Interim measures in Albania

1.1.1 After the breakup of the communist regime in 1990, Albania faced a new era in litigation procedure. Until then, the concept of private property had not been recognised by the State and the civil procedural law had not allowed for any interim measures except for those relating to family properties. For the first time in Albanian history, from March 1996 the Albanian Civil Procedure Code 1  Law no. 8116 and subsequent amendments. (CPC) provided for interim measures.

1.1.2 Interim measures are mainly governed by the CPC. In order to determine whether any additional provisions other than those included in the CPC are applicable to an interim measure, the applicant has to check two issues:
whether the claim or the interim measure is of an international nature; and
whether there are special provisions for the particular subject matter of the claim.

1.1.3 For international cases, the provisions of the Private International Law 2 Law no. 10428 in compliance with the European Commission Regulation no. 593/2008.  (PIL) and international treaties take precedence over the rules of the CPC. These provisions relate mostly to jurisdiction and enforcement issues.

2.1.1 Before the actual claim commences, the applicant may file its request for an interim measure with any court that has jurisdiction over the substantive case, or with the court within the jurisdiction in which the interim measure will be enforced.

2.1.2 Unlike other jurisdictions which have well-developed and detailed rules for interim measures, Section IV of the CPC contains only a few articles governing all of the options available to individuals and legal entities to secure and preserve their rights until the end of court proceedings.

2.1.3 The plaintiff has the right to apply for interim measures either ante causam (i.e. before starting proceedings) or during the court proceedings. In the event that the plaintiff (the applicant) applies for interim measures ante causam, the competent court of law will decide whether to accept or decline the interim measures sought. The CPC considers the competent court to be the court of law where the applicant resides, or where the property subject to the interim measure is situated 3 CPC, art 204. .

2.1.4 On the contrary, in the event that the applicant seeks interim measures during the court proceedings, the CPC considers the competent court to be the court of law where the respondent resides (or has its temporary place of residency) in compliance with Chapter III of the CPC. The competent court dealing with the substantive proceedings is also competent to order interim measures.

2.1.5 Pursuant to the PIL provisions, the Albanian courts of law have jurisdiction to impose interim measures should the measures be executed within the Albanian territory. In addition, Albanian courts have jurisdiction to permit interim measures even if the subject matter of the claim is international. The CPC envisages that the right to impose interim measures extends not only to the first instance courts but also to the court of appeal during any appeal proceedings.

2.1.6 The CPC does not distinguish between the type of interim measures available depending upon the nature of the claim. Interim measures are applicable to any claim during each phase of the court proceedings and, in any case, before the court makes its final decision in the substantive case 4 CPC, art 203. .

2.1.7 Administrative claims are now governed by new administrative procedures. The administrative procedures are subject to the Law no. 49/2012 setting out rules and procedures relating to administrative courts and related procedures (APC). The administrative courts are entitled to rule on all those civil cases where one of the parties (plaintiff or defendant) is a public authority. The plaintiff has the right to apply for interim measures, either ante causam, or during the court proceedings 5 In any case, before the administrative court has issued the final decision.  in the same manner as other civil cases mentioned above at paragraph 2.1.3.

2.1.8 The administrative court may only issue an interim security measure in favour of the plaintiff, if:

• a reasonable risk exists 6 Based on written evidence. , which might cause immediate, significant, and irreversible damage to the plaintiff; and
• security 7 Specified by the court only. Should the court deem it necessary, the applicant must provide security (monetary or otherwise) for possible damage that may be caused to the respondent in granting the interim measure sought.  is provided by the plaintiff to secure any possible damage which might be caused to the defendant by such an interim measure.

2.2.1 Article 52 of CPC enables the parties in a civil court procedure to change the applicable jurisdiction by written agreement. However, any change of the jurisdiction relating or connected to immovable properties and their real rights, as well as in matters relating to an inheritance, is not valid.

2.2.2 In addition, Article 81 of the PIL allows for the possibility of the Albanian courts issuing an interim security measure, even if the parties (plaintiff or defendant) have chosen a foreign jurisdiction in their agreement. Such an interim measure has to be executable in Albania only. It is worth noting that on 2 March 2010 the Albanian Supreme Court issued decision no. 92 which ruled on interim security measures for arbitration cases (further details are set out in section 10 below).

3.1.1 It is not possible to provide a detailed and exhaustive list of interim measures available pursuant to Albanian law. However, it can be said that, when the requirements of “fumus boni juris” (the jeopardised right) and “periculum in mora” (the immediate risk) are met, a specific interim measure – decided on a case by case basis – shall be ordered.

