Attachments Abroad I - Part 2 Chapter 2 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Nowhere in transnational litigation is a global perspective more important than in the area of enforcement of judgments. Clearly the ultimate—indeed, primary—concern of the litigating attorney is to assist his client in enforcing whatever award or judgment the client may get (if the client is a claimant) and, conversely, to avoid the consequences of an adverse judgment or award (if the client is a defendant). Although American lawyers cannot render advice on foreign law—particularly in the field of litigation—without involving a lawyer from the foreign jurisdiction concerned, the U.S. practitioner can only benefit from having an awareness of the potential effects of foreign proceedings on the dispute in which he is acting as counsel.
It is probably fair to say that, in many foreign jurisdictions, the protection of creditors through fraudulent conveyance laws and the like is inadequate, or even, as a practical matter, unavailable. The enforcement of judgments is therefore often dependent on a creditor’s ability to obtain a prejudgment attachment (or the equivalent) of his debtor’s assets. The extent to which attachments are obtainable abroad and the circumstances under which they may be obtained under local law are the subject of this chapter. The discussion which follows purports only to give an overview of attachment procedures in various non-U.S. jurisdictions, so as to contribute to the reader’s sensitivity to potential pitfalls and opportunities.