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A conservatory arrest (conservatoir beslag) lets you freeze a debtor’s assets in the Netherlands, such as a ship, a bank balance, goods or real estate, before a court rules on your claim. You need leave from the preliminary relief judge (voorzieningenrechter) (Article 700 Dutch Code of Civil Procedure, DCCP). For a ship arrest, the Rotterdam judge is also competent (Article 728 DCCP).
Our Dutch law firm assists creditors that want to attach assets and debtors that want an attachment lifted. As a Dutch civil litigation attorney in the Netherlands, I explain below how you obtain leave, which assets you can attach, how a ship arrest works and which risks you run. See also our page on precautionary attachments in the Netherlands.
A conservatory arrest is a civil-law measure against assets. It is not the arrest or detention of a person. Arrest warrants and seizure in criminal cases follow the rules of criminal procedure, which this page does not cover. MAAK does not handle criminal law matters.
What is a conservatory arrest (prejudgment attachment) in the Netherlands?
A conservatory arrest, also called a prejudgment attachment or precautionary attachment, secures assets while you do not yet have an enforceable judgment or other enforcement title. The aim is that the assets are still available for recovery once you have won your case. The rules are in Title 4 of Book 3 DCCP (Articles 700 to 770c).
There are two main kinds. An attachment for recovery (verhaalsbeslag) secures a monetary claim. An attachment for delivery (beslag tot afgifte) secures a right to the delivery of a movable thing or the transfer of an asset, or a right to it that you can obtain through a court decision annulling or terminating a contract (Article 730 DCCP).
You can apply for leave before proceedings on the merits have started or while they are pending (Article 700(3) DCCP). Once you obtain an enforceable title in the main proceedings, the conservatory attachment becomes an executory attachment, provided the title has been served on the debtor and, for an attachment under a third party, also on that third party (Article 704(1) DCCP). An attachment does not give you priority over other creditors (Article 3:277(1) Dutch Civil Code; see also ECLI:NL:GHAMS:2022:1625, ground 2.6).
How does ship arrest work in the Netherlands?
A ship arrest (scheepsbeslag) is a conservatory attachment on a ship (Articles 728 to 728b DCCP). The general rules of Article 700 DCCP apply, with some special rules:
- Competent judge: besides the judge who is competent under Article 700(1) DCCP, the preliminary relief judge of the district court where the ship is expected and the preliminary relief judge of the Rotterdam District Court can grant leave (Article 728(1) DCCP).
- No fear of embezzlement: Article 711(1) DCCP does not apply to ships (Article 728(1) DCCP). You do not need to show that the debtor is likely to remove the ship.
- Domicile: in the official report of the arrest, domicile can be elected at the office of the bailiff instead of with a notary, or at the office of a lawyer in the Netherlands (Article 728(2) DCCP).
- Registered ships: if the ship is entered in the Dutch public registers and you do not start the main proceedings within the period set by the judge, you must have the registration of the arrest cancelled without delay, on pain of liability for damages (Article 728b DCCP).
The deadline for the main proceedings applies as it does for other attachments (Article 700(3) DCCP). The owner can have the ship released: the preliminary relief judge lifts an attachment for a monetary claim if sufficient security is provided for that claim (Article 705(2) DCCP). As a rule, the petition for leave must be signed by a lawyer (advocaat) (Article 278(3) DCCP). Whether a ship arrest in Rotterdam or another Dutch port is possible and useful also depends on the international aspects of your case, which you should have checked before you file.
Which requirements must a conservatory arrest meet?
The statutory requirements for leave are limited:
- a petition (verzoekschrift) to the preliminary relief judge of the district court where one or more of the assets are located or, if the attachment does not concern things (for example a bank balance), where the debtor or the third party under whom the attachment is levied has its domicile (Article 700(1) DCCP);
- the petition states the type of attachment, the right you invoke and, for a monetary claim, its amount or, if the amount is not yet fixed, the maximum amount, in addition to any special requirements for the type of attachment concerned (Article 700(2) DCCP);
- the petition is signed by a lawyer, unless it is filed with the cantonal judge or a special statutory provision says that no lawyer is needed (Article 278(3) DCCP);
- for some types of assets: a well-founded fear of embezzlement (see below).
