Portugal - Attachment of Assets
Ines Gomes da Cruz
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Ines Gomes da Cruz, A. M. Pereira, Saragga Leal, O. Martins, Judice & Associados
Originally from Attachment of Assets
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
Attachment proceeding under Portuguese law consist of a request for the Court to issue an order regarding a debtor’s property or rights (e.g. bank accounts, credits over a third party, shares, etc.). The effect of the judicial order differs depending on the assets in question: (i) the attachment of real property is registered at the competent Land Registry as a charge in favour of the claimant; (ii) the attachment of personal property is done by seizing the assets and placing them in the custody of an enforcement agent appointed by the court but nominated by the claimant; and (iii) the attachment of defendant’s rights is done by notification to the third party (garnishee, bank, company, etc.) in which that third party is ordered to place the credit at the disposal of the enforcement agent.
2. What is the form of the attachment? Injunction? Other kinds of judicial order? Specify.
The form of the attachment is a judge’s decision ordering the attachment and naming the assets and/or rights attached.
3. What is the jurisdictional basis for an attachment? Is the presence of the debtor’s property a sufficient basis for an attachment to be obtained, assuming other requirements are satisfied? To what extent may attachments be used as a basis for obtaining personal jurisdiction over a debtor? To what extent are attachments or similar orders intended to have extraterritorial effect?
The presence of assets in Portugal is sufficient to establish Portuguese jurisdiction over the attachment request. However it does not give rise to personal jurisdiction that would allow the main proceedings on the merits to be judged here. The Portuguese courts will only have jurisdiction for the proceedings on the merits if the defendant lives here or the obligations were to be fulfilled in Portugal.