
4.2 Implementation of the procedure
Interim measure proceedings before the court of first instance

4.2.1 Consideration of an application for interim measures by the court includes the following stages:
  • filing the request for interim measures with the court (Day 0);
  • ex parte hearing of the request (Day 1);
  • the court’s order (either granting an interim measure or rejecting it) is forwarded to litigants on the day following the day of the hearing. The order is immediately enforceable (Day 2). If the request for a preliminary interim measure is granted, the court’s order will also indicate the time period within which the applicant must file its claim on the merits of the case (no longer than 15 days). Failure to comply with the time limit leads to the cancellation of the interim measure(s). The order may be appealed within one month from the date of its issuance. The filing of an appeal does not affect the validity or enforceability of the injunction;
  • the respondent may file a request for the cancellation of the (preliminary) interim measures (Day 5);
  • the court considers the request for cancellation and either grants it or rejects it. This decision is also immediately enforceable (Day 11).

4.3 Evidential requirements
4.3.1 Interim measures are considered to be an urgent form of relief, thus evidence to the extent necessary to support the substantive claim on the merits of the dispute is not required.4
4.3.2 As mentioned above, generally interim measures may be granted if the applicant can prove at least one of the following facts:
  • that the non-granting of interim measures may seriously complicate the enforcement of a court decision or make such enforcement impossible; or
  • that the applicant may suffer material damage if an interim measure is not granted.5

4.3.3 The applicant should provide the court with documentary evidence of the existence of the challenged or violated right as well as the fact of its violation.
4.3.4 When evaluating the evidence submitted, the court considers the following criteria:
  • the reasonableness and justifiability of the applicant’s request for interim measures;
  • the likelihood of significant damage that would be incurred by the applicant in the event that the interim measures are not granted;
  • the balance of interests of the concerned parties;
  • the preservation of public interests and rights of third parties if the interim measures are granted; and
  • the correlation of the requested interim measure(s) with the subject matter of the substantive claim and its amount, as well as how it would guarantee the initial aim of the interim measure requested.6

  • 5. Legal Safeguards for the Respondent
    5.1 Security
    5.1.1 When awarding interim measures, the court may request the applicant provide counter security in order to guarantee the reimbursement of possible damages that may be incurred by the respondent.
    5.1.2 Counter security is provided either by transferring monies to the court’s deposit account in the amount proposed by the court, or by provision of a bank guarantee, pledge or other financial security of the same value. It may be limited to the amount of the claim and interest on it. However, the amount of counter security may not be less than half of the amount of the substantive claim.7
    5.1.3 Counter security may also be provided by the respondent in order to lift the interim measures imposed, by depositing in the court’s account the amount sought in the substantive claim. Providing monies to the court’s deposit account is the only type of counter security available to the respondent.
    5.1.4 Counter security will be requested by the court no later than the next day after the application for the provision of security is filed with the court. Counter security should be provided no later than 15 days after the relevant order is issued by the court. If counter security has been requested by the court, it will not be entitled to decide on the granting of interim measures until it is in receipt of documents that evidence the payment of such monies into the court’s deposit account.
    5.1.5 An applicant’s failure to provide counter security within the period established by the court may result in the dismissal of its application for interim measures. If the respondent confirms its provision of counter security as outlined in paragraph 5.1.3 above, an application for interim measures will be rejected and any previous injunction awarded will be cancelled.
    5.1.6 The court may replace preliminary interim measures with due and sufficient counter security if such security is provided by the respondent. This frequently occurs in cases involving seizure of property, i.e. trucks, vessels etc.
    5.2 Damages for unjustified interim measures
    5.2.1 Article 98 of the APC provides for an opportunity for the respondent to obtain a reimbursement for damages or compensation caused by interim measures. After the court rules on the dismissal of the substantive claim, the respondent and third parties have the right to claim for a reimbursement of the damage suffered or compensation from the party that succeeded in obtaining the interim measure.
    5.2.2 The amount of compensation is determined by the court and will depend on the nature of the violation and other circumstances of the case as well as reasonableness and justifiability. Thus, such compensation may range between EUR 250.00-25,000.00 for corporate disputes and EUR 25.00-25,000.00 for all other disputes.8
    5.2.3 A claim for the recovery of damages or compensation should be made in the court that has been reviewing the case regarding interim measures.
    5.2.4 Claims for damages or compensation may also be brought in the event that the claim was set aside without hearing the merits of the substantive case, as well as in the event of termination of the proceedings on the grounds outlined in article 150 of the APC (which are, for example: abandonment of the claim by the claimant, the parties entering into a settlement agreement, dismissal of claim due to lack of jurisdiction etc.).
    6. Timing of Interim Measures
    6.1 Similarities and differences when filing a request before or after the case on the substantive matter is pending
    6.1.1 Apart from the requirement to file the substantive claim no later than 15 days after the preliminary interim measures have been granted, there are no other differences between a preliminary injunction and measures to secure the substantive claim. Nevertheless, certain material and procedural differences between these two types of injunctions outlined throughout this chapter are present and should be taken into consideration.
    6.2 Duration of the interim measure procedure
    6.2.1 An application for interim measures should be reviewed by the court no later than the next day after it is filed. Making a decision on granting/rejecting the interim measures sought may in practice take up to two weeks, and the law does not provide for any possibility of speeding up this process. Applications for interim measures are considered ex parte (on paper only). Once granted, the interim measure stays in place for the duration of the substantive proceedings.
    7. Costs
    7.1 General overview
    7.1.1 Under article 333.21 of the Russian Tax Code, each application for interim measures is subject to a state duty in the amount of EUR 50.00.
    7.1.2 If the applicant fails to pay the state duty when applying for interim measures, the request is suspended by the court until the state duty is duly paid.9
    7.1.3 State duty is not required when an application is made for (i) counter security, (ii) cancellation of security, (iii) replacement of one measure with another or (iv) enforcement measures.
    7.1.4 According to a recent ruling of the Supreme Arbitrazh Court, payments made to banks for the provision of a bank guarantee as counter security should be reimbursed by the losing party as legal fees.10
    7.1.5 As a general point, even if the applicant is successful in obtaining the interim measure, its legal fees are not recoverable from the respondent.
    8. Remedies Against the Decision on Interim Measures
    8.1 Modification and revocation
    8.1.1 A respondent may request the court substitute an imposed interim measure with an injunction of another type (e.g. to replace the arrest of equipment with an arrest of bank accounts). The court considers an application for replacement of an interim measure on the next day after its submission.
    8.1.2 In accordance with article 97 of the APC, the applicant (as well as the respondent or any third parties whose rights have been violated by the interim measures awarded by the court) may also request that the court cancel the interim measures. An application for the cancellation of an injunction will be considered within five days of the date of its submission.
    8.1.3 Russian law does not set out any specific reasons that may lead to the cancellation of an interim measure or its replacement. Thus, a decision to grant a release from an interim measure is at the court’s sole discretion.
    8.2 Appellate remedies
    8.2.1 An order of the Court of First Instance granting/rejecting an injunction may be challenged before the Court of Appeal, the Court of Cassation or the Supreme Court within one month after the relevant order is issued.11
    Proceedings in the Court of Appeal

    8.2.2 The approximate timescale for this stage is two to three months. In the Court of Appeal, the applicant must prove that the court either made a mistake in applying the law or made a mistake in interpreting facts and evidence.
    8.2.3 A resolution of the Court of Appeal will become enforceable immediately after it is issued.
    Proceedings in the Court of Cassation

    8.2.4 A resolution of the Court of Appeal may be further appealed before the Court of Cassation within two months of the date of its issuance. The timescale for this stage is approximately two months. Only arguments relating to mistakes in law may be advanced at this stage.
    8.2.5 A resolution of the Court of Cassation will become enforceable immediately after it is issued.
    Proceedings in the Supreme Court

    8.2.6 A resolution of the Court of Cassation may be appealed to the Supreme Court within three months from the day of its issuance. However, only fundamental mistakes in law may lead to the revision of court rulings at this stage.
    8.2.7 Due to the specific appeal procedure in Russia, the appeal process does not always proceed in a straightforward step-by-step manner. The Court of Cassation can send the case back for reconsideration either to the Court of First Instance or the Court of Appeal. This can significantly affect the timing of the proceedings.
    9. Enforcement of an Interim Measure
    9.1 Enforcement of interim measures issued by national courts
    9.1.1 An order of the court on securing a claim is enforced with immediate effect and a respective writ of execution is issued.
    9.1.2 A writ of execution may either be placed with the bank(s) where the respondent holds its accounts, or provided to the state bailiff service in order to search a debtor’s property and seize it. If a freezing order is imposed on real estate assets, a writ of execution should also be filed with the registration authorities.
    9.1.3 A failure to comply with the court order granting interim measures is punishable by a fine of EUR 2,500.00.12
    9.2 Enforcement of interim measures issued by foreign courts
    9.2.1 Orders of foreign state courts imposing interim measures (preliminary interim measures as well as measures to secure the substantive claim) are not subject to recognition and enforcement in Russia, as these orders are not considered to be final rulings on the merits of the case.13
    10. Interim Measures in International Commercial Arbitration
    If interim measures are requested in support of arbitration proceedings, the applicant should also attach a copy of the claim and the arbitration agreement (both verified by a notary public or the chairman of the tribunal).
    10.1 Interim measures by state courts
    10.1.1 A party to arbitral proceedings may apply to a state arbitrazh court in order to secure a claim which is subject to arbitration.
    10.1.2 A state arbitrazh court considers applications for the granting of interim measures in accordance with the general rules set out in the APC. However, an application for interim measures filed by a party to arbitration must additionally be supported by:
    • a copy of the statement of claim accepted by the arbitral tribunal and verified by the chairman of the arbitral tribunal or a notary public; and
    • a duly verified copy of the arbitration agreement between the parties.

    10.1.3 When considering an application to grant interim measures in support of the on-going arbitration, the state arbitrazh court will additionally verify (a) the validity of the arbitration agreement and (b) whether the matter in dispute may be referred to arbitration under the Russian law.
    10.1.4 An application to the state courts for injunctions in support of an ongoing arbitration must fulfil the same basic criteria as set out for interim measures in article 90(2) of the APC.
    10.1.5 The arbitration panel has the right to grant interim measures, however these are not binding on the parties to such arbitration. Notwithstanding any interim measures awarded by the arbitration panel, a party thereto has to apply to a state court for interim measures that would be binding and enforceable in accordance with Russian law.
    10.1.6 When considering an application for interim measures brought by a party to arbitration, a state court acts in its sole discretion and with no regard to interim measures (if any) that have been awarded by an arbitration panel.
    10.1.7 If a state court establishes that interim measures granted by the arbitration panel are efficient, sufficient and voluntarily fulfilled by the respondent (i.e. the grounds for awarding interim measures set out in article 90(2) of the APC are not present), the court will not grant the injunction requested.14
    10.2 Interim measures by an arbitral tribunal with its seat in Russia
    10.2.1 The Russian Law on International Commercial Arbitration applies to international commercial arbitration located in Russia. One such arbitration panel is the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (ICAC).
    10.2.2 Under the Law on International Commercial Arbitration, an application to a state court for interim measures to secure the claim filed prior to or during the arbitration procedure (as well as the state court’s order awarding interim measures) is not contrary to an arbitration agreement.15
    10.2.3 Unless otherwise agreed by the parties and subject to the request of either of the parties, the arbitration panel may require one of the parties to comply with those interim measures in respect of the subject matter of the claim, as it deems to be necessary. The arbitration panel may demand appropriate counter security from either of the parties within such interim measures.
    10.2.4 However, as mentioned in paragraph 10.1.5 above, these interim measures are not obligatory, i.e. the arbitration may not force a party to an arbitration to comply with such an interim measure.
    10.2.5 The Rules of the ICAC also provide certain rules in respect of interim measures (outlined below) similar to the provisions of the Law on International Commercial Arbitration.
    10.3 Interim measures by arbitral tribunal with seat abroad
    10.3.1 The Russian Law on International Commercial Arbitration does not provide any rules on interim measures granted by arbitral tribunals located abroad. Therefore, the only opportunity for the parties to such arbitrations to secure their rights in respect of the subject matter of the claim connected with Russia is to apply to the state arbitrazh courts of Russia in accordance with Russian law.
    11. Contacts
    CMS, Russia
    Naberezhnaya Tower
    Block C, Presnenskaya Nab., 10
    123112 Moscow, Russia
    Igor Sokolov
    T +7 495 786 4074
    E igor.sokolov@cmslegal.ru
    12. References
    • Ruling of the Plenum of Supreme Arbitrazh Court No. 11 dated 9 July 2003.
    • APC, art 95(1).
    • APC, art. 92(6).
    • Ruling of the Plenum of Supreme Arbitrazh Court No. 55 dated 12 October 2006.
    • APC, art 90(2).
    • Ruling of the Plenum of Supreme Arbitrazh Court No. 55 dated 12 October 2006.
    • APC, art 94(1).
    • APC, art 98(3).
    • APC, art 92(6) and 93(2).
    • Ruling of the Presidium of Supreme Arbitrazh Court No. 6791/11 dated 10 July 2012.
    • APC, art 188.
    • APC, art 119(1).
    • Informational Letter of the Presidium of Supreme Arbitrazh Court No. 78 dated 7 July 2004, s 26.
    • Informational Letter of the Presidium of Supreme Arbitrazh Court No. 78 dated 7 July 2004, s 25.
    • Law on International Commercial Arbitration, art 9.