3.1.2 Pursuant to Albanian law, an interim measure aims to keep the status quo and the circumstances unchanged until the court issues a final decision. Therefore an interim security measure is of a preventive and cautionary nature. The main interim security measures are:

• The seizure of movable and immovable property and credit accounts of the debtor; and
• Any similar measure that the court considers suitable.

The court might issue one or more interim measures to secure any civil complaint of the applicant, provided that such interim measures do not exceed the total value of the applicant’s claim.

3.1.3 In Albania, the applicant may request an order for interim measures if he reasonably suspects that the final decision of the court will be impossible or difficult to enforce. The interim measure can only be applied if:

• the applicant’s claim is clearly supported by written evidence; and
• the applicant has provided the security (monetary or otherwise) requested by the court to secure any possible damage that the interim measure might cause to the respondent.

The CPC restricts the right to request interim measures in court cases to the plaintiff only. However, if the defendant files a counterclaim against the plaintiff during the court procedure, the defendant also has the right to apply for an interim measure.

3.1.4 Any claim for interim measures must be filed with the court together with supporting written evidence. In addition to the written evidence, the applicant must provide security for any potential damage that the interim measures may cause the respondent. The court, in its exclusive discretion, has the right to ask the applicant to provide further security (either monetary or otherwise) to protect the respondent from any possible damage.

3.2.1 The court usually requires both parties to be present during the hearing of applications, including those relating to the imposition of interim measures. However, in special cases, or where there is some urgency, the court will issue its order on an ex parte basis in the presence of the applicant only. These are cases where any delay may cause precisely the problem that the interim measure is intended to avoid (such as the transfer of property or the destruction of documents).

3.2.2 Orders for interim measures can be issued if:

• the object(s) to be seized comprise movable or immovable property, or debtor’s credits; and
• every other measure that is deemed appropriate by the court, including suspension of execution, has been taken.

Form of the request

4.1.1 Interim measures are subject to the rules applicable to summary proceedings. The interim application is filed in writing. Currently, the option to file an electronic writ is not used as the technical procedure is often rather difficult.

Content of the request

4.1.2 The request has to include a comprehensive prayer for interim relief and a precise reference to the grounds on which the request is founded. The principle of party autonomy prevents the court from awarding more than the applicant requested. However, following the principles of a maiore ad minus and the principle of proportionality, the court can – and should – order a lesser measure if the applicant is sufficiently protected by such a measure.

Enclosures to the request

4.1.3 The applicant must attach all supporting evidence to its request. The court may give directions with respect to the conduct of the case after it has received the interim application (e.g. to summon the parties to a hearing or to set the respondent a short time in which to file a written response).

4.2.1 All summary proceedings adhere to the principle of acceleration. After the request is received and unless an ex parte measure is sought, the court will either summon the parties to a hearing or set the respondent a short deadline in which to submit a written statement of defence. If summoned to a hearing, the parties (or their representatives) have to physically appear before the judge. 

4.2.2 In circumstances where the court opts for a written procedure, the court may decide whether or not to order a second round of written submissions. This second round must be in compliance with the deadline imposed by the CPC. After the hearing or the exchange of briefs, the court will decide on the applicant’s request. Where the court orders an interim measure, it will also issue the necessary directions to enforce the measure.

4.2.3 In the event that a request is obviously unfounded or is inadmissible, the court will dismiss it without further procedures. If the respondent does not submit its statement of defence within the allocated time or does not appear at the hearing, the proceedings will continue without the respondent’s statement of defence or appearance.

Limitation of evidence

4.3.1 In principle, only documentary evidence is permitted during the court proceedings. The meaning of documentary evidence is interpreted in a broad sense, including every document suitable to prove relevant facts (such as papers, drawings, plans, photos, films, and audio recordings).

Standard of proof

4.3.2 Interim measures are granted before or during the civil procedure only when the applicant gives written evidence supporting the application 8 CPC, art 202 . According to Albanian law, written evidence may be in the form of:

• public deeds drafted by public authorities and by the relevant personnel in charge, including deeds drafted by foreign public authorities; and
• any document drafted by a public authority and its personnel which are neither competent nor drafted in the required form, but which are signed by the parties.

4.3.3 Any private document signed by the person who drafted it is admissible, provided that he/she recognizes his/her signature. According to Albanian law, private documents also include company books, and books kept by professionals such as lawyers, notaries public, doctors, pharmacists, individual entrepreneurs in general 9 CPC, art 260 .

