2. Provisional measures securing the enforcement of judgment ...

2. Provisional measures securing the enforcement of judgment (attachment/freezing injunctions) 

The pre-conditions for obtaining 

provisional measures 

Proceedings to obtain 

an order for 


Content and effect of 

the provisional 

measure 

Provisional 

measures 

security 

and 

Enforcement of the 

protective measure 

Provisional Measures and 

main proceedings 

Relationship between 

interim proceedings and 

provisional 

enforcement? 

Austria 

-with regard to pecuniary claims, 

an enforceable title precludes 

the order of a provisional 

measure (§379 I EO) as 

provisional enforcement is 

possible; for other claims, an 

enforceable title does not affect 

the order of a provisional 

measure as provisional 

enforcement in these cases is 

not possible 

-claim does not have to be due 

and a conditional claim can be 

secured; a future claim cannot 

be secured 

-pecuniary claim: concrete 

subjective danger (§ 379 II EO) 

which means imminent prospect 

of frustration of enforcement of a 

judgment on the merits + 

concrete objective danger 

(decision would have to be 

executed in countries that have 

not ratified the Brussels/Lugano 

convention) 

- with regard to other claims 

objective danger is sufficient; 

pursuant § 381 Z 2 EO imminent 

danger of violence or damage 

- competence: Court : 

-- pending the main 

proceedings: the court 

of the main 

proceedings (§387 I 

EO; in family or 

competition law 

matters this court is 

always competent); 

--during the execution: 

the competent court 

for the execution; 

-- Before case is 

pending AND 

between final verdict 

on the merits and 

enforcement: regional 

court at domicile of 

defendant or at the 

place where disputed 

object is located 

- claim, supporting 

facts and urgency 

must be made 

credible; only 

“present” proofs 

allowed,; simplified 

evidence procedure; 

-pecuniary claims: 

measures mentioned in 

§ 379 III EO are 

compulsory; for other 

claims court has 

discretion (§382 EO) 

within the limits of the 

applicant’s claim (405 

ZPO) 

- deposit of movables 

(§379 III Z 1 EO) with 

regard to pecuniary 

claims and other 

individual claims 

- with regard to a 

pecuniary claim or a 

claim of restitution: 

disposition by debtor is 

prohibited and may 

also be ordered 

against a third party 

debtor 

- operation in 

personam against the 

debtor: not possible in 

pecuniary claims, but 

may be used to secure 

other claims (§ 386 I 

EO) 

- security of the 

creditor can be 

ordered: 

-- to “complete” 

insufficient but 

existing means of 

proof of a 

monetary claim, if 

any imminent 

damage can later 

be repaired with 

money 

-- in other cases 

on discretion of 

court court 

- security can be 

ordered ex post 

- court enforces the 

measure ex officio; if 

necessary (e.g. seizure of 

a corporal object) a bailiff 

assists the court 

- execution is not subject 

to the general law of 

enforcement, provisional 

measures are sui generis 

bases for enforcement ; 

general law is applicable 

for prohibition/bid of 

actions [specific 

performance?] (§ 382 I 

EO) 

- no further sanctions 

available 

- Pre-conditions: (1) 

service of the order on the 

debtor; (2) proof of 

lodgement of the security 

- provisional measure 

must be enforced within 1 

month (§ 396 EO); 

provision is only 

applicable, if p.e. depends 

on a security of creditor; if 

security is not given within 

this time, provisional 

- if provisional measure is 

ordered prior to main 

proceedings commencing, 

order of the court on p.m. 

contains a deadline, after 

the expiration of which the 

measure has to be 

overruled ex officio 

- court of main proceeding 

can change the order e.g. 

in case of 

--excessive collateral 

[Übersicherung], 

-- new facts making lapse 

need for protection (§ 399 I 

EO) 

- Strict liability of debtor 

pursuant to § 394 I EO if 

-- the claim can not be 

proven during main 

proceedings, 

--application for p.m. was 

not justified seen from an 

ex post perspective 

- provisional measure is 

subsidiary to provisional 

enforcement in case of 

pecuniary claims; 

concerning other claims 

provisional enforcement 

is not possible 

- interim proceedings 

are summary 

contended proceedings 

allowing later execution, 

(like a provisionally 

enforceable title) while 


as such is an executive 

proceeding

can also be a basis 

- existence of competing claims 

from other creditors does not 

support order for p.m. 

- generally: ex-parte 

decision; oral 

proceedings after 

appeal by defendant 

- the applicable law is 

determined by conflict 

of laws rules; in cases 

of special urgency 

Austrian law can be 

applied 

- no liens created 


is drafted as an order 

that must include 

grounds 

- either side may seek 

normal appeal 

(“Rekurs” ), in addition 

defendant can object 

(Widerspruch) 

measure lapses 

-Additional penalty by the 

court possible if creditor 

applied for an order 

vexatiously

The pre-conditions for the 

obtaining of provisional 


Proceedings to obtain an 

order for provisional 



the provisional measure 



and security 



Provisional Measures 

and main proceedings 

Relationship between interim 

proceedings and provisional 


Belgium 

In general, claim must be due; 

future claims can not be 

secured 

Conservatory seizure (saisie 

conservatoire) requires title or 

authorisation by court, in latter 

case, creditor has to prove 

claim, but relaxed standard of 

proof 

the extent of the p.m. ordered 

will depend on the level to 

which the claim is proved 

Seizure requires the danger of 

insolvability of debtor (1413 

CJ) 

Injunction (ordonnance de 

référé): urgency required (584 

CJ) 

Competence: 

Seizure: “Judge of 

seizures” (enforcement 

court ?) 

Injunction: juge des 

référés or court already 

hearing the merits of the 

claim 

Conservatory seizures 

are ordered ex-parte 

Injunctions are granted 

after an adversary (oral) 

procedure; exceptions 

possible if absolutely 

necessary (1025-34 CJ) 

Judge carries out a 

summary examination 

Conflict of laws rules 

applied 

Content of a provisional 

measure is not 

determined by law, but 

the court determines 

each case on its 

individual facts 

Seizure: 

-prohibition on the 

disposition of the seized 

goods is effected 

against the debtor (and 

the third party debtor) 

-no lien on seized 

assets 

-valid for 3 years 

Decisions are drafted 

as an order and include 

grounds Seizure can 

later be modified / 

revoked 

General rules of 

enforcement apply; the 

bailiff is responsible for 

the enforcement 

If debtor disregards 

seizure by disposing of 

assets, this constitutes 

criminal offence 

Time limits: saisie 

conservatoire is 

effective during 3 years; 

exception: seizure of 

immovable property 

Debtor can demand 

initiation of main 

proceedings 

Court deliberating on the 

merits can amend or 

overrule injunctions and 

order the return or 

release of seized objects 

Liability of creditor if the 

p.m. was based on 

incorrect factual 

allegations of the debtor 

P.M. are p.e. by law 

There are considerable 

differences: 

