Country insight

Australian state and federal courts can grant interim freezing orders, which restrain a defendant from disposing of property prior to judgment. These orders are a species of interlocutory orders. Such applications may be filed at the Supreme Court or Federal Court. A freezing order is normally obtained ex parte without notice to the respondent, before service of the originating process, because notice or service may prompt the feared dissipation or dealing with assets. A freezing order or an ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets. It would therefore be possible for a freezing order to encompass bank accounts as well as assets such as real property, art, securities or motor vehicles. Such orders would, however, normally allow for access to funds for reasonable expenses, living costs and payments in the ordinary course of a defendant or third party's business. A court may also order a freezing order against a third party, where it can be established that there is a risk that a judgment or prospective judgment may be unsatisfied as a result of a third party's power, possession or influence over the assets in question. The power to issue a freezing order is a function of courts' authority to prevent an abuse of the court process by the frustration of court-ordered remedies. A freezing order will be made only to preserve the status quo for the purpose of resolving a substantive cause of action brought by the plaintiff, and not as a stand-alone remedy.

The criteria for the issue of a freezing order is similar to the ordinary principles for the grant of interim relief, as discussed above, although the potentially serious impact on a defendant's property rights raises the threshold for the granting of a freezing order. This may be overcome by an undertaking as to damages given by the applicant of the freezing order, where the applicant undertakes to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person affected by the operation of the order. The High Court of Australia described freezing orders as '"a drastic remedy which should not be granted lightly". Broadly and generally, an applicant must show that:

• the applicant has a good arguable case (in the substantive cause of action);
• the refusal of a freezing order will give rise to a real risk that any judgment pronounced in the action will remain unsatisfied, or that the recovery of any judgment will be prejudiced by reason of the removal by the defendant of assets from the jurisdiction, or their dissipation within it; and
• the balance of convenience favours the making of the order.

Austrian courts may grant interim relief measures equivalent to prejudgment attachments and freezing orders.

Preventive injunctions 

As noted in the section above on Interim relief proceedings, Austrian courts may grant a series of preventive measures to secure the enforceability of an eventual judgment, which may involve freezing a particular state of affairs or assets.

Like other interim injunctions, they can be sought prior to the commencement of proceedings, during proceedings or after trial. The competent court to hear such an application is the court where the substantive proceedings are pending or, when such a measure is sought pre-action, the competent court is the District Court of the domicile (Allgemeiner Gerichtsstand) of the respondent.

In addition to the requirements for injunctive relief specified in the section above on Interim relief proceedings, preventive interim injunctions for monetary and non-monetary claims may be granted when:

• it is probable that without the requested measure the respondent would thwart or considerably impede the enforcement of a claim (e.g. by damaging, destroying or relocating assets); or
• the respondent has no assets in Austria, and enforcement is not guaranteed by European or international law.

In addition, for monetary claims, the applicant will need to prove its:

• entitlement to the claim; and
• interest in the disposal of the claim.

Parties may request the following preventive injunctions in respect of monetary claims:

• the deposit or administration of movable goods by the court;
• the prohibition on the disposal or pledging of movable assets;
• the prohibition on third parties from providing payments to a person;
• the administration of a property; and
• the prohibition on the disposal and pledging of property or certain rights arising from a registration in the Land Register; and

In respect of a non-monetary claim, there is no exhaustive list of measures. Accordingly, the court may order all the above as well as orders requiring:

• the applicant to retain custody of the respondent's property / asset, or;
• the respondent to take action to preserve the property / asset or prohibit him from taking actions that may adversely affect such property / asset.

In the majority of cases, decisions on applications for preventive injunctions occur in ex parte proceedings (i.e. without notice to the respondent).

The application for a preventive injunction must contain:

• the names of the parties concerned;
• the facts establishing the court's jurisdiction;
• the legal basis as to why the injunction is requested;
• the legal interest of the party seeking the injunction;
• the form of the requested interim relief; and
• the desired duration.

There is no specific timeframe in which the substantive claim should be brought. The preventive injunction is granted by the court for a certain period of time. After the expiry of this period, the preventive injunction ceases to apply. The creditor can be held liable for any damage suffered by the debtor if the court subsequently finds that the relevant preventive injunction was unjustified.

Preventive taking of evidence

In addition, orders attaching the respondent's assets or freezing bank accounts may also be granted following an application for the preliminary taking of evidence. These are types of interim injunctions seeking to prevent the loss, or difficulties regarding the use, of evidence or if the availability of the evidence is uncertain.

In the application, the applicant is required to identify:

• the opponent;
• the facts on which the taking of evidence is to be based;
• the evidence the applicant is seeking to be secured;
• the witnesses to be heard and any experts proposed; and
• the reasons for the application.

The application is usually filed with the court hearing the main proceedings. However, in urgent cases and / or if a legal dispute has not yet commenced, the application should be filed with the District Court where the object to be attached is located. In the case of a freezing order, the local jurisdiction shall be determined by reference to the seat of the credit institution that holds the assets to be frozen.

Prejudgment attachments and freezing orders are types of interim relief in Bahrain. Any party may seek a prejudgment attachment by seeking an order from the Court of Execution, to obtain and maintain an attachment over the opposing party’s assets. 

Such applications can either be made during the course of proceedings or prior to substantive proceedings being commenced. Where such applications are made prior to substantive proceedings being commenced, they are usually made on an ex-parte basis.  

Almost all assets (whether moveable or immovable) may be attached. Assets that cannot be attached include: 

• the home which is the dwelling of the party’s family;
• furniture and books (i.e. records) necessary for the party to carry on his profession;
• salaries of staff and employees; and
• public property or property owned by the state. 

In order for an attachment application to be successful, the claimant must persuade the court that there are valid reasons for the issuance of such an order. The reasons for which a court will order an attachment are not exhaustive but include: 

• there being a risk that the defendant will dissipate its assets; and/or
• there being a risk that the defendant has acted (or will act) in a way that will hinder or delay the enforcement of a judgment.  

In circumstances where an attachment is applied for and granted prior to the issuance of substantive proceedings, the law requires substantive proceedings to be filed within eight days of the attachment being effected. Should this not occur, the attachment would be lifted and treated as void. 

An attachment order may be appealed to the competent court within eight days from the date when the party concerned is notified of the attachment order. As the attachment would be approved by a court order, a creditor would not be held liable for any damages caused by the attachment to the debtor, even if the attachment had been wrongly granted.

A creditor may apply to have a debtor’s assets frozen, preventing the debtor from disposing of the encumbered assets (for example, by selling them). Two conditions must be met:

• The creditor must have a good arguable case that it has a due and payable debt owed by the debtor. That is, the creditor need not have already obtained a judgment ordering the creditor to pay the debt and the mere fact that the claim is contested does not prevent a creditor from freezing its debtor's assets. The court will determine, on a prima facie basis, whether the creditor's arguments are sufficient to justify the freeze.
• The creditor must have reason to believe that it will be unable to recover the debt unless the debtor’s assets are frozen (the so-called urgency requirement). This essentially means that the debtor is in or is facing financial difficulties.

Since secrecy is of the utmost importance, a freezing order is requested by filing an ex parte application with a specialized judge sitting in the Court of First Instance. Usually within a few days, the order is rendered. If the asset freeze is granted, the creditor will have the order served on the debtor by a bailiff, following which the freezing order takes effect.

For assets owned by a debtor but held by a third party (for example, funds in the debtor's bank accounts), the creditor is not actually required to seek authorisation from the court before instructing a bailiff to have the assets frozen. It is to be noted, however, that a creditor proceeding om this basis would do so at its own risk: should the debtor decide to bring a challenge, the court may overrule the freeze and  (albeit rather exceptional in practice) order the creditor to pay damages. Additionally, the third party holding the debtor’s assets has fifteen days following service of the freezing order to deliver a declaration to the court. The declaration states what assets it holds for or on behalf of the debtor. If the third party fails to deliver the declaration, the court may (although it does enjoy a margin of discretion) decide that the third party is jointly and severally liable together with the debtor for the creditor’s debt.

The debtor may challenge the freezing order within one month of being served with it. The debtor can argue that the two conditions mentioned above were not met and could even claim damages from the creditor if the court finds that the initial order was abusive – that is, obtained in bad faith. For example, it may be deemed abusive if a creditor proceeds to freeze a debtor’s assets without the court’s prior authorization (where such authorization was not required) and the court subsequently decides that the relevant conditions were clearly not met, or if the court believes that the information presented to it by the creditor in order to obtain the freezing order was not accurate or complete.

In principle, all assets (real estate, movable property, and claims on third parties such as bank accounts) can be attached. However, there are a number of exceptions - for instance, government assets.

Prejudgment orders and freezing injunctions are inserted in the category of interim reliefs and, therefore, the principles noted in Interim relief proceedings apply to such orders.

The Brazilian Code of Civil Procedure allows the parties to request prejudgment attachments and freezing orders as provisional remedies before:

• the court that will have jurisdiction to hear the merits of the main claim if these measures are sought pre-action; or
• the court that is hearing the main claim if the main proceedings are pending.

For a prejudgment attachment/freezing order to be granted, the plaintiff must include in its application:

• a brief statement of:
  • the right which the plaintiff is seeking to protect; and
  • the risk of loss to which the plaintiff is exposed; and
• the irreparable harm that the plaintiff will suffer if the relief sought is not granted. 

Following the plaintiff’s filing of an application seeking an attachment/freezing order, the respondent will be given 5 business days from  the date when he was served to file a defense and specify the evidence that he/she intends to present. If a defense is not filed within this period, the court will:

• presume that the facts alleged by the plaintiff are true; and
• render a final decision on the interim relief application within 5 business days from the expiry of the term given to the respondent to file its defense.

