Category Archives: Dutch Law Attachment of Assets

Preliminary Relief Proceedings: Quick Judgment of Dutch Judge

Preliminary Judgment Dutch Court

In urgent matters the president of the competent district court (voorzieningenrechter) can file for preliminary relief. The proceedings are called “kort geding “. A writ of summons can be issued at short notice. One court hearing will take place and usually the judge will decide within one or two weeks.

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Injunction in urgent matter in the Netherlands

It is a prerequisite that the matter requires an immediate provisional remedy. Only provisional measures can be granted by the judge. The facts of the matter should not be too complicated for such proceedings. If the case is too complicated, the judge will deny the relieve requested and parties will be referred to main proceedings. The judgment allowing preliminary relief does not prejudice the main proceedings. Therefore judgment in the main proceedings may be quite different than provisional judgment.

Remedies in Dutch Court

The available remedies are usually a prohibitory injunction (verbod in kort geding) or a mandatory injunction (gebod in kort geding). Usually the claimant will also request the judge to include a penalty in the judgment for each day the defendant fails to comply with the judgment.
Provisional remedies can also be requested for monetary claims and debt collection. The judge will investigate whether the claim is strong and if the facts and circumstances required an immediate provisional judgment. The risk of repayment will also be assessed.

Summary judgment by Netherlands Court

The Dutch attorney for the claimant will request a date for the court hearing. As soon as the date is fixed, the writ of summons will be issued and the defendant is not obliged to file a defense before the date of the court hearing. The defendant may defend itself orally at the court hearing. Documents should be filed by the defense 24 hours before the court hearing.

The normal rules of evidence do not apply in preliminary relief proceedings. The summary proceedings are not intended for examination of witnesses. The judge may, however, ask questions to people present at the hearing.

Appeal from Dutch Judgment

Within four weeks from the date of the judgment parties can appeal with the court of appeal. In the appeal both parties have to submit written statements. Only if requested by one of the parties an oral hearing takes place.

The judgment can be enforced immediately in appeal by the defendant and does not suspend the judgment.

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Pre-judgment attachment under Dutch law

It is possible to attach assets of a debtor in the Netherlands before the Court procedure started. A Dutch attorney can prepare the attachment to seize assets available in Holland

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Attachment of Dutch Assets at short notice

This pre-judgment attachment (conservatoir beslag) is also effective and good pressure on the other party. Most often the attachment is used for recovery to pay claim and obtain to get security for this claim. All assets of the debtor are subject to attachment. Apart from the attachment for the collection of receivables (verhaalsbeslag) is it also possible to attach specific goods for the purpose of surrender (beslag tot afgifte) or attachment delivery of goods (beslag tot levering).It is also possible to make a third party attachment.

Garnishment of Dutch Bank Account

The funds in the bank of the debtor may be attached. So, goods held by a third party but to be delivered by the debtor may be attached. The third party, who is the target of the attachment, must declare within 4 weeks what he owes to the debtor.
To enforce intellectual property rights, it is also possible in case of alleged infringement of intellectual property rights, the attached assets for the purpose for preserving evidence (bewijsbeslag).

How to obtain a leaf for attachment in the Netherlands?

A Dutch lawyer can file the request to the competent court to obtain leaf for the attachment. The judge decided on the petition ex parte. Usually the defendant will not be heard by the judge. Only if the applicant request to sequestrate goods of the debtor, the judge will allow the debtor to respond to the filed request.

If the leaf for arrest for attachment is granted, usually is done under the condition the within 14 days from the date of the attachment the main proceedings of the underline claim are instituted.

Creating jurisdiction of the Dutch Court through attachment

In case the debtor is not domiciled in the Netherlands and the claimant can not obtain judgment in another country, which is enforceable in the Netherlands, then the attachment gives jurisdiction to the Dutch Court. For example: the Dutch Court can hear a case against a syrian oil company if an oil tanker of this company is attached in the Rotterdam harbor. The main proceedings are not attended then preliminary relieve proceedings may also qualify the main proceedings. This will be arbitration.

Legal Action to lift seized assets

The debtor who believes that the attachment is unjustified may start preliminary relief proceedings at short notice.

In all cases the attachment should be lifted if the debtor provides sufficient security in the form of a bank guarantee to a claim of the plaintive. The attachment will be lifted if the claim is without merit and if the attachment is considered this appropriate. An attachment will also be lifted if the formal requirements are not followed. However it is sufficient for the claimant to proof that the claim is not without merit and if a beginning of evidence is substantiated to the Court, it is very hard for the defendant to prevent or oppose the attachment. The pre-judgment attachment in the Netherlands is therefore very liberal compared to other countries. This attachment is used very often used by claimants.

Unlawful Garnishment under Dutch Law

If the claim of the claimant is not granted in the main proceedings, then the attachment was unlawful. The claimant is liable for all damages,  suffered by the party who was effected by the attachment. If the claim is only partially denied, then there is no liability for the claimant. If the claim is granted in the main proceedings, then pre-judgment of the attachment will be automatically be converted to an executory attachment. With the actual judgment of the claimant can then start execution of the arrested assets.

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