SPAIN Law and Practice Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna, Virginia Jover and Pedro Echeguren, Lopez-Ibor DPM
pered by any situation that occurs while the relevant proceedings are still pending; and • when it cannot be replaced by another meas- ure that is equally effective for the purposes of the preceding paragraph but less burden- some or damaging for the defendant. Section 727 of the SCPA sets out specific reliefs that may be requested by any plaintiff, for exam- ple: • freezing of assets; • judicial intervention of productive assets; • deposit of movable assets; • preventative registrations in public registries; • judicial orders to provisionally cease any spe- cific conduct; and • suspension of any corporate resolutions. This list is nevertheless open as Spanish law grants the opportunity to request any relief nec- essary to secure the potential enforcement of the future judgment. For the relief to be granted, the applicant for any injunctive relief has to meet the following three requirements (Section 728 SCPA). • The petitioner has to provide good standing of its position (fumus boni iuris), with evi- dence of the asserted right or legal interest so that it appears to be plausible, eg, suffi- cient for it to be foreseeable so that the main decision will declare the right in favour of the party requesting the interim measure. This results in the need to ensure the effects of the interim measure by means of appropriate precautionary measures. • The petitioner has to provide the court with solid arguments about the need for injunc- tive relief due to a potential risk in the course of the proceedings (periculum in mora). This
entails that if the measures are not adopted, the effectiveness of the protection that could be granted in an eventual favourable judg- ment would be prevented or hindered. • The petitioner has to deposit a bond ( caución ), which will be determined by the court but must be enough to cover the pos- sible damages that the defendant may suffer if the claim is dismissed. Therefore, the pur- pose of the bond is to bear the risk of possi- ble damages the interim measure may cause to the defendant’s wealth. 6.2 Arrangements for Obtaining Urgent Injunctive Relief The Spanish legal system allows injunctive relief to be requested at the time the statement of claims is filed. Nevertheless, Section 730.2 of the SCPA allows injunctions to be sought prior to the main pro- ceeding. This is possible if, at the relevant time, the applicant alleges and evidences reasons of urgency or need. If this is the case, the meas- ures adopted on an urgency basis will cease after 20 days if the main claim is not filed before the court. The applicant would then be bound to pay all related costs (including the potential loss caused to the party that suffered the effects of the injunction). In exceptional cases, if the applicant properly justifies the existence of urgency, the court may order an injunctive relief in the following five days without hearing the defendant (Section 733.2 SCPA). 6.3 Availability of Injunctive Relief on an Ex Parte Basis The possibility of injunctive relief being grant- ed ex parte or inaudita parte only applies in extremely exceptional circumstances where the
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