If a defense is filed, the judge will either:

• ask the parties to present their evidence requests; or
• render a final decision on the interim relief request. There is no timeframe regarding this decision. 

Where a prejudgment attachment/freezing order has been granted, the plaintiff must file a claim on the merits within a maximum of 30 days after the provisional remedy has been enforced. Thereafter, the lawsuit follows the ordinary procedural steps, as described in Section: Procedural steps and timing above.

As noted in Interim relief proceedings, where the plaintiff also argues that the prejudgment attachment/freezing order must be granted on an urgent basis, the provisional remedy can be enforced by the judge inaudita altera pars or ex parte. In this case, neither the opposing party nor its attorney is granted the opportunity to file a defense. There is no provision in the Brazilian Code of Civil Procedure specifying the term within which a judge should analyze the request for an urgent injunction inaudita altera pars, but it usually takes no longer than 48 hours. Whenever a judge grants a prejudgment attachment or a freezing order (or indeed any other kind of interim measure) inaudita altera pars, the party against whom the decision was issued can file an appeal within 15 business days.

If granted, assets will be attached in a specific order of priority:

• money, in cash or in a deposit or invested at a financial institution;
• Federal, State and Federal District government bonds listed on the market;
• bonds and securities listed on the market;
• land vehicles;
• real estate property;
• personal property in general;
• livestock;
• vessels and aircraft;
• membership interests and shares in partnerships and companies;
• percentage of the revenues of companies;
• precious stones and metals;
• rights of acquisition from a promise of sale or a fiduciary sale; and
• other rights.

If the attachment causes any damages to the respondent, the respondent is entitled to request the competent judge to either:

• revoke the attachment; or
• substitute the asset attached.

Frequently, respondents allege that the assets cannot be attached because they are crucial to their survival, for example, their salary or household appliances.

Creditors can be held liable for damages caused to the respondent when the attachment is based on an urgent request and if:

• the final judgment is unfavorable to the party who requested the attachment;
• the plaintiff does not provide the necessary measures to serve the respondent with the lawsuit within five business days of the granting of the pre-action attachment/freezing order;
• the attachment becomes ineffective; or
• the judge accepts the respondent’s allegation of statutory limitation period for filing the lawsuit.

Provincial superior courts and the Federal Court can grant interim freezing orders, known as Mareva orders, which restrain a defendant from disposing of property prior to judgment. Canadian courts issue Mareva orders to prevent possible abuses of process and/or frustration of court-ordered remedies, as would be the case where a defendant is dissipating, or is likely to dissipate, assets so as to frustrate the enforcement of any potential judgment against the defendant. 

Motions for a Mareva order are brought after a proceeding has already been commenced. That said, such motions can be brought:

• before a defendant has been served with the claim; and
• without notice to the defendant in order that the motion may achieve the objectives set out in the previous paragraph. 

A Mareva order is an interim order that merely preserves a defendant’s assets until the matter can be resolved on its merits. Accordingly, once a plaintiff obtains a Mareva order, it is incumbent on a plaintiff to seek to obtain judgment on the merits of the case. 

The criteria for the issuance of a Mareva order are similar to the criteria for the issuance of other forms of interim relief. Specifically, to obtain a Mareva order, the moving party must demonstrate the following:

• a strong prima facie case (i.e. a strong case at first glance);
• that the defendant has assets in the jurisdiction; and
• that there is a serious risk that the defendant will remove property or dissipate assets before judgment.

Plaintiffs can be held liable for any damages caused to the defendant by the Mareva order.  In addition to satisfying the above test, a plaintiff seeking a Mareva order must undertake to the court that it will compensate a defendant affected by the Mareva order in circumstances where:

• the defendant suffers damages as a result of the Mareva order, and
• the court later finds that the Mareva order should be set aside or should not have been granted in the first place. 

The reach of a Mareva order is broad: it can apply to personal effects, bank accounts, real estate, shares, and income streams, among other things.

In Chile, prejudgment orders and freezing injunctions do not have the same extension or ends as in common law jurisdictions, and they are measures that the plaintiff can request to the Court before filing a claim in order to prepare for an eventual trial.

Prejudgment attachments can be classified as preparatory, interim reliefs or probationary. The classification most similar to the common law institution of prejudgment orders and freezing injunctions would be those classified as interim reliefs, therefore the principles noted in Interim relief proceedings apply to those. We will refer to this classification below.

The plaintiff may request prejudgment attachments and freezing orders as provisional remedies before the court that will have jurisdiction to hear the merits of the main claim.

For a prejudgment attachment/freezing order to be granted, the plaintiff must include in its application: a brief statement of the right which the plaintiff is seeking to protect, the specific claim that will be filed; the specific amount that will be claimed (to establish the warranty the defendant may file to override the relief); and the risk of loss to which the plaintiff is exposed or irreparable harm that the plaintiff will suffer if the relief sought is not granted.

Following the plaintiff’s filing of an application seeking an attachment/freezing order, the plaintiff must serve the application within a five day period (or any other period granted by the Court). Afterwards, the plaintiff must file a claim within a 10 day period, though the court may extend it up to 30 days, if the plaintiff argues it is necessary. If the claim is not filed in time, if the plaintiff does not request the relief to be maintained or the Court decides not to maintain the relief, the plaintiff will be held liable for any damage to the defendant.

As noted in Interim relief proceedings, where the plaintiff also argues that the prejudgment attachment/freezing order must be granted urgently, the provisional remedy can be enforced by the judge without hearing the counterparty. If the court concedes the relief, the plaintiff must serve the decision to the defendant within five days, that could be extended if sufficient grounds are submitted. If the defendant is not served in this period, the relief will have no effect.

The plaintiff can be held liable for damages caused to the defendant when the attachment is based on an urgent request and:

• the plaintiff does not file a claim within the legal period;
• the plaintiff files a claim in time, but does not request the attachment/freezing order to be maintained; and
• the court rejects to maintain the attachment/freezing order.

In China, prejudgment attachments and freezing orders are referred to as asset preservation orders. Asset preservation is an important category of interim relief under PRC law. In the PRC, asset preservation is equivalent to freezing orders. It consists of an ex parte procedure which (as prescribed in various laws) allows applicants to, among other things, seal, seize and freeze assets. Like other types of interim relief, a party can apply for asset preservation both during and prior to the commencement of legal proceedings on the basis that “a party’s conduct or other reasons will make enforcement of the arbitration award/judgment difficult or cause other loss and damages to the applicant.” When necessary, the court is also empowered to make asset preservation orders at its own discretion.

Applications for asset preservation must be made to a court: (i) located in the same place as the properties which are to be preserved; (ii) located where the respondent is domiciled; or (iii) which has jurisdiction over the case. To apply for asset preservation, the party must submit a written application and provide relevant supporting documents. The written application should detail:

• information relating to the applicant and the counterparty;
• the request for asset preservation;
• the facts and reasons on which the asset preservation application is based;
• the requested value of the asset to be preserved;
• clear information on, or specific features of, the asset to be preserved; and
• the need to provide security.

The court may demand the requesting party to provide security if it deems this necessary. The amount to be provided as security will usually be limited to no more than 30% of the requested value of the asset to be preserved.

Asset preservation is limited to the assets referred to in the written application or assets related to the case. The types of assets that can be subject to asset preservation include:

• immovable property, such as land or buildings; and
• movable property, such as funds in a bank account, vehicles or other objects owned by the party against whom the asset preservation application is being made.

When the asset preservation order has been granted pre-action, the claimant must file the relevant claim subsequently. As with any other interim relief measure granted pre-action, if the claimant fails to commence a court proceeding or arbitration within 30 days of the court’s asset preservation order, the court shall lift the order.

The claimant may be liable for any losses caused to the defendant arising from the preservation of the defendant’s assets if the asset preservation order was imposed in error.

Prejudgment attachments and freezing orders are types of interim relief.

The request for attachment should be submitted to the bailiff court. It should include details of the underlying principal claim and the circumstances the claimant wants to invoke, as well as supporting evidence. As a general rule, doubt regarding the claim does not preclude attachment, and there is no requirement for the claimant to substantiate or prove the existence of the claim. However, attachment is naturally excluded if it can be assumed that the claim does not exist. Therefore, attachment is carried out unless the defendant can prove that the claim does not exist.

The bailiff court may grant an attachment order as security for monetary claims, provided that:

• the subject-matter claim is deemed to exist;
• it is impossible to execute the claim; and
• the likelihood of recovering the claim later is deemed to be materially reduced.

The assets that can be subject to prejudgment attachment correspond to the assets that can usually be attached in the course of an ordinary execution procedure. Therefore, attachment can be made on the defendant’s assets, including cash, real estate, movable property, claims and other assets such as shares etc.

The bailiff court may decide that the granting of a prejudgment attachment is to be conditional on the claimant providing security for any detriment and disadvantage inflicted on the defendant as a result of the attachment.

The attachment can be avoided or ceased if the defendant, subject to the bailiff court’s assessment, provides sufficient security for the claim in question.

The attachment can only be made proportionally with the size of the claim.

The attachment must always be followed by a civil claim on the merits. The claim must usually be brought within one week after attaching the assets. If the claim is not brought within the stipulated term, the attachments are lifted. If this happens, or if the claim is dismissed in the proceedings on the merits, the claimant might be liable for any damages caused to the defendant by the attachment(s).

The bailiff court's decisions relating to attachment can be appealed.

Under Czech law, the statutory purpose of an interim measure is either to provisionally regulate the relations between the parties, if necessary, or to protect the enforcement of a future judgment.

