Contributed By Pérez-Llorca
The SCPA establishes that the court may order an injunctive relief in the following circumstances:
The applicant must comply with the following requirements:
The following types of injunctions are available, among others:
As a general rule, injunctive relief must be requested together with the claim. However, an injunctive relief may also be sought prior to the claim if, at the relevant time, the applicant alleges and evidences urgency or necessity. In this case, the measures adopted shall cease to have effect if the claim is not filed with the same court that heard the request for the said measures within 20 days following their adoption.
The court may order an injunctive relief within a time limit of five days if (i) the applicant requests that the court grant the injunctive relief without hearing the defendant; and (ii) the applicant evidences the existence of urgency or that the prior hearing may jeopardise the efficiency of the injunction.
As a general rule, the court shall rule on the petition for an injunctive relief after hearing the defendant. However, as mentioned in the previous question, an injunctive relief may be obtained exceptionally on an ex parte basis, without the respondent present.
The court may order an injunctive relief without the respondent present if the applicant requests this and evidences the existence of urgency or that the prior hearing may jeopardise the efficiency of the injunction.
The court order shall be notified to the parties without delay and, if it cannot be notified sooner, immediately after the enforcement of the measures.
The applicant can be held liable for damages suffered by the respondent if the respondent successfully later discharges the injunction.
The same result would apply when the injunctive relief is obtained on an ex parte basis. Specifically, the SCPA establishes that where an injunction has been adopted without previously hearing the defendant, the latter may file an objection. If the court upholds the objection, at the request of the defendant, the damages caused, as appropriate, by the revoked injunction shall be determined. Once determined, the applicant for the measure shall be required to pay the said damages. Should the applicant fail to do so, their compulsory exaction shall be carried out immediately.
The applicant seeking an injunction shall post sufficient security to compensate, in a speedy and effective manner, the damages that the adoption of the injunction may cause to the estate of the defendant, unless expressly stated otherwise. The court shall determine the security taking into account the nature and contents of the claim and its assessment.
The court clerk shall lift ex officio all the injunctions adopted if a judgment of acquittal is granted and becomes final. The procedure shall continue in accordance with the provisions established in the preceding paragraph concerning the damages the defendant may have incurred.
The security must be sent prior to any act of compliance with the established injunction. The court shall decide whether the security amount is suitable and sufficient by means of a procedural court order.
The SCPA stipulates that an injunctive relief can be granted against the assets of the respondent. Therefore an injunctive relief may be granted against the respondent’s worldwide assets in line with the applicable regulations, such as Regulation (EU) No. 655/2014 of the European Parliament and of the Council of 15 May 2014, establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters.
An injunctive relief cannot be obtained against third parties. The court may only order an injunctive relief regarding the assets and rights of the defendant.
Once the injunction has been established and the security posted, if a respondent fails to comply with the terms of an injunction, they will be forced to comply with it immediately ex officio, using any means necessary, including those established for the enforcement of judgments.
Regarding the enforcement of judgments, the SCPA establishes that all persons and authorities must abide by and comply with the stipulations in the judgments. Those who are party to the proceedings or prove to have a direct and legitimate interest may request the proceedings from the court in order to overcome potential resistance to what has been decided in such decisions.