1 Study JAI A3/02/2002 The Netherlands: Dr. Mirjam Freudenthal ...

2.2 Performance to act: It is quite usual in a kort geding procedure to request an injunction
to do or not to do something in particular. As a rule these injunctions include an ‘astreinte’.
These astreintes are most effective in forcing the defendent to obey the injunction. If the
defendent is unwilling to perform the act which is the subject of the injunction the claimant
may request, e.g. in kort geding, that he be authorized to perform the act himself, the so-called
execution in rem (art. 3:299 ss 1 BW). Execution in rem is most useful in claims for the
rectification of press articles or advertisements. The injunction to transfer immovable property
and the execution of an injunction in rem are governed by Arts. 3:300 and 3:301 BW.
2.2.1 See 2.2.
2.2.2 See 2.2
2.3 The preconditions for obtaining provisional measures
2.3.1 With regard to the claim that is to be secured:
2.3.1.1 Conservatory arrest: the claim must be due at the moment when the conservatory
arrest becomes executory, that means at the moment the judgement becomes due.
In kort geding the claim has to be due.
2.3.1.2 Yes, see under 2.3.1.1. And in special cases: e.g. in maintenance procedures a
conservatory garnishment with the bank or employer can be made for future payments.
2.3.1.3 No (see questionnaire on garnishment).
2.3.1.4 Not applicable
2.3.2 With regard to the potential injury to the plaintiff
2.3.2.1 There are several kinds of conservatory arrests related to the goods to be attached.
Only in cases of a conservatory arrest on non-registered movables in the posession of the
debtor as well as on rights to bearer and order (rechten aan toonder en order) (art. 711 CCP)
must there be a fear of embezzlement. Urgency is not required. In other conservatory arrests
this condition is not required.
2.3.2.2 Not applicable
2.3.2.3 Not applicable
2.3.2.4 No
2.3.3 Additional preconditions. None. But for more information see questionnaire
garnishment
2.4 Proceedings to obtain an order for provisional measures (only conservatory arrest, kort
geding will be discussed under 3 and 4)
2.4.1 which court has jurisdiction:
2.4.1.1 Art. 700 CCP: the ‘voorzieningenrechter’ of the district court has jurisdiction where
one or more of the goods in question are in his judicial district. See for rights and claims:
questionnaire garnishment 1.1.: jurisdiction lies with the court of the place of the debtor’s
habitual residence as well as that of the habitual residence of the garnishee. It does not have to
be the court hearing the main procedure. Article 99 CCP: the venue is at the court of the
defendant’s habitual residence.
2.4.1.2 No
2.4.1.3 See under 2.4.1.1.
2.4.1.4 The ‘voorzieningenrechter’ of the district court.
2.4.1.4.1: a single judge
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