In practice, interim measures are most often used to freeze assets. They can also be used to order certain conduct or, conversely, to prohibit certain conduct (for example, prohibiting the set-off of claims, convening general meetings or acting for the company in certain matters). The freezing of assets may concern any property that Czech law recognizes as an object of legal relations (real estate, movable property, securities, shares in companies, rights and claims, etc.).

As regards timing, it is possible to apply for an interim measure both before initiation of or during the civil court proceedings.

All Finnish courts have the power to grant prejudgment attachments and freezing orders, which are precautionary measures that can be either interim or final. The application for any type of precautionary measure shall be delivered to the court where the proceedings of the main claim are pending or, where there are no court proceedings pending, the court of the defendant's domicile.

In practice, all kinds of property, shares and/or receivables belonging to an opposing party can be attached by the enforcement authorities up to an amount that secures the applicant's claim.

An applicant for precautionary measures must prove that:

• it is probable that they hold a debt or prior right to a property against the defendant; and
• there is a danger that the defendant will hide or destroy the property or otherwise endanger the payment of the debt if the measure is not granted.

In practice, the threshold for granting an injunctive measure or a freezing order is quite low.

As a general rule, an application will not be granted without giving the opposing party an opportunity to be heard (i.e. the applications will usually be made giving the defendant notice). However, to prevent the subject matter of the claim being compromised, the court may, on the request of the applicant, grant the relief sought, which shall remain in force until further notice. If the court determines that the requirements to grant the precautionary measures above have been met, the court may issue its decision within a few days of the application and without notice to the defendant. The decision will then be enforced by the enforcement authorities. In such cases, the defendant will be granted an opportunity to respond only after the decision on the interim relief has been made and enforced.

If no court proceedings are pending before granting the prejudgment attachment or freezing order, the applicant must bring a claim on the merits within one month of the relief order being issued by the court. Where proceedings are not initiated within the required period, or if the case is discontinued, the precautionary measure will be reversed. The court will later render its final decision on the relief based on the written statements of the parties and the evidence presented.

A party seeking relief will, as a general rule, be obliged to provide security for any loss that the defendant may incur as a result of the relief.

The expenses incurred on enforcement of the relief will initially be covered by the applicant. The question of who ultimately covers the expenses will be decided, at a party’s request, as part of the final determination. A party who has unnecessarily resorted to a precautionary measure is liable to compensate the opposing party for the damage caused by the measure and its enforcement and to cover the expenses incurred in relation thereto.

The applicant will seek enforcement of the court's prejudgment attachment order from the enforcement authorities.

A claim may be preceded by an interim attachment over a debtor's assets by way of an ex parte application to either the President of the Judicial Court or the President of the Commercial Court which has jurisdiction. Prejudgment attachments and freezing orders are types of interlocutory measures and can be sought before, during or pending final resolution on the merits.

Attachments may target any kind of asset, including immoveable and moveable assets, bank accounts, shares, etc. For the judge to order an interim attachment, two conditions must be met: (i) the debtor's obligation towards the creditor must appear to be founded; and (ii) the creditor must demonstrate that there are circumstances threatening the repayment of the debt (e.g. the debtor may dissipate its assets). In assessing the former, the judge evaluates whether the evidence prima facie supports the creditor’s cause of action. Where an attachment order is granted, the debtor may seek its withdrawal before the same judge in an adversarial trial.

The creditor who obtained the attachment order from the judge must attach the asset within three months of the date of the order. After this time, the order is no longer valid. The creditor must commence an action on the merits within a month of the date of the attachment. In the event that the claim is not brought within the stipulated term, or the claim is dismissed in the proceedings on the merits, the creditor is liable for any damages caused to the debtor by the attachment.

A request to freeze assets or to issue a preliminary injunction must be filed in the court that is competent to hear the main claim. It is also possible for a request to freeze assets to be made to the local court of the district where the assets are located.

Freezing orders attach assets pre-judgment to secure the enforcement of monetary claims (or claims that could become monetary claims). Assets that can be attached generally include movable and immovable property of the debtor, including claims and shares of the debtor.

Preliminary injunctions secure the status quo for all non-monetary claims and can either be prohibitory (i.e. requiring a person to refrain from doing a specified act) or, in exceptional cases, mandatory (i.e. requiring a person to take certain actions).

To obtain a freezing order or a preliminary injunction the claimant must have an underlying claim (Verfügungsanspruch) and demonstrate the need for protection (Verfügungsgrund). In respect of the need for protection, the applicant must show that a change of the status quo might frustrate the enforcement of their rights or might make such enforcement significantly more difficult. If these preconditions are satisfied, the applicant can obtain temporary relief within days, or even hours. The courts tend to respond very quickly, especially in cases of breaches of competition law or patent infringements.

Generally, the court will not hear the debtor as this might frustrate the purpose of the proceedings. However, once a freezing order or a preliminary injunction is made, the defendant may raise an objection to the decision by way of appeal. There is no deadline for filing this appeal. If the main action has not been started, the court can also order the party in whose favor a freezing order or a preliminary injunction has been granted to bring a claim within a deadline set by the court. If the claim is not filed within this deadline, the attachment can be lifted.

If the court decides that the freezing order or preliminary injunction was granted without merit, the party which obtained the order is under an obligation to compensate its opponent for any damages it has suffered as a result of:

• the freezing order or the preliminary injunction; or
• its opponent having provided security to:
  • avoid a freezing order or the preliminary injunction being granted; or
  • obtain the repeal of such order.

Hong Kong courts can grant an interim freezing order, known as a Mareva injunction, which restrains a party from disposing of or dissipating its assets pending final judgment. A Mareva injunction is a type of interim relief, but the requirements that claimants must satisfy in order to obtain one are slightly different from the requirements referred to in interim relief proceedings, as further explained below.

It is possible to apply for a Mareva inunction to freeze any valuable assets of the defendant such as money in bank accounts, real properties, or shares in companies. However, the Mareva injunction will only operate to restrain the defendant from diminishing the value of their assets to less than the amount (usually the amount claimed by the claimant) specified in the injunction order.

The initial application for a Mareva injunction can be made either to the Court of First Instance or the District Court and is usually heard on an ex parte basis. Like other types of interlocutory applications, if a party applies for a Mareva injunction before an action is commenced, the injunction applied for may be granted by the court with a condition requiring the party to issue a writ of summons immediately or as soon as reasonably practical.

Any orders given ex parte will generally operate only for a limited period of time until the matter can be brought to a hearing involving all parties (ie an inter partes hearing). The plaintiff will generally file and serve the inter partes summons as soon as practicable or in line with the timeline specified in the order granted by the court for the Mareva injunction. An applicant seeking a Mareva injunction on an ex parte basis must provide full and frank disclosure of all matters relevant to the case, and will normally be obliged to give an undertaking to pay compensation for any losses or damage suffered by the opposing party in the event that the applicant later fails to prove that they are entitled to such an injunction order.

To obtain a Mareva injunction, an applicant must show that:

• it has a good arguable case on a substantive claim (ie a higher threshold than an application for an interlocutory injunction to restrain the commission of any allegedly wrongful act) which has already been commenced or is about to be commenced against the other party;
• the other party has assets within the jurisdiction;
• there is a real risk that the counterparty will dissipate or dispose of its assets unless restrained by the court; and
• the balance of convenience lies in favour of granting the injunction.

The applicant will be required to give undertakings, ie an undertaking in damages to compensate the other party or a third party (ie bank) for any loss incurred as a result of the injunction if it is subsequently set aside or the applicant fails to demonstrate the necessity of the injunction. However, the applicant will not be required to give any security to the court as a condition. Once granted, the Mareva injunction will be enforceable immediately and all relevant parties with notice or knowledge of the said injunction must do whatever they reasonably can to preserve the assets covered.

If the claimant asserts a proprietary claim over an asset currently in the possession of the defendant, the claimant may also apply for what is known as a proprietary injunction to restrain the defendant from disposing of or taking any action to diminish the value of the asset in question until final judgment.

To obtain a proprietary injunction, the applicant must show that:

• there is a serious case to be tried as to whether the applicant is the rightful owner of the asset;
• something ought to be done for the security of the asset, and that monetary compensation given at trial would not be an adequate remedy for the applicant; and
• the balance of convenience lies in favour of granting an injunction.

In Hungary, there are no prejudgment attachments or freezing orders available. If the parties wish to secure movable or unmovable property, they may seek to obtain: (i) a security measure; or (ii) register that there is a pending litigation with the land registry. These measures are not categories of interim relief. They can be distinguished from interim relief measures because: (i) the former are aimed at securing the future satisfaction of a claim, whereas an interim relief may also serve to prevent further damages, or preserve the status quo; and (ii) a security measure is ordered in a standalone court procedure, while interim relief measures may be ordered during or in connection with a litigation (including prior to filing a statement of claim).

Security measure

A security measure is an instrument similar to a prejudgment attachment or a freezing order under Hungarian law. A security measure may be requested in two types of cases:

• where the creditor's claim is based on a resolution or judgment which is not yet enforceable (e.g. because the period in which an appeal may be brought or the deadline for performance has not yet lapsed); or
• where there is ongoing litigation or arbitration on the same matter and both:
  • the amount; and
  • the date when the amount will be owed;
  • is evidenced by a public deed, or a private deed with full probative effect (private deeds with full probative effect are, inter alia, deeds where signatures are notarized or endorsed by two witnesses, and those duly executed by representatives of business associations).

In order to request a security measure, the creditor must also demonstrate that the enforcement of its claim post-judgment is at risk.

