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Файл:Ограничение прав должника. Новеллы законодательства и практика применения =The restriction of the rights of the debtor. The latest legislative changes
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V. Kranjc, J. Prostor. Provisional court measure sunder independent guarantee
clear abuse of rights, since it already has an option of denying the payment
without the involvement from the court (without the court order).
Nevertheless, unfair calling cannot be recognized two easily as it could
also destroy the economic function of bank guaranties as dependable securities in international trade and finance1. Courts have been therefore for a
long time “reluctant to readily recognise such legal defences. But widespread
misuses of bank guaranties <…> have eventually led to a situation where
the courts in most Western countries recognized this kind of legal defence
(Horn, Wymeersch). The courts invariably have required a gross violation
of the principle of good faith in the payment demand of the beneficiary, and
strong evidence of this fact”2.
4. Applicant’s measures against
the beneficiary for prevention of the payment
4.1. Applicant’s interest in preventing the payment
The requirements for obtaining an interim court measure are very similar in various national procedures3. Pursuant to German law the applicant
must have a claim against the bank, needs to prove unfair calling and must
explain its suffering from an irreparable harm, which is easy to prove, since
the money cannot be normally recovered4. This article analyses the solutions
under Slovenian Enforcement and Securing of Civil Claims Act (ZIZ)5.
The bank guarantor is entitled to demand reimbursement of the paid out
amount from the applicant after it receives the demand for payment and
pays out the guaranteed amount. The requirements for the recourse right
are usually expressly determined by the bank guarantor and applicant6. When
the bank guarantee is being issued the bank guarantor often at least partially
secures its claim toward the applicant who ordered the guarantee.
The applicant has the right to demand reimbursement of the paid out
amount from the beneficiary (a party of the underlying contract), unless it
1
N. Horn in: Horn N. (Ed.). Op. cit. P. 200.
2
N. Horn in: Horn N. (Ed.). Op. cit. P. 200. As a classic example of why a bank which issues
an independent guarantee should always honour any claim, complying with its terms, regardless
of applicant’s claim on unfair calling, see the case Siporex Trade SA vs Banque Indosuez, 1986,
2 Lloyd’s Rep. 146. See: Bishop E. Finance of International Trade. Oxford: Elsevier Butterworth-
Heinemann, 2003. P. 89.
3
N. Horn in: Horn N. (Ed.). Op. cit. P. 202.
4
N. Horn in: Horn N. (Ed.). Op. cit. P. 202.
5
Ur. l. RS, št. 3/07 with changes.
6
The bank is entitled to the recourse on the basis of art. 1087/2 ZOR and a special agreement between the parties is therefore not necessary.
311
II. Enforcement procedure in foreign countries
stems from the underlying contract that the beneficiary is entitled to keep the
paid out amount1. The beneficiary can keep the paid out amount if the applicant is responsible for the breach of the underlying contract. The existence
of legal ground for the reimbursement of the guaranteed amount (or contrary,
for the beneficiary to keep the amount) in cases of dispute over the applicant’s
demand, needs to be determined in a court procedure. In any case, even if the
applicant’s claim for the reimbursement is groundless, it might take several
years to receive a legally effective court ruling and perhaps the enforcement
of the decision. In this time the beneficiary could become insolvent or even
stop doing business. The applicant’s interests to prevent cashing in the bank
guarantee are therefore obvious.
If all the requirements from the bank guarantee are not met when a demand for payment is made, the bank guarantor simply does not pay out the
guaranteed amount and the questions of reimbursement or requirements
for preventing the payment are not relevant. On the occasion that a bank
guarantor pays out guaranteed amount despite the fact, that requirements of
the bank guarantee are not fulfilled, the bank is not entitled to demand the
recourse from the applicant, except if there is a different agreement between
the parties.
Different measures for securing the applicant’s claims are presented below. This article does not discuss potential claims of the applicant against the
guarantor in cases of unfair callings.
4.2. Applicant’s application for a provisional measure
Slovenian law allows the applicant to prevent the payment of the guaranteed amount or the beneficiary’s disposal with the paid out amount.
The Enforcement and Securing of Civil Claims Act is designed to serve
diverse claims, those that already exist and those that will exist in the future.
Its purpose is to provide certain legal security before the legally effective court
ruling, i. e. before the courts renders the decision based on real circumstances
of the case that are expertly determined by the highest standards. The purpose
of rules on provisional measures is to add legal certainty and provide that an
order could be enforced when it becomes legally effective. Securing claims
with provisional measures is only possible exceptionally, when special requirements are met. No special requirements for bank guarantees or abuse of rights
when cashing in the guarantee are listed under Slovenian law, however even
when considering whether the requirements for issuing a provisional measure
are met, special nature of the bank guarantee and its purpose of protecting
the creditor needs to be taken into consideration.
1
Art. 1087 ZOR.
312
V. Kranjc, J. Prostor. Provisional court measure sunder independent guarantee
The requirements for the provisional measure to be obtained differ
from one another depending on the type of claim that is being enforced.