-interim proceedings have an 

effect on the legal situation 

and are therefore considered 

as actions 

-provisional enforcement is 

only regarded as a 

consequence of the decision 

that has already been taken 

and is therefore not 

considered as an action 

Remedies 

!?): 

(injunctions 

-appeal 

-opposition in case of 

default judgments 

-third party opposition

The pre-conditions for 

the obtaining of 


Proceedings to obtain 

an order for provisional 






and security 








provisional 


Denmark 

-claim does not have to 

be due; a future claim 

can be secured 

- creditor not required to 

present an enforceable 

title, because in this 

case generally 

enforcement would 

possible (627 Nr. 1 

Rpl,) if no objection[?] 

was filed against the 

title; priority of 

enforcement 

- “arrest” can only be 

ordered if chances of 

later payment are 

substantially diminished 

- regarding potential 

injury, creditor has to 

show urgency, e.g. 

imminent frustration of 

enforcement of a 

judgment on the merits; 

the imminence of 

competing claims from 

other creditors is not 

sufficient 

- court at the place of 

enforcement measures 

is competent; pursuant 

to §§ 631 II, 487 Rpl. 

general provisions on 

jurisdiction in enforcement 

matters apply 

- presentation of 

evidence by the creditor 

requires all information 

about concrete 

circumstances and 

other important details, 

documents; court 

decides in its discretion 

- in principle: debtor is 

to be heard, 

proceedings are oral 

exeption: danger of 

frustration (§§ 631,493 

Rpl) 

-prima facie evidence is 

sufficient 

-conflict of law rules not 

necessarily applied 

- with regard to arrest: 

pursuant to § 631 II Rpl 

concerning the effect of 

the arrest, provisions 

relevant to attachment 

are applicable 

(exception: rules of 

realization) 

- most effects are 

determined by 

legislation, but court 

also has discretion 

-content: blocking of 

assets (632 II Rpl.); 

prohibition on 


goods against the 

debtor (§§ 631 II, 519 I 

Rpl.) 


does not operate in 

personam against 

debtor (since 1976); 

- creditor does not 

obtain a lien on the 

seized assets 

-measure is drafted as 

an order 

- order that the creditor 

lodge security is 

possible pursuant to § 

629 Rpl. 

-court has discretion; 

exercise of which is 

influenced by likelihood 

that claim exists and 

debtor is solvent 

-security can be 

deposited in cash or by 

cheque at court; other 

assets also can be 

deposited 

-amount of the security 

depends on amount of 

the claim 

- security can be 

ordered subsequently 

-enforcement court is 

the enforcement organ 

-enforcement of the 

provisional measure 

takes place according 

to the general law of 


- if debtor does not 

follow the provisional 

measure he can make 

himself liable to (penal) 

prosecution pursuant § 

283 I Nr. 1 Strfl. 

-pre-conditions of 

enforcement:(1) service 

of the order on the 

debtor is not required if 


enforcement is 

assumed; third party 

debtor must be 

informed by creditor in 

order to avoid liberating 

effect of payment to 

debtor; (2) proof of 

performance of the 

security: court has 

discretion; (3) full 

averment of facts 

- main proceeding has 

to be initiated within 

one week by the 

creditor; in cross-border 

cases within 2 weeks 

(634 Rpl.), else debtor 

can demand abrogation 

of the arrest 

- court of the main 

proceedings can amend 

or overrule the order 

and can order the 

return/release of the 

seized items 

-debtor has further 

claim in damages, if 

arrest has been ordered 

wrongly (639 Rpl.), 

notably if the creditor’s 

claim was not fully 

justified 

- arrest does not allow 

realization of items, but 


does 

- if pre-conditions for 

arrest are given, 

generally a waiver of 

the deadline of 

execution is possible 

- arrest is excluded, if 

creditor disposes of an 

enforceable title (627 

Nr. 1 Rpl.) 

- targets are different: 

arrest ensures later 

enforcement before 

pre-conditions for 

enforcement are given; 

provisional 

enforceability allows 

satisfaction of the 

creditor; remedies 

exclude each other












security 

and 








Finland 

-claim must not be due 

-a future claim can be 

secured 

-urgency is not required; 

instead the pre-requisite with 

regard to the potential injury 

is the requirement of 

“danger”,(danger of loss of 

property by the opposing site, 

or danger of decrease of 

value of another petitioner´s 

right by active or passive 

behaviour of the other party 

(Chapter 7, Sections 1-3 of 

the Code of Judicial 

Procedure) 

-additional prerequisites: debt 

or other right in question 

should be enforceable by a 

decision referred to in the 

Enforcement Act (requirement 

on the nature of the claim, 

because main proceedings 

have to be initiated within one 

month) 

-court hearing the main 

proceeding 

has 

jurisdiction during the 

main proceeding and until 

deadline for a reply has 

lapsed; before institution 

of main proceeding: 

Chapter 10 of the Code of 

Judicial procedure 

- bailiff has jurisdiction in 

enforcement stage 

- decision-maker is a 

single judge prior to the 

institution of the main 

proceedings, afterwards 

composition depends on 

the main issue 

-evidence in relation to 

danger: mere allegations 

sufficient 

-in principle no ex parte 

proceedings, exeption: 

danger of frustration; 

(protective brief possible) 

-standard of proof: 

probable evidence; with 

regard to pre-condition of 

danger: burden of 

proofing the allegation 

-content of the measure 

is determined by 

legislation, court 

discretion 

-contents: blocking of 

assets, prohibition on 

disposition of the 

seized goods against 

debtor/third party 

debtor 

- measures do not act 

in personam, creditor 

does not get a lien on 

the seized assets 

- measure is drafted as 

a decision (Chapter 24, 

Sec. 1 of the Code of 

Judicial Procedure 

- decision by a court, 

normally no grounds 

included 

-court decision on a 


may be independently 

appealed, apeeal does 

not have suspensive 

effect 

-in principle 

posting of security 

required before 

enforcement takes 

place (Chapter 7, § 

7 Enforcement 

Act); 

exceptions 

possible 

- if creditor is 

unable to provide 

security and 

- his right is 

manifestly wellfounded 

-competence: 

enforcement organ / 

bailiff 

- execution of the 

pm is subject to the 

general law of 


(Chapters 3-4 of 

Enforcement Act); 

also provisions in 

Chapter 7 of 

Enforcment Act 

-further sanctions if 

debtor does not fulfil 

order 

- service of the order 

on the debtor is 

necessary; interim 

orders are enforced 

without prior notice 

-the performance of 

the security must be 

checked 

-effect of the 


is not subject to 

execution of the 

order within a set 

period of time 

-if measure has been 

granted, applicant 

normally has one 

month to initiate the 

main proceedings, 

else p.m. will be 

abrogated; court must 

notify the applicant 

how he must act to 

prevent the measure 

being cancelled 

(Chapter 7, Section 

11/12 of the Code of 

Judicial Procedure) 