The purpose of a security measure is to secure the enforcement of claims that meet the above requirements. The security measure can secure a monetary claim, or the sequestration of specific objects. The measure is enforced by a bailiff.

In cases where the security measure is aimed at securing monetary claims, the bailiff visits the debtor at its domicile and requests the debtor to pay the amount specified in the court order immediately. If the debtor fails to do so, the bailiff seizes the debtor’s property by making a report. The physical absence of the debtor does not prevent the bailiff from carrying out the attachment procedure. Any object or property can be attached, including movable and immovable assets, or shares. Wages can be garnisheed if the debtor has no other enforceable assets to cover the amount to be secured.

If the debtor is a company, the bailiff first instructs the company’s bank to freeze the amount to be secured and if the balance of the account is less than the required amount, to do the same for future receipts. The bank then informs the bailiff of the amount for which it was able to freeze. The debtor's assets may be seized only up to the remaining amount of the claim.

General jurisdiction rules apply to the security measure, such that the request must generally be filed with the court of the debtor's residence. If there is ongoing litigation in relation to the same matter, the same court has jurisdiction over the security measure. However, as the security measure procedure may also be pursued to secure claims in relation to which judgment has already been given but are not yet enforceable, the security measure may not necessarily be followed by a decision on merits.

Creditors are generally not liable for any damages the security measure may cause to the debtor. In exceptional circumstances, for example, when a creditor has acted fraudulently or abused a debtor's rights, the creditor may be held liable, but this seldom happens.

Registration of litigation in case of property claims

A special kind of freezing order in Hungarian law is the registration of litigation with the land registry. This measure only applies in the case of immovable property. If the subject of the litigation is the ownership of immovable property, the claimant may ask the court to register the litigation on the land registry sheet of the property. Such a measure cannot be requested before filing a statement of claim. The court does not have to notify the defendant about such request and may order the registration of litigation prior to serving the statement of claim on the defendant.

Strictly speaking, this will not result in a freezing order, but after the registration of litigation takes place, all other rights and obligations will only be registered provisionally with the land registry pending the outcome of the litigation. So, for example, if someone sues for the ownership of a property, and the litigation is registered, the owner may still sell the property during the litigation. However, if the claimant wins, the ownership of the buyer will be removed from the land registry.

Claimants are generally not liable for any damages which the registration of litigation may cause to the defendant. In exceptional circumstances, for example, when a claimant has acted fraudulently or abused a defendant's rights, the court could in principle hold a claimant liable for such damages, but we are not aware of any decisions when such liability has been found.

In Italy, there are no prejudgment attachments or freezing orders. However, some interim measures, such as seizure (sequestro, also referred to in Interim relief proceedings), have the same effect as a prejudgment attachment or freezing order and prevent a defendant from dealing with the assets seized.

In order for a seizure to be granted, the applicant will need to meet the same requirements for all the other interim measures, namely:

• fumus boni iuris, which is a prima facie case of the right claimed; and
• periculum in mora, which is a well founded risk that the right which the interim measure seeks to safeguard may be irreparably harmed whilst the dispute is pending.

As with all other interim measures, the request is to be filed:

• before ordinary proceedings have started, with the judge who would be competent to hear the ordinary proceedings. If a foreign judge would be competent for the ordinary proceedings, the request is to be filed with the judge in the place where the measure is to be enforced; and
• pending the ordinary proceedings, with the judge that is in charge of the ordinary proceeding.

As with all other interim measures, the seizure can be granted ex parte whenever participation by the other party in the hearing would endanger the positive outcome of the measure. In such circumstances, a hearing must be scheduled no later than 15 days after the measure is granted. At the hearing, the measure can be confirmed, amended or revoked.

Assets which may be seized, by service or with the assistance of a judicial office, include movable and immoveable assets and claims on third parties, with the exception of all those goods whose seizure is forbidden by the law (e.g. furniture that is necessary for the debtor and the debtor's family to live).

As with all other interim measures, the judge granting the seizure shall set a timeframe, which shall be not longer than 60 days, within which a claim on the merits must be commenced. Where this timeframe is not adhered to, the interim measure will become ineffective.

There is no specific provision that sets out the liability of a creditor for any damage caused to the debtor by an interim measure. However, the general rule regarding responsibility for causing losses to third parties contained in Article 96 of the Italian Code may apply. Therefore, if the party who requested the seizure loses the substantive proceedings and it is deemed to have acted in bad faith or with gross negligence, it may be held responsible for all the damages caused to the other party. Moreover, a creditor may be held responsible for any damages caused to the debtor by the seizure if: (i) it is later found that the right for which the seizure was granted does not exist, and (ii) the creditor acted without due diligence.

In addition to seizures and other interim measures which have similar effects, at the request of a party within ordinary proceedings, a judge can order the payment of sums or the delivery of assets before the conclusion of the proceedings. Such orders may be made when: (i) the sums are not disputed by the parties, (ii) the conditions required for a seizure referred to above are met, or (iii) at the end of the evidence phase the judge deems that the claimant's right to payment or the delivery of assets has been proven. The purpose of such orders is to enable enforceable decisions on certain matters to be made in a shorter time than the judge may need to reach a final decision. These orders allow the party to commence an enforcement procedure, in line with normal enforcement proceedings.

Prejudgment freezing orders are a form of interim relief and are referred to as “Mareva injunctions”. As noted above, this restrains a defendant from disposing of assets or property where the defendant intends to do so in order to frustrate an actual or anticipated court order.

These orders can restrain a defendant from dealing with assets in Ireland and overseas (though local enforcement proceedings in the relevant overseas jurisdictions may be advisable to safeguard the effect of the order). It is important to note that an order will only restrain the defendant from dealing with the assets and does not give the plaintiff any right to them.

The court has discretion as to whether to grant a freezing order and will do so only if:

• There is a substantive cause of action capable of being enforced against the other party;
• The applicant has a good arguable case (and the burden of proof here lies solely with the applicant);
• The applicant can establish that there is a real risk the respondent will remove their assets or otherwise dispose of them in some way with the sole view that the applicant would not be able to recover what is due to them and that a court order would be frustrated. There must be evidence of the respondent’s intention (and it is not enough to show that the assets are likely to be disposed of in the ordinary course of business);
• The assets are capable of being frozen; and
• The balance of convenience lies in favour of granting the injunction.

The usual requirements for injunction applications will also apply (full and frank disclosure, undertaking as to damages etc).

As noted in the paragraph on Interim relief proceedings, plaintiffs wishing to secure assets may apply for the following types of provisional remedies by filing a petition at the district court:

• in respect of monetary claims, a provisional attachment order, which will freeze the debtor's assets including immovable and movable assets, bank accounts, shares and monetary claims to third parties in order to secure collection of the monetary claim; or
• in respect of non-monetary claims, a provisional disposition order to prevent a debtor from disposing of a property the subject of the dispute to any third party.

The procedure for these civil provisional remedies is generally ex parte.

The courts will only award these provisional remedies where the creditor can substantiate an underlying claim and demonstrate that there is an imminent risk that an eventual judgment would become impossible to enforce without provisional protection. It takes only a few days from the application being filed to the remedy being awarded. The provisional remedy is revocable by the court if: (a) the creditor does not file a substantive claim within the period stipulated in the court order made in response to the provisional remedy application (the minimum period which will be stipulated is two weeks); or (b) a creditor's claim is rejected in the final judgment by the courts. A creditor may be liable for damages suffered by an obligor as a result of the application of provisional remedies.

Civil execution is a procedure by which an obligee may compel an obligor's payment of a debt by seizure and sale of the obligor's property. For instance, if a debtor fails to make a monetary payment due under a contract, the creditor (based upon a claim that has been affirmed by a judgment or a judicial settlement) may be granted the right to seize the debtor's property, sell it by auction, and distribute the proceeds in satisfaction of the claim.

If the plaintiff who froze the defendant's bank account loses the lawsuit, the plaintiff may be liable for damages suffered by the defendant caused by the freezing order. Therefore, when issuing a freezing order, the court requires the plaintiff to make a deposit of 20-30% of the amount claimed.

Prejudgment attachments, such as freezing bank accounts, are taken before a claim on the merits. However, the main proceedings (litigation) must be filed by the creditor as a plaintiff within a certain period of time (specified by the court, not less than two weeks) after issuing of the interim relief measures. If the creditor does not file the main action, the court may withdraw the interim relief measures (prejudgment attachments) upon motion of the debtor.

A civil law claim can be preceded by an interim attachment on a debtor's assets through an ex parte application made to the President of the relevant District Court. These attachments can be imposed on different types of assets owned by the debtor, including immovable and movable property, bank accounts and shares.

Prejudgment attachments and freezing orders are examples of interlocutory measures that can be sought before, during, or pending final judgment and provide a means of securing the debtor's assets whilst legal proceedings have not been initiated or concluded.

The judge carefully evaluates whether the available evidence prima facie supports the alleged creditor's legal action. In interim relief proceedings, the alleged debtor is not heard as the procedure is conducted ex parte. Once the judge grants approval, a bailiff is authorized to attach the debtor's assets. The specific procedure for attachment depends on the type of asset involved. Generally, the process is relatively straightforward. The procedure for an attachment on the debtor’s assets, held by a third-party, involves two stages:

• The conservatory phase (phase conservatoire): The creditor blocks all assets held by the attached third-party on behalf of or owed to the debtor. A writ of attachment is served on the third-party, making the debtor's credit balance and assets unavailable for disposal. The debtor can request a limitation of the attachment's effects through court proceedings (“cantonnement"). Regarding the attachment of bank accounts, it is also important to note that there is no mechanism in Luxembourg for allowing a creditor to obtain information on the bank accounts of his debtor. It is therefore useful to know in advance in which bank the debtor might have bank accounts in Luxembourg; and
• The enforcement phase (procedure de validation): This phase includes the following steps:
  • Within eight days of serving the writ, the debtor is notified of the attachment and is summoned to appear before the court to defend themselves (“assignation en validation”); and
  • Within eight days of notification to the debtor, the third-party is notified by a bailiff of the validation action and the regularity of the attachment procedure (“contre-dénonciation”).

