Global Code of Enforcement

Articles of the Global Code of Enforcement



PART 1 – FUNDAMENTAL PRINCIPLES


Article 1: Fundamental right to enforcement

Every creditor who is the holder of an enforceable title, whether judicial or extra-judicial, has the right to effective access to its enforcement in respect of his defaulting debtor, subject to the conditions provided for by the law and without prejudice to the reserve of those immunities from enforcement provided for in national and international law.
This right is granted without discrimination and regardless of the amount of the claim.


Article 2: The debtor is answerable for his debts on all his goods

The debtor is answerable for his debts on all his goods wherever these are to be found.
National laws can require the debtor to declare the extent of his estate. They must provide for the applicable sanctions.
The debtor who deliberately organizes his insolvency makes himself liable.


Article 3: Enforceable titles

Are enforceable titles, all court decisions with power of enforceability as well as those documents to which the law grants the power of enforceability, in particular, authentic instruments, arbitral decisions, and judicial transactions.


Article 4: The immediately enforceable nature

The beneficiary of an enforceable judgment shall not be required to have recourse to other legal procedures to obtain enforcement.


Article 5: Costs of enforcement

The costs of enforcement are payable by the debtor, but the creditor must pay them in advance, except in those cases provided for by the law (in particular for the payment of maintenance).
In the event of the insolvency of the debtor, the costs are borne by the creditor.
Should the judge decide that the creditor has abused his power to seek enforcement, he may direct the creditor to pay the costs of enforcement and to compensate the loss sustained by the debtor.
States must ensure that these enforcement costs are fixed, predictable, transparent and reasonable.
They must make certain that these enforcement costs are fixed, predictable, transparent and reasonable.


Article 6: Speed of enforcement

States must ensure that all creditors have equal access to enforcement measures by providing judicial assistance.


Article 7: Legal hours

Enforcement may not take place outside the legal hours determined in accordance with the national law of the State of enforcement.


Article 8: Service of the enforceable title and acts of enforcement

Every measure of enforcement must on pain of nullity be preceded by the service or notification of the enforceable title on the debtor in accordance with the procedures provided for by national law. Every act of enforcement must be brought to the attention of the debtor.


Article 9: Access to information

States must make provision that all relevant bodies, both public and private, shall disclose as quickly as possible to the professionals instructed with enforcement all information that they hold about the domicile, registered office or principal place of business of the debtor, as well as about the elements constituting its assets. These bodies may not withhold information by invoking professional confidentiality.


Article 10: Alternative or participatory enforcement

States must ensure that the professional instructed with the enforcement has the option of adopting a consensual enforcement procedure at the request of the debtor.
In order to adapt the enforcement to the situation of the creditor and the debtor, states must allow the active participation of the parties to the enforcement.


Article 11: Reestablishment of the debtor

When it is necessary for the reestablishment of the debtor, the states shall introduce procedures that make it possible to settle the liabilities of the debtor.


Article 12: Use of new technologies

Acts of enforcement may be carried out using all forms of support, including non-material ones, subject to the precautions provided for by the national law of the state where the enforcement is made.

Article 13: Assistance of the forces of public order

The State must upon its responsibility guarantee the assistance within a reasonable period of time the assistance of the forces of public order to the professional persons instructed with the enforcement of enforceable titles who request same.
States must ensure that judicial officers and enforcement agents are able in the context of the implementation of an enforcement measure to enter the premises belonging to the debtor or occupied by same even without his consent or in his absence.
When the goods of debtor are to be found with a third party, the authorization of a court to enter the premises is required.


Article 14: Transparency

States must ensure that the public is informed about the measures of enforcement.
States must use the new technologies to allow cooperation between enforcement professionals both internally and internationally.
The creditor must be able to keep himself informed of the enforcement measure by using the new technologies where applicable.


Article 15: Extraterritoriality

Any measure that has effects of an extraterritorial nature may only be implemented by a judicial officer or enforcement agent of the State of the place of enforcement.


PART 2 – JUDICIAL OFFICERS AND ENFORCEMENT AGENTS


Article 16: Specialization of judicial officers and enforcement agents

Only a judicial officer or an enforcement agent authorized by the State may conduct an enforcement procedure in accordance with national law.