-court of the main 

proceeding can 

overrule or change the 

order, but it cannot 

order the release of 

the seized items 

(bailiff is competent) 

-debtor has further 

basis for claiming 

damages (Chapter 7, 

Section 11/12 of the 

Code of Judicial 

Procedure) 

-Enforcement Act differentiates 

between terms like “judgment” 

(garnishment is possible, before 

judgment has gained legal force) 

and “provisional measures” 

(legal force is not required for 

enforcement) 

- judgments that can be 

provisionally enforced have 

been subject to the full 

consideration, by contrast, 

protective measures are 

obtained in summary and urgent 

proceedings, sometimes even 

before an ordinary proceeding is 

instituted 

-p.e. and p.m. have 

complementary function 

-application of lex fori 

(probably)







Content and effect of the 




security 

and 




Measures and 





France 

1) Arrest in rem and 

judicial securities 

(liens): enforceable 

title or permission by 

the judge; claim must 

appear well-founded 

in principle; risk of 

insolvency of debtor 

(urgency implied); 

2) Protective 

Measures: 

a) Art. 808 NCPC: In 

case of urgency, court 

can order p.m. if (1) 

these measures are 

not seriously opposed 

by the other party OR 

(2) the existence of a 

dispute makes p.m. 

necessary; 

b) Art. 809 I NCPC: 

court can order 

protective measures 

or the restoration of a 

situation to prevent an 

imminent danger OR 

to stop an 

infringement that is 

evidently illegal; 

(urgency implied, 

debated) 

-Jurisdiction: 

1) Enf. court at debtor’s 

domicile 

(merchants: 

president of the court or 

the commercial court) 

2) President of the court 

competent to decide on the 

merits 

-Ex parte proceeding? 

1): Yes, Art. 67 Act 1991; 

debtor can appeal arrest 

order; judge can reserve 

right to reconsider issue 

after a hearing 

(rétractation) 

2): Possible in case of 

particular urgency if 

circumstances of case 

demand that measure is 

ordered ex parte (812 

NCPC); anticipatory brief 

possible; 

competence: if case is 

pending: president of 

chamber / single judge 

deciding on the case; 

otherwise president of 

court that is competent to 

decide on the merits; 

Content: 

1) determined by legislation 

2) determined on facts of 

each case; 

discretion of court, not limited 

by terms of the creditor’s 

application 

Effect: 

1)a) Debtor may not dispose 

of arrested property; lien for 

creditor in case of attached 

claims (preferential right); 

1b) Judicial security does not 

inhibit dispositions of debtor; 

but the creditor is protected 

by preferential right and “droit 

de suite” 

1) Enforcement court can 

additionally impose penalties 

2) depending on measure; 

decision must include 

grounds (495 NCPC) 

Remedies: 

1) appeal; revocation by the 

judge who has ordered the 

measure if option of 

revocation had been reserved 

1) No security 

2) The judge can 

make p.m. 

dependent upon 

security, 489, 

517 NCPC, 

discretion of 

court 

1) Enforcement by 

bailiff; additional 

penalty payments 

(astreinte) possible 

Disposing of seized 

objects constitutes 

criminal offence 

2) No specific 

enforcement organ; 

(in)action of debtor 

assured by penalty 

payments (astreinte; 

enforced by bailiffs) ; 

1) obligation on the 

creditor to initiate 

the 

main 

proceedings, if he 

does not have an 

enforceable title 

Court deciding on 

the merits cannot 

order release of 

seized objects; 

however judge of 

enforcement court 

is obliged to 

release object after 

(final?) judgment 

denying claim 

Strict liability of 

creditor for 

damages 

2) Order does not 

prejudice case on 

the merits (488 

NCPC). The debtor 

can contest and 

initiate main 

proceedings 

Court deciding on 

the merits can 

modify / revoke 

p.m. 

P.M. are p.e. by law (514 NCPC) 

?

Future claims can be 

secured 

-Provisional measures 

can only be changed 

afterwards in case of 

new circumstances 

(488 NCPC) 

In general, creditor has to 

prove the conditions set 

out in column 1; 

exceptions: measures of 

reinstatement: no proof of 

urgency necessary 

-Conflict of law rules 

applied? 1) No; 2) Yes 

2) appeal; opposition in case 

of default judgment (490 

NCPC); 

in case of ex parte 

proceeding: appeal; 

application of interested third 

party to court making the 

order (496 NCPC) 

Liability only 

according to Code 

Civil (fault required)











security 

and 




Measures and 





Germany 

-Arrest: provisional 

measure relating to 

monetary claims / 

claim that can be 

monetised. 

- Urgency is required: 


enforcement of a 

judgment on the 

merits, sec. 917 (1) 

ZPO 

1. Jurisdiction: the court 

hearing the main 

proceedings or the court at 

the place of enforcement 

measures. 

2. A single Judge 

determines the application. 

3. Relaxed standard of 

proof: applicant must 

establish a probability that 

the claim exists 

Even if the plaintiff is 

unable to establish the 

claim, the court may order 

an arrest on the condition 

of a security of the creditor 

4. The judge decides 

whether or not an ex parte 

hearing is necessary. If the 

court decides ex parte, the 

arrest is granted as an 

order. If a hearing takes 

place, the court gives a 

judgment 

1. The content of an arrest 

order/judgment is determined 

by legislation. The content is 

freezing assets or prohibition 

on disposition of the seized 

goods by the debtor/third 

party debtors. The personal 

arrest operates in personam 

against the debtor. 

2. The creditor obtains a lien 

on the seized assets. The 

priority principle applies. 

Once bankruptcy has 

commenced, the lien which 

applied in the month 

immediately prior is rendered 

invalid. 

3. The form of the provisional 

measure is a decision or 

judgment. The decision is 

not to be motivated. [“A 

decision may be made on the 

court’s own motion”?] 

4. If the application is 

rejected the creditor may 

lodge an appeal (sofortige 

Beschwerde). Against the 

decision a ‘contradiction’ 

(Widerspruch) can be lodged; 

The creditor must 

lodge security. 

This 

is 

determined by 

legislation. It is 

offered by the 

form of ‘deposit’ 

(Hinterlegung). 

1. The court is 

responsible for 

enforcement. 

2. It is subject to the 



3. The order can be 

enforced before the 

service of the order to 

the debtor and the 

third party debtor. 

4. For the arrest, the 

effect of the 


is subject to the 

execution of the order 

within a set period of 

time (a month); for 

the security order, in 

principle subject to 

[etwas fehlt?]. If 

execution is not 

carried out within the 

period , the arrest 

can no longer be 

enforced . 