The judge decides after a summary examination (Article 700(2) DCCP). Based on your statements and evidence, and in light of the defences known at that moment, the soundness of your claim must appear on a summary review. The judge does not give a provisional ruling on the merits. The Amsterdam Court of Appeal held that leave cannot be refused only because the creditor has not shown that the attachment is necessary. It applied the test of Article 700(2) DCCP and checked that the attachments were proportionate and not an abuse of power (ECLI:NL:GHAMS:2022:1625, grounds 2.4 to 2.6). An attachment can later be lifted if it summarily appears to be unnecessary (Article 705(2) DCCP).
For a monetary claim, you must show a well-founded fear of embezzlement (gegronde vrees voor verduistering) for an attachment on movable things that are not registered property, on bearer and order rights and on certain other rights (Article 711(1) and (3) DCCP), on registered shares and registered securities (Article 714 DCCP) and on real estate (Article 725 DCCP). That requirement does not apply to the holder of a protested bill of exchange, promissory note or cheque (Article 711(2) DCCP), to an attachment under a third party such as a bank (Article 718 DCCP; ECLI:NL:GHAMS:2022:1625, ground 2.6), to ships (Article 728(1) DCCP), or if the debtor has no known domicile in the Netherlands (Article 765 DCCP).
In the case of a monetary claim, the judge sets the amount for which leave is granted, including the costs the debtor may be ordered to pay (Article 700(2) DCCP). The judge may make leave conditional on you providing security for damage the attachment may cause (Article 701(1) DCCP).
What happens after the arrest has been levied?
A bailiff (gerechtsdeurwaarder) levies the attachment. The leave and the petition on which it was granted are served on the debtor together with the bailiff’s writ (Article 702(2) DCCP).
Unless proceedings on the merits were already pending when leave was granted, the leave is conditional on starting them within a period set by the judge of at least eight days after the attachment. The judge can extend that period if you ask before it expires. If you start the main proceedings too late, the attachment lapses (Article 700(3) DCCP). For an attachment under a third party, you must also serve a copy of the summons on the third party within eight days after starting the main proceedings, on pain of nullity of the attachment (Article 721 DCCP).
A conservatory attachment does not pay your claim. That happens only after you have obtained an enforceable title and the attachment has become an executory attachment (Article 704(1) DCCP). If your claim is rejected and that decision becomes final, the attachment lapses by operation of law (Article 704(2) DCCP). If the debtor is declared bankrupt, attachments lapse; they revive if the bankruptcy ends because it is annulled or lifted, provided the asset still belongs to the estate (Article 33(2) Bankruptcy Act).
Which rules of Dutch law govern conservatory arrest?
The rules are in Title 4 of Book 3 of the Dutch Code of Civil Procedure (Articles 700 to 770c), not in the Civil Code. Articles 700 to 710a contain general provisions. Special rules apply per type of asset:
- movable things held by the debtor: Articles 711 to 713 DCCP;
- registered shares and registered securities that are not shares: Articles 714 to 717 DCCP;
- attachment under third parties (garnishment), for example under a bank: Articles 718 to 723 DCCP;
- real estate: Articles 725 to 727 DCCP;
- ships: Articles 728 to 728b DCCP;
- attachment for the delivery of things and the transfer of assets: Articles 730 to 764 DCCP;
- debtors without a known domicile in the Netherlands: Articles 765 to 767 DCCP.
Unless the law provides otherwise, a conservatory attachment is levied in the same way as an executory attachment on the same type of asset. The leave of the judge takes the place of the enforcement title (Article 702(1) DCCP). No attachment may be levied on goods intended for public service (Article 703 DCCP).
