Originally from Attachment of Assets

1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or Marshall?

In Kuwait, the Civil and Commercial Procedure Code provides in articles 216-226, that a prejudgment attachment is available to a creditor over his debtors personal property if the debt is certain (i.e. the existence of which is established), and is due and payable in the following circumstances:

• In every case where it is feared that the security of his right will be lost.

• In the case of real property lease if the lessor fears that the preference accorded to him by law will be lost.

• If the moveable property or crops have been relocated without his knowledge provided this is done prior to the lapse of 30 days.

The owner of in Rem rights as well as anyone with distraint rights may obtain a prejudgment attachment over moveable property in the hands of the possessor. If the amount of debt is not certain or signified in a writ of execution the judge of urgent matter may hold a summary hearing to determine whether or not the debt is ascertainable. The judge would make a provisional estimation of the right for the purpose of attachment.

The third party in who has passion of the property the subject of the attachment is obliged to make a declaration of the amounts and property in his/her possession within ten days as of the notification of the attachment. Once the attachment is in place the third party is responsible for the amounts and properties attached. Attachments do not affect performance of the third part’s obligations to the debtor. The attachment however requires that performance be by depositing the funds with the court or transferring possession of goods to a court appointed custodian and not to the debtor of the attachment.