26 March 2026
Provisinal (or prejudgment) seizure of a bank account is a powerful tool for creditors to safeguard their recourse position, before a court has ruled definitively on a claim. For the party whose assets are attached, however, such attachment can be highly disruptive.
The law therefore requires (mandatory) the attaching creditor to lift the attachment if “sufficient security” is provided for the claim. This is usually done by means of a bank guarantee. The key question is when such a bank guarantee is sufficient, and in particular: when must it be payable?
Provisional seizure is an interim measure whereby a creditor, with leave of the court, seizes the assets of its debtor, for example bank accounts, inventory or real estate belonging. The aim is to prevent the debtor from dissipating assets pending the outcome of the proceedings.
The main advantage of provisinoaln seizure is that it “freezes” the creditor’s recourse options. This prevents the counterparty from withdrawing assets from recovery. In practice, attachment often has significant impact: blocked accounts or non-transferable real estate can put pressure on the counterparty to pay or reach a settlement.
On the other hand, attachment is not watertight. If multiple creditors attach the same asset, the proceeds must be shared (dilution). In the event of the debtor’s bankruptcy, a prejudgment attachment will lapse altogether.
For the party whose assets are attached, lifting the attachment may be necessary in order to continue business operations. The attaching creditor must lift the attachment if sufficient security is provided for the claim. This may also benefit the creditor: proper security does not dilute and remains outside the scope of a potential bankruptcy of the debtor.
In practice, the tool most used is a bank guarantee. The bank undertakes to pay the seizing creditor once the conditions of the guarantee have been met. The debtor will usually have to provide security to the bank in return.
A bank guarantee replacing prejudgment attachment must at least:
Mostly, the standard model of the Dutch Banking Association (the Rotterdam Guarantee Form) is used. The most significant discussion, however, does not concern these formal requirements but the moment at which payment by the bank under becomes due.
The standard Dutch Banking Association model provides that the bank is only required to pay once there is a judgment allowing the claim that has become final and binding (res judicata). This means that if an appeal to the is lodged, payment may be delayed, sometimes for several years. Case law has long assumed that such a bank guarantee in principle constitutes sufficient security for lifting prejudgment attachment.
For the attaching creditor, however, this is not always acceptable. A prejudgment attachment may be enforced as soon as a judgment has been declared provisionally enforceable. During appeal proceedings, the risk of non-recovery may increase while payment is postponed.
In proceedings successfully conducted by GMW lawyers on behalf of their client, the Amsterdam District Court addressed this issue explicitly. The opposing party had offered a bank guarantee in accordance with the Dutch Banking Association model, payable only once the judgment had become final and binding. The attaching creditor refused to accept this and required a guarantee that would pay upon a judgment declared provisionally enforceable.
The interim relief judge agreed with that position. According to the court, a bank guarantee that can only be invoked once the judgment has become final and binding worsens the position of the attaching creditor compared to the prejudgment attachment it replaces. After all, the attachment can be enforced immediately following a judgment declared provisionally enforceable. Substitute security must place the attaching creditor in a comparable position. Any other approach would create an incentive to delay proceedings and use legal remedies merely to postpone payment.
The court also considered it relevant that payment had already been delayed for a considerable period in this case. The conclusion was clear: a bank guarantee that does not pay upon a judgment declared provisionally enforceable did not constitute sufficient security here, and the attachment was therefore not lifted.
Prejudgment attachment is an effective instrument to secure recourse, but lifting it by providing security requires a tailored approach. Not every bank guarantee is equivalent to attachment. In particular, the moment at which payment becomes due may be decisive in determining whether the attachment must be lifted. The recent judgment of the Amsterdam District Court underscores that a standard bank guarantee does not always suffice.
GMW lawyers have extensive experience with attachment matters and bank guarantees and advise both attaching creditors and attached parties on structuring their recourse position optimally. Do you have a question about this topic? Please feel free to contact us.