How do you obtain leave for an attachment?
Your lawyer files the petition with the court registry of the competent district court. Attach the documents that support your claim, such as the contract, invoices and correspondence, and deal with the defences the debtor has raised so far. The judge decides on the basis of a summary examination (Article 700(2) DCCP).
The judge can also grant leave to levy the attachment on all days and at all hours. No appeal lies against a decision granting leave (Article 700(2) DCCP); a debtor who disagrees can ask for the attachment to be lifted (Article 705 DCCP). If your petition is refused, you can appeal to the court of appeal (ECLI:NL:GHAMS:2022:1625, ground 2.3). As the applicant, you must do so within three months from the date of the decision (Article 358(1) and (2) DCCP).
Can you garnish a bank account or other receivables before judgment?
Yes. You can levy a conservatory attachment under a third party (derdenbeslag) on claims the debtor has against that third party, and on movable things of the debtor that the third party holds and that are not registered property (Article 718 DCCP with Article 475(1) DCCP). The best-known example is an attachment on the debtor’s bank balance under the bank. The bailiff orders the third party to hold what it owes; a payment made despite the attachment is not valid against you (Article 475(1)(a) DCCP).
You do not need to show a fear of embezzlement for this type of attachment. The third party must make a declaration of what is covered by the attachment (Article 476a DCCP, which applies through Article 720 DCCP). Once the attachment has become executory, the third party’s obligation to pay you does not start until four weeks after the title has been served on it (Articles 722 and 723 DCCP). If the debtor is a natural person, an attachment on a bank balance is only valid for the part above a protected amount (Article 475a(5) DCCP, applied through Article 720 DCCP).
The law does not require you to send a formal notice before you apply for leave. Your underlying claim may require one, however, for example a claim for damages for late performance.
Is the debtor heard before leave is granted?
In general, no. Article 700 DCCP does not require the judge to hear the debtor before granting leave. A conservatory arrest can therefore be levied without prior warning, which is why it is effective. There are exceptions. Leave to attach a claim for periodic payments, such as wages, can only be granted after the debtor has been heard or has not used the opportunity to be heard (Article 720 DCCP).
The attachment only covers the assets that are actually attached. It does not prohibit the debtor from dealing with its other assets. The debtor is protected afterwards: it can ask the preliminary relief judge in summary proceedings to lift the attachment (Article 705 DCCP), and the attaching creditor bears the risk of damage if its claim later proves wholly unfounded (see below).
Which conservatory measures are available in Holland?
The table shows the main types of conservatory attachment for a monetary claim and whether you must show a well-founded fear of embezzlement.
| Asset | Articles DCCP | Fear of embezzlement required? |
|---|---|---|
| Movable things that are not registered property, held by the debtor | 711-713 | Yes (Article 711(1)), except for the holder of a protested bill of exchange, promissory note or cheque (Article 711(2)) |
| Bank balance, other claims and things held by a third party | 718-723 | No |
| Registered shares and registered securities | 714-717 | Yes (Article 714 with Article 711(1)); the exception of Article 711(2) also applies |
| Real estate | 725-727 | Yes (Article 725) |
| Ships | 728-728b | No (Article 728(1)) |
If the debtor has no known domicile in the Netherlands, you do not need to show a fear of embezzlement (Article 765 DCCP). Two other measures can be useful. If there is a dispute over which party is entitled to certain assets, the preliminary relief judge can, in summary proceedings, place them under administration (Article 710(1) DCCP). And the judge can order that attached movable things that are not registered property are handed over to a custodian (Article 709 DCCP).
How do you attach movable assets?
For movable things that are not registered property, such as stock, machines or vehicles held by the debtor, you need leave and you must show a well-founded fear of embezzlement (Article 711(1) DCCP). The fear must concern the debtor or, if the assets belong to someone else, that other person. A bailiff then attaches the goods on site.