1. The court which 

issued the order 

can order the main 

proceedings in 

limited time. [?? 

“can expedite the 

main proceedings” 

The main 

proceeding is 

initiated by debtor 

through an 

application (Art.926 

ZPO). 

2. The debtor may 

claim damages 

which result from 

the seizure (Art. 

945 ZPO). 

1. Provisional enforceability is based 

on a title, but the provisional 

measures are not. 

2. Both of the remedies have the 

same function: provisional security of 

enforceability of (a future) title. 

[“ensuring a title (or future title) can 

be enforced.”]

against the judgment the 

normal appeal (Berufung) can 

be lodged.

The pre-conditions 

for the obtaining of 


Proceedings to obtain an order for 


Content and effect of the provisional 




and security 

Enforcement of the protective 

measure 


Measures and 


Relationship 

between interim 

proceedings and 

provisional 


Greece 

- specific substantial 

right or legal 

relationship from 

which rights and 

obligations may 

accrue 

-claim does not have 

to be due, but must 

already exist in 

principle (including 

claims subject to 

term or condition) 

-future claims cannot 

be secured, 

exception: future 

damages, if the 

underlying right to 

compensation 

already exists 

-in principle the 

existence of an 

enforceable title bars 

the award of a 

provisional remedy 

- according to 682 

CCP: urgency or 

avoidance of an 

imminent danger, 

imminent competing 

claims from other 

creditors cannot 

justify a provisional 

measure 

-subject-matter competence: singlemember 

district courts (Art. 683 I 

CCP), justices of the peace (Art. 

733 CCP, 683 II), three-member 

district courts and courts of appeal, if 

main case is pending before them 

(684 CCP), court closest to the 

place of enforcement (683 III); 

decision maker is a judge/ judges 

- 690 CCP: applicant is to present all 

available means of proof; judge may 

act ex officio 

- normally proceedings are oral; ex 

parte proceedings possible in case 

of extreme urgency (rare); 

anticipatory briefs (caveats) not 

known 

- standard of proof: substantive right 

and need for urgency should be 

shown as probable 

- admissibility of 

application/procedural limits: lex fori; 

existence of substantive right: lex 

causae 

- content: no strict determination by 

legislation; Art. 691 III: decision 

must determine specific provisional 

remedy and substantive right/ 

situation 

- court has discretion; may order any 

kind of conservatory measure 

mentioned in CCP; court is not 

limited to specific measure applied 

for but to category of measure 

applied for; court has to choose the 

milder measure between equivalent 

ones (Art 692 CCP) 

-judicial security: functions as burden 

on debtor; orders public deposit of 

e.g. money (creditor obtains a lien 

on it); order not enforceable as such 

(if not obeyed, more drastic p.m. will 

be ordered); 

- pre-notice of a mortgage possible 

creating a lien (land registry) 

- in case of a lien: priority principle 

applies in full extent to other 

creditors and survives a later 

insolvency 

-conservatory 

attachment: 

prohibition on disposal of the seized 

goods against debtor; relative 

invalidity of dispositions; no lien 

created, no priority 

-possible at 

court’s 

discretion ; 

ordered ex 

officio or on 

application 

of a party 

-enforcement organs: bailiff 

and notary 

- execution of the provisional 

measure is subject to general 

regulation of enforcement (Art. 

700 CCP) 

-provisions: Art. 710 – 719 

CCP with regard to 

conservatory attachment of 

movables: (1) debtor and 

justice of the peace at locus 

arresti has to be served with a 

copy of bailiff´s report; (2) 

movables in possession of a 

third person are attached: third 

party has to be served with a 

copy of the judgment; (3) 

conservatory attachment of 

inmovables: copy of the 


-enforcement of the measure is 

suspended until creditor has 

paid the security ordered 

- 702 CCP: court that ordered 

the measure can review its 

enforcement; so- called 

opposition 

- no time limit for execution of 

the provisional measure 

- issuing court 

cannot initiate 

proceedings ex 

officio 

- deadline to 

initiate main 

proceedings can 

be given by law or 

court 

- it is debated if 

debtor can initiate 

a negative 

declaratory claim 

(negative FSKl) 

- court of main 

proceedings can 

revoke or modify 

the measure and 

can order the 

return/ release of 

seized items 

- 703 CCP: 

creditor is liabile 

in cases of 

knowing / gross 

negligence of 

non-existence of 

substantive right; 

- different 

instruments; 

provisional 

enforceability 

generally 

excludes granting 

of provisional 


- provisional 

measures allows 

to secure claim 

earlier than by the 

means of 

provisional 

enforceability

Greece 

(2) 

-provisional measure is drafted as a 

judicial decision 

- general principle: no appeal is 

permitted against decisions granting 

or rejecting an application for a 

provisional remedy (Art. 699 CCP); 

application for revocation or 

modification (no suspensive effect) 

is possible: (1) cases mentioned in § 

698 I CCP; (2) defendant has not 

participated in the proceedings; (3) 

court of main proceedings may 

revoke/modify the measure, if it is a 

court of superior or equal status to 

that which ordered the provisional 

remedy; (4) 697 III: change of 

circumstances 

- no specific time limits; exception: 

conservatory attachment, judicial 

custody and provisional adjudication, 

deadline: 30 days, within this time 

creditor must initiate the main 

proceedings 

In addition: 940 

III CCP analog: if 

enforcement is 

irrevocably 

nullified, liability of 

creditor also in 

case of simple 

negligence

The pre-conditions for the obtaining of 





Content and effect 

of the provisional 

measure 

Provisional measures and 

security 




Measures and main 

proceedings 

Relationship 



provisional 


Ireland 

- main types of p.m. are injunctions 

which are sought as temporary relief 

- no interim payments exist in Ireland; 

but the summary summons 

procedure is applied 

- mandatory injunctions (restorative 

and enforcing) that oblige the 

defendant to perform an act are 

available, if the plaintiff can specify 

what action is required; mandatory 

interlocutory orders require strong 

evidence or imminent prejudice 

- Irish courts allow a (worldwide) 

Mareva Injunction (under exceptional 

circumstances,) 

-interlocutory injunction: 

plaintiff must satisfy the 

test of ”a fair or serious 

question to be tried” 

-participation of the 

defendant: in interim 

proceedings court 

decides on an ex parte 

basis; in interlocutory 

injunctions defendant has 

a right of hearing 

-content is not 

determined by any 

legislative 

provisions, court 

decides each case 

in its discretion 

-ex parte decisions 

can be set aside on 

application by the 

defendant at the 

interlocutory stage 

- interlocutory 

proceedings can be 

appealed to a higher 

court 

- no specific time 

limits for validity 

-applicant must give an 

undertaking to the court; if he 

ultimately fails at trial any 

losses incurred by the 

defendant can be 

compensated without 

commencing a new action 

-plaintiff must bring to 

the court’s attention that 

the injunction isn´t 

being enforced 

- execution is part of the 



- disobedience of the 

defendant is classified 

as civil contempt, for 

enforcement, motion of 

the applicant is 

necessary 

- applicant can claim 

Attachment, Committal 

or Sequestration 

Temporary 

injunction forms part 

of the main 

proceedings and is 

regarded as a 

protective measure




Proceedings to obtain an order 

for provisional measures 




measures and 

security 




Measures 

main 

proceedings 

and 



provisional enforcement? 

