MONACO Law and Practice Contributed by: Donald Manasse, Donald Manasse Law Offices
1.6 Rules of Pre-Action Conduct There are no particular or specific rules requir - ing, for example, a letter before taking action to return assets prior to filing an ex parte motion to seek an order to freeze them. In a standard civil action, it is necessary to demand the reimburse - ment of any amount alleged to be due prior to starting an action. This is known as a mise en demeure , which also starts the running of legal interest on the claim. 1.7 Prevention of Defendants Dissipating or Secreting Assets Freezing Orders A victim of fraud can request a freezing order on assets belonging to a defendant and held by third parties, as a pre-judgment attachment, by filing an ex parte request with the president of the Court of First Instance (Articles 490 and 491 of the CPC). The claimant must show the exist - ence of “certain principle of a claim with a suf- ficiency of evidence” . This is a standard estab - lished by case law. It is not required to show the existence of a foreign judgment. A saisie is the equivalent of a freezing injunction and does not require a cross-undertaking or court fees (as a bond). If the request is refused, the creditor can appeal in an ex parte proceeding. The saisie , or freezing order, will be specific to “accounts in a bank” held by a debtor, for example, but it is not necessary to name specific account num - bers. The Monaco courts will not issue a general “worldwide” freezing order of the type that can be obtained in common law jurisdictions. The pre-judgment attachment grants prec - edence over other creditors, other than where the assets are pledged to the bank, for example. It is not necessary to explain why it is thought a third party or bank holds assets, nor is it neces - sary to specify, for example, the numbers of the bank account to be seized. It is not necessary
to evoke a risk of asset dissipation to justify the necessity of the seizure order. Under Article 487 of the CPC, it is possible to unilaterally and without a court order make assets, including bank funds, temporarily una - vailable to the defendant by filing a request with the court, which will be served to the third par - ties or the defendant. The presiding judge will then reply within a very short time with a decision on whether or not to allow the temporary una - vailability to continue. While the initial request is ex parte, the third party and the debtor will be informed. If the request fails, then the debtor will 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 permis - sion from the presiding judge to seize the assets. A bailiff will then intervene at the office or resi - dence to do so, making an inventory of the assets seized. For this procedure (Article 759 of the CPC), it is necessary to explain that there is a risk of dissipation. Third parties holding assets, particularly banks, will be served with a seizure order and must reply immediately as to whether such order can be satisfied (whether funds exist and, if so, the amount to be frozen under the order). They must make a complementary declaration at the date of the first hearing of the amount seized, after 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.
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