At your request, the judge can order that the attached goods are also handed over to a custodian (gerechtelijke bewaring). The judge first gives the debtor and other interested parties an opportunity to be heard, unless special circumstances require an immediate order (Article 709(1) and (3) DCCP).
What makes an attachment application succeed?
A good petition does three things. It shows, with documents, that your claim appears sound on a summary review. It deals openly with the defences the debtor has raised so far. And it shows that the attachment is in proportion to the claim, for example by limiting it to the assets and the amount you need.
Leaving out known defences is risky. The preliminary relief judge lifts the attachment if it summarily appears that your claim is unsound or that the attachment is unnecessary (Article 705(2) DCCP). The test on appeal against a refusal is the same as at first instance (ECLI:NL:GHAMS:2022:1625, ground 2.5).
Which limits and risks apply to an attachment?
- Deadline: if you do not start the main proceedings in time, the attachment lapses (Article 700(3) DCCP).
- Liability: under settled case law, the attaching creditor is liable for the damage caused by an attachment levied for a claim that later proves wholly unfounded. The Supreme Court held that this strict liability does not extend to things of a third party that the bailiff seized although they were not covered by the leave (Supreme Court 15 July 2022, ECLI:NL:HR:2022:1110, ground 3.2).
- Costs: you can recover the costs of the attachment from the debtor, unless the attachment was void, unnecessary or unlawful (Article 706 DCCP).
- Security: the judge may require you to provide security for damage the attachment may cause (Article 701(1) DCCP).
- No priority: an attachment does not give you priority over other creditors (Article 3:277(1) DCC), and attachments lapse if the debtor is declared bankrupt (Article 33(2) Bankruptcy Act).
How do you attach receivables, real estate and other assets?
The steps are largely the same for every type of asset:
- Identify the assets and where they are. This determines which judge is competent (Article 700(1) DCCP) and whether you must show a fear of embezzlement.
- Your lawyer files the petition, stating the type of attachment, your claim and its (maximum) amount (Article 700(2) DCCP). For real estate and for certain rights, the petition must describe the assets to be attached (Articles 711(3) and 725 DCCP).
- After leave is granted, a bailiff levies the attachment in accordance with the rules for an executory attachment on that type of asset, and serves the leave and the petition on the debtor (Article 702 DCCP).
- You start the main proceedings within the period set by the judge, unless they are already pending (Article 700(3) DCCP).
A conservatory attachment does not lead to a sale of the assets. A sale is only possible after the attachment has become an executory attachment (Article 704(1) DCCP). Court fees and bailiff’s costs apply; ask your lawyer for an estimate for your case.
How does an interim injunction differ from a conservatory arrest?
An interim injunction is given in summary proceedings (kort geding). In all urgent cases in which, given the interests of the parties, an immediate provisional measure is required, the preliminary relief judge can grant it (Article 254(1) DCCP). Summary proceedings are started by a writ of summons, so the other party can defend itself. An interim injunction is a separate instrument; it is not the same as a conservatory arrest.
| Conservatory arrest | Interim injunction (kort geding) | |
|---|---|---|
| Legal basis | Articles 700 and following DCCP | Article 254 DCCP |
| Debtor heard first? | In general not | Yes, the other party is summoned |
| Test | Claim appears sound on a summary review; for some assets also a fear of embezzlement | Urgent case in which an immediate provisional measure is required, given the interests of the parties |
| Result | Specific assets are attached | A provisional order or prohibition |
Is there a Dutch equivalent of the Mareva injunction?
Not as such. A Mareva injunction (in English law now called a freezing injunction) is a court order addressed to the defendant personally, which prohibits it from dealing with its assets. The Dutch Code of Civil Procedure has no separate freezing order of that kind.
The functional equivalent is a conservatory arrest: a bailiff attaches specific assets with the leave of the preliminary relief judge (Article 700 DCCP), in general without the debtor being heard first. You therefore need to know which assets the debtor has in the Netherlands. In urgent cases, you can also ask the preliminary relief judge in summary proceedings for an order or prohibition (Article 254(1) DCCP).
