Madagascar
1. Are freezing orders (or their equivalent referred to below) available in civil legal proceedings in this jurisdiction and what is their effect?
Yes. In Madagascar, the term seizure is used to describe freezing orders. There are different types of seizures depending on the type of property to be seized (such as movable, immovable, tangible or intangible property) and the purpose of the order (for example, orders for seizure of property or orders for seizure of execution). Seizure of property or real estate is the procedure provided by the Code of Civil Procedure for the seizure and sale of a debtor’s real estate. Seizure of execution is a procedure defined by the Code of Civil Procedure to achieve the sale on seizure of movable assets belonging to the debtor. The effect of seizure is that the debtor is prevented from dealing with the assets referred to in the seizure order until the claim is paid or until the underlying proceedings are concluded. Generally the assets subject to the order are within the jurisdiction but assets outside the jurisdiction could be also be affected if there is a relevant convention or agreement between Madagascar and that jurisdiction.
2. Are other interim orders commonly made in conjunction with a freezing (or equivalent) order?
Yes. An order of notice to pay is often made in conjunction with a freezing order. It is delivered by the President of the Court with the objective of summoning the debtor to pay the creditor within one month, under penalty of being forced to do so (Article 242 and following of the Code of Civil Procedure) or to produce their defenses. It does not require the debtor to disclose their assets. This procedure is intended for the recovery of small commercial and civil claims.
3. Briefly what is the relevant legal test?
This depends on the purpose of the request. If the request is for either an order of seizure of property or seizure of execution (where the purpose is to sell the seized property of the respondent), the applicant must demonstrate that the claim is certain and liquid as required by Article 475 of the Code of Civil Procedure. For a request for an order of seizure of property only, the applicant must also demonstrate that Article 491 of the Code of Civil Procedure has been met. Article 491 of the Code of Civil Procedure relating to the seizure of property or real estate provides that cadastral buildings can only be seized and sold after they have been previously registered in the land register, at the request of the respondent or their creditors.
4. Briefly what is the process for obtaining a freezing (or equivalent) order?
The process will depend on the type of seizure in question. However, in principle, to seize the respondent’s property, the applicant deposits (at the clerk's office of the Court), a request specifying the amount of the sum claimed, as well as the authorization to proceed to a seizure, in the event that there is no payment. The President of the Court settles and issues an order to proceed with the seizure. With regard to preventive seizure (saisie conservatoire) and garnishment (saisie-arrêt), it is not necessary to notify the respondent before the filing of the request to the judge. Indeed, the characteristic of these seizures is the surprise effect, i.e. to avoid the respondent becoming insolvent by disposing of their goods. Moreover, if the applicant has an enforcement title, the seizure can be made without a prior decision of the judge (article 53 of the law on the general theory of obligations.
5. Does the applicant have to provide any form of security or commit to compensation if its claim is ultimately unsuccessful and any freezing (or equivalent) order granted causes loss and damage to the respondent?
No, there are no specific requirements in respect of seizure requests. However, a guarantee called cautio judicatum solvi must be provided for any legal claim by a foreign person as a guarantee for the payment of costs and damages to which they could be ordered to pay (Article 12 of the Code of Civil Procedure).
6. Can it be sought against third parties?
A third party may be bound by an order if it holds property that belongs to the respondent, but it cannot be a party to the order itself. If a third party is holding the respondent’s movable property, the appropriate seizure is garnishment (saisie-arrêt). Indeed, the objective of the garnishment seizure is to seize the movable property belonging to the respondent in the hands of a third party (Article 652 of the Code of Civil Procedure.
7. What assets are covered by a freezing (or equivalent) order?
The order can cover moveable and immoveable property (whether tangible or intangible) of the respondent located throughout the territory of the Republic of Madagascar, including those held by third parties. Indeed, even if these properties are held by third parties, they are still part of the debtor's patrimony and thus constitute the creditor's general pledge (Article 58 of the law on the general theory of obligations). For property located abroad, its seizure depends on any relevant conventions or agreements in place between Madagascar and the foreign jurisdiction.
8. Can a freezing (or equivalent) order be made in support of substantive proceedings abroad?
It depends on any convention or agreement regarding judicial cooperation between the countries involved. The application for a seizure order to the Courts in Madagascar must follow the rules of form and content provided by the Malagasy Code of Civil Procedure in addition to any rules of the foreign jurisdiction.
9. Can a freezing (or equivalent) order be made in support of arbitration proceedings or awards?
Generally no, as a state Court cannot interfere in a dispute over which an arbitral tribunal has jurisdiction, except in case of emergency. In the latter case, the state Court may take precautionary measures such as issuing a protective seizure order (Article 440.6 of the Code of Civil Procedure).
10. At what stage of proceedings can a freezing (or equivalent) order be sought?
It can be sought at any stage, both before judgment or after judgment, in order to facilitate the execution. It can also be brought before the issue of the underlying proceedings as long as the legal test (set out in answer 3 above) is satisfied.
