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Protective measures under Dutch civil procedural law

Nieuws 15 March 2018
If a creditor is aiming to achieve an additional level of security in respect of his ability to execute a future positive judgment, protective measures can be taken, such as an attachment of (a part of the) assets of the debtor. Under Dutch law, and even though judges have become more critical in awarding leaves, it is still relatively easy to obtain such a leave to attach compared to most other jurisdictions, even before a formal procedure on the merits is initiated through a so-called prejudgement attachment.

Dutch law knows several types of prejudgment attachments, such as (i) the attachment of property (e.g. cars), (ii) the attachment of immovable property (e.g. houses), (iii) the attachment of shares in a private or limited liability company, or (iv) third party attachments (e.g. attachment on bank balances). In principle, a leave/permission to attach can only be obtained with regard to assets located in the Netherlands, or claims payable in the Netherlands. With regard to third party attachments, the attached third party should be vested or residing in the Netherlands.

Request for attachment
A request for attachment should be filed by an attorney at law by means of an application to the court. The application must state the nature of the attachment, the claim of the creditor and, if it concerns a money claim, the amount or at least the maximum amount of the claim. In addition, for each different type of attachment, different requirements apply with regard to the application for relief. The preliminary relief judge decides on the application after brief consideration. In general, the debtor will not be heard and the relief is granted easily. Under Dutch law, the creditor is not obliged automatically to provide security for any possible damages of the debtor or the attached third party. However, the court can instruct the creditor to provide such surety. After receiving the relief for attachment, Dutch law requires the creditor to start proceedings on the merits within a timeframe set by the preliminary judge.

Proceedings to lift the attachment
To lift the prejudgment attachment, the attached party should start preliminary relief proceedings. The attachment can, for example, be lifted if the claim or the right invoked by the creditor (the applicant in the initial application proceedings) are prima facie unfounded, if the attachment is deemed unnecessary or if the debtor has provided sufficient security for the claim.

Consequences of the attachment
The aim of the attachment is to reassure that the assets remain with the debtor. Although the attachment does not create any privileges for the creditor on the attached assets, the creditor does automatically receive a title to execute the attached assets once the proceedings on the merits have ended and the court has given a final and enforceable ruling in favour of the claimant.

In case of any questions in relation to this article, please contact Mirjam Klompenhouwer or any of the other attorneys of our Corporate & Commercial Litigation department.

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