At the present time no one is surprised that a claim presented against the court includes the requirement for the application of provisional safeguards, when omission thereof can impede enforcement of a court judgment, or even make this impossible. The most common provisional safeguard applied is seizure of an immovable property of the defendant, or seizure of movable property, money or property rights owned by the defendant and possessed by the defendant or third persons. In spite of the fact that a lot of companies have faced the application of seizure and had their property arrested, it is worth discussing the rights of the defendant when provisional safeguards are applied.
First of all, one should be aware of the possibility to fill out a separate appeal regarding the rulings of courts of first instances, in a term of seven days. If a ruling on provisional safeguards had been adopted but not communicated to the appellant, a term for filing an appeal shall start from the date of producing a copy of the ruling to the mentioned person. However, the court’s ruling on the application of provisional safeguards shall be enforced with immediate effect, which means that provisional safeguards will be applied during all appeal procedures.
Another procedural means that can protect the interests of a defendant is the possibility to claim for provision of a security to indemnify for damages likely to be sustained by the defendant in relation to the application of provisional safeguards. Such security should be provided by the plaintiff, or other claimant, for application of provisional safeguards. A bank guarantee may also stand for the mentioned security. If a person who has to pay in money, or furnish a bank guarantee, fails to do so before the time limit set by a court, provisional safeguards shall be cancelled. In case of effective judgment of the claim for which has been disallowed, the defendant shall be entitled to claim damages from the plaintiff as caused to the defendant by provisional safeguards imposed at the plaintiff’s request.
(To be continued)