The applicant is namely entitled to secure his position according to the
rules on securing monetary claims or the rules on securing non-monetary
claims1.
4.2.1. Provisional measure for securing monetary claims of the applicant
The court issues a provisional measure for securing a monetary claim if
the person who applied for it (the creditor of the claim and applicant for the
bank guarantee):
a) shows probable that a claim exists or that it will exist, and
b) shows probable that there is a danger that in case the debtor (beneficiary
from the guarantee) retains the right to freely dispose, hide, or in any
other way use the amount, paid out from the guarantee, the enforcing
of the claim will not be possible or will be made difficult.
A. Probability that a monetary claim exists or will exist
The monetary claim in question is the claim of the applicant against the
beneficiary to reimburse the amount that has been paid out from the guarantee. This claim can already exist at the time of the application for provisional
measure, or it can be only presumable that it will exist. In real life the most
frequent cases are those with claims that do not exist yet, but they will after
the payment of the guaranteed amount.
The person who applies for the provisional measure (the creditor or the
applicant) needs to show probable (state and prove) that a claim exists or
will exist. It needs to be emphasized that the applicant’s claim against the
beneficiary can also exist when there is no presumable abuse of rights when
demanding payment, meaning that the law also enables issuing a provisional
measure for securing monetary claims in cases where there is no abuse of
rights when demanding payment.
When determining whether the requirements for issuing a provisional
measure are met it is reasonable to consider if the parties concluded the underlying contract showing that they desire a security that can be actualized
under special requirements. Accordingly the applicant should prove especially
high probability for claiming the reimbursement of the paid out amount2.
1
Provisional measures are regulated in art. 266–279 ZIZ.
2
M. Šipec warns that the standard of proof in practice is not and cannot be interpreted the
same in all the situations. Šipec M. (Editor) et. al. Začasne odredbe v civilnih sodnih postopkih,
postopkih pred delovnimi in socialnimi sodišči, upravnimi sodišči, ustavnim sodiščem ter v
upravnem postopku. Ljubljana: GV Založba, 2001. P. 22.
313
II. Enforcement procedure in foreign countries
If the considered explanation would be that the person who applied for
the provisional measure (the creditor or applicant) must prove an abuse or
at least probability of an abuse, securing a monetary claim of the applicant
against the beneficiary would not be possible if there has been no abuse. But
Slovenian provisions on interim measures offer no basis for an assumption
that issuing a provisional measure for the claim of the applicant against the
beneficiary is not admissible in cases that do not include any possibility of
abuse. Nonetheless, the proof of probability that a monetary claim exists or
will exist is easier when the applicant evidences unfair calling.
B. Other presumptions
Beside the probability that a monetary claim exists or will exists, the person who applies for the provisional measure (the creditor or the applicant)
also needs to make probable the danger that enforcing the claim will not be
possible or will be made difficult if the debtor (the beneficiary) retains the
right to freely dispose, hide or in any other way use the amount, paid out
from the guarantee. There are no specialties to be detected concerning this
requirement in connection with bank guarantees.
The requirement does not have to be met if the person who applied for
the provisional measure shows probable that the debtor would not suffer
more than insignificant damage if the provisional measure would be issued,
which is harder to prove. The probability of danger also does not have to be
shown in cases, where the claim is asserted outside the European Union. In
situations like these the danger is assumed, which alleviates the position of
the person who applied for the provisional measure (the applicant).
C. Measures for securing monetary claims
The most useful orders that can be issued by the court for securing existing
or future monetary claim in relation to bank guarantees are:
a) prohibition for the debtor’s debtor (the bank guarantor) to pay the
guaranteed amount to the debtor (the beneficiary);
b) prohibition for the debtor (the beneficiary) to make a demand for
payment under the bank guarantee;
c) prohibition for the debtor (the beneficiary) to freely dispose the amount
that has been paid out from the bank guarantee.
4.2.2. Provisional measure for securing non-monetary claims of the applicant
The court issues a provisional order if the person who applied for the
provisional measure (the creditor or the applicant):
a) shows probable that a claim exists or that it will exist, and
b) shows probable that (alternatively):
– there is danger that enforcing the claim will not be possible or will be
made difficult, or
314
V. Kranjc, J. Prostor. Provisional court measure sunder independent guarantee
– that a provisional measure is necessary to prevent the use of force or
development of damage that would be hard to compensate, or
– that the debtor, if the order turned out to be unnecessary, would not suf-
fer greater damage than the creditor would if no order would be issued.
A. Probability that a non-monetary claim exists or will exist
A non-monetary claim is a claim demanding that a demand for payment under bank guarantee is not made or that an already made demand is
withdrawn. This kind of claim of the applicant against the beneficiary exists
if the secured obligation is not breached or a breach has not been proven.
