Conservatory arrests under Dutch law

Parties with a claim against a party who has assets located in the Netherlands can apply to a Dutch court Court for a freezing order against the other party’s Dutch assets. This pre-judgment attachment (a Dutch equivalent of a “Mareva injunction”) or conservatory arrest provides security for the claim by preventing the debtor from frustrating recovery (of sums owed) by his creditor, for example by alienating, removing or hiding assets. It is also used to exert pressure on the other party to not dispose of, encumber or transfer any property carrying the pre-judgment attachment (conservatory arrest). The aim of a conservatory arrest (pre-judgment attachment) is therefore to prevent a lack of attachable objects in the future from which sums of money can be recovered.

Pre-judgment attachment of intellectual property rights in the Netherlands

Such assets may include any transferrable asset, for example tangibles, real estate, shares and claims. The incorporation of article 7 of EC Directive 2004/48 on the enforcement of intellectual property rights on May 1 2007 into Dutch law allow the Netherlands courts the possibility to issue pre-judgment attachment in regards to intellectual property rights. This is possible in the case of alleged infringement of intellectual property rights where attachment is requested in order to preserve relevant evidence.

In addition to this, as of 18 January 2017, the EU regulation establishing a European Account Preservation Order procedure allows the Dutch courts to issue freezing orders in cases of cross-border debt recovery with respect to bank accounts located anywhere within the European Union.

Pre-judgment attachment procedure under Dutch law

In order to issue a pre-judgment attachment in the form of a freezing order, the Dutch lawyer of the creditor files an order with the Dutch court. This order must be filed in a court where the debtor or one of the third parties are domiciled or where the assets are located. The claim must also contain the basis for the claim.

Any party who appears to have a justified claim may order a pre-judgment attachment, and in practice this is nearly always granted. Ex-parte proceedings then follow within a few days, whereby the defendant will generally not be heard.

Court proceedings relating to the claim must be instituted between 8-14 days after approval of the pre-judgment attachment order, unless court proceedings have already been initiated. If the claim is denied by the Dutch court, the attachment was unjustified. In this case, the party that ordered the attachment will be liable for all damages suffered by the defendant. If the claim is accepted, the pre-judgment attachment is converted into an executory attachment. On the basis of this executory attachment, sums owing can be collected or recovered by the claimant.

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