    Scotland
    Authors: Robert P. M. Wilson, Valerie Allan
    1. Applicable Law
    1.1.1 Interim measures in Scotland are governed partly by court procedure rules and partly by statutory provisions. The relevant court procedures are determined by:
    • the nature of the interim measure sought; and
    • the court from which the interim measure is sought.

    1.1.2 There are two levels of court which may grant interim measures in civil proceedings, namely:
    • the Court of Session, Scotland’s highest civil court of first instance, which has jurisdiction across Scotland – claims are subject to the procedural rules set out principally in the Court of Session Act 1988 and the associated Rules of the Court of Session;1 and
    • the sheriff courts, which are local courts with jurisdiction over one of the six sheriffdoms into which Scotland is divided2 – claims are subject to the procedural rules contained principally in the Sheriff Courts (Scotland) Act 1907 and the associated Sheriff Courts (Scotland) Act 1971, and subordinate legislation.

    1.1.3 The procedural rules include measures which take into account cases arising in other parts of the United Kingdom and international cases, including compliance with international obligations such as the Hague Convention 1971,3 Brussels Convention,4 Brussels I Regulation,5 the Lugano Convention6 and the New York Convention.7
    1.1.4 In addition, there are specific statutory provisions which apply in relation to particular types of interim measure, for example:
    • the Debtors (Scotland) Act 19878 in relation to diligence on the dependence of an action;
    • the Bankruptcy and Diligence etc. (Scotland) Act 20079 in relation to diligence on the dependence;
    • the Administration of Justice (Scotland) Act 197210 in relation to the preservation of evidence;
    • the Insolvency Act 198611 in relation to the interim appointment of liquidators and administrators; and
    • the Judicial Factors (Scotland) Act 1880 and the Judicial Factors (Scotland) Act 1889 in relation to the appointment of judicial factors ad interim.

    1.1.5 This text represents the position as at 31 December 2015.
    2. Jurisdiction
    2.1 International and geographical jurisdiction – the venue
    2.1.1 Interim measures sought prior to the raising of substantive proceedings can be sought by application to:
    • any court that would have jurisdiction over the substantive proceedings;
    • the court which has jurisdiction over the party against whom the order is sought; or
    • in the case of interim interdict, the court which has jurisdiction over the location of the anticipated wrong.

    2.1.2 The rules governing the jurisdiction of the Court of Session and the sheriff courts are contained primarily in the Civil Jurisdiction and Judgments Act 1982. These largely implement the requirements of the UK’s international obligations (in so far as they extend to Scotland) arising from, amongst others, the Brussels, Lugano, Hague (1971) and New York Conventions, and the Brussels I Regulation.
    2.2 The effect of jurisdiction clauses
    2.2.1 Scottish courts will routinely enforce contractual jurisdiction provisions in Scotland. They will usually entertain an application seeking an interim measure (in particular diligence on the dependence on an action)12 if a jurisdiction provision provides for the court having jurisdiction to hear the underlying claim and the other tests for that interim measure (as set out elsewhere in this chapter) are met.
    2.3 Subject-matter jurisdiction
    2.3.1 Either the Court of Session or a sheriff court may have exclusive jurisdiction in respect of a certain subject matter and therefore may also have exclusive jurisdiction in respect of an application for interim measures in that matter.
    2.3.2 Generally claims can only be raised in the Court of Session where they have a value of GBP 100,000 or more; claims below this limit must be raised in the local sheriff court.13
    Preservation of company assets

    2.3.3 A petition for the winding up of a Scottish registered company (and therefore an application for the appointment of a provisional liquidator) must be made in the sheriff court of the domicile of the company if it has paid up share capital of less than GBP  120,000;14 the sheriff court local to the company’s domicile has concurrent jurisdiction with the Court of Session above this limit. Applications to wind-up foreign registered entities (which are permissible in certain circumstances) must be made to the Court of Session.
    Preservation of assets of individuals/other types of organisations

    2.3.4 A petition for the appointment of a judicial factor relating to the estates of solicitors15 or charities must be brought before the Court of Session16; other actions for the appointment of a judicial factor may be made in the local sheriff court or in the Court of Session.
    2.3.5 In addition, there are particular types of procedure in both the Court of Session and the sheriff courts which will apply in relation to particular types of claims. For example, both the Court of Session and some of the sheriff courts (e.g. in Aberdeen, Edinburgh and Glasgow) have a separate procedure for commercial actions; separate procedures are also likely to be applied in respect of admiralty claims, personal injury claims and certain insolvency processes.17
    2.4 Choice of venue if more than one court has jurisdiction
    2.4.1 It is not uncommon for there to be more than one court which could have jurisdiction in respect of a particular matter. For example, where the case does not fall within the exclusive jurisdiction of either the Court of Session or the sheriff courts, then it is likely that there will be concurrent jurisdiction between the Court of Session and the relevant sheriff court in relation to a particular matter. In that event, there are various aspects which may assist in the choice of venue, including the:
    • value or complexity of the case;
    • likelihood of instructing Counsel or a solicitor-advocate (both of which have exclusive rights of audience in the Court of Session);
    • location of the parties and the lawyers involved;
    • whether there are any potential arguments regarding jurisdiction (fewer questions as to jurisdiction are likely to arise in respect of a Court of Session action); and
    • nature of the substantive claim to which the interim measure may relate, and the preferred procedure for that substantive claim.

    3. Types of Interim Measures and their Criteria
    3.1 Four categories
    3.1.1 In Scotland, interim measures can be divided into four broad categories: measures to secure assets in relation to a money claim; preservation of assets in the event of insolvency; preservation of evidence; and measures to protect a party’s rights against wrongdoing.
    Interim measures to secure assets in relation to money claims

    3.1.2 A party may apply to either the Court of Session or a sheriff courts for an order to “arrest” (freeze) the assets of a party pending the outcome of a substantive action. Known as diligence on the dependence, such an order may be sought on a ‘without notice’ basis at the outset of, or at any time during, an action seeking a monetary payment (other than a claim for only legal expenses).18 The order may be to arrest moveable assets in the hands of third parties (“arrestment on the dependence”) or to preserve the heritable property (real estate) of the party against which the order is sought (“inhibition on the dependence”). The purpose of the order is to preserve the relevant assets to ensure that there are assets from which the party seeking the order may obtain payment of the claim (or part of it) in the event that the claim is successful. Arrestment on the dependence is most commonly used to arrest funds held in bank accounts, but may also be used to arrest sums owed to the defender by a third party or moveable property owned by the defender but which is in the hands of a third party. Inhibition on the dependence prevents the defender from transferring or otherwise dealing with any heritable property which it may own in Scotland, most commonly to prevent the sale or mortgaging of land.
    Preservation of assets in the event of insolvency

    3.1.3 Where a risk is apprehended that those in control of a company or other organisation, or an individual, may seek to dissipate assets if they are given advance notice of an application to make the company, organisation or individual insolvent, then an interim order may be sought for the immediate appointment of an insolvency practitioner to preserve those assets pending the completion of the formal appointment process. The order sought depends on the nature of the relevant insolvency process. Where the body concerned is a company, then the application may seek either the appointment of a provisional liquidator, an interim order in an administration or (albeit rarely) an interim receiver. For other types of organisations, the order may seek the appointment of a judicial factor (although this is a rare and short term decision based upon absolute necessity in unusual circumstances to prevent the diminution of the estate prior to a full court-approved appointment). Irrespective which type of insolvency process applies, the interim order may be sought on a “without notice” basis in appropriate circumstances.
    Preservation of evidence

    3.1.4 A party may seek an order for the preservation and recovery of documents or other items in respect of which a question may relevantly arise in existing proceedings or in any civil proceedings which are likely to be brought.19 Such orders may be sought in advance of substantive proceedings being raised, and may be sought on a “without notice” basis (sometimes colloquially referred to as “dawn raids”). Separately, a party may seek to preserve witness evidence by way of a special hearing (a commission) where in particular circumstances it seems that the witness evidence may no longer be available at trial.
    Protection against apprehended legal wrongs

    3.1.5 A party which apprehends that a legal wrong may be committed against it may seek an order from the court for interdict, which is an order to prevent another party from acting in a way which would breach the applicant’s legal rights. Immediate protection may be obtained (where appropriate, on a ‘without notice’ basis) by applying for an interim interdict which is a temporary interdict granted immediately by the court, usually to preserve the status quo, as an interim measure pending conclusion of the substantive court action or further order of the court. The court will only grant such an order if it is persuaded that it is reasonable to believe that a wrong has or will be committed. The order sought must be sufficiently precise and clear so that the person interdicted is left in no doubt as to what they are forbidden to do.20 An interdict may not place a positive obligation on a party to take particular steps, but instead can only prevent the party from taking particular steps.
    3.2 Interim measures to secure assets in relation to money claims
    3.2.1 As explained above, interim measures to secure money claims fall into two categories – (i) arrestment on the dependence in respect of moveable assets; and (ii) inhibition on the dependence in respect of heritable property. Both the Court of Session and the sheriff court are empowered to grant warrant (i.e. an order) for arrestment or inhibition on the dependence of an action.21 The choice of venue will usually be the court where the underlying claim itself is being brought. Separately, the Court of Session has authority to grant warrant for arrestment or inhibition on the dependence of an arbitration claim in Scotland22 or on the dependence of an overseas action.23
    Arrestment on the dependence

    3.2.2 The party in whose hands moveable property is arrested is called the arrestee. The arrestee must be subject to the jurisdiction of the Scottish courts24 and must therefore be resident or domiciled in Scotland (in the case of an individual) or have its registered office or place of business in Scotland (in the case of a corporate entity). The arrestee is prohibited by the arrestment from parting with the money or property affected while the substantive action is ongoing. The party seeking the order may not arrest assets in his own hands, except where they are held by him in a separate capacity to that in which the court action has been brought.
    What assets can be subject to arrestment on the dependence?

    3.2.3 An arrestment on the dependence may be sought over any corporeal or incorporeal moveable property. However, the following cannot be arrested:
    • earning or pensions;25
    • benefits payable under social security legislation;26
    • bills;27
    • promissory notes;28
    • property which is held jointly cannot be arrested in relation to the debt of one of the joint owners;29
    • a personal bank account below, the minimum balance30 – currently GBP 460.06.31

    3.2.4 Warrant to arrest operates as valid security for, and attaches to, the sum sued for, the interest sought on that sum and the expenses of the case. The court is permitted32 to decide on the sum to be arrested when it grants warrant to arrest. The maximum of that sum will be the aggregate of the following: (i) the sum sued for; (ii) a sum equal to 20% of the sum sued for or such other percentage prescribed by relevant legislation; (iii) a sum equal to one year’s interest on the sum sued for, calculated at the judicial rate of interest (currently 8%);33 or (iv) any other sum specified by legislation.34 If used wrongfully, a debtor may have grounds to claim damages for wrongful arrestment.
    The criteria for arrestment on the dependence

    3.2.5 Arrestment on the dependence may only be sought in an action seeking payment of a money sum (except where the only money sum sought is in respect of legal costs).
    3.2.6 The court may grant warrant for arrestment on the dependence at its discretion if it is satisfied as to the following:35
    • that the party seeking the order has a prima facie case (i.e. a good arguable case) on the merits of the action; and
    • that there is a real and substantial risk that enforcement of any judgment in the action in favour of the party seeking the order would be defeated or prejudiced by reason of:
    • the debtor being insolvent or verging on insolvency; or
    • the likelihood of the debtor removing or disposing of assets prior to any full hearing; and
    • that it is reasonable to grant the order in all the circumstances (including the effect the order will have on any person having an interest).