Following these procedural steps, an inter partes procedure takes place before the court, involving an exchange of briefs and a scheduled hearing.

It is crucial - once the abovementioned procedural steps have been taken - to bring a separate claim on the merits to obtain a validation judgment. The timeframe to bring a claim on the merits depends on the jurisdiction of the validation judge. If the validation judge also holds jurisdiction over the merits, the civil claim shall be filed concurrently with the validation action. However, if the validation judge lacks jurisdiction to also rule on the merits, the creditor needs to request a stay of proceedings and initiate a civil claim before the appropriate court that has jurisdiction. In this scenario, the civil claim shall be filed within a reasonable timeframe to pre-empt the debtor from challenging the interim attachment.

It is important to note that if the claim is dismissed during the subsequent proceedings on the merits, the creditor may be held liable for any damages caused to the debtor due to the attachment - particularly if there was negligence involved.

Once the validation judgment is issued and served to the third-party, an assignment of the claim is made to the pursuing creditor. The effect is to make the creditor of the debtor also a creditor of the third-party (thereby replacing the defendant), entitling them to recover the sums owed. Now, the creditor is able to request payment of the defendant's sums/assets held by the third-party.

A plaintiff may seek a prejudgment attachment by seeking an order of the Court of Urgent Affairs, to obtain and maintain an attachment over a party’s assets before the commencement of the hearings. Conservatory attachments can be made only to movable assets and can be on third parties. The procedure is ex parte, and a prejudgment attachment must always be followed by a claim on the merits, which should be brought within eight days after attaching the assets.

A protective attachment may be obtained and maintained in the following circumstances:

• the claimed amount is ascertainable and immediately payable;
• the plaintiff could suffer irreversible damage without the attachment; and
• if the plaintiff has not already done so, substantive action is commenced within eight days of the issuance of the attachment order.

Upon the grant of such interim relief, the judge issues an execution order. This order is passed to the Execution Department at the Ministry of Justice, which implements the enforcement of such relief.

The creditor can be liable for damages caused to the debtor by the attachment (if mala fide). The court will examine the intentions of the plaintiff, because the right to take legal action is a constitutional right.

Precautionary measures (providencias precautorias) are applicable also in commercial litigations when:

• When there is a well-founded fear that the person against whom an action is to be or has been brought is absent or concealed.
• Seizure of assets in the following cases:
• when there is a well-founded fear that the assets pledged as security or in respect of which a real action is to be brought have been disposed of, concealed, dilapidated, disposed of or are insufficient, and
• in the case of personal actions, provided that the person against whom the application is made has no assets other than those on which the action is to be brought and there is a well-founded fear that he will sell, conceal, dilapidate, or dispose of them.

Ordinary civil proceedings (including interim relief proceedings), may be preceded by a prejudgment attachment, which is a measure used to obtain security for the recovery of a claim. Although a prejudgment attachment may be provisional in nature, the procedure for obtaining it is distinct from interim relief proceedings.

The request to attach or freeze assets of the debtor should include details of the underlying principal claim and its supporting evidence, as well as a clear description of the assets a party wishes to attach. Immoveable and moveable assets (such as real estate, cars, art objects, boats and inventory), claims (including claims on banks i.e. the alleged debtor's bank accounts) and shares can all be attached in the Netherlands.

The judge assesses whether the evidence supports the alleged creditor's course of action prima facie. The procedure is ex parte, so the interim relief judge will not hear the alleged debtor. After obtaining leave from the judge, a bailiff can attach the assets. The procedure for this depends on the type of asset. In general, it is relatively easy, and if an urgent interest is deemed to exist (for example if a reasonable fear of embezzlement exists) judges might even grant approval the same day so that the creditor can freeze the assets right away.

In contrast to interim relief proceedings, a prejudgment attachment must always be followed by a civil claim on the merits, which can be filed in the Netherlands or anywhere else. The claim must usually be initiated within two weeks after attaching the assets. However, in complex or international cases the judge might set a longer term. The claim is considered “initiated” by serving the writ of summons. If the claim is not brought within the stipulated term, the attachments are lifted by operation of law. If this happens, or if the claim is dismissed in the proceedings on the merits, the creditor might be liable for any damages caused to the debtor by the attachment(s).

Apart from the regular Dutch law system, which provides for many options to freeze any debtor’s assets in the Netherlands, Dutch courts and bailiffs are well-experienced with European Bank Account Preservation orders. Therefore, the Dutch law system provides for a straight-forward procedure for creditors to obtain approval from the Dutch courts to freeze bank accounts in other European countries too, and the other way around.

Freezing orders are a type of interim relief, which restrain a defendant from disposing of property before a final judgment. These applications are usually made in the High Court, and they can be made on an ex parte basis if there are good reasons for that, i.e. that notice or service may prompt the feared dissipation or dealing with assets.

A freezing order or an ancillary order can be made over any type of asset, for example, bank accounts, shares, real property or motor vehicles, but will generally be limited to those assets within New Zealand.

A freezing order will be made only to preserve the status quo to resolve a substantive cause of action brought by the claimant, and not as a standalone remedy. Further, a party obtaining a freezing order is obliged to take all reasonable steps to bring the proceeding to a substantive hearing so that the adverse effects of the freezing order last for the shortest period practicable. There is no fixed timeframe. However, generally, the court awarding a freezing injunction will include terms allowing the court to consider at a later time whether the freezing injunction should remain in place or be discharged.

The criteria for the issue of a freezing order are similar to the ordinary principles for the grant of an interim injunction, as discussed above, although the potentially serious impact on a defendant's property rights raises the threshold for the granting of a freezing order. Generally, a claimant must show that:

• the claimant has a good arguable case (in the substantive cause of action);
• the refusal of a freezing order will give rise to a real risk that any judgment given in the proceeding will remain unsatisfied, or that the recovery of any judgment will be prejudiced by the defendant removing assets from the jurisdiction, or dissipating assets within it; and
• the balance of convenience favors making the order.

A claimant for a freezing order is required to provide an undertaking as to damages, where the claimant undertakes to submit to an order of the court for the payment of compensation to any person affected by the operation of the order, should the claimant be ultimately unsuccessful in the substantive cause of action.

Prejudgment attachments and freezing orders are temporary measures governed by the same principles as interim measures. However, attachment of goods requires an underlying monetary claim to be secured. These measures can be obtained before the main legal proceedings begin, and the application should be submitted to the District Court where the defendant resides or where the defendant’s assets are or are expected to be in the near future.

Upon the application of a party, Norwegian courts can order the attachment of assets, including anything convertible to money that belongs to the defendant. There are (limited) exemptions in place to protect individuals from losing essential items like clothing and the means to sustain their livelihood.

In order for Norwegian courts to seize assets, the debtor’s conduct must give reason to believe that enforcement of the claim would otherwise be evaded, considerably impeded or would have to take place outside of Norway. The claimant has to prove its substantive claim in addition to the valid ground for security on the balance of probabilities. An arrest has the effect of prohibiting or otherwise preventing the owner of the asset from dealing with it in a manner that would be prejudicial to the party in whose favour the arrest has been granted.

The court may require the party seeking relief to provide compensation security for potential losses incurred by the other party due to the granted relief. An asset arrest can be lifted if new evidence shows the claim or the need for security no longer exists or if the petitioner delays the main proceedings improperly.

These interim measures can only be granted if both the underlying claim and the need for interim relief are likely to succeed. Main proceedings should start within two weeks of obtaining interim relief, and self-representation is possible but rare.

In Oman, prejudgment attachments are referred to as precautionary attachments. A precautionary attachment can be sought from the Primary Court either as a precautionary or as an enforcement measure.

A precautionary attachment may be granted in circumstances where a party can prove: (i) that it is owed a due and payable debt; and (ii) the debtor is at risk of dissipating its assets and/or is a flight risk.

An application for a precautionary attachment is an ex parte application which requires substantive proceedings on the merits to be filed, by way of a claim, within two weeks of the application being granted.

Any fixed and/or movable assets of the debtor are liable to attachment, including:

• licenses and registrations (including its trade, commercial license and accounts with the labor or immigration authorities);
• fixed assets (including real property);
• moveable assets (including bank accounts, plant, office furniture, machinery and securities); and
• receivables owed to the debtor from third parties in Oman (including debts and liabilities).

Once an attachment order is granted, the court will write to various institutions where a debtor may have assets and the governmental bodies who regulate them. Those institutions include:

• the central bank;
• the real property registration authority;
• the commercial licensing authorities;
• the vehicle registration authorities; and
• the stock exchange.

In its letters, the court will confirm the value of attachment and request the relevant institutions to confirm the debtor’s assets that are held and/or registered by them. The court will then ask for attachment to take place over the assets to its relevant values.

The court can also attach specific assets that the applicant believes are in the possession of a third party but are owned by the debtor. This includes where the debtor has goods in the warehouse of a third party or receivables or debts owed to it under a contract or other instrument. The difficulty with placing an attachment on such assets is an evidential one; not only must the applicant be aware of the existence of the relevant assets, debts, or receivables, it must also prove to the court that the assets belong to the debtor.

