LIECHTENSTEIN Law and Practice Contributed by: Matthias Niedermüller, Alexander Milionis and Fabian Rischka, Niedermüller Attorneys-at-Law
If third-party debtors act against such orders, they are liable for damages of the creditor (Sec - tion 280(2) and (3) of the Enforcement Act). The third-party debtors thus are served with the order that also makes the seizure and pledge effective. Material Aspects In cases of regular freeze orders, the creditor needs to make their claim against the debtor plausible by means of evidence – ie, the stand - ard of proof is lower than the usual civil stand - ard. In applications for injunctions, affidavits may also be used as a means of evidencing the facts. Further, the creditor needs to demonstrate that – without the injunction – there is a plau - sible risk to the later enforcement of their claim (endangerment). The law here also provides for an assumption of endangerment to the benefit of the creditor if the claims would have to be pursued abroad or the debtor is resident outside Liechtenstein (objective endangerment). Finally, the creditor must provide plausible evi - dence of the debtor’s asset located in Liech - tenstein that will be seized for the benefit of the creditor. Thus, sufficient information for the court to identify the asset that will be seized is required. In cases of other injunctive measures such as official orders, additional requirements may apply. Non-Compliance by Defendant The freeze order prevents the debtor from dis - posing of the assets affected by the statutory pledge (eg, shares, bank deposits, and other rights via-à-vis third parties). If the debtor acts against this prohibition – for example, by trans -
ferring seized assets or rights to a third party – such action is null and void. Ex Parte Proceedings According to the latest jurisprudence of the European Court of Human Rights, generally an application for granting an injunction will be served to the defendant before a decision is made to grant the defendant the right to be heard (Article 6 of the European Convention on Human Rights). However, settled case law of the Liechtenstein Constitutional Court provides an exception to this general rule where the purpose and effectiveness of the injunction may be jeop - ardised or put at risk if the debtor is made aware of the application before the injunction is issued. Thus, the court can issue an injunction in an ex parte proceeding without hearing the debtor. The applicant is required to outline why serv - ing the application to the defendant may lead to jeopardising the effectiveness of the injunction. In most cases, the courts follow such applica - tions and thus also an effective ex parte measure is possible. If the injunction was granted ex parte, the debtor can raise an appeal but also a so-called objec - tion against the injunction. Therein the debtor may also provide material facts and offer evi - dence as to why the asserted claim does not exist. Based on the objection, the court usually holds an oral hearing at which the parties and witnesses offered by both parties are heard. After the objection hearing, the court issues a new decision on the injunction application – this time considering the entire evidence offered by the defendant as well. Costs Interim measures are always made at the cost of the applicant. The court fees vary depending on
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