Why do you need a Dutch lawyer for a ship arrest or other attachment?
A petition for leave to the preliminary relief judge must be signed by a lawyer admitted in the Netherlands (advocaat), unless a special statutory provision says that no lawyer is needed. The lawyer’s office then counts as your chosen domicile (Article 278(3) DCCP). In a ship arrest, domicile can also be elected at the office of a lawyer in the Netherlands (Article 728(2) DCCP).
Timing matters. A ship may leave port quickly, and the period for starting the main proceedings runs from the moment the attachment is levied. A lawyer prepares the petition, instructs the bailiff and plans the main proceedings, in the Netherlands or elsewhere. If an attachment has been levied against you, a lawyer can ask the judge to lift it or negotiate security for its release (Article 705 DCCP).
Frequently asked questions about conservatory arrest in the Netherlands
Which court can grant leave for a ship arrest in the Netherlands?
The preliminary relief judge of the district court where the ship is located, the preliminary relief judge of the district court where the ship is expected, and the preliminary relief judge of the Rotterdam District Court (Articles 700(1) and 728(1) DCCP). You do not need to show a fear of embezzlement for a ship (Article 728(1) DCCP). As a rule, the petition must be signed by a Dutch lawyer (Article 278(3) DCCP).
Where do you apply for a conservatory attachment (conservatoir beslag) in Amsterdam?
You apply to the preliminary relief judge of the district court in whose area one or more of the assets are located. If the attachment does not concern things, for example a bank balance, you apply to the court where the debtor or the third party under whom you attach, such as the bank, has its domicile (Article 700(1) DCCP). For goods located in Amsterdam, that is the Amsterdam District Court.
What does civil arrest or a conservatory measure mean in Dutch law?
In Dutch civil law, an “arrest” of assets means an attachment (beslag), not the arrest of a person. A conservatory measure secures a right until a court has ruled on it: the assets are frozen, but not sold (Articles 700 and 704 DCCP). Arrest warrants and criminal seizure are matters of criminal procedure, which MAAK does not handle.
What is garnishment under Dutch law?
Garnishment is an attachment under a third party (derdenbeslag), for example under a bank or a customer of the debtor. The third party must then hold what it owes the debtor (Articles 475(1) and 718 DCCP). You need leave from the preliminary relief judge, but you do not need to show a fear of embezzlement.
How long does a conservatory arrest remain in effect?
In principle until the main proceedings have been decided. The attachment lapses if you do not start the main proceedings in time (Article 700(3) DCCP), or if your claim is rejected by a final decision (Article 704(2) DCCP). It becomes an executory attachment once you obtain an enforceable title (Article 704(1) DCCP). It can be lifted earlier by the preliminary relief judge, for example if sufficient security is provided (Article 705(2) DCCP), and it lapses if the debtor is declared bankrupt (Article 33(2) Bankruptcy Act).
Primary sources
- Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), current version: Articles 254, 278, 358, 475, 475a, 476a, 700, 701, 702, 703, 704, 705, 706, 709, 710, 711, 714, 718, 720, 721, 722, 723, 725, 728, 728b, 730 and 765
- Dutch Civil Code (Burgerlijk Wetboek), Book 3: Article 3:277
- Bankruptcy Act (Faillissementswet): Article 33
- Supreme Court (Hoge Raad) 15 July 2022, ECLI:NL:HR:2022:1110
- Amsterdam Court of Appeal 31 May 2022, ECLI:NL:GHAMS:2022:1625
Do you need help with a conservatory arrest or ship arrest?
A conservatory arrest freezes specific assets to secure your claim; an interim injunction orders or prohibits conduct. A conservatory arrest requires leave from the preliminary relief judge, and it stays in place until it lapses, is lifted or becomes an executory attachment. For advice on attaching assets or a ship in the Netherlands, or on lifting an attachment, contact our litigation attorneys in the Netherlands.