The applicant (the person who applied for the provisional measure) has a
non-monetary claim against the beneficiary (the debtor according to the
law of enforcement) in cases of unfair calling under the bank guarantee. This
claim allows the applicant to demand that the beneficiary does not make a
demand for payment or that he withdraws an already made demand. The
applicant (the person who applied for the provisional measure) needs to state
and prove the presumable abuse of rights. If a probable abuse is not shown
when a demand for payment is made, the applicant does not have a nonmonetary claim and cannot insist on beneficiary not to make or to withdraw
his demand for payment.
The applicant’s claim against the beneficiary for demanding that the
beneficiary does not make a demand for payment or that he withdraws it
for the reason of unfair calling is a so called declaratory relief. Issuing provisional measures in relation to this kind of claims was not possible before this
standpoint was taken by case law1. Regulation interim orders are special in the
– that a provisional measure is necessary to prevent the use of force or
development of damage that would be hard to compensate, or
– that the debtor, if the order turned out to be unnecessary, would not suf-
fer greater damage than the creditor would if no order would be issued.
Regulation provisional measures therefore cannot be issued because of
probable danger that the enforcement of the claim will not be possible or will
be made difficult2.
C. Measures for securing non-monetary claims
The most useful orders that can be issued by the court for securing existing
or future monetary claim in relation to bank guarantees are:
а) Prohibition for the debtor’s debtor (the bank guarantor) to pay the
guaranteed amount to the debtor (the beneficiary);
1
M. Šipec in: Šipec M. (Editor) et. al. P. 78-91.
2
VSL Sklep I Cpg 660/2011.
315
II. Enforcement procedure in foreign countries
b) Prohibition for the debtor (the beneficiary) to make a demand for pay-
ment under the bank guarantee;
c) Prohibition for the debtor (the beneficiary) to freely dispose the amount
that has been paid out from the bank guarantee.
5. Conclusion
An independent bank guarantee is a security instrument that distinctly
protects the interests of the creditor or the beneficiary. It protects his interests
by enabling a pay out of the guaranteed amount without burdening him with
the obligation of proving that the secured obligation has been breached. Cases
were the beneficiaries claim under the bank guarantee despite the fact that
the opposing party has not breached the underlying contract, were regarded
as rare for plenty of years. However, there are cases in modern business practice, where questions of abuse by the beneficiary are posed when demanding
the payment. In certain cases there was an erroneous belief that there is an
abuse present even in cases where the breach of the secured obligation was
under dispute between the parties. The abuse of rights when demanding payment needs to be obvious, i.e. the demand is made without basis and that
the secured obligation has not been breached. In case of clear unfair calling
the guarantor, acting in good faith, has the right to withhold the payment.
When the abuse of rights is not clear, but it is highly probable and special
requirements are met, the applicant and as well the guarantor can prevent
the payment of the guaranteed amount by obtaining a provisional measure.
III. NATIONAL DOCTRINE
OF ENFORCEMENT
PROCEEDINGS
V.A. GUREEV,
Doctor of Laws, Head of the Department
of Organization of Bailiffs Service
and Enforcement Procedure
of the All-Russian State University of Justice
The Constitution
of the Russian Federation
as a guarantee of balanced restrictions
of debtor’s rights in enforcement proceedings
ow the issues of developing most reasonable, weighted and at the
N
same time effective means of influence on the debtor in enforcement
proceedings are at the core of enforcement science. We are witnesses of
rather active changes in Russian legislation on enforcement proceedings as
there appeared a possibility to impose temporary restrictions on the debtor
to leave the Russian Federation and the institute of executional retrieval
directly affecting the debtor was set up as well. Besides, there are discussions
of enhancing tools of influencing the debtor primarily by introducing
opportunities to restrict debtor’s other rights (to drive a car and others).
It is necessary to distinguish the problems of restricting rights of the
debtor-individual and the debtor-entity; restrictions of rights as per special
legislation on enforcement and limitations provided for in criminal legislation
as well as administrative liability laws.
Any branch legislation must stipulate only such possibilities of restricting
individual rights which are constitutionally and legally acceptable.
Branch-wise top-priority worldview values of enforcement proceedings
are the principles: respect for citizen’s honor and dignity; balance of
execution creditor claims and executory force. In turn, the necessity of timely
execution and application of enforcement measures leveled to the rank of
an enforcement proceedings principle, contrariwise, encourage both the
lawmaker and the enforcer to raise the question of further restriction on
pecuniary and privacy of the debtor. The need to further restrict debtor’s
rights can come out of insufficient efficiency of the existing mode of affecting
the debtor in enforcement proceedings. All this actualizes setting the problem
of a reasonable, weighted and balanced approach to affecting the debtor.
On the one hand, enforcement is a mechanism of implementation of
numerous constitutional values (proprietorship, motherhood, childhood,
family, the right of abode and others). On the other hand, the Main law
defines limitations to admissible state interference, enforcement within the
framework of execution proceedings.
The basic constitutional prerequisite of enforcement proceedings is
provision of art. 45 of the RF Constitution stating that “state protection
of rights and liberties of persons and citizens is guaranteed in the Russian
Federation”. The possibility of forcible execution actions by jurisdictional
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