MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida, Bernice Kwok and Daniel de Senna Fernandes, Riquito Advogados
6. Injunctive Relief 6.1 Circumstances of Injunctive Relief In general, injunctive relief measures can be awarded when there is a justified concern that a certain right may be harmed in a serious and barely recoverable manner. Such measures can be of a conservatory nature, such as when the interested party seeks to arrest their debtor’s assets for future enforcement, or of an anticipa- tory nature, when the interested party seeks to obtain their claim (in total or in part) in advance of the court’s final ruling. Parties can request interim relief in either pending proceedings or before starting legal proceedings. Specified Interim Injunctions Without prejudice to the request of unspecified interim injunctions, the Macau SAR’s Code of Civil Procedure provides an array of specified interim measures, including: • provisional restitution of certain asset(s); • suspension of corporate resolutions; • provisional alimony; • provisional compensation; • arrest and deposit of assets; and • embargo of works. Unspecified Interim Injunctions Besides the aforementioned, interested parties may seek to obtain any other (unspecified) forms of injunctive relief. The general requirements for the award of injunctive relief are: • likelihood of the existence of the claimant’s right (fumus boni juris); and • likelihood of the occurrence of damage to it (periculum in mora).
Notwithstanding the above, the relief will not be awarded if it will cause significantly more dam- age than it is meant to prevent. The court may authorise the substitution of the interim relief measure for the provision of a bond deemed adequate. Injunctive relief measures may be requested in the Macau SAR in connection with foreign legal proceedings, depending on the existence and terms of international conventions or agree- ments for judicial co-operation between the jurisdictions involved. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Injunctive relief proceedings are of an urgent nature, and their handling shall supersede any non-urgent actions. Their urgent nature also means that the required actions and hearings also take place during court holidays. As a general rule, injunctive relief shall be decid- ed upon within two months from the application for it, but when the proceedings run on an ex parte basis, this time limit is reduced to 15 days. 6.3 Availability of Injunctive Relief on an Ex Parte Basis By default, injunctive relief is not awarded with- out the respondent having the opportunity to submit their defence and being present at the hearing. That will not be the case when it may represent a serious risk for the effectiveness of the measures being requested; in such cases, the injunctive relief is decided on an ex parte basis. Certain forms of interim relief, specifically fore- seen in the Code of Civil Procedure (such as the arrest of assets), are awarded on an ex parte
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