4.3.4 The applicant must provide to the court written evidence demonstrating that it has a civil claim and justifying the interim measure requested by evidencing both the urgency and the potential risks to the applicant. The court and/or the respondent may object to the accuracy of such written evidence, or it may be verified by the court.

5.1.1 The respondent can present counter-arguments and evidence either at a hearing or in a written statement of defence. In principle, the same restrictions apply to the respondent as to the applicant. The burden is on the applicant to provide sufficient evidence in support of its case. The respondent will then need to provide sufficient evidence to undermine and overthrow the applicant’s case.

5.2.1 The court is required to apply the principle of proportionality. The principle of proportionality is defined in the relevant case law. For example, the Albanian Supreme Court – interpreting Article 206 CPC paragraph (b) – stated that:
“Except for the suspension of the enforceability of a Court order, other interim measures are not precisely specified and detailed. This means that, considering each single claim, the competent Court may at its discretion adopt an interim measure deemed appropriate to protect the applicant’s right, without jeopardizing the defendant’s rights”. 10 Order Nr.10, del 24.3.2004

5.2.2 The court retains discretion as to whether to request security from the applicant in respect of the interim measures sought against the respondent 11 CPC, art 202, paragraph II(b). . As stated above, a seizure order can be given if there is a proven and justified reason and in the case of an emergency. The CPC envisages that the seizure order will be granted in order to guarantee that the right of the applicant will not be disposed of, transformed or lost during the trial period.

5.2.3 All interim orders (taking into account all categories of proceedings such as civil, administrative, commercial and family) are legally binding when the court issues its order. The court’s decision to order an interim measure has to be executed by the bailiff officer with immediate effect. If the first instance court rules on the civil claim in favour of the plaintiff and such decision is appealed, the interim order remains in force and applicable until a fi-nal decision is issued by the court of appeal. Once the final judgment on the case has been issued, the seizure order turns into an executive seizure order, which means that the bailiff officer can seize assets and sell them in accordance with execution procedure.

5.3.1 Upon the request of the respondent, the court may make the imposition of any interim measure conditional upon the payment of security by the applicant. In its request, the respondent has to explain credibly why he is likely to suffer damage from the measure sought, and has to substantiate the amount of such damage. The court has discretion as to whether to order security or not. The court will refrain from ordering security when there is no doubt about the existence of the underlying substantive claim (i.e. that the applicant has not only referenced credible facts but has substantially proved them).

5.4.1 The respondent’s interests are also safeguarded by its right to seek compensatory damages in the case of an unjustified interim measure being successfully obtained against him. The respondent (or a third party) suffering such damage may file its claim as a counter-claim in the underlying main proceedings, or as a separate ordinary claim.

6.1.1 Where an interim measure is issued before the main proceedings are commenced, the court will set a deadline by which the applicant must file the substantive claim. The length of the deadline is fixed by the court, taking into consideration the circumstances of the case, and no later than fifteen days from the date in which the decision allowing the interim measure is made, in compliance with Article 204 of the CPC. Failing to meet the deadline to commence the substantive claim will cause the order granting any interim measure to expire automatically.

6.2.1 Requests for interim measures are usually decided relatively quickly (and Article 202 CPC envisages the court will decide within five days). There are cases in which the issuance (or denial) of an interim measure takes considerably longer. Usually, the reason for this is that the court is not convinced that the matter is urgent and/or feels that the applicant could have filed its request much earlier but failed to do so without apparent reason. In principle, the interim measure is imposed until judgment in the substantive claim. Should the conditions on which the interim measure was granted change, the court can revoke or modify the interim measure at the request of any interested party.

7.1.1 An applicant should consider the court costs incurred, as well as the costs of its own representation and the fact that it might have to pay court costs in advance.

7.1.2 Court costs include the court fee and, where applicable, the costs of taking evidence and/or translations. The court costs are calculated based on a fixed set of tariffs.

7.1.3 If the applicant files a request for the issuance of a seizure order, the relevant court fee approved by the Ministry of Justice and the Ministry of Finance is LEK 800 (approximately EUR 7.00), not including legal defence costs and expenses of execution which may vary from case to case.

7.2.1 In Albania, the court can demand advance payments on costs from the applicant. It should be emphasised that costs relating to technical experts (such experts being admitted to interim proceedings where appropriate) together with translators, inspection and other similar costs should be anticipated by the applicant.