    3.2.7 It is insufficient to demonstrate only that the debtor is poor. Instead, it is necessary to demonstrate that there is a real risk of insolvency or of the removal or disposal of assets. It is not necessary to establish actual insolvency, merely the risk of insolvency. For example on the basis of non-fulfilment of promises to pay, suspicion of certain creditors being preferred or a genuine reason for believing that assets may be disposed of or concealed. The court has a very broad discretion in relation to whether or not to grant the order and will often approve alternative forms of security which the parties may propose (for example, funds lodged on joint deposit account) as an alternative. The onus of demonstrating the need for the order lies with the party seeking the order.36
    Inhibition on the dependence

    3.2.8 In the case of inhibition, the property affected by the proposed inhibition must be situated in Scotland. Usually it will be land or buildings in the ownership of the party against whom the order is sought. An order for inhibition prevents a party from dealing with his property in any way which might prejudice the claim of the applicant. Primarily this means that they will be unable to sell the affected property or dispose of the proceeds (although they may complete the transfer of property which they are already contractually obliged to transfer prior to service of the inhibition).37
    3.2.9 Inhibition does not confer any preference in sequestration, insolvency proceedings or other process where there is a ranking of creditors.38
    The criteria for inhibition on the dependence

    3.2.10 Inhibition on the dependence is only competent where the substantive action in connection with which it is sought includes:
    • a claim for payment of money (other than for legal expenses);39 or
    • a conclusion for specific implement (i.e. enforcement) of an obligation to grant a right over heritable property, including to convey heritable property or to grant (in a creditor’s favour) a real right in security.40

    3.2.11 The criteria which must be met in order to obtain an order for inhibition on the dependence in a specific case are the same as those which apply in an application for arrestment on the dependence as outlined at paragraph 3.2.6 above.
    3.3 Preservation of assets in the event of insolvency
    Provisional Liquidator

    3.3.1 The appointment of a provisional liquidator is governed by the Insolvency Act 1986 s138 and the Insolvency (Scotland) Rules 1986. The appointment can only be made by a court on receipt of a petition for winding-up. The application must set out both the basis upon which the petitioner claims that the company in question should be subject to a winding-up order and also the basis upon which it is believed that it is necessary to appoint a provisional liquidator immediately to preserve the assets of the company.
    Criteria for appointment of a provisional liquidator

    3.3.2 The specific grounds on which a winding-up order may be made by the court41 are as follows:
    • the company has resolved by special resolution that it should be wound up by the court;42
    • the company has not obtained a trading certificate43 and has not complied with the minimum requirements for statutory capital (currently GBP 50,000) for more than one year since it was registered (public limited companies only);
    • the company is unable to pay its debts;
    • the court thinks that it is “just and equitable” that it should be wound up. This can include the loss of a substantial part of the company’s business,44 or where the actions of the directors are enough to infer an abuse of power;45
    • the company has not commenced business within a year of incorporation, or has suspended business for a year or more;
    • where a Moratorium46 for the company has been obtained and has elapsed, the directors of the company have failed to put a company voluntary arrangement47 in place.

    Interim Order in an Administration

    3.3.3 The appointment of an administrator is governed by The Enterprise Act 200248 for holders of qualifying floating charges and the IA 1986 in other cases. An administration order is a process by which an administrator can be appointed to run the affairs of a company in lieu of the directors. Appointment can be made by the court, the holder of a qualifying floating charge,49 the company or the directors. Administration lasts for one year (although it may be extended on application to the court) and so all administration orders may be considered to be interim measures. The purpose of the administration is to rescue the company as a viable business and return it to a profitable state, failing which, to achieve a better result for creditors than would be achieved by way of a winding-up procedure.
    3.3.4 Where an administration order is granted by the court, it has the effect of dismissing or suspending any pending winding-up petitions, creating a moratorium on insolvency and other legal proceedings, and vacating the office of an administrative receiver or receiver (if one has been appointed previously, and if necessary). The administrator is appointed to manage the company’s affairs, business and property for the benefit of its creditors. The administrator must be a licensed insolvency practitioner and will carry the status of an officer of the court (whether or not the administrator has been appointed by the court).
    3.3.5 In an administration process, there will usually be a delay between the date of the presentation of the application for an administration order and the hearing of the application and appointment of the administrator. The court may make an interim order50 which amongst other things can restrict the exercise of power by the directors of the company, or make a provision conferring discretion on the court or on a person qualified to act as an insolvency practitioner in relation to the company for that interim period. This may result in the individual having authority to act in a manner very similar to that of an administrator but it has been held51 that an individual appointed in this way does not have the status of an administrator.
    Criteria for an interim order in an administration

    3.3.6 The directors of the company can vote to put the company into administration52, by way of special resolution. The holder of a qualifying floating charge can give notice to the directors that it intends to appoint an administrator to run the company’s affairs.53 The court can make an administration order only if it is satisfied that the company is or is likely to become unable to pay its debts and that the administration order is reasonably likely to achieve the purpose of administration.54 It has discretion to make an interim order and is most likely to be asked to do so in cases of urgency.
    3.4 Preservation of evidence
    3.4.1 The recovery and preservation of documentation and property evidence and the preservation of witness testimony are dealt with separately under Scots law.
    Recovery and preservation of documentation and property evidence

    3.4.2 Recovery of documentation or other property evidence may be sought under the AJSA 1972 or at common law. Recovery under the provisions of the AJSA 1972 is likely to be more extensive than at common law. In practice the rules of court treat both together for most purposes.
    3.4.3 On cause shown, the court may deal with the application on a ‘without notice’ basis. Alternatively, the court may require such intimation or service of the petition as it sees fit prior to granting the application. If the application is granted, the court will grant an order giving authority to a commissioner (in the Court of Session, usually a senior advocate; in the sheriff court, usually an experienced local practitioner) to recover the evidence which is sought to be preserved. This may be done by obtaining it on a voluntary basis from the third party (the haver) from whom it is to be recovered. Alternatively, the order will give authority to the commissioner to attend at the haver’s premises and recover the evidence directly, with the assistance if required of court officers.
    Criteria for recovery and preservation of documentation and property evidence

    3.4.4 The criteria for an order for recovery and preservation of documents or other evidence under the AJSA 1972 are:
    • the property or documentation in question must be that as to which any question may relevantly arise;
    • that question must be one which may arise in existing civil proceedings or in civil proceedings which are likely to be brought; and
    • the person seeking the order must be a party in those proceedings; or any other person who appears to the court to have an interest to be joined in current proceedings; or will be a party to proceedings which are likely to be brought.55

    3.4.5 The AJSA 1972 provides that the court may order recovery “notwithstanding any rule of law or practice to the contrary” and “unless there is special reason why the application should not be granted.” However, despite the implication to the contrary in this phrase, the onus remains with the applicant to satisfy the court.56 The “likelihood of proceedings” must be established and assessed at the time of the application. It is not necessary for the applicant to set out in the application what would amount to a fully pled and relevant case in the subsequent proceedings,57 but the application must disclose more than speculations or hopeful allegations.58
    Preservation of witness evidence

    3.4.6 Witness evidence is preserved by the taking of oral evidence on commission prior to the commencement of a court hearing, in contrast to having that witness appear during the court hearing. The process is facilitated by the appointment (by the Court) of a commissioner (in the Court of Session, usually a practising advocate (barrister) or, in the sheriff court, an experienced local lawyer, or the sheriff himself) to fix a hearing (a commission) before whom that witness’s evidence is taken. The evidence in question is taken orally, by way of examination and cross-examination of the witness, in the same way as if it was being taken in Court at the hearing itself. The evidence will be recorded during the commission, either by hand by the court clerk or by a shorthand writer. Alternatively, the party seeking the commission can make a motion for the evidence to be video recorded. Once the commission is finished, a report of the commission is prepared and lodged in Court, along with any documents produced by the witness. The evidence can then be used during the court hearing at a later date.
    3.4.7 In civil cases there are two circumstances in which such an order can be sought:
    • Where for some specific reason there is a danger of evidence being lost. In such circumstances, the Court of Session may appoint a commissioner to take the evidence and report before any legal arguments have been remitted to proof (trial), or even before proceedings have been raised.
    • After a proof has been allowed, or issues approved, and a timetable for the court hearing fixed, both the Court of Session and the sheriff court may appoint a commissioner to take the evidence of a witness who will probably not be able to attend the hearing, for example, because they are abroad or unable to attend because of age, infirmity or sickness.

    3.4.8 These avenues are different as the first case depends upon an emergency and danger of evidence being lost and the second does not. Evidence taken on commission may also be used in arbitration. An application for commission may be refused if the court does not consider it to be appropriate, for example, if there is a means of compelling a witness to attend court in Scotland or if the credibility of the witness is at issue.
    3.5 Protection against apprehended legal wrongs
    3.5.1 Interim interdict seeks to prevent someone from acting in a way which would breach another party’s legal rights. It is a temporary order to preserve (where possible) the rights of parties pending a final determination of the claim. It will usually (but not always) be granted to preserve the status quo and will only be granted on evidence of a wrong or on grounds of reasonable apprehension that a wrong is likely to be committed.
    3.5.2 Interim interdict will not be granted where there is an alternative legal remedy available or where there is already a separate action ongoing in which the same matter has been raised. Interdict (and interim interdict) cannot be used to impose a positive obligation on a party, but rather only to prevent certain steps being taken.
    Criteria for Interim Interdict

    3.5.3 The test which will be applied by the court in determining an application for interim interdict is whether (i) the party seeking the order has title and interest to sue; (ii) the application discloses a prima facie case; and (iii) that the granting of the order is justified on the balance of convenience.
    3.5.4 Title and interest to sue: A party seeking to raise an action of interdict must show some legal relationship (arising either at law or under contract) which gives them a right which the other party has either infringed or threatens to infringe.59 For example, the proprietor of a land or building has a general legal right to prevent damage to his property.60 Similarly, a party entitled to possession of moveable property may seek interdict to prevent another party from removing that property or wrongfully using or interfering with it.61
    3.5.5 Prima facie case: A party must show that they have reasonable prospects of success.62 The court will not seek to reach final conclusions on the legal issues. Where no harm has yet been committed, the court will consider whether a serious harm will be, or is likely to be, committed against the party who seeks an interim measure.63
    3.5.6 Balance of convenience: A party seeking an interim interdict must show that the inconvenience to them in not obtaining the interim interdict is greater than the inconvenience to the other party in being subject to an interim interdict. The court may take into consideration factors such as:
    • whether the apprehended wrong is capable of remedy;64
    • whether the party against whom the order is sought has offered any security or undertaking;65
    • how likely it is that the party seeking the order will succeed with the substantive claim;66
    • the financial effect of interim interdict on the party against whom the order is sought;67
    • whether anticipated damages could be easily quantified;
    • whether damages would be an adequate remedy;68
    • any safety implications;69
    • public interest;70 and
    • delay in making the application.

    3.5.7 This interim measure may be refused where an alternative legal process is available to remedy the alleged wrong;71 or where an action in connection with the same matter has already been raised.72
    4. Procedural and Evidential Requirements for Interim Measures
    4.1 Procedural and evidential requirements for interim measures to secure assets in relation to money claims
    Form of the request

    4.1.1 The procedural requirements for securing an order for diligence on the dependence73 are now contained in the DSA 1987 (in to which new provisions were inserted by BAD 2007 which largely came into force on 1 April 2008).
    4.1.2 An application for the order may be made at any stage of the court procedure before final decree (judgment).74 The application may be sought before or after service of the court writ initiating the substantive court action. In practice, to obtain the order the applicant’s agents must prepare the relevant court application in the prescribed form.75 If the order is to be sought prior to service of the underlying claim, then the court clerk should be contacted to request a hearing in chambers before the sheriff (for the sheriff court) or the judge (for the Court of Session) as appropriate, in order to present and discuss the merits of the application. The application may in certain procedures be transmitted to the court electronically, although that remains relatively uncommon for orders of this nature.
    Content of the request

    4.1.3 The application should include an:76
    • explanation of the basis upon which it is claimed that the court has jurisdiction to grant the order sought;
    • explanation of the underlying claim, sufficient to satisfy the court that the applicant has a prima facie case;
    • explanation of the basis upon which the applicant believes there is either a real risk of insolvency or of the defender hiding assets; and
    • explanation of why it is reasonable in all the circumstances to grant the order sought.

    Documentation in support of the request

    4.1.4 The applicant should include with the application a copy of the substantive claim in relation to which the order is sought (if that is not already before the court) together with any documents (for example, reports or other documentary evidence) on which it seeks to rely in persuading the court that the tests referred to at paragraph 4.1.3 above are met and that therefore an interim order should be granted.
    Implementation of the procedure

    4.1.5 If the application is refused and the creditor continues to insist on his application, a hearing must be fixed and intimated to the debtor and any other person having an interest.77 In this instance, the same factors as apply in respect of the initial application (see paragraph 4.1.3 above) are taken into account in deciding whether or not to grant the application.78
    4.1.6 If the order is granted, a further hearing is automatically fixed79 where the defender has the opportunity to seek a recall of the order.
    4.1.7 Where the order is granted prior to service of the underlying claim, then the writ or summons in relation to the underlying claim must be served within 21 days or the warrant for diligence on the dependence will fall.80 This period may be extended in certain circumstances, on application to the court.81
    4.1.8 To take effect, the order for arrestment on the dependence must be served on the party which holds or controls the moveable assets which are to be frozen e.g. on the bank where the bank account is held. It is effective on the date of service in respect of any amount or amounts that the third party owes to the debtor on that date.
    4.1.9 For inhibition on the dependence to be effective, the inhibition must also be registered in the Register of Inhibitions and Adjudications82 (which forms part of the Land Register of Scotland regime for heritable property).
    4.1.10 Once granted, the order will remain in place (provided proceedings are served in the required timeframe, as referred to above) until recalled by the court. Either party to the action may seek recall of the order at any time on cause shown. In practice, it is common for an alternative form of security (for example, funds lodged on joint deposit account) to be agreed between the parties in place of any orders that are granted.
    Evidential requirements

    4.1.11 The requirements for obtaining an order for diligence on the dependence are set out in s15E of the 1987 Act and referred to at paragraph 4.1.3 above. The evidence which will be considered by the court will be limited to such documentary evidence as is placed before the court. Commonly, this will include the pleadings and financial reports (for example, for company debtors), which will be considered alongside the parties’ oral submissions.
    4.2 Procedural and evidential requirements for preservation of assets in the event of insolvency
    Form of the request