Italy 

-the claim does not 

have to be due nor 

does the plaintiff have 

to present an 

enforceable title; it is 

sufficient that the 

claim is “likely to 

exist” 

-future claims can be 

secured 

-for any conservatory 

measure it is 

necessary that the 

plaintiff proves the 

risk of a prejudice as 

well as urgency 

-competing claims by 

other creditors are not 

sufficient to satisfy the 

conditions above 

-urgency can lead to 

an operating of a 

sequestrator 

-the court that is competent for 

the procedure on the merits has 

jurisdiction for provisional 

measures , even if the 

procedure on the merits is not 

yet pending; if several 

jurisdictions are available, the 

plaintiff has the right to chose 

-there are special rules p. e. on 

arbitration procedures 

-the competence for provisional 

measures is determined 

according to the general rules; 

nevertheless such measures 

are generally ordered by a 

single judge 

-the plaintiff must present proof 

with regard to the claim and the 

urgency of the measure, but 

there are no formal evidentiary 

requirements 

-an ex-parte decision can only 

be conducted if the notification 

of the debtor would itself 

endanger the enforceability of 

the claim 

-besides this exception, an 

adversary and oral procedure 

takes place; within the 

procedure 

-the content of 

provisional measures is 

determined by law 

-the content of a 

provisional measure is 

the prohibition on the 

disposal of seized goods 

against the debtor and 

the third party debtor 

-provisional measures 

operate in rem 

-the creditor does not 

obtain a lien 

-provisional measures 

are usually drafted as an 

order; only ex-parte 

measures are drafted as 

a decree, but have to be 

replaced by an order 

within a certain time limit 

-against provisional 

measures there is a 

remedy called “reclamo” 

which is not an ordinary 

appeal, but a summary 

one 

-the bailiff is 



-the enforcement of 


is subject to the 



service of the order 

on the debtor is not 

required as his 

knowledge of the 

claim is imputed 

based on the debtor’s 

participation in the 

trial 

-the creditor must 

present a document 

proving security exists 

-the creditor must 

proceed within a 

certain period of time 

-in the case of nonperformance 


measure loses its 

validity 

- in general there 

is no need for 

the debtor to 

initiate the main 

proceedings as 


measure entails 

an obligation on 

the creditor to 

initiate the main 

proceedings 

-the court in 

which the main 

proceedings are 

carried on can 

change the 

order; if this is 

the case, the 

court can return 

and release the 

seized items 

-liability of 

claimant based 

on simple fault 

-there are considerable 

differences between 

provisional enforceability 

and protective measures: 

since 

provisional 

enforceability does not aim 

at the protection of the 

creditor, it is not necessary 

that urgency or danger of 

prejudice are available

Italy (2) -in the case of an ex-parte 

decision the judge must set up a 

hearing within the following 15 

days within which the measure 

ordered must be confirmed 

-in this procedure, the judge 

must undertake a summary 

examination with regard to the 

claim; he has to determine the 

applicable law according to 

conflict of laws rules

The pre-conditions for the obtaining 

of provisional measures 








and security 





Relationship 



provisional 


Luxemburg 

1a) General arrest in rem (saisiearrêt) 

: 

-existence of claim of creditor must 

“be certain” 

-existing title (eg notarized 

document) not necessary 

-claim must be accruing due 

- danger of frustration of final 

judgment (periculum in mora) 

[exception: existing non-judicial 

title?] 

1b) Protective seizure in 

commercial matters (saisie 

conservatoire commerciale; 550 

NCPC; in practice only used for 

corporal objects): 

-title not necessary 

-existence of claim of creditor must 

“seem sufficiently certain” (reduced 

standard) 

[Vgl aber Garnishment 2.3.1.] 

-risk that possible objects of arrest 

might be embezzled by d. 

-claim must be due 

1a) +b) 

- competence is granted to 

president of county ct 

(tribunal d’ arrondissement) 

at place of execution of arrest 

or alternatively at domicile of 

debtor 

-ex parte proceedings 

summary proceeding 

Anticipatory briefs not known 

but not impossible either 

2) 

Competent: president of 

county court at domicile of 

debtor or alternatively at the 

place of execution (choice of 

creditor) 

Debtor must be heard, no ex 

parte proceedings 

1) a+b) Content 

determined by law 

1a) Authorisation of 

seizure to be effected by 

bailiff 

1b) 

Form: Ct order 

(ordonnace); executed by 

bailiff (huissier) seizing the 

object; creditor does not 

get a lien or any priority; 

appeal to juge des référés 

2) Content of p.m.: 

Discretion of court 

Order must include 

grounds; can be appealed 

1a) No 

security 

required 

1b) ? 

2) ? 

1a) seizure / 

attachment effected 

by bailiff (huissier), no 

realization (e.g. forced 

sale) 

1b) executed by bailiff 

(huissier) seizing the 

object; no realization 

2) Violation of court 

order (ordonnance de 

refere) can lead to 

compulsory payments 

as santion (astreinte) 

Debtor can not require 


proceedings by creditor 

but can start “negative” 

action 

(action 

déclaratoire négative) 

Creditor only obliged to 

pay damages if acted in 

bad faith or with 

negligence 

Arrest / Protective 

seizure can be 

transformed into final 

execution after 

decision on the merits; 

? 

2) Court order (ordonnance de 

référé) : In case of urgency, court 

can order p.m. if (a) these 

measures are not seriously 

opposed by one of the parties or 

(b) if the existence of a dispute 

makes them necessary (933 I 

NCPC)




Proceedings to obtain an order 

for provisional measures 




measures and 

security 




Measures 

main 

proceedings 

and 




Netherlands For conservatory 

arrest: 

-The claim must be 

due at the time the 

conservatory arrest 

becomes enforceable, 

ie at the moment the 

judgment debt 

becomes due. A 

future claim can in 

special cases be 

secured. A title is not 

required. 

- Only in cases of a 

conservatory arrest 

on non-registered 

movables in the 

possession of the 

debtors as well as on 

rights to bearer and 

order must there be a 

fear of embezzlement. 

In other conservatory 

arrests this condition 

is not required. 

