Case of the Week: Brexit Does Not Facilitate Freezing Orders

olg-frankfurt-ganz-neu2In my opinion, obtaining a freezing order (Arrest) against the debtor pending final judgment tends to be rather difficult in this jurisdiction. Often, the courts set the bar for showing that “the enforcement of the judgment would be frustrated or be significantly more difficult”, as Section 917 German Code of Civil Procedure (ZPO) puts it, frustratingly high. It is somewhat easier if the debtor is situated abroad: Section 917 para. 2 ZPO stipulates that it is sufficient grounds for a freezing order if the judgment would have to be enforced abroad and there is no reciprocity with the foreign jurisdiction (Arrestgrund der Auslandsvollstreckung). As there is reciprocity across all member states of the European Union, this does not work, however, with respect to a debtor situated in the United Kingdom – at least for now.

In a recent case in the Frankfurt Court of Appeals (Oberlandesgericht), the applicant was seeking a freezing order against a German national who had moved to the United Kingdom. The applicant argued that given the United Kingdom’s decision to leave the European Union and given that a final judgment would not be in place prior to the current Brexit deadline of 31 October 2019, the reciprocity exemption should not apply to the United Kingdom. Accordingly the freezing order should be granted pursuant to Section 917 para. 2 ZPO.

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Arresting Ships Made Easier – Draft Legislation on Maritime and Shipping Law

In earlier posts, I have complained about the difficulties of obtaining freezing orders in Germany. At least in one respect, there is hope: As part of an overhaul of Germany’s maritime and shipping laws, arresting ships will me made easier. The draft legislation published in May 2012 by the Ministry of Justice proposes to amend Sec. 917 German Code of Civil Procedure (Zivilprozessordnung) to that effect. Continue reading

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Worldwide Asset Freezing Orders: Welcome to Germany

A judgment of the Nürnberg Court of Appeals (Oberlandesgericht) of December 2010 deals with the recognition and enforcement of a Worldwide Asset Freezing Order, or WAFO, issued by the High Court in London. The judgment was recently published in legal journals such as ZIP 2011, 1840, but apparently is not available on a free database. Continue reading

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Freezing Order Frustration

My gut feeling: Germany is a jurisdiction where it is notoriously difficult to get a freezing order even in fraud cases. I do not have any empirical data to back this up, and can not think about a methodology to test my hypothesis. But it appears to be supported by a recent case in the Frankfurt Court of Appeals (Oberlandesgericht). Continue reading

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