    4.2.1 The request for court appointment of a provisional liquidator83 or an interim order in an administration84 is made to the court as part of the petition seeking the substantive order for the appointment of a liquidator or administrator, as the case may be. In each case, the petition must comply with the usual court rules regarding the format and content of a petition.
    Content of the request

    4.2.2 Provisional Liquidator: The petition sets out the grounds on which the petitioner believes the company should be subject to a compulsory winding-up order. The reasons given must fall within the criteria listed at paragraph 3.3.2 above. It should also set out the reasons why the appointment of a provisional liquidator should be made. The circumstances where a provisional liquidator will be appointed are not prescribed but may include where there is a risk of jeopardy to the company’s assets pending the hearing of the petition, or where it is in the public interest.85
    4.2.3 Interim order in an administration: The petition should set out the basis upon which the applicant believes the relevant business either is, or is likely to become, unable to meet its financial obligations in the near future, the nature of the interim order sought and the reasons for it.
    Documentation in support of the request

    4.2.4 Provisional Liquidator: An application to appoint a provisional liquidator needs to include averments of the grounds for appointment of the provisional liquidator, and the name and address of the person proposed to be appointed, and that person’s qualifications to act as provisional liquidator. The petition must also include any knowledge the petitioner has in relation to the appointment of an administrator or receiver, or if a liquidator has been appointed pursuant to a voluntary winding up and should include his consent to act. Documentation may also be included to demonstrate or support the reasons for requesting the appointment of a provisional liquidator.
    4.2.5 Interim order in an administration: The petition should be lodged with a Statement of the Proposed Administrator. Where the proposed appointment is to be made by the holder of a qualifying floating charge,86 a notice of intention to appoint should be lodged in court, accompanied by evidence that the person making the appointment is entitled to do so, and should include copies of the written consent from all those required to give it.
    Implementation of the procedure

    4.2.6 In each instance the Court will consider the content of the petition and determine if it meets the mandatory grounds for the type of order sought, and for the appointment of a provisional liquidator or administrator, as the case may be. If the grounds for winding-up or administration are met, the Court will grant ‘First Orders’ which permits service of the petition on the debtor and advertisement of the petition (in the local press and, in the case of a company, also in the Edinburgh Gazette). Where applicable, this order will also include the appointment of a provisional liquidator or an interim order in an administration and the court order gives the appointee authority to take the necessary steps to preserve assets and take other necessary steps immediately.
    4.2.7 Provisional Liquidator: The appointment of the provisional liquidator lasts for a maximum of 28 days. At the end of this period, if the provisional liquidator has failed to obtain consensus on the appointment of a liquidator, the court will make the appointment. After the liquidator has been appointed, the provisional liquidator is relieved of his duties (unless he is appointed as the liquidator).
    4.2.8 Interim order in an administration: The interim order will remain effective unless otherwise ordered by the court until the full administration order is made so that an administrator is appointed or the petition is otherwise dealt with.
    Evidential requirements

    4.2.9 The Court’s decision on the appointment of a provisional liquidator or interim order in an administration will be based on the content of the petition, any supporting documents and any oral submissions made by the agents seeking the order.
    4.3 Procedural and evidential requirements for preservation of evidence
    Form of the request

    4.3.1 Recovery and preservation of documentary/property evidence: In applications made before proceedings are raised, the application is made by petition in the Court of Session or by summary application in the sheriff court. It should, therefore, comply with the normal requirements regarding the format and content of a petition or summary application, as the case may be. It should contain, and be supported by, sufficient information to enable the court to know what the intended action will be about and what assistance the documents or other evidence sought would give in deciding it. The court will not allow a ‘fishing exercise’.87
    4.3.2 Preservation of witness evidence: An emergency justifying an application for evidence to be taken on commission may arise before substantive proceedings have been raised. Such application should be made by way of a petition to the Court of Session. After an action has been raised an application to take evidence on commission is made by motion in the substantive action.
    Content of the request

    4.3.3 Recovery and preservation of documentary/property evidence:88 The Petition to the court may seek authority to: (i) ordain the respondents to produce the documents or property intact and unaltered; (ii) appoint the commissioner to take possession of these; (iii) authorise the commissioner to remove documents or property and deliver them to the Clerk of Court; and/or (iv) authorise the commissioner to employ such persons as he considers appropriate to assist in the inspection and removal of documents.
    4.3.4 The Petition may seek authority to: (i) carry out the recovery at a specified time and place; (ii) search for items, including power to break open shut and lock fast premises; (iii) take photographs of items; (iv) permit the petitioner and/or his agents to accompany the appointed commissioner in order to identify property; and/or (v) prevent the respondents from removing or interfering with items.
    4.3.5 Preservation of witness evidence: The reason for seeking a commission is usually stated generally to be the risk of the loss of the evidence. However, the risk must be one peculiar to the witness and the risks normally identified include that the witness is so old, infirm or unwell as to be in danger of early death. The reasons are limited to these grounds in the Court of Session.
    4.3.6 In the sheriff court reasons have included that the witness is obliged to go abroad permanently or for a prolonged period. It has usually been assumed in civil cases that in trials involving a witness aged 70 or over, commission should be allowed automatically.89
    4.3.7 Nevertheless, the grant of commission to take evidence is a matter of discretion, and a commission to examine two aged witnesses has been refused when plenty of younger witnesses were available to prove the relevant legal statements outlined in the pleadings instead.90
    Documentation in support of the request

    4.3.8 The application for commission should include a statement of facts which sets out a list of documents and any other property which the party wishes to be made the subject of the order; the address of the premises within which he believes the listed items are to be found and the facts which give rise to his belief that, were the order not to be granted, the listed items or any of the documents would cease to be available.
    4.3.9 Along with the application, the following documents should also be lodged: (i) a sworn statement supporting the facts in the applications; and (ii) an undertaking that the party seeking commission will:
    • comply with any order of the court as to payment of compensation if it is subsequently discovered that the order, or the implementation of the order, has caused loss to the respondent or, where the haver is not the respondent, to the haver;
    • bring within a reasonable time of the execution of the order any proceedings which he decides to bring; and
    • will not, without leave of the court, use any information, documents or other property obtained as a result of the order, except for the purpose of any proceedings which he decides to bring and to which the order relates.

    Implementation of the procedure

    4.3.10 Recovery and preservation of documentary/property evidence: Once appointed, the commissioner acts as an independent court appointee and should therefore travel to the site of the haver’s premises or other location of the evidence to be recovered independently of the petitioner or his agents. The commissioner will be accompanied by a short hand writer to record the events and by court officers (messengers at arms or sheriff officers) to serve the court order. He may also be assisted, where necessary, by a photographer, locksmith or other expert. The commissioner is required to take possession of and preserve all evidence falling within the scope of the court’s order. He will prepare a report of the commission, including an inventory of the items recovered and noting any items that were not recovered and this will be lodged with the court.
    4.3.11 The haver is entitled to refuse to answer or to produce any items sought, either on the basis of confidentiality or legal privilege, or because to do so will expose the haver to criminal prosecution. If the haver does so, the commissioner will seal the documents in question in an envelope and lodge the sealed envelope in court. The party seeking the order for recovery and preservation of the items is not automatically entitled to have access to the commissioners’ report and must make a separate application to the court in order to obtain access where the haver has refused to answer or produce the specified documents/property, or where the order has been obtained on a “without notice” basis.
    4.3.12 Preservation of witness evidence: The commission takes the form of a hearing (commission), at which the witness will be examined and cross-examined orally by agents for the parties to the dispute. The commission is chaired by the commissioner acting in the place of the court. The commission will be recorded or noted by a short hand writer, and following the hearing a full transcript of the commission will be prepared.
    Evidential requirements

    4.3.13 The evidence taken from the witness may be used at the full hearing of the case unless the witness becomes available to attend, but the court must hear and determine any objection to its use.91 The party who obtained the commission is responsible for lodging the evidence in court. If the party who obtained the commission does not use it, his opponent is entitled to do so. In any event, evidence taken on commission cannot be used unless it is expressly made part of the evidence at the hearing. If the witness is examined at the hearing, the evidence taken on commission should not be used for any purpose, and in particular it should not be used to contradict evidence given in court.
    4.3.14 If requested, the commissioner may prepare a short note on the witness’s credibility and demeanour, which will be lodged in a sealed envelope along with the commissioner’s report of the examination of the witness. If the commissioner has any doubt as to the admissibility, relevancy or competency of a question, it is thought that he should allow the question under reservation, so that the evidence can be preserved, and the Judge or sheriff hearing the trial can determine the issue.
    4.4 Procedural and evidential requirements for protection against apprehended legal wrongs
    Form of the request

    4.4.1 To seek an order for interim interdict in the Court of Session, a petition or summons92 containing “a crave”93 or conclusion for interdict must be submitted.94 This should comply with the normal court rules as to content and format. A party to an ongoing action may seek an interim interdict by making a motion at any time after the presentation of the petition or signeting of the summons.95 Similarly, an initial writ in the Sheriff Court must contain a specific crave for interdict.  The crave for interdict may stand alone or may be combined with others, such as craves for damages. The terms of the crave for interdict should be directed to the illegal acts complained of and the method or methods required to prevent their recurrence.
    Content of the request

    4.4.2 The request should set out the nature of the actions constituting the wrong or the apprehended wrong in respect of which interdict is sought; the basis upon which the applicant claims that his legal rights are being or will be infringed by that action; and the reasons why the applicant considers that the balance of convenience test is met. If the summons contains a crave or conclusion for interdict, there is no requirement to also include a separate crave or conclusion for interim interdict. However, it is usual practice to do so.96
    Documentation in support of the request

    4.4.3 There are no formal requirements to submit any additional documents along with the application for interim interdict, although documentary evidence and affidavits may be submitted to support the application.
    Implementation of the procedure

    4.4.4 Interim interdict will only be granted upon evidence of a wrong or on grounds of reasonable apprehension of a wrong.97 The Court will hear oral submissions from the parties and consider these together with the application and related documents to consider whether, in all the circumstances, the order sought should be granted.
    4.4.5 After the summons is signeted but before it is served, a party can enrol a motion for interim interdict which may or may not be granted by the court. If the other party has a caveat in place, they will be notified of the motion and have an opportunity to address the court before the granting of the interim order.98
    Evidential requirements