Where a debtor’s assets are not sufficient to satisfy the value of the attachment, it is possible that some or all of its assets will be subject to attachment (to the extent they are discovered) regardless of whether they have any monetary value (for example, an empty or overdrawn bank account, or plant/machinery whose depreciation value is zero may nevertheless be subject to attachment).

The effect of an attachment is that assets are effectively frozen. For example, bank accounts are frozen and cannot be operated by their holder, and moveable assets and/or property are affixed with signs or seals to identify that they have been attached and cannot therefore be used.

It is also possible for a party to seek to impose travel bans on the authorized signatories and/or managers of the debtor. The individuals at risk will usually be those listed on the commercial license of the debtor.

There are two ways in which a party may lift an attachment on its assets. First, by providing security to the Court Treasury. Once this security is provided, the attachment can be transferred to the security, and so released from the debtor’s assets. The form of security is at the discretion of the court and can include:

• a payment into the Court Treasury for the amount of the attachment. Such payment can be made by a third party, such as any other debtor entity on behalf of the debtor; and/or
• the authorized signatory(ies) and/or manager(s) of the debtor depositing their travel documents with the Court; or
• by successfully challenging the attachment. Challenges to an attachment proceed through the following tiered appeal system;
• an initial grievance before the court that granted the attachment. It may be possible to successfully discharge a precautionary attachment after a successful grievance which usually takes three to four weeks to resolve (assuming that service of proceedings is effected swiftly);
• an appeal before the Court of Appeal; and
• an appeal before the Supreme Court.

An attachment, if granted, remains in place while the challenge to the attachment is being considered, which can take up to two years to conclude.

It is not possible for the debtor to claim damages incurred as a result of the attachment.

Security may be sought in any civil case heard by a court or an arbitration tribunal. The court may grant security prior to the start, or during the course, of the proceedings. In principle, the court which is competent to hear a case at first instance is also competent to grant security.

Security may be sought by any party to (or participant in) the proceedings if the party/participant can substantiate its claim and legal interest (by demonstrating prima facie that its claim is legitimate and has a legal basis) in having the security or injunction granted. A legal interest in having the security or injunction granted exists where the absence of security or injunction would prevent, or significantly hinder, the enforcement of a judgment issued in the case, or would otherwise prevent or significantly hinder the objective of the proceedings being achieved. Except as otherwise provided by law, no security may be sought to satisfy a claim.

Pecuniary claims can be secured through:

• attachment of movable property, remuneration for work, bank account receivables, other receivables or other property rights;
• encumbrance of the debtor’s immovable property with a compulsory mortgage;
• injunction prohibiting the transfer or encumbrance of immovable property which has no land and mortgage register or whose land and mortgage register has been lost or destroyed;
• encumbrance of a ship or a ship under construction with a maritime mortgage;
• injunction prohibiting the sale of a cooperative title to premises; or
• receivership established over an enterprise, agricultural farm or plant constituting part of the enterprise (in whole or in part).

With respect to claims other than monetary claims, the court shall grant such an injunction as it considers appropriate in the circumstances, not excluding a form of security or injunction relevant to monetary claims. In particular, the court may:

• regulate the rights and obligations of the parties to or participants in proceedings or pending proceedings;
• prohibit the disposal of assets or rights involved in the proceedings;
• stay enforcement or other proceedings aimed at enforcing a decision;
• decide on the custody of minors and contact with a child; or
• order that a relevant warning notice be recorded in a land and mortgage register or another relevant register.

In principle, the court should grant the methods of securing the claims preferred by the claimant.

The process takes place ex parte, i.e. except as otherwise provided by a specific regulation, an order granting security issued in the judge’s chambers, and enforceable by an enforcement authority, is only served on the creditor. Service on the debtor is effected by the enforcement authority after the order has been made. In the case of an order granting security, the creditor’s appeal or the decision of the court of second instance regarding the appeal will not be served on the debtor when the decision is enforceable by an enforcement authority.

A prejudgment attachment must always be followed by a claim on the merits. If the court grants security before proceedings are commenced, the court will set a deadline for filing the statement of claim of two weeks from the order granting security. Security will be lifted if (i) the statement of claim is not filed by the deadline set by the court; or (ii) the creditor (a) does not pursue the entire secured claim; or (b) pursues a claim other than that which was secured.

Equally, if (i) the creditor fails to file a statement of claim by the prescribed deadline or withdraws a statement of claim; (ii) a statement of claim is returned or rejected; (iii) an action is dismissed; (iv) proceedings are discontinued; or (v) the creditor does not pursue the entire claim or pursues a claim other than that which was secured, the debtor may claim damages against the creditor for losses caused by the enforcement of security. The claim for damages has a one-year limitation period from the date when the statement of claim is returned or rejected, an action is dismissed or proceedings are discontinued. If an appeal is filed with the Supreme Court, the one-year time limit will start running on the day when proceedings are concluded with a judgment or decision that cannot be appealed.

In Portugal, prejudgment attachments and freezing orders are procedurally deemed to be interim relief proceedings. In fact, some interim measures, such as seizures (also mentioned in the Interim relief proceedings section), have the same effect as a prejudgment attachment or freezing order, and prevent a defendant from dealing with the assets seized.

For a seizure to be granted, the applicant will need to prove the same requirements as all other interim measures, namely the fumus boni iuris and the periculum in mora.

A seizure request is filed before the Court where the assets are based and can be granted either before or during the hearing of a merits case between the creditor and the debtor. The court will only authorize the apprehension of property (either movable or immoveable assets) valued to the amount needed to cover and ensure the applicant’s credit.

Once a seizure order is issued by the court, the seized assets stay under the control of the court through an appointed depositary, who will be liable for any damages caused to the seized assets and/or the debtor during that time. A seizure cannot be requested ex parte.

If the decision on the merits is favourable to the applicant, the creditor will have the right to proceed with a forced auction sale of the assets seized. The provisions related to the enforcement sale apply, in particular in what concerns the auction sale (discussed under the Interim relief proceedings section).

In Qatar, prejudgment attachments are referred to as precautionary attachments. In summary, a precautionary attachment can be sought from the Court of First Instance either as a precautionary measure or as an enforcement measure.

A precautionary attachment may be granted in circumstances where a party can prove: (i) that it is owed a due and payable debt; and (ii) the debtor is at risk of dissipating its assets and/or is a flight risk.

An application for a precautionary attachment is an ex parte application which requires substantive proceedings on the merits to be filed, by way of a claim, within two weeks of the application being granted.

Any fixed and/or movable assets of the debtor are liable to attachment, including:

• licenses and registrations (including its trade/commercial license and accounts with the labor/immigration authorities);
• fixed assets (including real property);
• moveable assets (including bank accounts, plant, office furniture, machinery and securities); and
• receivables owed to the debtor from third parties in Qatar (including debts and liabilities).

Once an attachment order is granted, the court will write to various institutions where a debtor may have assets, and the governmental bodies who regulate them. Those institutions include:

• the central bank;
• the real property registration authority;
• the commercial licensing authorities;
• the vehicle registration authorities; and
• the stock exchange.

In its letters, the court will confirm the value of attachment and request the relevant institutions to confirm the debtor's assets that are held by and/or registered by them. The court will then ask for attachment to take place over the assets to the relevant value.

The court can also attach specific assets that the applicant believes are in the possession of a third party but are owned by the debtor. This includes instances where the debtor has goods in the warehouse of a third party or receivables/debts owed to it under a contract or some other instrument. The difficulty with placing an attachment on such assets is an evidential one; not only must the applicant be aware of the existence of the relevant assets/debts/receivables, it must also prove to the court that the assets belong to the debtor.

In circumstances where a debtor's assets are not sufficient to satisfy the value of the attachment, it is possible that some or all of its assets will be subject to attachment (to the extent they are discovered) regardless of whether or not they have any monetary value (for example, an empty/overdrawn bank account or plant/machinery whose depreciation value is zero may nevertheless be subject to attachment).

The effect of an attachment is that assets are effectively frozen. For example, bank accounts are frozen and cannot be operated by their holder, and moveable assets and/or property are affixed with signs or seals to identify that they have been attached and cannot therefore be used.

It is also possible for a party to seek to impose travel bans on the authorized signatories and/or managers of the debtor. The individuals at risk will usually be those that are listed on the commercial license of the debtor.

There are two ways in which a party may lift an attachment on its assets:

• by providing security to the Court Treasury. Once this security is provided, the attachment can be transferred to the security, and so released from the debtor's assets. The form of security is at the discretion of the court and can include:
  • a payment into the Court Treasury for the amount of the attachment. Such payment can be made by a third party, such as any other debtor entity on behalf of the debtor; and/or
  • the authorized signatory(ies) and/or manager(s) of the debtor depositing their travel documents with the Court.
• by successfully challenging the attachment. Challenges to an attachment proceed through the following tiered appeal system:
  • an initial grievance before the court that granted the attachment. It may be possible to successfully discharge a precautionary attachment after a successful grievance which usually takes three to four weeks to resolve (assuming that service of proceedings is affected swiftly);
  • an appeal before the higher Court of Appeal; and
  • an appeal before the Court of Cassation.

An attachment, if granted, remains in place while the challenge to the attachment is being considered, which can take up to a year to conclude.

It is not possible for the debtor to claim damages incurred as a result of the attachment.

In order to prevent the defendant from trying to dispose of his assets prior to a final judgment, Romanian courts can grant several types of provisional measures. These provisional measures and the interim relief referred to above are both special proceedings and share some commonalities, such as their temporary nature. However, under Romanian law, distinct procedures are required for (i) provisional measures ordered to prevent the defendant from trying to dispose of his assets prior to a final judgment; and (ii) interim relief ordered to preserve the claimant's rights, or to prevent irreparable damage to the claimant, until a final decision on the case is granted.

