Protective measures granted by Spanish courts vary widely depending on the nature of the issue at hand. Roughly these measures can be translated into English as “injunctions”, “restraining orders” and the like. In the commercial litigation context they are typically used to stop irreversible harm by another contracting party, but may also be used when there is no direct contractual relationship, such as when there is an abuse of intellectual property rights.
When representing foreign clients in suits against Spanish parties, we typically use protective measures in situations of non-payment where there is a need to avoid the debtor from absconding with its assets or otherwise putting them out of reach of the foreign creditor in the event of a favorable money judgment. Amongst other measures, funds can be embargoed and annotations can be placed on property in the real property registry to block sale or to put subsequent creditors on notice of prior claims. These protective measures are particularly helpful when suing a debtor whose financial situation is questionable. Such measures can be obtained even prior to bringing the actual lawsuit, or while arbitration or litigation is pending in Spain or in other countries. While very effective, protective measures are not always easy to obtain and do require a judicial procedure, even if it is one that is relatively rapid. In particular, a party seeking such protective measures must demonstrate that they are not excessively onerous, that the creditor is likely to prevail on its claim and that failure to secure these measures (embargo of assets, etc.) may effectively “rob” it of the ability to recover any damages awarded due to the disappearance of the defendant’s assets.
