17 October 2015

Attachment, garnishment, conservatory arrest

Pre-judgement attachment and conservatory arrest Netherlands

A prejudgment attachment or garnishment can be effected on any object: ship, real estate, airplane, assets, whatever. The Dutch attorney of the creditor with a prima facie claim can file a petition for the Dutch Court to obtain the order. A Dutch solicitor can file the request with the competent Dutch 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 in case the applicant wishes to sequestrate seize assets of the debtor, the judge will allow the debtor to respond to the filed request. If leave for arrest or attachment is granted, usually is done under the condition the within 14 days from the date of the attachment the main proceedings of the underlying claim are instituted in the Dutch Court. Also check out: debt collection Netherlands.

Attachment creates competence of Dutch Court

The attachment of assets in the Netherlands creates jurisdiction to the Dutch Court to handle the underlying claim. The creditor doe not have to be domiciled in the Netherlands to file the claim in the Netherlands. This competences is For example: the Dutch Court can hear a claim against a foreign shipping company if a vessel of this company is seized in the Rotterdam harbor. The main proceedings are not commenced then preliminary relief proceedings may also qualify the main proceedings. Arbitration will also qualify as main proceedings following the attachment in the Netherlands.

Third party garnishment

The seizure of assets can also be effected under a third party like a bank, warehouse or supplier of goods. The creditor can freeze the bank account of his debtor with leave of the Dutch Court. A Dutch lawfirm can investigate the possibility to have a third party attachment. For example; containers in a warehouse to be delivered to the debtor can be subject to seizure and attachment by creditors of the debtor. Wages of employees can also be suject to garnishment. Please discuss the possibility of attachment with one of the solicitors of Blenheim attorneys Amsterdam.

Challenge seizure in summary proceedings

Lifting the arrest can be ordered with the Dutch Court in relief proceedings. The solicitor of the debtor can request for lifting of the attachment if he proves the claim is unjustified. Summary proceedings can take place soon after the attachment was made. 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 plaintiff. The attachment will be lifted by the Dutch Court if the claim is without merit and if the attachment is considered this appropriate. An attachment will also be lifted if the formal requirements as per the Dutch Code of Civil procedure are not followed.