Among the provisional measures that Romanian courts can grant, the freezing of immovable assets and the freezing of bank accounts are the most important. In general, the same court that has jurisdiction over the substantive claim is the one that can grant provisional measures.

Although each measure has individual admissibility conditions, there are several features common to them all:

• the judge has discretion in granting the temporary measure, taking into account:
• the risks associated with delay; and
• the initial analysis of the claimant's case;
• in most cases, the law requires the claimant to provide a security deposit, which can vary in amount, up to 20% of the claim or, in exceptional cases, up to 50% of the claim;
• the interested party must provide proof that the claim was filed before the filing of the provisional measures request. Accordingly, these provisional measures cannot be requested pre-action; and
• the measures granted by the court are usually for a limited time period, until a final decision is rendered on the merits of the case.

The claimant may request the seizure of any movable or immovable assets belonging to the defendant (with limited exceptions such as personal or domestic use assets which are necessary for the daily living of the defendant or his family, letters, photos, etc.) or the freezing of bank accounts. It is not necessary for the claimant to identify in their request either the assets or the bank accounts.

The procedure is resolved initially without summoning the parties. Any appeals must be filed within five days of the decision, and it is mandatory for the court to summon the parties for the hearing of the appeal. Claimants can be held liable for damage caused to the defendant by the seizure should the court subsequently find that the attachment should not have been granted.

Pre-judgment attachments / freezing orders are categories of interim relief intended to secure the assets before the statement of claim is submitted to the court. The respective application may be filed to the court, for example, at the claimant’s registered address, or at the location of monetary assets or other property in respect of which the preliminary relief is requested.

The application should specify the subject-matter of the case, the reason for seeking the preliminary injunction and the relief sought, for example: attachment of respondent’s property or funds in a bank account or transfer of the item in dispute into the custody of the claimant or a third party. The respondent’s money and other assets may be subject to a freezing order.

When submitting such application, the applicant is usually required to also provide counter security (by way of a bank guarantee, deposit etc.) in the amount of the relief sought. A preliminary injunction is granted ex parte and state commercial courts are reluctant to grant preliminary injunctive relief even if sufficient counter security is provided by the applicant

If the preliminary injunctive relief is granted, the claim on the merits must be submitted to the court within a period set by the court, which will be no more than 15 days, otherwise the injunction will be lifted. If the claim is not brought within the stipulated time period, or the claim is later dismissed on the merits, the claimant will also be liable for the damages of the respondent arising from the injunction.

Saudi law does not explicitly categorise prejudgment attachments, such as freezing orders, as a type of interim relief. However, Saudi law gives judges a wide discretion as to what can be granted as interim relief, subject to the conditions listed under the Enforcement Law, which completes and supplements the application of the Civil Procedures Law. In the circumstances, (i) when the debtor has no established residence in the Kingdom; or (ii) when there is a risk of dissipation of assets, a claimant may make an application to the judge hearing the main claim, asking the judge to attach or freeze a defendant's asset(s). Such application may be made during the consideration of the main claim, or immediately before proceedings are commenced. However, it is extremely rare for this type of application to be made before the judge hearing the main claim.

In practice, attachments are ordered by the enforcement courts. In other words, in circumstances (i) and (ii) referred to in the preceding paragraph, Saudi judges usually seek to expedite the main proceedings and provide a final judgment as quickly as possible. Accordingly, claimants usually first establish their claims and obtain a judgement on the merits, and then they seek to attach or freeze the defendant's assets before the enforcement courts. As per the Enforcement law, the enforcement judge would most likely entrust the defendants with the custody of the attached assets on the condition of providing a guarantee or solvent guarantor. If the defendant refuses to retain the attached assets under their custody, or fails to provide a security or guarantor, the judge shall appoint a certified guardian to keep the attached assets under his / her custody. 

According to the Enforcement Law, all of the debtor's assets shall guarantee their debts. However, attachment of the debtor's assets shall not apply to the following:

• assets that are owned by the Kingdom;
• the residence of the debtor and their dependents, unless it is pledged to the creditors;
• means of transport of the debtor and their dependents, unless it is pledged to the creditors;
• wages and salaries, except for:
  • one-half of the total wage or salary in order to pay the alimony and child support; or
  • one-third of the total wage or salary in order to pay for other debts;
• tools necessary for the debtor to practice their profession; and
• in relation to the debtor's personal items, the judge will decide which items would be considered adequate for the debtor.

The Singapore courts have the power to grant a Mareva injunction to restrain the respondent from dealing with his assets. A Mareva injunction can be either worldwide or domestic in scope and extends to all assets legally or beneficially owned by the respondent. This includes tangible assets, choses in action and assets acquired after the date of the injunction is granted. Examples include real property, bank accounts, shares, bonds, stocks, machinery and equipment, salary (such as fees and commission) and cryptocurrency assets.

An application for a Mareva injunction can be made before or after the initiation of proceedings and while it is typically made against the defendant in the action, it may be made against a third party if it can be shown that the third party is holding assets of which the defendant is the beneficial owner. Where the Mareva injunction is made after the initiation of proceedings, the applicant must undertake to commence proceedings against the defendant as soon as practicable. The applicant will also usually be required to give an undertaking to abide by a subsequent order to as to damages for any loss that the respondent may suffer as a result of the Mareva injunction.

Given the urgent nature of Mareva injunctions, they are usually heard ex parte.

The court will only grant a Mareva injunction if it is just and convenient to do so. To this end, the applicant must show the following:

• the applicant has a valid cause of action over which the court has jurisdiction;
• there is a good arguable case on the merits of the claim (i.e., a more than barely capable of serious argument);
• the respondent has assets within the jurisdiction for a domestic Mareva injunction, or that the respondent has insufficient assets within jurisdiction to satisfy the claim and there are assets outside the jurisdiction for a worldwide Mareva injunction. Insofar as possible, the applicant must identify the assets which are to be subject to the order; and
• there is a real risk that the respondent will dissipate the assets to frustrate the enforcement of an anticipated judgment against the respondent.

Freezing orders are enforced by serving the order on the relevant respondent and third parties (if any). A failure to comply with the freezing order will be considered as contempt of court, which is punishable by fine and/or imprisonment.  

Slovakia’s civil jurisdiction recognizes two legal remedies that could fall within the scope of prejudgment attachments, namely security measures and interim measures. The court may, by way of a security measure, create a lien on the property, rights or other assets of the debtor to secure a pecuniary claim of the creditor. The lien is established by the issue of a resolution on the security measure and is created by entry in the relevant register. Enforcement of the lien may only take place after the claim has been validly recognized by a court decision.

The court may only proceed to examine whether an interim measure is justified if it concludes that a security measure is not preferable. A security measure may only be granted if the creditor has a pecuniary claim and there is a fear that future enforcement may be jeopardized. Interim measures, unlike a security measure, may also be granted where there is an immediate need to adjust the situation as between the parties to the dispute. Interim measures may also be granted during the main proceedings. Further discussion of interim measures can be found under the “Interim relief proceedings” heading above.

The substance of a freezing order is that the court may, at the creditor’s request, create a lien on the debtor’s property, rights or other assets to secure the creditor’s pecuniary claim if it is feared that the execution will be jeopardized. The procedural provisions applicable to interim measures also apply to freezing orders.

The freezing order extends the possibilities for creditors to secure payment of their monetary claims and also strengthens the position of the creditor, as the creditor’s position in the hierarchy of creditors changes to that of a lien creditor. However, the enforcement of the lien can only take place after the claim has been validly recognized by a court decision. It follows from the above that there is distinction between the securing of, and the enforcement of, a freezing order. On the one hand, it allows the freezing order to be imposed even without submitting an application on its merits; on the other hand, it makes the enforcement of the lien conditional on the existence of a claim granted by a court decision.

South African law does not make provision for prejudgment attachments and freezing orders. However, a party can utilize the mechanism of an interim interdict to preserve a legal right pending the outcome of an action or application proceeding. For further information to that end, please see the section regarding interim relief proceedings.

For information on prejudgment attachments and freezing orders reference is made to the section regarding interim relief proceedings.

Prejudgment attachments and freezing orders are types of interim relief. They can be applied for both before and during the proceedings. An application for a prejudgment attachment or freezing order should be made before the court that will be competent to hear the dispute once proceedings are commenced, or before the court hearing the dispute if the freezing order is sought during the proceedings.

These measures are initiated by the claimant (or future claimant) in the main proceedings. In principle, the court is required to hear both parties. However, if there is urgency and there is a risk that the property to which the attachment or freezing order relates may disappear before the court can hear the parties, the court will make its decision without hearing the defendant (in absentia or ex parte). It is mandatory for parties to be assisted in the hearing by a lawyer and legal representative (procurador de los tribunales).

In order to be successful, an applicant seeking a prejudgment attachment or freezing order will need to satisfy the criteria for granting interim measures referred to in interim relief proceedings, briefly:

• appearance of a good claim;
• risk of irreparable harm if the granting prejudgment of the attachment or freezing order is delayed; and
• offer of security to the court.

The assets that can be attached, by way of a prejudgment attachment or freezing order, are money or bank accounts of any kind; credits; securities or other financial instruments; immoveable assets or remuneration; and pensions and income from self-employed professional and commercial activities.

Where prejudgment attachments and freezing orders are requested before issuing the claim, the party requesting the relief must plead and prove urgency or necessity. Pre-action measures will become void if the main claim is not brought before the same court within 20 days of granting such pre-action relief.

