As important as it is to have an award or judgment in one’s favor, securing its enforcement is usually of equal importance to avoid achieving no more than a Pyrrhic victory. There is anecdotal and case evidence suggesting that arbitration award debtors today may be more unwilling or unable to pay awards than was the case decades ago. It, therefore, may be crucially important for a claimant, in anticipation of such a situation, to obtain an attachment of its respondent’s assets in advance of an award in the claimant’s favor. Although obtaining such a prejudgment attachment is a matter of complying with statutory requirements, a recent Second Circuit case, Iraq Telecom Ltd. v. IBL Bank S.A.L., 43 F.4th 263 (2d Cir. 2022), allows courts to consider more subjective elements – ones described by the court as “extraordinary circumstances.”
Rule 64 of the Federal Rules of Civil Procedure authorizes remedies like attachment to secure satisfaction of a potential judgment but defers the requirements for such relief to “the law of the state where the court is located.” In New York, the CPLR permits a claimant in an existing or expected arbitration to obtain an attachment of a respondent’s assets in aid of arbitration if the claimant shows: (i) a cause of action; (ii) a likelihood of success on the merits in the arbitration; (iii) that the amount of the claim exceeds any meritorious counterclaim; and, (iv) that the arbitral award may be rendered ineffectual absent an attachment. CPLR §§6201, 6212, and 7502(c).
