MONACO Law and Practice Contributed by: Donald Manasse, Donald Manasse Law Offices
be served to the third parties or the defendant. The presiding judge will then respond within a very short time with a decision on whether or not to allow the temporary unavailability to continue. While the initial application is ex parte, the third party and the debtor will be informed. If the application is unsuccessful, the debtor will already have been notified and will often take immediate measures to remove funds from the jurisdiction. Debtors and Third Parties Holding Assets If the assets are held by the debtor rather than a third party, the creditor can request permission from the presiding judge to seize the assets. A bailiff will then intervene at the office or residence to do so, making an inventory of the assets seized. For this procedure (Article 759 of the CPC), it is necessary to demon - strate a risk of dissipation. Third parties holding assets, particularly banks, will be served with a seizure order and must respond immediately as to whether such order can be satis - fied (whether funds exist and, if so, the amount to be frozen under the order). They must make a sup - plementary declaration at the date of the first hearing of the amount seized, after any transactions pending at the time of the seizure are cleared. Failure to do so exposes the bank or third party to being held liable for the amount authorised to be seized. The dissipation of assets seized by a bailiff is a criminal offence. Escrowing of Assets It is possible to request the escrowing of assets under Article 1800 of the Civil Code if there is a dispute over ownership, on an ex parte basis. This method has recently been favoured by the courts even where there is no “principle of the certainty of a claim”. Court Fees While no court fees or bonds are payable, Monaco avocat-défenseurs (ie, members of the Monaco Bar, which currently comprises 35 lawyers, who are either avocat-défenseurs , avocats , or avocat-stagiaires ) are statutorily entitled to 0.4% of the amount in controver - sy as statutory fees if a claim or procedure is success - ful, in addition to their honoraria, even if their partici - pation is limited to the mere representation of foreign counsel. They are entitled to 0.2% of the amount of
a settlement that may ensue, even when they have not been involved, and to 0.3% if they have been involved in negotiations. There are additional calcula - tions for appellate procedures. The statutory fees are not always applicable or enforced.
2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets
Attempts to enforce deposition and discovery orders from foreign courts on Monaco residents in civil cases have not been successful. It is possible to obtain a deposition through the Hague Convention on the Tak - ing of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), to which Monaco is a signatory; however, no coercive measures may be taken in the requesting country against the per - son refusing to submit to the deposition. In local civil cases, there are no provisions for pre-trial deposition and limited provisions for pre-trial discovery. It is possible to request and obtain, through an ex parte proceeding, a civil order compelling a third par - ty, or even a potential party, to disclose information. The request must be specific as to the information requested. There are no sanctions similar to contempt orders for refusing to comply, and the party making the request may then sue in an accelerated proceed - ing known as a référé to seek an order to comply, with an astreinte , or civil fine for refusing to do so. 2.2 Preserving Evidence The CPC has been revised by Law 1.511 of 2 Decem - ber 2021, at Article 300-1, to provide for the possibility of seeking a court order to preserve evidence. The request can be made ex parte. The order will sus - pend the running of the civil statute of limitations for a period of not less than six months from the time the order to produce evidence is executed. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties It is possible to request an order ex parte to obtain documentation from a third party, prior to a proceed - ing, and there are no restrictions placed on the use of such material.
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