11. Are there typically any exceptions to the general prohibition on the respondent’s use of assets subject to a freezing (or equivalent) order?
No. Neither the respondent or a third party can use or dispose of the seized goods and there are no exceptions. In the case of garnishment (saisie-arrêt), the judge hearing applications for interim measures can order the pure and simple release, total or partial of the seizure, or reduce it by authorizing the seized person to collect from the garnishee the amount of his debt, except to deposit in the treasury a sum arbitrated by the order and judged sufficient to meet the causes of the seizure (Article 679 of the Code of Civil Procedure).
12. What happens after a freezing (or equivalent) order is granted?
The respondent is notified of the order either in person or at their domicile and, if applicable, the garnishee if the respondent’s property is in the hands of a third party. If the third party or the respondent opposes the order, they must appeal to the judge who issued it. The judge, may make an order to continue or discontinue the proceedings. In the absence of opposition, the judicial officer may proceed to seize the respondent’s property.
13. Who pays the costs of the application for a freezing (or equivalent) order?
The applicant pays the costs of the demand for a seizure order. If the respondent loses the underlying claim, the respondent will have to refund these costs to the applicant.
14. What protections are there typically in a freezing (or equivalent) order for third parties to such orders?
An order or judgment authorizing a seizure does not provide any protection for third parties. Third parties who have suffered prejudice as a result of the seizure decision may bring an action in accordance with the Malagasy Code of Civil Procedure, including the third party opposition provided in Articles 434 and following of the Code.
15. What are the consequences of breach of a freezing (or equivalent) order?
Any person, whether the respondent or a third party who violates a seizure order is punishable by imprisonment or a fine, in accordance with Article 400 of the Penal Code. A third party who holds the property of a debtor must normally be notified of the seizure order in the interests of the creditor, but Article 400 of the Penal Code does not expressly exclude (from punishment) third parties who have not been notified.
16. Does a third party notified of (but not a party to) a freezing (or equivalent) order owe a duty of care to the applicant (meaning it can be liable to the applicant for non-compliance)?
No.
17. Can a freezing (or equivalent) order be enforced abroad?
Judgments issued and acts executed in Madagascar are enforceable only in the territory of the Republic of Madagascar as per Article 467 of the Code of Civil Procedure. In the case of a judgment delivered by a Malagasy Court, it can be enforced abroad by following the exequatur procedure or an equivalent procedure in the country where the judgment is to be enforced.
18. Can freezing (or equivalent) orders from overseas jurisdictions be enforced in this jurisdiction?
Yes, by following the exequatur procedure, i.e. it must be declared enforceable by a Malagasy Court subject to an international convention in accordance with Article 468 of the Code of Civil Procedure.
Contact
Mathieu G. Rakotonirina Legal Advisor HK Group Antananarivo Madagascar mathieu.r@hk-jurifisc-mada.com www.hk-jurifisc-mada.com
Explore by region
This guide was updated in June 2024. Eversheds Sutherland takes all reasonable care to ensure that the materials, information and documents, including but not limited to articles, newsletters, reports and blogs, including this guide ("Materials") on the Eversheds Sutherland website are accurate and complete. However, the Materials are provided for general information purposes only, not for the purpose of providing legal advice, and do not necessarily reflect the present law or regulations. The Materials should not be construed as legal advice on any matter. The Materials may not reflect the most current legal developments. The content and interpretation of the Materials and the law addressed in the Materials are subject to revision.
No representation or warranty, express or implied, is made as to the accuracy or completeness of the Materials and therefore the Materials should not be relied upon. Eversheds Sutherland disclaims all liability in respect of actions taken or not taken based on any or all of the contents of the Materials to the fullest extent permitted by law. The Materials are not intended to be comprehensive or to include advice on which you may rely. You should always consult a suitably qualified Lawyer/Attorney on any specific legal matter.
Any views expressed through the Materials are the views of the individual author and may not reflect the views of Eversheds Sutherland or any other individual Lawyer/Attorney.
© Eversheds Sutherland. All rights reserved. Eversheds Sutherland is a global provider of legal and other services operating through various separate and distinct legal entities. Eversheds Sutherland is the name and brand under which the members of Eversheds Sutherland Limited (Eversheds Sutherland (International) LLP and Eversheds Sutherland (US) LLP) and their respective controlled, managed and affiliated firms and the members of Eversheds Sutherland (Europe) Limited (each an "Eversheds Sutherland Entity" and together the "Eversheds Sutherland Entities") provide legal or other services to clients around the world. Eversheds Sutherland Entities are constituted and regulated in accordance with relevant local regulatory and legal requirements and operate in accordance with their locally registered names. The use of the name Eversheds Sutherland, is for description purposes only and does not imply that the Eversheds Sutherland Entities are in a partnership or are part of a global LLP. The responsibility for the provision of services to the client is defined in the terms of engagement between the instructed firm and the client.
Share this page