-Urgency is not 

required 

1. Jurisdiction (Art. 700 CCP): 

the ‘voorziengenrechter’ of the 

district court has jurisdiction 

where one or more of the goods 

in question are in his judicial 

district. It does not have to be 

the court hearing the main 

procedure. The venue is the 

court of the defendant’s habitual 

residence. 

2. A single Judge determines 

the application. 

3. A request for seizure does 

not require proof of the claim; 

sometimes a fear of 

embezzlement has to be shown. 

4. In general, the debtor has no 

right to be heard and it will be 

an ex parte decision. Generally, 

the debtor cannot address to the 

court an anticipatory brief 

(caveat) 

5. Standard of proof: 

The ‘voorziengenrechter’ will 

reach a decision after a 

summary investigation based on 

the information and documents 

provided by the applicant and 

the defendant. 

1. The content is 

determined by 

legislation. Each case is 

determined according to 

its own particularities. 

The content is freezing 

of assets and a 

prohibition on disposition 

of the seized goods 

against debtor/third 

party debtors. 

2. The creditor does not 

get a lien on the seized 

assets. 

3. The provisional 

measure takes the form 

of an order. The 

decision does not need 

not include grounds 

4. No appeal is available 

if the request is granted 

(Art. 700 ss2 CCP). If 

the application is 

rejected the creditor may 

lodge an appeal and 

second appeal 

In general, the 

creditor does 

not have to 

lodge security. 

But leave for 

garnishment 

may be given 

subject to the 

condition that 

the creditor 

provides 

security for 

damages 

through the 

garnishment. 

However, this 

is very 

unusual. 

1. The bailiff is 



2. As soon as the 

provisional seizure 

becomes enforceable, 

the bailiff follows the 

special provisions for 

the execution of the 

enforceable seizure. 

3. The prerequisites 

for enforcement: 

service of the 

attachment order on 

the debtor and the 

third party debtor (in 

garnishment) together 

with the request. If 

security is ordered, 

the creditor has to 

provide proof of 

payment. 

4. The effect of the 


is not subject to the 

execution of the order 

within a set period of 

time, unless the court 

decides otherwise. 

1. The court 

which issued the 

order can require 

commencement 

of main 

proceedings. 

2. The court in 

the procedure on 

the merits can 

abrogate the 

seizure, as well 

as 


‘voorzieningenre 

chter’ who 

issued the order 

in a kort geding 

procedure 

initiated by a 

debtor. 

3. The debtor 

may claim 

damages 

incurred by 

tortious seizure. 

1. Enforcement only takes 

place after the interim 

proceeding. 

Only after the provisional 

seizure has become an 

enforceable seizure is 

enforcement [realization?!] 

allowed. 

Provisional seizure is 

followed by a procedure on 

the merits or a ‘kort 

geding’. If this procedure 

produces a title the 

provisional seizure will 

become enforceable . 

2. The decision to grant an 

attachment order cannot be 

appealed. Any appeal must 

be directed against the 

court decision on the 

merits. If the decision is 

declared to be provisionally 

enforceable, it may be 

enforced in spite of the 

right to appeal. 

P.e. and p.m. have no 

complementary function. 

(?)











security 

and 





Relationship 



provisional 


Portugal Applicant must provide 

prima facie proof of the 

claimed right (fumus boni 

iuris) and that he will suffer 

loss or damage that can not 

be easily be remedied; 

- Arrest (monetary claim): 

danger of frustration of later 

enforcement; claim must be 

due 

Jurisdiction: 

-Normally, court that will 

decide on the merits 

-Execution court at place 

where execution can take 

place 

-Inventory of assets: court 

where assets are located 

also competent 

Content of p.m. basically 

predefined by law; extent 

depending on application, 

court can only grant 

measure applied for or deny 

it (including possibility of 

according minus; but not 

aliud) 

Order must include grounds, 

costs awarded against 

losing party 

P.m. can be 

replaced in some 

cases by 

adequate security 

by debtor (387 

n°3 CPC) 

General rules on 

enforcement are 

applicable (e.g. rules on 

seizure as means of 

enforcement procedure 

(saisie execution) are 

applicable to arrest (406 

CPC) ). 

Normally, bailiff is 

competent organ 

Main proceedings (in 

Portugal or other Member 

State of Brussels Reg / 

Conv) must be started 

within delay of 30 days 

after notification of p.m. 

to applicant; 

Court deciding on the 

merits can only revoke 

p.m. ordered by this court 

No relationship 

-Court Order – General 

form: 

May not be made if potential 

prejudice incurred by debtor 

in case of order 

considerably exceeds any 

possible prejudice to 

applicant (creditor) that shall 

be avoided by the measure 

-Order for cessation of 

employment [construction 

works???]: exclusively 

competent ct at place of 

employment [construction 

???] 

Single judge decides in 

first instance 

Theoretically, conflict of 

law rules apply; 

In general, debtor needs to 

be heard beforehand 

unless ex parte proceeding 

is necessary to assure the 

efficiency of the measure; 

anticipatory brief not 

possible 

Effects: 

-Freezing of assets 

-Arrest creates lien; priority 

principle applicable 

(exception: insolvency) 

-Attachment of claim with 

relative effect: later transfer 

of claim is not valid in 

relation to attaching creditor 

(622 CC) 

-No personal arrest 

Appeal to higher court or, in 

case of ex parte 

proceedings, the same 

instance 

Decision can be modified by 

court that ordered p.m. (new 

situation required) and on 

appeal 

Debtor / third debtor 

failure to comply with 


constitutes criminal 

offence (391 CPC) 

Order needs to be served 

to (third) debtor 

Arrest order losses effect 

if seizure of asset is not 

effected within two months 

Debtor cannot require 


proceedings by creditor 

but commence action to 

obtain “negative 

declaration” 

P.m. loses effect if final 

judgment denies 

applicant’s claim









measure 



security 

and 



Provisional Measures and main 

proceedings 


interim proceedings 

and provisional 


Spain 

(1) 

- a claimed right 

(fumus boni iuris) 

- danger of frustration 

of final judgment 

(periculum in mora) 

Standard of proof for 

above conditions 

depends on the 

circumstances of the 

case; all types of 

evidence [?] admitted; 

normally summary 

[prima facie?] proof 

sufficient) 

-posting of security if 

required by judge, 

-main proceedings 

must have been 

initiated; in urgent 

cases they can be 

initiated immediately 

afterwards 

The court that will decide 

on the merits of the case is 

competent (first instance: 

single judge). 

Conflict of law rules will be 

applied 

In general, debtor must be 

heard . Exception: , ex parte 

proceeding is possible on 

application of claimant in 

cases of urgency or if 

necessary to ensure the 

efficiency of the measure. 

Plaintiff can oppose such 

decision during period of 20 

days; if so, “opposition” 

proceedings follow. 