    4.4.6 The tests to be met are set out at paragraphs 3.5.3-3.5.6 above. The court’s decision will be based on the formal written pleadings, documentary evidence and oral submissions made by the applicant.
    5. Legal Safeguards for the Respondent
    5.1 The need for consideration by the court
    5.1.1 Previously in Scotland it was possible to obtain certain interim measures (for example, warrant for arrestment or inhibition on the dependence) automatically. That is no longer the case, as this approach was held to be incompatible with the First Protocol to the European Convention on Human Rights and Fundamental Freedoms.99 In all cases, interim measures may only be put in place by order of the court. There is no automatic right to an interim measure and the onus of proof will lie with the applicant to establish that the necessary criteria are met and that, in all the circumstances, the court should exercise its discretion to order the interim measure(s) sought.
    5.2 Right to present counter-arguments and evidence
    5.2.1 Where interim measures are granted100 then it is open to the affected party to seek to have the order recalled at any time thereafter on cause shown, by application to the court. In the case of arrestment or inhibition on the dependence, there is a statutory requirement that a hearing be fixed shortly after the initial granting of the warrant for diligence on the dependence, specifically for the purpose of allowing the affected party to seek to have the orders modified or recalled. On each such occasion it is for the party which obtained the order to demonstrate that the criteria justifying the measure continue to be met.
    5.3 Damages for unjustified interim measures
    5.3.1 Where an order is sought in terms of s1 AJSA the applicant is required to provide an undertaking that he will comply with any court order to pay compensation to the other party if the order is granted and carried out and its implementation is subsequently shown to have caused loss to the party against whom the order is executed.
    5.3.2 Similar undertakings may, in appropriate circumstances, also be sought in connection with an application for interim interdict.
    5.4 Caveats
    5.4.1 A party may lodge with the court a request (called a caveat)101 that asks the court not to grant certain types of interim orders against it on a ‘without notice’ basis. This includes, for example, orders for interim interdict and orders in respect of winding up or administration or for interim interdict. Where a caveat is triggered, then the party against whom the order is sought should be given the opportunity to address the court before a decision is taken in respect of the order. A hearing to allow this to happen will usually be fixed within a few days of the caveat being triggered, or more quickly where circumstances require or permit. Many banks and other finance providers routinely lodge caveats in the sheriff courts and the Court of Session against certain debtors, particularly if they are experiencing difficulty in obtaining repayments. When a caveat is triggered, the court will notify (usually by telephone) the caveat holder (or its legal representative) that a caveat has been triggered – i.e. that an application for an interim order has been received against the individual or company debtor. The caveat holder can then consider whether it wishes to enforce its rights in respect of any prior ranking securities it may hold over the debtor.
    5.4.2 Caveats will not operate to give advance warning of an application for arrestment or inhibition on the dependence of an action, or an order under section 1 of the Administration of Justice (Scotland) Act 1972 (for inspection or recovery of documents or other evidence).
    5.5 Prescription
    5.5.1 An arrestment on the dependence which is not insisted upon prescribes (is extinguished) three years from the date on which the final interlocutor (court order) for payment is obtained by the creditor.102 All inhibitions now cease to have effect five years from the date they come into effect (i.e. their date of registration).103
    5.6 Further process required
    5.6.1 All interim measures are intended only to preserve the position pending the final outcome of a substantive court action. Further process is therefore required in order to make such an order permanent, if that is required.
    5.6.2 With regard to diligence on the dependence, a party which is successful in the underlying action will need to bring additional proceedings (either an action of furthcoming in the case of arrestment or an action of adjudication in the case of inhibition) to have the property ‘adjudged’ (transferred) to him in satisfaction of his claim. In practice, the need for a further court action is often avoided by the debtor granting the necessary mandate or other documents in order to transfer the property in question to the creditor. In the case of arrested funds, there is an exception to this rule. Where the creditor has obtained final judgment in his favour, then the relevant sum104 will be released automatically to him from the arrested funds 14 weeks after the date of decree.
    5.7 Documents recovered only to be used for purpose of action
    5.7.1 An order from the court for recovery of documents under the AJSA 1972 or at common law carries with it an implied obligation or undertaking that the party who obtains it will not use what is recovered, or allow its use, for any purpose other than the action or proceedings in respect of which recovery was ordered. When recovery is granted, the documents come under the protection of the court which granted the order.105 The court may also attach express conditions106 to regulation access to all or parts of the documents to be recovered or require an undertaking from the party to that effect.107
    5.8 Third party possession
    5.8.1 When the documents are in the possession of a third party, that third party, having had no opportunity of raising any objection on grounds of confidentiality when the diligence is asked for, is not compelled to produce those documents at the commission if the third party is able to establish confidentiality or that it would suffer substantial prejudice if so compelled.
    5.9 Self-incrimination
    5.9.1 One particular speciality of the rules relating to recovery of evidence, in a broad sense, relates to the privilege against self-incrimination. Evidence which might be recovered or lead to demonstrate infringement of certain intellectual property rights may also potentially lead to criminal charges being brought against the person who has the documents in his possession. It is specifically provided that the normal privilege against self-incrimination cannot be claimed in proceedings (including related proceedings under the AJSA 1972 section 1) where the proceedings brought or likely to be brought relate to infringement of rights in any intellectual property or to passing off, to obtain disclosure of information relating thereto or to prevent any apprehended infringement or passing off.
    5.10 Confidentiality
    5.10.1 The court is well accustomed to making appropriate arrangements to preserve, so far as practicable, the confidentiality of documents or other evidence recovered under commission and diligence. This is often done by requiring suitable undertakings or confidentiality agreements from parties seeking to view the documents or other material and by restricting the persons to whom they may be made available.108
    6. Timing of Interim Measures
    6.1 Similarities and differences when filing a request before or after the case on the substantive matter is pending
    6.1.1 An application for interim measures can usually be made at any stage of the court procedure before the final decree (judgment) of the court. It can also be sought before service of the initiating writ or summons on the defender. The differences between the two procedures depend upon the nature of the interim measure sought and the nature of the underlying substantive claim in connection with which it is sought. Generally, the content of the application will be similar whether made before or after the substantive proceedings have commenced, although the format in which the application is presented may differ depending on whether or not there are underlying substantive proceedings.
    6.2 Duration of an interim measure procedure
    6.2.1 As a rule, procedures regarding interim measures are determined quickly. Initial hearings often take place in chambers rather than in the court room, particularly where they are made on a without notice basis and privacy is required. The sheriff or judge will usually have read the application and considered the papers in advance, and will question the solicitor or advocate seeking the order regarding any issues that he or she considers relevant to the decision. The court will often make its decision immediately after hearing submissions and the formal order can be prepared by the clerk and signed by the sheriff or judge (as appropriate) within a short period after the hearing if required. If the matter is sufficiently urgent, the court may hear the application outside usual court times. If time is of the essence, then it is advisable to liaise with the court clerk as soon as a party becomes aware that it might seek an order, even before the necessary papers have been prepared, in order to secure the availability of a judge or sheriff and clerk and to ensure that the application will be dealt with immediately.
    7. Costs
    7.1 Court costs, fees and compensation for professional representation
    7.1.1 Court fees109 in Scotland are fixed by the Court for each of the various types and stages of proceedings that may be brought before the courts. The fees are payable in respect of most steps of the procedure in each case.110
    7.1.2 Solicitors’ fees and, perhaps, also Counsels’ or experts’ fees, will be incurred in the preparation of the necessary application.
    7.1.3 In addition, costs may be incurred in relation to service of court orders or other documents. Some court documents require to be served by court officials (sheriff officer for sheriff court orders or messengers-at-arms for Court of Session orders). These agents will charge a fee depending on the nature of the documents to be served and the location at which they are to be served. Some orders must be advertised in local or national papers (for example in the Edinburgh Gazette, in the case of liquidation or administration).111
    7.1.4 Where appointed, a commissioner is entitled to a fee, as is any short hand writer or other assistant he appoints. The execution of a commission may be expensive and the party instructing the commissioner will be personally liable for the commissioner’s fee.
    7.2 Recovery of Costs112
    7.2.1 Generally speaking, the court fees and other costs incurred in connection with litigation in Scotland, including in connection with an application for interim measures, must be met by the applicant in the first instance. However, if successful, that party is likely to obtain an award of expenses in its favour, although the award of expenses remains at all times within the court’s discretion and the court may make such order as to expenses as it considers appropriate in all the circumstances. There is therefore no guarantee that a successful party will recover any or all of its costs. Due to the level of recovery permitted by the Scottish courts in connection with professional fees, it is likely that an award of expenses will only allow a party to recover a proportion of the costs it has actually incurred in the litigation, although it is possible to obtain an award of expenses which comes close to full recovery of costs incurred in certain circumstances. For example, a party may claim an additional fee in conjunction with an award of expenses under Rule of Court 42.14. In granting an application, the court will consider factors such as the complexity of the issues in dispute, the important of the litigation to the parties, the value of the case and the steps taken in resolving the dispute. It is also possible to seek a higher level of recovery on an ‘agent and client, client paying’ basis if there has been improper conduct by the other party.113
    7.2.2 An award of expenses may be made by the court at any stage in the process. In some cases, therefore, an award of expenses may be made on an interim basis in respect of particular interim steps, or the expenses related to the interim measure may be reserved pending a determination of the underlying substantive claim and dealt with only following conclusion of that underlying process.
    7.2.3 A party against whom an order for an interim measure is sought is likely to be entitled to recover its expenses in relation to opposing such an application, where the court is satisfied that the party seeking the order acted unreasonably in making such an application.
    7.3 Security
    7.3.1 Where an order for recovery of documents or other property is granted before the commencement of substantive proceedings, the court may order the applicant to provide security for costs as it sees fit.114
    8. Remedies Against the Decision on Interim Measures
    8.1. Interim measures to secure assets in relation to money claims
    8.1.1 As outlined above, where the court makes an order granting warrant for diligence on the dependence in the absence of the debtor, a section 15K hearing will be fixed at which the debtor or any person having an interest may apply to the court for an order to either recall or restrict the order. The hearing will take place usually within about a week of the initial order being granted. If the court is satisfied that the warrant is invalid,115 or where it is no longer satisfied as to the requirements for obtaining a warrant116 (as outlined above), it may recall that warrant and make any ancillary order so required. Concurrently, where the court is satisfied that the warrant is valid, but that an arrestment or inhibition executed in pursuance thereof is irregular or ineffective and it is reasonable in all circumstances to do so, it may also make an order recalling or restricting the warrant.117
    8.1.2 The onus remains on the creditor to show that the necessary tests regarding an order for diligence on the dependence are met, rather than on the debtor to demonstrate that any order should be amended. The court has a broad discretion here and it may impose any conditions on the debtor that it considers fit to order.
    8.1.3 Where an order is made restricting warrant for diligence on the dependence or the court imposes a discretionary condition on the warrant, the debtor has the right to appeal and apply for variation of the order or variation or removal of the condition, as the case may be.118 The requirements for intimation and a subsequent hearing, along with the court’s powers of variation are in equivalent terms to those for the original s15K hearing for recall/restriction. Again, it is for the creditor to show that the necessary tests regarding an order for diligence on the dependence are met.
    8.1.4 If a decision is made at a section 15K or 15L hearing which a party considers to be incorrect, they may be entitled to reclaim (i.e. appeal) in the normal way (i.e. outside of the procedure specifically included for diligence on the dependence). However, they would need the permission of the court to proceed with a further appeal. If it can be shown that there has been a change of circumstances, the court will consider the application based on the new facts at the point of the second application.
    8.2 Preservation of assets in the event of insolvency
    8.2.1 Provisional Liquidator: The company can appeal the compulsory winding-up decision which triggers the appointment of a provisional liquidator. The court has the power to alter or revoke a winding-up order on successful appeal.
    8.2.2 A provisional liquidator has only 28 days to convene meetings between the creditors and contributors, with the sole purpose of appointing a liquidator. As such, no direct remedies against the appointment of a provisional liquidator are available; however the creditors can decide to appoint a different liquidator rather than to continue with the person appointed as the provisional liquidator.
    8.2.3 Interim order in administration: A creditor can apply to the court to end the administration where he believes that the person who applied for the court appointment of the administrator or appointed the administrator himself, did so for an improper motive.119
    8.3 Preservation of evidence
    8.3.1 A haver may seek legal or other professional advice of their choice. Where the purpose of seeking legal advice is to help the haver to decide whether to ask the court to vary or discharge the order, the haver may ask the Commissioner to delay starting the search for up to two hours or such other longer period as the Commissioner may permit.120 Where a haver is seeking advice, they must:
    • inform the Commissioner and the petitioner’s agent of that fact;
    • not disturb or remove any listed items; and
    • permit the Commissioner to enter the premises, but not to start the search.121

    8.3.2 Thereafter, if the order is varied by the court, the varied order will replace the terms of the order originally granted.
    8.4 Protection against apprehended legal wrongs
    8.4.1 Generally, a decision of the court granting or refusing interim interdict may be appealed “without leave” to the sheriff principal, that is without obtaining prior permission from the court to do so. Appeal from the sheriff principal to the Court of Session can only be made with the court’s permission (“with leave”).122 If the original order is granted by a single judge in the Court of Session then a decision granting or refusing interim interdict may be appealed (with leave) to the Inner House of the Court of Session.123
    9. Enforcement of an Interim Measure
    9.1 Enforcement of interim measures issued by national courts
    Interim measures to secure assets in relation to money claims

    9.1.1 If the arrestee, in breach of the arrestment, pays the debt or delivers the goods arrested to the defender or a third party he will be liable to the extent of the asset attached or sum secured by the arrestment.124 However, this does not permit the arrestee to pay or deliver the asset or sum that has been attached. If the pursuer receives such asset or sum knowing that it is without the defender’s knowledge and in breach of the arrestee’s duty to retain the asset or sum, and where the amount of the debt owed is disputed, the pursuer may be ordered by the court to return such asset or sum to the arrestee; and may also risk recall of the underlying arrestment.125
    Preservation of assets in the event of insolvency

    9.1.2 Provisional Liquidator: The Court has the power to arrest a contributory126 that it thinks is about to abscond from the United Kingdom and to seize the contributory’s property, books or papers,127 if the court is concerned that the contributory would attempt to conceal the same.
    9.1.3 Interim order in administration: The administrator, as an officer of the court (whether or not appointed through the court process) has wide ranging powers at his disposal. For example, the administrator can remove any director and can veto decisions of any directors which impact on the administrator’s ability to perform his role. The court may confer such powers on an individual insolvency practitioner by way of an interim order for the period between the making and granting of the application for preservation of assets.
    Preservation of evidence

    9.1.4 Recovery and preservation of documentary/property evidence: Documents which are needed to assist in progressing actions in other jurisdictions may be situated in Scotland. In certain circumstances, documents recovered under the AJSA 1972 in Scotland for use in Scottish proceedings can be made available for use in foreign proceedings.128
    9.1.5 Further to this, in terms of section 28 of the Civil Jurisdiction and Judgments Act 1982 (the “1982 Act”), when any proceedings have been brought, or are likely to be brought, in another Contracting State129 or England and Wales or Northern Ireland in respect of any matter within the scope of the 1968 Convention,130 the Court of Session will have the power to make an order as if the proceedings had been brought, or were likely to be brought, in that court. A foreign court may also submit a letter of request to the Court of Session seeking the recovery of property within Scotland for the use in foreign proceedings.131
    9.1.6 Preservation of witness evidence: If the witness fails to attend a commission in response to a citation the commissioner will report accordingly and the court may, on application by the party seeking the evidence, order that the witness be apprehended for a subsequent commission hearing.
    9.1.7 If a witness is abroad, it does not mean that his evidence is necessarily lost, since facilities exist in certain circumstances for evidence to be taken before a court abroad, or by video link or by affidavit.
    Protection against apprehended legal wrongs

