The fact that you have a claim against a person or a company might be of minor importance if this person or company disposes of all its assets before you are able to enforce your claim. In these cases seizure of assets can be an efficacious remedy to prevent disposals. If your claim is not at claim for payment of money, implementation of interim measures may be an alternative. In this article we provide a brief introduction to the process of seizure of assets in Norway.
What is the difference between arrest of goods and interim measures?
Provisional security can be arrest of goods and interim measures. Freeze of assets is in general the consequence of an approved request for arrest, but in certain cases the court can also impose an exit permit restriction on a person connected to the claim. Interim measures are used to secure other claims than monetary claims.
Conditions for arrest of goods
There are two major conditions for asking for arrest. The creditor needs to have “claim” against the defendant, and there needs to be “basis for security”. “Basis for security” is generally stated a situation where the debtor’s conduct gives grounds to fear that enforcement of the claim would otherwise be evaded or considerably impeded or would have to take place outside the country. The claim in respect of which the petition for arrest is made and the basis for security are proven on a balance of probabilities. If delay poses a risk, the court may order arrest notwithstanding that the petitioner’s claim is not proven, but the court shall in that case require the petitioner to provide Security.
The process for obtaining arrest of goods
The petition shall state the claim of which security is sought, and the basis for security. The claim shall be stated as an amount or as a maximum amount/limit. The petition shall further state and explain the reasons for the claim and the basis for security.
The petition shall as a starting point be submitted to the district court where the defendant has his ordinary venue. It is also possible to submit the petition to another judicial district where property or assets belonging to the defendant is situated or expected to arrive in the near future (this is usually the situation with ships and other vessels).
The court can dismiss the case without any hearing. This mainly refers to situations where the court considers that there is a deficiency with the petition.
If the case is not dismissed, the court usually calls for an oral hearing where the parties are present. If the petitioner is not in present, the case shall be dismissed.
If a delay poses a risk, an interlocutory order to grant arrest can be made without an oral hearing. If the court based on this orders provisional security, the parties or a person affected by the order can require subsequent oral hearing. An oral hearing can also be required in respect of an order for costs. After an oral hearing the court can uphold, amend or dismiss the first decision.
There is also a possibility of having a contemporaneous adjudication of the main claim.
Your claim does not have to be governed by the laws of Norway
In many cases the basis for a claim is e.g. a contract governed by other laws than the laws of Norway, and the place of venue is agreed to be other jurisdictions than Norway. In principle this does not prevent you from filing for freeze of assets, ref the ruling by the Norwegian Supreme Court in the decision Rt 1998 p 2056. This is also in accordance with the Dispute Act (17 June 2005 no. 90) Section 33-4 second subsection.
The consequences of an arrest-decission
If arrest is granted, the court may state the assets to be arrested. The court may also assign execution of the arrest to the execution officer in any judicial district. Any assets that can be subject to an execution lien can in principle be Arrested.
The court can fix a time limit for the petitioner to bring a legal action on the claim or to petition for enforcement. A foreign legal action shall be equated with legal action in Norway if the ruling of the foreign court is binding in Norway.
The effect of the arrest is in principle that the debtor loses the right to dispose the asset to the disadvantage of the petitioner. The arrest shall have protection against the defendant’s legal transactions, but the arrest of an asset does not entitle the petitioner to demand settlement of distraint and it does not provide protection against attachments initiated by other creditors or against seizure by the defendant’s bankruptcy estate. If it is necessary to prevent considerable loss in value, the court can on application from the petitioner decide that the petitioner shall be entitled to petition for settlement by distraint.
What if the claim turns out to be unjustified?
If the provisional security is discharged or lapse and it transpires that the petitioner’s claim did not exist when the security was ordered or if the petition in other respects was unjustified because of false or misleading information, the petitioner can be found liable for loss that the defendant has sustained as a result of the security or as a result of measures that have been necessary to repel the security or have it discharged. The petitioner can, before the court allows any arrest, be requested to provide security for its potential liability.
The duration of arrest or freeze of assets
The duration of arrest or freeze of assets is (according to the Dispute Act Section 33-10) until it is discharged or until whe
a) execution is levied on the arrested asset for the petitioner’s claim,
b) the court has given the petitioner a time limit for providing security or for bringing a legal action in relation to the claim or for applying for enforcement of the claim, and the time limit is exceeded,
c) no time limit has been fixed for bringing a legal action or for applying for enforcement, and legal action is not brought or enforcement is not applied for one year after the court granted the arrest order,
d) the defendant settles the monetary claim, or it lapses in another way, or the defendant is found not to be liable for the claim by a final and enforceable decision,
e) the petitioner abandons his right in the arrest, or
f) the petitioner has obtained an enforcement judgment for the claim and execution is not claimed within one month after the judgment became final and enforceable.
It is possible to apply for an extension of the time limits as referred to in b), c) and f).
In addition to what is stated above the defendant can apply for discharge of the arrest if new evidence is submitted or new circumstances emerge that prove that the claim or the basis for the security does not exist. The same applies if the petitioner brings legal action or enforcement proceedings and thereafter improperly delays the proceedings.
The defendant can also apply for discharge by providing security for the claim.
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Please note that special rules apply for vessels and aircrafts.
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Contact us for assistance with seizure of assets
We have successfully assisted our clients in numerous cases regarding seizure of assets in Norway. We know the process and possess the relevant documentation to be used. Get in touch with us if you want to discuss the possibilities for seizure of assets in your case.
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About the author
Harald Sætermo is a Norwegian attorney-at-law and a partner in the law firm Rime. Harald has more than 15 years experience as a business lawyer in Norway. His work includes representing some of the largest financial institutions in Norway and the Nordic countries, listed companies, other commercial enterprises and private individuals. He has previously been an in-house lawyer at Nordea, Senior Lawyer at the Law firm Schjødt in Oslo, and teacher/external examiner at the Faculty of Law, University of Oslo.
Tel +47 906 50 410