Decided by court 

depending on 

circumstances of the 

case; discretion of 

court 

Order must include 

grounds 

Applicant must bear 

the costs of 

procedure if 

application is denied 

or if judge upholds 

the opposition of the 

debtor after ex parte 

proceeding 

Appeal to court of 

higher instance; in 

case of ex parte 

proceedings: same 

instance; no 

suspensive effect 

Decision can be 

modified by court that 

ordered p.m. (new 

situation required) 

and on appeal 

Posting of security 

by creditor is 

(normally) required 

if applicant is not 

domiciled in Spain 

(debated), 

otherwised at 

discretion of judge; 

amount fixed at 

discretion of judge 

Creditor required to 

pay damages to 

debtor if claimed 

right is (completely) 

denied in main 

proceedings (745 

LEC). 

Debtor can offer 

adequate security 

to avoid p.m. 

(discretion of 

judge) 

Enforcement by 

court that decides 

on the merits 

Service of order on 

debtor 

Failure of debtor / 

third debtor to 

comply with 


constitutes criminal 

offence; third debtor 

can be held liable 

for the whole sum 

Decision on p.m. is seen as incident 

part of procedure on the merits. 

Commencement of main proceedings 

is seen as condition for seeking p.m.; 

however, in urgent cases, p.m. can be 

sought at once; main proceedings must 

then be initiated within 20 days (730 

LEC). Debtor cannot require creditor to 

commence main proceedings . If 

creditor does not initiate main 

proceedings within time, p.m. will be 

revoked and creditor bears costs and 

pays damages to debtor. 

P.m. must also be revoked 

a) if judge who ordered it decides in his 

judgement that claimed right does not 

exist 

b) at the moment when provisional 

enforcement of judgement on the 

merits can be demanded 

c) in case of final judgement 

P.e. and p.m. are in 

principle incompatible: 

P.m. must be 

abrogated at the 

moment when p.e. of 

judgment on the merits 

can be demanded, 731 

LEC. P.e. can be 

demanded after delay 

of 20 days after 

rendering of judgment. 

(Rare exceptions)

Spain 

(2) 

Debated whether 

future claims can be 

secured. 

Debtor can claim damages 

from the creditor that have 

been caused by the ex parte 

form of procedure (e.g. if 

less burdensome form of 

security would have been 

possible) 

Attachment of asset 

does not stop debtor 

from disposing of the 

asset; however, 

disposal of asset by 

debtor is criminal 

offence; ownership of 

Anticipatory brief not 

possible (?) 

buyer etc is only 

acquired if acting in 

good faith

The pre-conditions 

for the obtaining 

Proceedings to obtain an order for 




Provisional measures 

and security 






interim proceedings 

and provisional 


Sweden 

(1) 

-The claim must be 

due before or 

during the 

proceedings. A 

future claim cannot 

be secured. The 

creditor is not 

required to present 

an enforceable 

title. 

-The applicant 

must show that it is 

reasonable to 

suspect the 

opposing party will 

evade payment of 

the debt by 

absconding, 

removing property, 

or other action. . 

1. Jurisdiction: the court hearing the 

main matter; there is no difference if 

provisional enforcement is sought 

prior to or during the main 

proceedings. If a person, with no 

known residence in Sweden has 

entered into an obligation or 

otherwise incurred a debt he may, in 

a dispute concerning the same, be 

sued at the same place where the 

obligation was created or the debt 

was incurred (the Code of judicial 

procedure chapter 10 section 4). 

2. A single Judge determines the 

application. 

3. The extent to which the creditor 

should produce evidence is not 

stipulated. He has to show probable 

cause that he has a claim and it 

would be reasonable to suspect that 

the debtor will evade payment. Form 

the creditor’s application, and 

possible documents and other 

evidence presented, the court must 

decide if the conditions for provisional 

measures are fulfilled. 

1. If enforcement of the order is 

necessary an application has to 

be made to The Enforcement 

Authority (EA). The EA normally 

decides on what goods to attach 

and how the goods should be 

safeguarded. Normally personal 

property is taken into care. 

Attached goods can normally not 

be sold and attachment of salary 

is not possible. 

2. The creditor does not get a lien 

on the seized assets. If property 

that is provisionally attached for a 

claim thereafter is attached for 

another claim, which is not linked 

with a special priority right in the 

property, the property shall be 

deemed to be simultaneously 

attached for the claim of the 

provisional attachment creditor. 

That means that the creditor 

obtains a prior right in the 

property that can be exercised at 

compulsory sale and, under 

certain circumstances, at 

bankruptcy proceedings. 

Except in some 

exceptional cases, the 

applicant must deposit 

a security at the court 

for the loss that the 

opposing party may 

suffer. The security 

shall compromise a 

pledge or a guarantee. 

The security often 

consists of a bankguarantee. 

If the applicant lacks 

means to furnish 

security, and if he has 

shown extraordinary 

reasons for his claim, 

the court may waive 


security 

requirement. 

-The Enforcement 

authority is 



-The execution of 


measures is 

subject to the 



The court order 

does not have to 

be served before 

enforcement. The 

enforcement of the 

decision normally 

takes place 

immediately, 

without notifying 

the debtor. 

The creditor can not 

be forced to 

commence 

proceedings on the 

merits. 

The court can change 

or overrule the order 

on provisional 

measures. The 

enforcement authority 

then has to decide on 

returning seized 

property. The 


authority’s decision 

can be appealed in 

separate 

proceedings. 

Strict liability of 

creditor. 

Protective measures 

a complement 

provisional 

enforcement to 

secure future 

enforcement. There 

are two different 

proceedings, and it’s 

possible to appeal 

against the court’s 

decisions in both 

proceedings.

Sweden 

(2) 

4. As a general rule, the opposing 

party must be given an opportunity to 

respond to an application on a 

provisional attachment/security 

measure before the court makes a 

decision. If the applicant shows that 

delay places the applicant’s claim at 

risk the court can make the decision 

immediately and without hearing the 

debtor. 

5. The debtor can not address an 

anticipatory brief (caveat) to the court 

. 

3. The form of the provisional 

measure is an order, which must 

include grounds 

4. An appeal can be made to a 

superior court. A re-examination 

at the court that ordered the 

provisional measure can also be 

requested. 

5. When a measure in the CPC 

Ch 15 § 1-3, has been granted 

before the main proceedings are 

pending, the applicant must, 

within a month of the order on 

provisional measure, commence 

proceedings on the matter at 

issue. If not, the provisional 

measure lapses immediately. The 

same time limit applies if the main 

proceedings are held in another 

country.










and security 


Enforcement of 

the protective 

measure 


Measures and main 

proceedings 




United 

Kingdom 

England/ 

Wales 

-The claim that is to be 

secured does not have to be 

due. A future claim can also 

be secured. 