If the claimant is eventually unsuccessful in its claim or the court later finds that the prejudgment attachment or freezing order was granted wrongly, it could be held liable for any damages caused to the debtor by the prejudgment attachment or freezing order.

In Sweden, prejudgment attachments / freezing orders are types of interim relief. A request to attach / freeze assets of a debtor should be filed in the court that will hear the substantive claim (or is hearing the substantive claim if the request is made while the proceedings are pending). All assets that may be subject to enforcement (for example, immoveable and moveable assets, claims on third parties and shares) may be attached or frozen.

The judge will assess whether the evidence prima facie supports the creditor’s claims and may decide not to hear the debtor’s response before granting the measure (i.e. the measures may be granted ex parte) if there is a risk that the property will be disposed of in the meantime. A prejudgment attachment must be followed by a claim on the merits within one month, otherwise the attachment will be lifted. The creditor can be held liable for damage inflicted on the debtor by the attachment.

The pre-judgment attachments and freezing orders are categories of interim relief. A plaintiff is entitled to file, with its complaint or at any time before judgment, an ex parte application requesting the court for an attachment order. The plaintiff must file such a request at the same Court of First Instance that it filed its complaint at.

Any objects or assets can be attached, including (without limitation): immovable and movable assets, IP rights, claims on third parties and company shares.

The court must generally be satisfied that:

• the plaintiff has a fair and reasonable cause and sufficient grounds for applying for the protective measures; and
• the defendant intends to remove the whole or part of the property in dispute from the jurisdiction of the court, or transfer, sell or dispose of such property, in order to delay or obstruct the execution of any order made against it or in order to prejudice the plaintiff.

The court may also grant such an order on any other ground that it thinks is fair and reasonable.              

The request for a prejudgment attachment and freezing order will need to be made in parallel with the claim on merits.

The applicant of an attachment order as such can be held liable for any damages caused to the defendant by the attachment on the following grounds:

• the applicant is unsuccessful and had misled the court into believing that its application had merit; or
• regardless of whether the applicant is successful or not, it misled the court into believing it and satisfied the grounds to request for interim relief.

Freezing orders are a type of interim relief. Like other types of interim relief, a freezing order can only be granted before proceedings are commenced if the matter is urgent or it is otherwise necessary to do so in the interest of justice. 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.

Freezing orders can be obtained from the courts in respect of assets within England and Wales or beyond where the respondent has insufficient assets within the jurisdiction to cover the amount of the claim.

Freezing orders are typically applied for without notice and, if granted, will usually be made for a period of time following which a return date will be fixed for a full, with notice hearing. The return date, usually between seven to 14 days from the grant of the freezing injunction, provides the respondent with an opportunity to challenge the order. A worldwide freezing order will cover assets anywhere in the world, though local enforcement proceedings will be required to give it effect.

All types of assets may be frozen, including bank accounts, shares, motor vehicles and land. The assets should not be perishable but may be intangible, for example goodwill or after-the-event insurance premium.

An application must be made to the court where the claim was started. The court has discretion as to whether to grant a freezing order and will do so only if:

• the applicant has a cause of action against the respondent;
• the applicant has a good arguable case;
• the respondent has assets that exist within the jurisdiction;
• there is a real risk of dissipation of those assets without the freezing order; and
• it is just and convenient for the court to exercise its discretion in favor of the grant of the freezing order.

The applicant will usually also have to provide an undertaking in relation to damages to the court, agreeing to compensate the respondent if it later turns out that the applicant was not entitled to the freezing order and the respondent has suffered loss in the meantime.

Interim attachment is a type of interim relief measure. It is a remedy available in Scotland to freeze a party's corporeal moveable assets (with certain exceptions) pending the outcome of legal proceedings. To obtain the remedy the applicant is required to demonstrate, on the balance of probabilities:

• a prima facie case on the merits;
• that there is a real and substantial risk that any judgment in favor of the applicant would be defeated or prejudiced by the debtor's insolvency, or the debtor disposing of the assets in some manner; and
• that the order is reasonable in the circumstances.

The remedy can be applied for at any time during the progress of a court action or shortly before one commences. The order can be obtained without notifying the other party in advance (ex parte), but in such circumstances a subsequent hearing is fixed to enable the other party to be heard. If an interim attachment order is executed wrongfully the creditor can be held liable in damages to the debtor.

Please note that only corporeal moveable property may be subject to an interim attachment order. Bank accounts and funds in the hands of a third party may be subject to an arrestment on the dependence of an action. Arrestment prevents the debtor from disposing of funds or goods held by a third party. Inhibition prohibits the debtor from disposing of, or otherwise transacting with, heritable property (real estate), pending the outcome of a court action. The criteria for obtaining an arrestment or inhibition on the dependence of the action are the same as those for interim attachment.

These remedies are available in both the Court of Session and the Sheriff Court. The application must be made in the same court in which the action has been (or is being) commenced. The application is made as part of a claim on the merits, either when warrant (or authorization) to serve the claim is applied for or during the progress of the action through the court. Where the application is made and granted before the claim is served then service of the claim will follow immediately and a hearing will be fixed for the respondent to address the court.

Pre-judgment attachments are generally enforced by the creditor serving a copy of the order on the debtor and/or any relevant third party such as the debtor’s bank. This has the effect of imposing limitations on what the debtor can do with their funds, property or other valuable assets pending the outcome of the case. Where an interim attachment order is executed wrongfully, the creditor can be held liable in damages to the debtor.

Freezing orders are a category of interim relief that both the DIFC and ADGM courts have the power to grant. It is also worth noting that, in the case of the DIFC courts, there are cases in which freezing orders granted in other jurisdictions have been enforced. These applications are made to the relevant Court of First Instance.

Orders can be made for the freezing of any assets (moveable and immoveable). However, the enforceability of those orders will depend on whether the jurisdiction in which they will be enforced recognizes such orders (or have the power to grant such relief). For example, the DIFC court could make an order to freeze (or otherwise attach) the shares of a limited liability company in onshore Dubai. Whether that attachment will be effective will be subject to: (i) whether the Dubai courts will recognize the DIFC court's order; and (ii) whether such a form of relief is one that is available under the laws of Dubai and the UAE (and therefore one that the Dubai courts can grant).

The DIFC court generally follows English law principles when considering applications for freezing orders. The considerations for such applications include:

• that there is a serious question to be tried;
• that the balance of convenience is in favor of granting such an order;
• that there is a likelihood of injury/damage for which damages would not be an adequate remedy;
• the applicant having an underlying cause of action, in that the applicant must have a substantive claim that may give rise to a judgment that will be enforced against the respondent's (potentially frozen) assets;
• the applicant having a good arguable case;
• the existence of the respondent's assets and such assets being sufficient to meet the applicant's substantive claim; and
• a real risk of dissipation of the respondent's assets.

Furthermore, in ex parte applications (i.e. where the respondent is not present at the first hearing), the applicant is under a duty of full and frank disclosure which in turn requires it to disclose all relevant material to the court, including material which may be adverse to its case.

Additionally, an applicant obtaining a freezing order from the DIFC courts is generally required to provide a cross-undertaking in damages. This would act to satisfy any damages the respondent incurs where it transpires that the application was wrongfully granted.

The ADGM courts are likely to apply a similar approach.

Both the ADGM and DIFC court rules recognize that applications for interim relief (which include freezing orders), may be made before any substantive proceedings are commenced. In that regard, both court rules provide that the court may give directions requiring a claim to be commenced. Therefore, the issuance of any substantive proceedings will be subject to the discretion of the court.

No common law right to prejudgment attachment exists in the United States. Attachment may be available as a prejudgment remedy under state statutes addressing the subject. Federal courts may attach property to the extent permitted by the law of the state in which they sit.

A request for a prejudgment attachment or freezing order must be requested from the applicable trial court. A request for attachment or a freezing order may be made at the time the complaint is filed but cannot be requested prior to a suit being commenced. When prejudgment attachment is authorized, courts typically have discretion to issue prejudgment writs of attachment that prevent a defendant from disposing of or hiding tangible or intangible assets that may be used to satisfy any judgment the plaintiff ultimately obtains. A plaintiff seeking prejudgment attachment may be required to post a bond to cover any damage caused to the defendant’s property in the event that the plaintiff does not succeed on its claims.

The criteria for the issue of a prejudgment writ of attachment are similar to the ordinary principles for granting injunctive relief, although courts have recognized that attachment is a severe remedy that is appropriate only if the plaintiff produces evidence showing an appreciable risk of being unable to enforce a future judgment. Relief may not be sought without notice to the other parties. Because the procedure seeks to attach assets prior to a judgment being entered, a court is likely to require a high burden of proof showing that the plaintiff will be entitled to relief once the litigation concludes.

Broadly and generally, a request for prejudgment attachment is assessed across four factors, similar to those used when considering requests for injunctive relief:

• whether the applicant is likely to prevail on the merits of its case;
• whether the refusal of a writ of attachment will give rise to a real risk that the plaintiff will be unable to enforce any judgment rendered in its favor;
• whether the balance of the equities favor the attachment; and
• whether the public interest favors the attachment, meaning that attachment must further an important interest beyond the claims in the litigation itself.

Notable State Variations

• California: By statute, only property located in California is subject to attachment. Property outside the state may not be attached by a California court;
• Delaware: The banking and insurance industries are exempt from prejudgment attachment, both as to deposits held in Delaware as well as any asset owned by an entity that qualifies as a bank; and
• Illinois: By statute, Illinois requires that a plaintiff requesting a writ of attachment post a bond equal to double the value of the property to be attached.