    9.1.8 A party against whom interim interdict has been granted, is bound to comply with it so long as it remains in force. If one party fails to observe the terms of the interdict order, the other party may take proceedings against him for breach of interdict.
    9.1.9 Breach of interdict constitutes a “contempt of court”, that is, a conduct which undermines the course of justice. It is punishable by admonition, censure, fine or imprisonment. The specific penalty for the breach remains within the court’s discretion.132 In the sheriff court, the maximum penalty is three months imprisonment or a fine of level 4 on the standard scale, or both.
    9.2 Enforcement of interim measures issued by foreign courts
    9.2.1 The Brussels Regulation and Lugano Convention both apply to judgments within the European Union, along with those in Iceland, Norway and Switzerland. These permit the enforcement in Scotland of interim orders issued by a foreign court upon application to the Court of Session for recognition (registration and enforcement) of an interim order.
    9.2.2 The Civil Jurisdiction and Judgments Act 1982 also specifically gives the Court of Session the power to grant, in relation to ongoing actions in other Brussels or Lugano contracting States or in other parts of the United Kingdom a warrant for arrestment or inhibition over assets or property situated in Scotland. However, a requirement of this is that the Court of Session would be competent to grant such a warrant in equivalent proceedings before a Scottish court.
    9.2.3 With regard to orders under s1 of the AJSA 1972, an order to assist with the recovery of evidence may be made in response to letters of request under the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the “1975 Act”). The court will not grant an order under either enactment unless it is necessary, having regard to orders for recovery granted in any other court. In granting an order, the court will apply the law and practice of the Scottish courts to the application.
    9.2.4 If the proceedings are to be in Scotland but the documents are outside Scotland, the court will consider the application in the normal way, and, if granted, the order will be for commission to take place in Scotland.133 The order will not be enforceable against a third party outside Scotland unless a court in the relevant country grants an order for enforcement.134
    9.2.5 The rules under the 1975 Act make particular provision for the recovery of evidence to be used before the European Patent Office. Where the court makes an order under the 1975 Act, an officer of the European Patent Office may apply by motion to examine any witness or to request the court or any commissioner appointed by the court, as the case may be, to put specified questions to any witness.135
    9.2.6 Similarly the court may grant commission to take evidence of a witness who is outside Scotland if, in addition to the other criteria above, the witness is willing to attend and an appropriate commissioner is identified. However, a warrant to take evidence on commission alone will not enable a party to enforce the attendance of the witness outside Scotland.
    9.2.7 The process by which a witness can be ordered to submit to examination outside Scotland is by application to the court for letters of request. If granted, the court issues letters of request to an appropriate court in the country where the witness is, and requests the court there to examine the witness or to appoint some person to examine him. Letters of request may be addressed to any foreign court having the appropriate jurisdiction.
    9.2.8 The 1975 Act enabled the UK to ratify the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 1970.136 Around twenty countries have signed the Hague Convention, two of which are the United Kingdom and the United States of America.
    10. Interim Measures in International Commercial Arbitration
    10.1 Interim measures by state courts
    10.1.1 The Arbitration (Scotland) Act 2010 provides a clear statutory regime for arbitration in Scotland. Under the Act, the Outer House of the Court of Session and the sheriff court have the power to make various orders in relation to arbitration similar to those they would make in ordinary civil proceedings. Under Rule 46 of the Scottish Arbitration Rules, this includes the granting of warrant for arrestment or inhibition and of interim interdict.137 The court may take such action on the application of a party to the arbitration. If the arbitration has already commenced, then the application may precede either with the consent of the arbitral tribunal or where the court is satisfied that it is necessary as a matter of urgency. If arbitration has not yet commenced, then the court may grant such an order where it is satisfied that: (i) a dispute has arisen or might arise; and (ii) an arbitration agreement between the parties exists and stipulates that such a dispute is to be determined by arbitration.
    10.2 Interim measures by arbitral tribunal with seat in Scotland
    10.2.1 An arbitral tribunal with its seat in Scotland has limited powers under the default rules of the Arbitration (Scotland) Act 2010 to protect property which is the subject of the arbitration.138 The tribunal can direct a party to allow an expert or a third party to inspect, photograph, preserve or take custody of any property which that party either owns or possesses which is the subject of the arbitration. The tribunal can also direct a party to take samples, carry out experiments or preserve any document or other evidence which any party controls. This is a default rule so it is open to parties to modify it, agree something different or disapply it completely.
    10.3 Interim measures by arbitral tribunal with seat abroad
    10.3.1 The Arbitration (Scotland) Act 2010 does not expressly provide for whether a Scottish court has the power to enforce interim measures granted by an arbitral tribunal with a seat abroad. There is no guidance on this point in the Arbitration (Scotland) Act 2010 or the Explanatory Notes to it.
    10.3.2 Scottish courts have the power to enforce an award of a tribunal with a foreign seat in certain circumstances.139 However, these provisions arguably would not apply to interim measures on the basis that interim measures are not awards in the sense of awards being final.
    11. Contacts
    CMS Cameron McKenna Nabarro Olswang LLP
    Robert P. M. Wilson
    T +44 131 200 7667, +44 20 7367 3682
    E rob.wilson@cms-cmno.com
    12. References
    • Act of Sederunt (Rules of the Court of Session 1994) 1994.
    • The six sheriffdoms being: Grampian, Highland and Islands; Tayside, Central and Fife; Lothian and Borders; Glasgow and Strathkelvin; North Strathclyde; and South Strathclyde, Dumfries and Galloway.
    • Hague Convention on Foreign Judgments in Civil and Commercial Matters signed 1 February 1971.
    • Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters.
    • Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Recast Brussels Regulation applies to legal proceedings instituted on or after 10 January 2015 and judgments given in proceedings instituted on or after 10 January 2015. It repeals the Brussels I Regulation (Regulation (EC) No 44/2001), save the 2001 Regulation continues to apply to judgments given in proceedings instituted before 10 January 2015.
    • Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters.
    • Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
    • Debtors (Scotland) Act 1987, hereafter referred to as DSA 1987.
    • Bankruptcy and Diligence etc. (Scotland) Act 2007, hereafter referred to as BAD 2007.
    • Administration of Justice (Scotland) Act 1972, hereafter referred to as AJSA 1972.
    • Insolvency Act 1986 (c.45), hereafter referred to as IA 1986.
    • Diligence on the dependence is a measure that can be used to secure funds, goods or property to prevent the debtor from disposing of them whilst the action is ongoing.
    • From September 2015, the Court Reform (Scotland) Act 2014 extended the exclusive jurisdiction of the sheriff courts to include claims up to the value of GBP 100,000.
    • IA 1986, s120.
    • Solicitors (Scotland) Act 1980 (c 46), s.41.
    • Gloag & Henderson, The Law of Scotland, (12th edn, 2007), para 43.01.
    • From September 2015, a new Sheriff Personal Injury Court was established in Edinburgh Sheriff Court with Scotland-wide jurisdiction by virtue of the Court Reform (Scotland) Act 2014.
    • DSA 1987, s15A(2)(a).
    • AJSA 1972, s1(1).
    • Murdoch v Murdoch (1973) S.L.T. (Notes) 13.
    • DSA 1987, s15A(1).
    • Arbitration (Scotland) Act 2010, Schedule 1, Rule 46(1)(e).
    • Civil Jurisdiction and Judgments Act 1982, s27.
    • Erskine., III, vi, 3; more recently confirmed in Brash v Brash 1966 S.C. 56.
    • Law Reform (Miscellaneous Provisions) (Scotland) Act 1966, s1. It is however competent to arrest earnings in execution, see Diligence against Earnings (Variation) (No 2) (Scotland) Regulations 2009.
    • Social Security Administration Act 1992, s187 as amended by the Jobseekers Act 1995, Sch. 2.
    • Macphail, Sheriff Court Practice, (3rd edn., 2006), at para 11.15.
    • Bell, Comm., ii, 68.
    • Lord Ruthven v Pulford & Sons (1909) S.C. 951 as cited in Macphail para 11.15.
    • As specified in schedule 2 to the DSA 1987.
    • Diligence Against Earnings (Variation) (Scotland) Regulations 2012, with effect from 6 April 2013.
    • DSA 1987 (fn 1), s15H(1).
    • Court of Session Rules, Rule 7.7. However, following the recession in 2008/09, the Courts have tended to award a lower rate of interest. See Farstad Supply AS v Enviroco Ltd [2013] CSIH 9 where the Court accepted an argument to vary the judicial interest rate (of 8%) for a limited period to take account of the prevailing market conditions during and following the financial crisis in the autumn of 2008.
    • DSA 1987 s15H(2).
    • Ibid, s15E(1)-(2).
    • DSA 1987, s15E(3).
    • Livingston v McFarlane (1842) 5 D. 1.
    • BAD 2007, s154(1).
    • DSA, s15A(2)(b)(i).
    • Ibid, s15A(2)(b)(ii).
    • IA 1986, s.122(1) (a) – (g).
    • This is known as voluntary winding-up, the other examples on the list fall under the bracket of compulsory winding-up, i.e. where the company’s members have not voted to wind the company up.
    • Companies Act 2006, s.761.
    • Napier v Levy (1962) S.C. 468.
    • IA 1986, s.135.
    • Ibid, s.1A.
    • Ibid, Part 1 – this is where the directors reach an agreement with the company’s creditors to continue trading whilst insolvent, in the hope of trading out of difficulty and repaying those creditors in full over time.
    • C.40.
    • A floating charge is security for a loan provided to the company which is not tied to any particular business assets. Qualifying floating charges are those created on or after 15 September 2003.
    • IA 1986, Sch B1, para 13(1)(d) and para 13(3); Not to be confused with an Interim Administration Order granted under the Proceeds of Crime Act 2002 c.29 s256, which is a remedy sought as part of a criminal prosecution
    • Jackson, Notes (23 January 2004, unreported), OH.
    • IA 1986, Sch B1, para 2(c).
    • Ibid, para 2(b), and para 14.
    • IA 1986, Sch B1, para 2(a), and para 10.
    • AJSA 1972, s.2.
    • Moore v Greater Glasgow Health Board (1978) SC 123.
    • Dominion Technology Ltd v Gardner Cryogenics Ltd (No 1) (1993) SLT 828.
    • Macphail, Sheriff Court Practice, (3rd edn., 2006), at para 15.90, Friel, Petitioner 1981 SLT 113.
    • D&J Nicol v Dundee Harbour Trustees (1915) SC (HL) 7 at 12 and 13 per Lord Dunedin.
    • Colquhoun v Paton (1859) 21 D 996 at 1001 per Lord Cowan.
    • Wilson v Shepherd (1913) SC 300.
    • W.A.C Ltd v Whillock (1989) S.C. 397, 410 per Lord Justice Clerk Ross.
    • Allsea UK Ltd v Greenpeace Ltd, (2001) S.C. 844 (OH).
    • Baird v Monkland Iron and Steel Co (1862) 24 D.1418, 1425; Pease v Pease 1967 S.C. Release 101: March 2009
    • Forth Yacht Marina Ltd v Forth Road Bridge Joint Board (1984) S.L.T 177; Highland Distilleries Co. plc v Speymalt Whiskey Distributors Ltd (1985) S.L.T 85; Knox v Paterson (1861) 23 D. 1263; Bernard v Bernard (1893) 1 S.L.T. 29; Waste International Inc. v Eurocare Environmental Services Ltd (1999) S.L.T 198.
    • Toynar Ltd v Whitbread & Co. plc (1988) S.L.T. 433, 434C-D per Second Div.
    • Orkney Seafoods Ltd, Petrs (1991) S.L.T. 891; Dash Ltd v Philip King Tailoring Ltd (1989) S.L.T 39; Steiner v Breslin 1979 S.L.T. (Notes) 34.
    • William E. Selkin Ltd v Proven Products Ltd (1992) S.L.T. 983.
    • Shell U.K. Ltd v McGillivray (1991) S.LT. 667.
    • See Waste Systems International Inc. above.
    • Lindsay v Wemyss and Earl of March (1872) 10 M 708.
    • Milne v Leslie (1888) 15 R 460.
    • Op Cit.BAD 2007 (fn13), Part 6.
    • DSA 1987 (fn)1, s15D(1).
    • Ibid, s15D(2)(a).
    • DSA 1987, s15E(2).
    • Ibid, s15F.
    • Ibid, s15F(3).
    • Ibid, s15K.
    • DSA 1987, s15G(2).
    • Ibid, s15G(3).
    • Op Cit BAD 2007 (fn) 13 s148.
    • Act of Sederunt (Rules of the Court of Session 1994) 1994, Sch 2, para 74.25.
    • Insolvency (Scotland) Rules 1986, r.2.2.
    • Stair Memorial Encyclopaedia (Corporate Insolvency Reissue) Chapter 6(3)(e) Part 246.
    • Insolvency (Scotland) Rules 1986, r.2.10.
    • Moore v Greater Glasgow Health Board 1978 S.C. 123.
    • See paras 3.4.4 and 3.4.5 above.
    • Wilson v Young (1896) SLT 73 (OH).
    • Dudgeon v Forbes (1832) 10 S 810.
    • Court of Session Rules, Rule 35.14.
    • Petition/summons are formal, written applications to a court that request action on a certain matter.
    • A “crave” is the term given to the description of the order sought from the court in a petition or sum-mons.
    • Court of Session Act 1988, s.47(1). No specific crave for interim interdict is required (see below).
    • National Cash Register Co Ltd v Kinnear (1948) S.L.T (Notes) 83.
    • Ibid.
    • Hay’s Trustees v Young (1877) 4 R 398.
    • Caveats are unique to Scotland and are discussed in further detail in Chapter 5.
    • Advocate General v Taylor (2003) S.L.T 1340.
    • Except in the case of an order for the preservation of witness evidence where it is not relevant as no property rights are being interfered with, although such an order can be challenged at the same time it is made.
    • Caveats are governed by the Act of Sederunt (Sheriff Court Caveat Rules) 2006 and Chapter 5 of the Rules of the Court of Session.
    • Conveyancing (Scotland) Act 1924 s95A as amended by the BAD Act 2007 s170.
    • Conveyancing (Scotland) Act 1924 s44(3)(aa) as amended by the BAD Act 2007 s156.
    • The sum released will be the lower of: (a) the sum attached by the arrestment; (b) the sum due by the arrestee to the debtor; or (c) the aggregate of the principal sum of the decree, any judicial expenses charge-able against the debtor (as well as the expenses of executing the arrestment) and interest on the principal sum up to the date of service/accrued thereafter and also due on the expenses of the arrestment.
    • Iomega Corporation v Myrica (UK) Ltd (1998) SC 636.
    • Dailey Petroleum Services Corporation v Pioneer Oil Tools Ltd (1994) SLT 757.
    • McInally v John Wyeth & Brother Ltd (1992) SLT 344.
    • Iomega Corporation v Myrica (UK) Ltd (No 1) (1999) SLT 793, OH.
    • The Court of Session etc. Fees Order 1997 (SI 1997 No 688), as amended most recently by The Court of Session etc. Fees Amendment Order 2012/290 (SSI 2009 No 88, in force 31 October 2012); the Sheriff Court Fees Order 1997 (SI 1997 No 687), as amended most recently by The Sheriff Court Fees Amendment Order 2012 (SSI 2012/293, in force 31 October 2012).
    • The up-to-date list of Court of Session fees can be found here – http://www.scotcourts.gov.uk/rules-and-practice/fees/court-of-session-fees.
    • The up-to-date price list for the Edinburgh Gazette can be found here – https://www.thegazette.co.uk/place-notice/pricing.
    • In Scotland, costs are known as ‘expenses’. The position with regard to recovery of expenses in Scotland is likely to change in the course of the next few years, following implementation of recommendations from the Review of Expenses and Funding of Civil Litigation in Scotland 2013 (“The Taylor Review”) and The Report on the Scottish Civil Courts Review (“The Gill Review”).
    • Changes to the funding of civil litigation are anticipated following the publication of the Expenses and Funding of Civil Litigation Bill. This proposes a cap on the level of success fees recoverable, allowing damage based (contingency fee) agreements and introducing qualified one way costs shifting in personal injury cases. The Scottish Government has concluded a consultation on this, and indicated that it intends to take these recommendations forward by way of legislation in the near future.
    • Court of Session Rules, Rule 64.7.
    • DSA 1987, s15K(5).
    • Ibid, s15K(8)-(9).
    • Ibid, s15K(7).
    • Ibid, s15L(1).
    • IA 1986, Sch B1, para. 81.
    • Court of Session Rules, Rule 64.12.
    • Court of Session Rules, Rule 64.12(3).
    • Sheriff Courts (Scotland) Act 1907, ss27(A), 28(1)(d).
    • Court of Session Act 1988, s.28.
    • Bell, Prin., s2278.
    • High-Flex (Scotland) Ltd v Kentallen Mechanical Services Co (1977) SLT (Sh. Ct) 91.
    • “contributory” means every person liable to contribute to the assets of a company in the event of its being wound up.
    • IA 1986, s158.
    • Iomega Corporation v Myrica (UK) Ltd (1998) SC 636, 1998 SCLR 475.
    • Contracting State in this capacity means the member states which are party to the Lugano Convention 1988 and/or the Recast Brussels Regulation in respect of the European Community.
    • Article 1, Brussels Convention on Jurisdiction and the Enforcement in Civil and Commercial Matters 1968: the Convention applies in civil and commercial matters whatever the nature of the court or tribunal.
    • Court of Session Rules, Rule 66.
    • This is subject to limitations imposed by section 15 of the Contempt of Court Act 1981.
    • Section 2(3) of the 1972 Act.
    • Maitland v Maitland (1885) 12 R 899.
    • Court of Session Rules, Rule 66.7.
    • C,md. 6727 (1977).
    • Arbitration (Scotland) Act 2010, Schedule 1, Rule 46(1)(e)-(f).
    • Ibid, Schedule 1, Rule 35.
    • Arbitration (Scotland) Act 2010, ss. 12 and 19.