-Urgency: 

urgent 

circumstances 

are 

recognized as circumstances 

where there is no practical 

possibility of giving the 

required minimum three clear 

day’s notice to the other side. 

Where a case is urgent, the 

usual 

procedural 

requirements are relaxed in 

so far as is necessary to do 

justice between the parties. 

For general temporary 

injunction: 

(1) there must be a serious 

question to be tried; 

(2) damages must be an 

inadequate remedy for the 

applicant; 

(3) An undertaking by the 

claimant must be adequate 

for defendant 

(4) The balance of 

convenience should favour 

the claimants. 

1. Jurisdiction: the court 

(1) hearing the main 

proceedings or (2) at the 

place of enforcement 

measures, and (3) other 

appropriate courts. 

2. Judges, masters and 

district judges can deal 

with interim applications. 

3. Applications must be 

supported by evidence, 

unless the court orders 

otherwise. Draft order 

standard form used. 

4. Oral proceedings. The 

debtor has a right to be 

heard. Ex parte decisions 

are possible, if application 

can be made without 

notice. This is the case 

- for freezing injunctions 

and search orders 

- in case of urgency 

-if secrecy is essential for 

the order to be efficacious 

No protective writings 

possible. 

1. The content of the 

freezing injunction is 

blocking of assets and 

prohibition on disposition of 

the seized goods against 

the debtor/third party 

debtors. 

2. The creditor receives no 

lien on seized assets. 

3. P.m. can only be granted 

in form of an order 

4. The order is addressed 

to the defendant, but it also 

binds third parties with 

knowledge of it. 

5. Any of the following 

matters may be raised in 

defence: delay or laches, 

acquiescence, hardship, 

inequitable conduct by the 

claimant, incapable of being 

effectively enforced, 

enforce an agreement for 

personal services. Interim 

injunctions are granted 

subject to later discharge. 

6. The provisional measure 

is valid for a specific limited 

time; this is stated in the 

order. 

The claimant is 

required to give an 

undertaking in 

damages on being 

granted an interim 

injunction. The 

undertaking is to pay 

compensation to the 

defendant for any loss 

incurred by the 

injunction. 

The court is 



It is subject to 

the general law 

of enforcement. 

Breach of an 

injunction is 

considered to 

be contempt of 

court. 

The condition 

for 

enforcement: 

service of the 

order to the 

debtor. 

The court, which 

issued the order, 

can require/initiate 

or determine the 

main proceedings. 

The court, in which 


main 

proceedings are 

conducted, can 

change or overrule 

the order, can order 

the return or release 

of the seized items. 

Claimant must 

honour undertakings 

if injunction should 

not have been 

granted 

1. Provisional enforcement 

is subject to successful 

interim proceedings. 

2. Provisional 

enforceability is different 

from protective measures, 

and the former is the 

status of protective 

measures subject to 

appeal by the defendant 

and/ or final judgment by 

the court over main 

proceedings, but the latter 

is a legal remedy applied 

for by the Claimant. 

3. All the remedies are 

aimed at the same 

function, doing justice 

between the parties.

(5) The court should consider 

measures that are calculated 

to preserve the status quo. 

(6) There may be special 

factors to be considered in 

the particular circumstances 

of individual cases. 

For Freezing Order: 

(1) A cause of action 

justiciable in England (/ W); 

(2)A good arguable case; 

(3)The defendant has assets 

within the jurisdiction; 

(4)A real risk that the 

defendant may dispose of or 

dissipate those assets before 

judgment can be enforced. 

Instead of contesting an 

application for an interim 

injunction, a defendant 

may give undertakings in 

similar terms to the 

injunction sought by the 

claimant, having the same 

force as an injunction 

ordered by court. 

5. Standard of proof: (1) 

For interim injunction, it 

must be shown that there 

is a serious issue to be 

tried (American Cyanamid 

principles); (2) for interim 

payment: the court must be 

‘satisfied’ the defendant 

‘would be held liable’ if the 

claim went to trial before 

ordering an interim 

payment. 

6. Informal means of proof 

(e.g. unsworn draft 

affidavit) are allowed in 

case of urgency. The 

claimant has a continuing 

duty to give full and frank 

disclosure to the court of all 

material facts, including 

those that go against the 

application.











security 

and 





Relationship 



provisional 


United 

Kingdom 

Scotland 

Arrestment / inhibition on 

dependence: 

Property which is in the 

hands of the debtor is not 

subject to arrestment !? 

Future claims can only be 

secured if defendant is in a 

significant risk of insolvency 

or contemplating flight from 

the country 

Action must be taken to the 

courts within 20 days of 

execution of the arrestment 

(for summary causes in 

sheriff courts the period is 42 

days). 

Creditor has to show 


enforcement of a later 


Urgency is not required. 

Interim interdict: 

Creditor must show potential 

harm to himself if interdict is 

not granted. 

Competent is the court at 

the place of the 

enforcement measure 

(single judge) 

Creditor must produce a 

certified copy of judgement 

and other documents. 


dependence: 

- Written ex parte 

proceedings (if not 

requested during main 

proceedings); debtor can 

not address to the court a 

protective writing 

- Debtor can challenge the 

p.m. on the basis that 

creditor has no “intelligible 

and discernible cause of 

action”. 


- Creditor must show factual 

evidence of potential harm; 

any kind of evidence 

allowed 

- Creditor can request ex 

parte proceedings 

- Debtor can challenge the 

interdict on the basis that it 

is not necessary 

Even 

regarding 

arrestment, the content of 

the measure is 

determined by the court 

on the particularities of 

each case. 

Ex parte measures are 

drafted as an order. Else, 

an interim interdict is 

drafted as a judgement 


dependence: 

- block the assets and 

create a prohibition on 


goods against debtor and 

third debtor. 

- no time limit 

Interim interdicts 

- can prevent the debtor 

from destroying or using 

an object. 

- are granted for a specific 

time but can be renewed 

- does provide reasons 

Creditor does 

not have to post 

security. 

Arrestment/ 

inhibition: 

Debtor can offer 

sufficient 

security 

(discretion of 

court). 

P.M. are subject to a 

separate system of 

enforcement, as the 

assets remain in the 

hands of the third party 

(property which is in the 

hands of the debtor is 

not subject to 

arrestment) 


dependence are 

executed by the 

messengers–at–arms or 

a sheriff officer. 

A (third) party that does 

not respect the 

arrestment is liable for 

the value of the asset. 


contempt of the court 

Neither the debtor nor 

the court can initiate the 

main proceedings or 

require the creditor to do 

so. 

But action must be 

taken to the courts 

within 20 days of 

execution of an 

arrestment / inhibition 

on dependence 

(for summary causes in 

sheriff courts the period 

is 42 days). 

Court of the main 

proceedings can not 

overrule the order for 

P.M.

2. Provisional measures securing the enforcement of judgment ...

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