7.3.1 The judge makes a decision as to the proportion of the costs incurred (in relation to the application for an interim measure) which a party is responsible for paying at the end of the substantive trial of the matter. The respondent is liable for any court taxes and expenses incurred (including its attorneys’ fee) proportionally in relation to that part of the claim where the court ruled in favour of the applicant. The compensation payable by one party to the other includes the costs (or a proportion of the costs) incurred by the “winning” party in relation to professional representation.

7.3.2 The compensation payable by one party to the other includes the costs (or a proportion of the costs) incurred by the “winning” party in relation to professional representation. There is no tariff regarding the compensation. The successful party can require full com-pensation of its professional representation; however the court has discretion to adjust the amount of the compensation.

8.1.1 If requested by one of the parties, the interim measures granted may be changed or revoked if the circumstances have changed or if the measures have later proven unjustified 12 CPC, art 207 and 211. . Examples of circumstances where there may be a change are:
the urgency has ceased;

• much greater harm is feared; or
• the subject/substantive matter has ceased to exist.

In all the above cases, the judge must arrange another hearing at which both parties are required to be present.

8.1.2 The court may order an alternative remedy, if either party applies for substitution of the interim measure sought with an alternative measure. This may be requested by one party after the court has heard the other party, and there is an insufficient basis to prove that the conditions for which the interim measure was issued have changed. The court also has the power to remove the measure imposed. Any appeal against the court’s decision that determines the replacement or removal of the measure suspends its execution.

8.2.1 The parties have the right to appeal in the following situations 13 CPC, art 209. :

• where a court decision accepted the application for the issuance of an interim measure;
• where a court decided to change the order applied for/granted; or
• where a court decided to revoke the order imposing the interim measure.

8.2.2 A decision which rejects the application for an order for an interim measure is not subject to appeal.

8.2.3 An appeal filed by a respondent against the decision of a first instance court does not suspend the application of the interim measure awarded at first instance.

8.2.4 Enforcing an order for an interim measure does not prevent the party subject to the procedure from appealing the court’s decision.

8.2.5 Where an order for an interim measure is appealed, the appeal procedure involves shorter deadlines in comparison to the standard appeal procedure in Albania. The appellant has to file the related pleadings within five days of the date the order was issued.

9.1.1 A seizure order issued by a court entitles the applicant to commence the related execution against the respondent’s asset. A seizure order is immediately enforceable, and no further order is needed to commence the procedure 14 CPC, art 510. . Enforcement is carried out by a bailiff officer.

9.1.2 The applicant is immediately entitled to enforce the seizure order commencing from the date it has been issued by the court. The procedure consists of blocking/limiting the availability of assets, rights and/or interests that have been mentioned and listed in the court order. According to the CPC, a seizure may be enforced via:

• execution on bank accounts of individuals and/or legal entities;
• execution on movable property;
• execution on immovable property (seizure over any property that is registered with the competent land registry until the conclusion of the substantive trial or the time determined by the court);
• execution on ships, aeroplanes, and other similar vehicles; or
• execution on a debtor's credits.

9.1.3 All assets, rights or interests subject to seizure cannot be disposed of for the duration of the seizure order.

9.2.1 The Albanian CPC does not consider that orders in relation to interim measures comprise a final judgment. For this reason, decisions relating to interim measures issued by foreign courts are not recognised in Albania. For example, a worldwide freezing order issued by an English court would not be enforceable in Albania. The order following the substantive trial is however enforceable.

Enforcement under the Lugano Convention

9.2.2 The Lugano Convention is not applicable in Albania, but Albania does recognise other Conventions (in relation to the enforcement of orders) including the Hague Convention of 1 February 1971 (relating to the enforceability of orders issued by foreign courts, which has been ratified by Albania), as well as the New York Convention 1958 (relating to the enforcement of the awards issued by arbitration panels) and the European Convention for Arbitration (Geneva 21 May 1961).

10.1.1 The Albanian Supreme Court on 2 March 2010 issued decision no. 92 in relation to interim measures for international arbitration cases. It decided that Albanian courts can grant interim measures even when an international arbitration tribunal has jurisdiction, although the Albanian courts have done so in only a few cases when the parties were also involved in arbitration procedures at the same time.

10.1.2 In cases involving international commercial arbitration, the interim measure is applied when and if (for example) the rights subject to the arbitration procedures concern properties located in Albanian territory. The Albanian Supreme Court’s decision creates the possibility for the application of civil procedural rules in cases where the applicant seeks a seizure order in a civil court, even where the parties have agreed to resolving their disputes in an international arbitration tribunal.