    Slovenia
    Authors: Luka Fabiani, Maja Pukl
    1. Applicable law
    1.1.1 Civil judicial procedure in Slovenia is regulated primarily in the Civil Procedure Act1(CPA). Under the CPA the court has jurisdiction over disputes relating to personal and family relations, property and other civil relations of natural and legal persons. Certain proceedings relating to personal and family relations and property are also regulated by the Non-litigious Civil Procedure Act.2
    1.1.2 Interim measures in civil proceedings are mainly governed by the Enforcement and Securing of Civil Claims Act3(Enforcement Act). Special provisions on interim measures are set out in the Courts Act,4 the Copyright and Related Rights Act,5 the Industrial Property Act,6 in a minor part in the Employment Relationship Act7 and in the Administrative Dispute Act.8 In proceedings relating to matrimonial actions and actions concerning relations between parents and children, interim measures are also partially regulated by the CPA.
    1.1.3 Interim measures may also be ordered as (i) part of administrative procedures which are governed by the General Administrative Procedure Act,9 (ii) in the procedure before the Constitutional Court, pursuant to the Constitution of the Republic of Slovenia10 and the Constitutional Court Act,11 and (iii) in criminal proceedings governed by the Criminal Procedure Act.12 The focus of this chapter is on the regulation of interim measures in civil proceedings only.
    1.1.4 For international cases the provisions of the Private International Law and Procedure Act (PILPA)13 and international treaties, in particular the (recast) Brussels I Regulation14 and Brussels II Regulation,15 apply. These regulations set out provisions for the jurisdiction and enforcement of interim measures. However, in accordance with Article 29 of the CPA, and if no specific provisions are contained in PILPA or in an international agreement with regard to the particular type of dispute, the general national provisions on territorial jurisdiction shall be taken into account when determining jurisdiction of the Slovenian courts.
    1.1.5 The Enforcement Act generally uses the term “creditor” for the applicant for an interim measure and “debtor” for the respondent. However, for the purpose of this chapter, the terms “applicant” and “respondent” are used for clarity.
    2. Jurisdiction
    2.1 International and geographical jurisdiction – the venue
    2.1.1 Unless civil or other legal proceedings have already been commenced, territorial jurisdiction to decide upon an application for an interim measure is vested in the court which has the power to decide on the motion for enforcement of the measure granted. The territorial jurisdiction to issue interim measures is determined by reference to the subject of the interim measure – if it is movable property, the competent court is the court in the area in which the movable property is located or in the area where the respondent is resident. If the interim measure is to secure a monetary claim, a claim on book-entry security or other property right of the respondent, the competent court is the court in the area where the respondent is resident. If the subject to be secured is a partner’s share in a company, the court covering the area in which the company’s registered office is located shall be competent. If the subject to be secured is immovable property, the court in the area in which the immovable property is located shall have jurisdiction.
    2.1.2 If civil or other legal proceedings have already been instituted, any application for an interim measure shall be decided by the court conducting such proceedings, as is explained further below.
    2.1.3 To the extent applicable in international cases, the Brussels I Regulation and Brussels II Regulation prevail. The jurisdiction based on the Brussels I Regulation is double-tracked, meaning that both: (i) the court which under this Regulation has jurisdiction over the underlying claim; and (ii) the court which is competent under the national law are competent to issue interim measures.16 The PILPA does not specifically address the issuing of interim measures, thus international jurisdiction is decided based on the territorial jurisdiction as specified in the previous paragraph.
    2.2 The effect of jurisdiction clauses
    2.2.1 Under the CPA the legal effect of the use of jurisdiction clauses in respect of interim measures is unclear. Further, the Slovenian Supreme Court has not ruled on the use of jurisdiction clauses in interim measures proceedings. Pursuant to the PILPA, parties are limited in their choice of jurisdiction. Generally parties may only agree on the jurisdiction of a foreign court if at least one of them is a foreign person and the Republic of Slovenia does not have exclusive jurisdiction. The Slovenian courts have, inter alia, exclusive jurisdiction over disputes relating to Slovenian real estate matters and over execution matters if the object of the execution is located in the territory of Slovenia.17 Further, a jurisdiction clause cannot be agreed in disputes relating to consumer or insurance matters because the consumer/insured party must be protected by the laws of the Republic of Slovenia, if the consumer or the insured party is a natural person who has permanent residence in Slovenia.
    2.2.2 Regarding forum selection clauses under the Brussels I Regulation, the Slovenian Supreme Court held that the established legal practice of the Court of the European Union set out in the Article 25 of the Brussels I Regulation should be followed.18 Accordingly, the parties are able to agree a jurisdiction clause under the Brussels I Regulation, but a number of formalities must be observed, namely the agreement conferring jurisdiction shall be either (i) in writing or evidenced in writing, (ii) in a form which accords with practices which the parties have established between themselves or (iii) in international trade of commerce, in a form which accords with the usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.
    2.3 Subject-matter jurisdiction
    2.3.1 Subject to the exceptions mentioned in 2.3.2 below, if civil or other legal proceedings have not been initiated, the power to grant interim measures is vested in the local courts (okrajna sodišča).
    2.3.2 The district courts (okrožna sodišča) are competent to decide on applications for interim measures before the initiation of the civil or other legal proceedings where there is an arbitration agreement, in commercial disputes and with regard to the intellectual property.19 Hence, there is no possibility for “forum shopping”.
    2.3.3 Once proceedings have been initiated, an application must be brought in the court conducting such proceedings. The relevant court in which to commence the main proceedings will depend upon the subject matter of the dispute.
    2.3.4 Therefore, specialised courts such as the circuit court, labour court, district court in non-litigious matters and administrative court, may decide on interim measures if proceedings have been initiated in these courts.
    2.3.5 To the extent there is no specialised court, the relevant district court is competent for the main proceedings – and thus, once the proceedings are initiated, also for an application for interim measures – in:
    • property-law related disputes, when the value of dispute exceeds 20,000 EUR;
    • matrimonial disputes, disputes relating to the finding or challenge of paternity/maternity, disputes regarding statutory maintenance obligations and disputes relating to the care and upbringing of children;
    • disputes arising out of copyright, the protection or use of inventions and marks of distinctiveness or to the right to use a firm name;
    • disputes relating to competition issues;
    • commercial disputes; and
    • disputes arising from bankruptcy proceedings.

    In other matters, subject-matter jurisdiction is vested in the local courts, if not provided otherwise by a statute.
    2.3.6 The District Court in Ljubljana has exclusive competence for disputes relating to intellectual property.
    2.3.7 Either a single judge or the panel may decide on an application for an interim measure depending upon the subject matter of the dispute. In civil proceedings before local and district courts the cases are generally heard by a single judge. The proceedings before higher courts and the Supreme Court are conducted by a panel. The panel consists of three to five (or exceptionally seven) judges.
    2.3.8 In administrative disputes, the administrative court has the power to issue interim measures at the request of the plaintiff. The court may (i) stay the execution of the administrative act and/or (ii) temporarily regulate the situation regarding the legal relation in question until the final decision in the administrative dispute.
    2.4 Choice of venue if more than one court has jurisdiction
    2.4.1 As explained above, the ability to “forum shop” is limited and so it is not possible for parties to choose a less experienced local court to decide on an application for an interim measure in a commercial or intellectual property dispute.
    2.4.2 Should an application for an interim measure be filed with a non-competent court, the application will be transferred to the competent court. However, this will take additional time and, if the respondent wasn’t already aware, put the respondent on notice of the application.
    3. Types of interim measures and their criteria
    3.1 Two main types of interim measures
    3.1.1 The Enforcement Act distinguishes between interim measures to secure monetary claims and those to secure non-monetary claims. Interim measures to secure monetary claims may only be of a preventative nature, usually imposing some prohibition upon the respondent and/or its property. Interim measures to secure non-monetary claims can be preventative or regulatory (as outlined below).
    3.1.2 These types of interim measures (preventative and regulatory) are not explicitly defined in Slovenian legislation. However, the distinction is important. The main characteristics of these interim measures are as follows:
    • Preventative measures20 are used to secure the future enforcement of a claim by preserving the status quo until the dispute in the main proceedings is concluded.
    • Regulatory measures are used to regulate temporarily the disputed legal relationship until the final court decision is rendered. They are not generally intended to protect the future enforcement of a claim, but rather to prevent the use of force or damage which is extremely difficult to repair and due to which a subsequent judicial protection would become meaningless. Regulatory measures may therefore be used to secure claims against property as well as constitutive claims (i.e. claims intended to establish, alter or cease a right or legal relationship)21 or declaratory claims (i.e. claims intended to declare the existence of a right or legal relationship).22
    • Regulatory measures are based on Slovenian Constitutional Court case law.23 This stresses the importance of measuring the damage to the applicant and considering whether it is possible to reinstate the previous relationship existing between the parties in the event the applicant’s claim is rejected in the main proceedings. The granting of regulatory measures is limited to exceptional cases24

    3.2 Preliminary injunctions
    3.2.1 The Enforcement Act also regulates preliminary injunctions. The court can grant a preliminary injunction on the basis of a decision of a domestic court or another authorised body ordering the payment of a monetary claim which has not yet become enforceable.25 The applicant must demonstrate credibly that without the injunction, the enforcement of the claim would be rendered impossible or considerably impeded.
    3.2.2 The court can also grant a preliminary injunction pursuant to any settlement which orders the payment of a claim not yet fallen due, if the settlement is concluded before a domestic court, other authorised body, or before a notary in the form of an enforceable notarial deed.
    3.2.3 The main distinction between preliminary injunctions and interim measures is that preliminary injunctions are only granted: (i) to secure a monetary claim; (ii) if the applicant has an authoritative decision which is not yet enforceable; and (iii) where there is a risk that without the injunction, the court order or settlement reached will become impossible or considerably more difficult to enforce.
    3.2.4 There are a number of prescribed types of preliminary injunction which may be requested in parallel, specifically:
    • seizure of movable property;
    • attachment of a monetary claim or of a claim for the delivery-up of goods;
    • attachment of other property or material rights;
    • attachment of a certain sum of money on a respondent’s bank account;
    • attachment of a partner’s share of a company; and
    • prenotation of a lien upon the respondent’s immovable property or its right in immovable property entered in the land register. This means that an advance notice of lien will be entered into the land register at the place where the respondent’s right is already entered on the register.