Article 17: Obligations

The authorized agent or judicial officer is required to proceed with the required enforcement measures on every occasion this is lawfully required of him, except in the event of those impediments as provided for by law or for any other cause justified by those reason which are left to the discretion of the enforcement professional and in accordance with the rules of professional ethics.
He is bound by professional secrecy.


Article 18: Professional status of enforcement agents

The persons instructed with enforcement must be made subject to regulations governing their professional status which guarantee the quality of the enforcement by demanding a high level of legal qualification.
Enforcement agents and judicial officers must be required to comply with obligations regarding initial training and lifelong training.


Article 19: Professional ethics

States must take measures to define the rules of the professional ethics of enforcement agents and judicial officers.


Article 20: Professional discipline

A disciplinary procedure that complies with the rules of fair process before an independent organ that decides in adversarial proceedings must be installed.
The disciplinary sanctions must be defined and be proportional to the gravity of the errors committed.
The disciplinary decision may be appealed.


Article 21: Secondary activities

The professional status must allow judicial officers and enforcement agents to pursue secondary activities that are compatible with their position.
In particular, they must be capable of being authorized to proceed to the amicable collection of debts.


PART 3 – JUDICIAL AUTHORITIES


Article 22: Role of judges

Only a judge can rule on disputes arising from the enforcement and order the measures necessary for its implementation at the request of one of the parties or of the enforcement agent or judicial officer.
The judge to whom application is made by the debtor, an interested third party, the enforcement agent or judicial officer or may suspend or cancel an enforcement measure should a sound reason justify such.


Article 23: Timeframe for enforcement

The judge may amend the enforcement and grant a stay of enforcement.

Article 24: Supervision of the activities of the enforcement agent and the judicial officer

Except if they are agents of the State, enforcement agents and judicial officers perform their activities under the supervision of the Public Prosecutor, who may, where applicable, send them an order to lend their assistance.
The Public Prosecutor records all complaints formulated upon the occasion of an enforcement measure.


PART 4 – PROVISIONS COMMON TO ENFORCEMENT MEASURES


Article 25: Goods that cannot be seized

All goods can be seized subject to the exclusion of those goods considered immune from seizure by national law. In the event of a seizure of bank assets, a sum must be left at the disposal of the debtor sufficient to ensure his and his family's subsistence, the amount whereof is determined by law.


Article 26: Immunity

Cases of immunity must be clearly specified in national law, particularly in respect of the state and public entities, as well as in respect of diplomatic personnel.


Article 27: Proportionality of the enforcement measure

The enforcement measure must be proportional to the amount of the claim. In the event of abuse, the creditor may be directed to make reparations.


Article 28: Autonomy of the judicial officer and the enforcement agent

The judicial officer or the enforcement agent autonomously implements the measure most appropriate to the rights of the creditor and the basic rights of the debtor.


Article 29: Flexibility of the enforcement measures

States must organize their enforcement systems by adapting them to the interests of the creditor and the economic and social situation of the debtor. For this reason, they must diversify the enforcement measures so that the judicial officer or enforcement agent may choose among them in keeping with the circumstances.


Article 30: Flexibility having regard for the nature of the goods

States shall adapt the measures of execution to the legal status of the seized assets.

Article 31: Enforcement in kind

When a judge directs to the performance or non-performance of an obligation, he must be able to accompany his judgment with a constraint measure.


Article 32: Enforcement on the person of the debtor or his family

States shall ensure that enforcement on the person complies with international Conventions, Charters and Declarations.
Imprisonment for civil debt is prohibited.
Enforcement on the members of the family of the debtor must be prohibited and the primacy of the interests of the child must be respected.


PART 5 – PROVISIONS COMMON TO PROVISIONAL MEASURES


Article 33: Right to a provisional or conservatory measure

Every creditor who shows relevant circumstances may obtain authorization from the judge for the application of a provisional or conservatory measure to ensure the protection of his rights.
The creditor who is the holder of an enforceable title may implement the provisional or conservatory measure without the authorization of a judge.


Article 34: Procedure

A swift procedure must be established so that preservative or provisional measures may be authorized by a judge. The measures must be limited in time.
The procedure does not have to be adversarial. The person in whose respect the measure is ordered must be able to dispute it without delay and by a simplified means of applying to the judge.
If the judge considers that the measure did not have merit, the party which applied for and obtained the measure must indemnify the other party in full.