    Upon request of an applicant the court may grant two or more types of preliminary injunction, if this proves to be necessary.
    3.3 Interim measures to secure monetary claims
    3.3.1 The Enforcement Act sets out the conditions that must be met before an interim measure will be issued by the court.
    The conditions for interim measures to secure monetary claims

    3.3.2 The court shall grant an interim measure to secure a monetary claim if the applicant can demonstrate credibly that a claim against the respondent exists or is about to arise.
    3.3.3 Unless the applicant can demonstrate credibly that the measure for which he is applying will not result in any considerable damage to the respondent, he must also demonstrate credibly that there is a risk that the enforcement of its claim is likely to be rendered impossible or be considerably impeded due to the alienation, concealment or another sort of disposal of property by the respondent. There is no definition of the legal qualification of “no considerable damage”. The prevailing case law takes the view that any intervention in the respondent’s property which causes damage or prejudice to him shall be judged with consideration given to the proposed measure and the circumstances of the individual case. The burden of proof as to whether the application would cause “considerable damage” to the respondent lies with the applicant.
    3.3.4 The risk of enforcement being rendered impossible or considerably impeded is deemed to exist where claims are to be enforced abroad, except where enforcement will take place in an EU Member State.26
    The existence of a substantive claim

    3.3.5 The applicant must demonstrate that he has an underlying claim against the respondent. The standard of proof is that the claim must be credible. The claim is deemed credible if there are more arguments in favour of the claim than against it.
    The risk of enforcement being rendered impossible or considerably impeded

    3.3.6 Around 80% of applications for interim measures are rejected as the applicant has not adequately substantiated the risk of enforcement being rendered impossible or considerably impeded.27 The applicant has to show there is both an objective risk (e.g. the mere objective fact that the respondent is overindebted) and a subjective risk (i.e. that particular respondent’s actions indicate that the enforcement of the claim is likely to be rendered impossible or considerably impeded).
    3.3.7 The respondent’s actions have to:
    • be extraordinary;
    • be a deviation from its regular course of business; and
    • prevent the respondent from fulfilling its obligations in future, i.e. as well as existing at the time of the application, the applicant must also show that the risk will exist when the claim is enforced.

    Types of interim measures to secure monetary claims

    3.3.8 In order to secure a monetary claim, the court may issue any interim measure required to achieve the required protection. Such interim measures include:
    • prohibiting the respondent from disposing of and taking custody of the respondent’s movable property;
    • prohibiting the respondent from alienating or encumbering its immovable property or its rights in immovable property entered in the land register and ordering the entry of such prohibition onto the land register;
    • prohibiting the respondent’s debtor from settling its debts or delivering goods to the respondent and prohibiting the respondent from receiving property or enforcing a claim against its debtor; and/or
    • prohibiting a bank from paying an amount of money from the respondent’s account to the respondent or to any other person.

    3.3.9 The applicant does not acquire a lien upon the secured property on the grant of an interim measure. This is important to note in the event an insolvency procedure is initiated against the respondent.
    3.3.10 A prohibition on disposing of movable property is entered into the register of non-possessory liens and seized movable property, if such register is held for the movable property in question. An entry onto the register is made by the competent authority at the request of the court (i.e. the court submits the granted interim measure prohibiting the disposal of movable property to the competent authority by itself, or through an enforcement officer).
    3.4 Interim measures to secure non-monetary claims
    3.4.1 Interim measures to secure non-monetary claims are regulated in a relatively heterogeneous way. Special regulations apply to interim measures granted in matrimonial and parental disputes, disputes regarding the disturbance of possession, non-litigious proceedings and disputes arising out of copyright and intellectual property rights.
    The conditions for interim measures to secure non-monetary claims

    3.4.2 Similarly to the conditions described in paragraph 3.3.3 above, the court will grant interim measures to secure non-money claims if the applicant demonstrates credibly that the claim against the respondent exists or is about to arise.
    3.4.3 In addition, the applicant must demonstrate credibly one of the following circumstances:
    • That there is a risk that the enforcement of the applicant’s claim is likely to be rendered impossible or considerably impeded if the interim measures sought are not granted, unless the applicant can credibly demonstrate that the measure for which he is applying will not result in any considerable damage to the respondent.
    • That the measure is necessary to prevent the use of force or damage28 which would be extremely difficult to repair. The applicant has to demonstrate that the future use of force is likely or that damage is likely to occur. Previous use of force or damage to the subject of the claim is not considered to be a relevant factor. An applicant may face difficulty demonstrating the risk that any damage would be extremely difficult to repair – even if future damage is likely, such damage may not be irreparable.
    • That if the interim measure applied for proves to be unfounded, the respondent will not suffer consequences more adverse than those the applicant will suffer if the interim measure is not granted. In these cases the court will balance the parties’ interests. The applicant’s request will be denied if it is possible that the interim measure would inflict more harm on the respondent than the harm to the applicant if the measure is denied.

    3.4.4 As noted above, the risk of enforcement being rendered impossible or impeded is deemed to exist where claims are to be enforced abroad except where enforcement will take place in an EU Member State.
    The existence of a substantive claim

    3.4.5 The applicant has to show that its substantive claim is credible, on the same basis as set out in paragraph 3.3.5 above.
    Types of interim measures to secure non-monetary claims

    3.4.6 In order to secure a non-monetary claim, the court may issue any interim measure required to achieve the intended protection. Such interim measures include:
    • prohibiting the respondent from disposing of and taking custody of the respondent’s movable property;
    • prohibiting the respondent from alienating or encumbering its immovable property or its rights in immovable property entered in the land register and the entry of such prohibition onto the land register;
    • prohibiting the respondent from committing anything that could cause damage to the applicant and prohibiting the respondent from changing the state of the claimed property and imposing a fine on the respondent in the event of non-compliance with the prohibition;
    • prohibiting the respondent’s debtor from delivering up the claimed property; and/or
    • paying compensation to an employee pending resolution of a dispute on the unlawfulness of a decision to terminate the employee’s employment contract, if this is necessary for the sustenance of the employee or of those persons he is required to maintain under Slovenian law.

    3.4.7 The prohibition on disposing of movable property is entered into the register of non-possessory liens and seized movable property, if such register is held for the movable property in question. An entry onto the register is made by the competent authority at the request of the court (i.e. the court submits the granted interim measure prohibiting the disposal of movable property to the competent authority by itself or through an enforcement officer).
    3.4.8 In respect of interim measures relating to non-monetary claims, if the respondent does not comply with the court’s order to refrain from doing anything that is capable of causing the applicant harm or from changing the state of property which is the subject of a claim, the court may impose a fine by virtue of its office on the basis of the order granting the interim measure. The fine that will be imposed in the event that the respondent does not comply with the interim measure is determined at the same time the interim measure is granted. The fine for a natural person may be up to EUR 10,000 and for a legal person and a sole entrepreneur up to EUR 500,000. A repeated breach of a court order can result in further fines being imposed by the court.
    3.4.9 Separately, a court may, as part of its general powers, also impose a fine for a failure to comply with an order for an interim measure (whether monetary or non-monetary) even if the fine is not pre-determined in the order itself. This type of fine will amount to up to EUR 10,000 and up to EUR 100,000 for a legal person and a sole entrepreneur. The exact level of the fine will be set out in a separate cost order which imposes a deadline by which it must be paid, or else the respondent will face enforcement procedures in respect of the sum owed.
    Regime regarding interim measures in connection with copyright disputes

    3.4.10 Interim measures in connection with copyright disputes are governed by the Copyright and Related Rights Act (CRRA).29 The CRRA states that the court shall order interim measures to secure non-monetary claims under the CRRA if the holder of the copyright can show probable grounds that it is the holder of the copyright and that its right has been infringed or that there is a real risk that its right will be infringed. The process of issuing the interim measure is undertaken on an urgent basis.30
    3.4.11 The copyright holder also has to show that it has probable grounds for believing either that:
    • there is a risk that enforcement of a claim will be impossible or considerably impeded if the interim measure is not granted;
    • an interim measure is necessary to avoid damage which is difficult to repair;31 or
    • the interim measure will not have more detrimental consequences for the respondent (being the alleged infringer) than the harm that would be caused to the applicant if the interim measure were not granted.

    3.4.12 If the applicant seeks an ex parte injunction,32 in addition to the above it must show probable grounds for believing that any delay in the interim measure being granted will result in damage which would be difficult to repair.33 The respondent must be given notice of the adopted measure after the enforcement of the interim measure at the latest.
    3.4.13 If the applicant can demonstrate credibly that the interim measure will not result in any considerable damage to the respondent, he does not have to show there is a risk that enforcement in the main claim is likely to be rendered impossible or considerably impeded if the interim measure is not granted.
    3.4.14 The risk of enforcement being rendered impossible or considerably impeded is deemed to exist where claims are to be enforced abroad, except where enforcement will take place in an EU Member State.
    Types of interim measures relating to copyright disputes

    3.4.15 In order to protect the applicant’s claims under the CRRA, the court may issue any interim measure required to achieve the intended protection. In particular, it can issue an order:
    • prohibiting the respondent from continuing to infringe copyright or taking action which would infringe copyright; and/or
    • seize, exclude from circulation and take into custody the objects of the alleged infringement and/or the means of infringement that are intended or used exclusively or principally for infringement.

    Regime regarding interim measures in connection with industrial property rights

    3.4.16 The special regulation regarding interim measures sought in connection with industrial property rights is governed by the Industrial Property Act and is similar to the CRRA regarding interim measures in connection with copyright disputes (see above).
    4. Procedural and evidential requirements for interim measures
    4.1 Procedural requirements
    4.1.1 The procedure for issuing interim measures is primarily governed by the Enforcement Act. If certain procedural questions are not regulated in the section on interim measures, the general rules on the enforcement of claims apply by analogy.36 For the procedural questions not specifically regulated by the Enforcement Act, the general rules of civil procedure under CPA apply by analogy.37
    Form of the application

    4.1.2 An application for an interim measure has to follow the general rules applicable to legal submissions in court proceedings, as defined in the CPA. The provisions on electronic applications are not clear and so not commonly used in practice, therefore usually a written application is filed.
    Content of the application

    4.1.3 The application has to be intelligible and shall contain all matters necessary for proceeding with the application. It has to contain information about the court and the parties; an indication of the claim for which the protection is sought; a prayer for interim relief including the applicant’s proposal for which measure should be imposed, how it should be carried out and for how long the interim measure is to continue; legal submissions; and an explanation of the grounds for the requested interim measure. The prayer also usually requests the imposition of a fine on the respondent in the event of its non-compliance with the interim measure. The court is generally limited by the content of the prayer and may not decide on different or wider interim relief. An exception to this rule is found in matrimonial and parental disputes where the court may issue an interim measure at its own motion (ex officio).
    Enclosures to the request

    4.1.4 The request has to be substantiated with adequate evidence. In accordance with the principle of urgency and speed the Enforcement Act does not require the application for an interim measure to be served on the respondent prior to the court’s decision. The court’s decision on the application is therefore usually provided within a short period of time and without the respondent’s reply to the application. Consequently, the evidence has to be attached and/or adduced in the application itself, since the court is bound by the arguments and evidence submitted by the applicant when assessing whether the conditions for the interim measures are met. If the applicant does not give sufficient arguments for the requested interim measure, the application will be rejected. Inadequate arguments cannot be replaced by a proposal that the