Herbert Smith's Robert Hunter (pictured) on the ways the new European Account Preservation Order can be interpreted

Suppose someone in another European Union member state – say, Bulgaria – owes a friend of yours £3,000. He says that he is going to do everything he can to avoid your friend getting his money. You could tell your friend about the worldwide freezing injunction available in the courts of this country. You could tell him that Bulgaria may assist your friend's action by granting their own domestic injunction against the debtor pursuant to article 31 of the Brussels Regulation. Or you could just be realistic and tell him that, for the sake of £3,000, he is priced out of the international injunction market. Perhaps he should just let it go. After all, life's not fair.

Your friend's position may change with the draft European Account Preservation Order (EAPO) regulation. If the UK opts in to the scheme that this proposes, then your friend could apply for a standard form bank account freezing order in one European country that will be enforced in banks in another European country virtually automatically. If he can invoke the special jurisdiction provisions of the Brussels Regulation for his action on the merits, he may well be able to apply for the EAPO in his own courts.

There is no need for lawyers, or even – save in exceptional cases – for an oral hearing. The application is made by means of a simple form which can be completed by email and sent with supporting documents. Your friend will have to show that his case appears to be 'well founded' and arguably (depending on how you read the draft regulation) that there is a risk of dissipation of assets by the debtor. There are a few other things that he will need to include but, if the requirements are met, the court must grant the EAPO within seven days. Your friend is no longer priced out of the international injunction market.

frozen-eurosIn fact, the draft regulation contains many provisions intended to make your friend's position easier. What happens if your friend doesn't have details of his debtor's bank account? The draft regulation institutes a procedure whereby all the debtor's bank accounts in Bulgaria must be found. (The UK will have to set up a similar system here, if it adopts the regulation.)

Will your friend have to put up security or give a cross undertaking in damages? Only if the court says so. Will your friend have to tell the debtor that he is applying for an injunction? Not unless he wants to. The draft regulation gives him a right to a 'without notice' application. Will your friend owe a duty of full and frank disclosure when he applies for an EAPO? No – he need only tell the court whether he has similar actions pending in other courts or already has other injunctive relief. If the debtor doesn't think that the case is well founded, he must apply to set the order aside.

Now imagine you have just returned from a skiing holiday in Italy. Suddenly, your cheques keep bouncing. It turns out that the owner of the skiing chalet you were in says that you stole the TV and that a replacement will cost the equivalent of £3,000. The Italian courts regard his case as well founded and have granted him an EAPO, freezing funds in your bank account up to the value of £3,000. You are outraged. The chalet owner accused everyone in the chalet of stealing the TV and eventually reported one of his employees for the theft. He hasn't disclosed this in his EAPO application.

Without any duty of full and frank disclosure, he didn't need to. You might well want to apply to set the order aside on the basis that the action is not 'founded'. You can do this in your country of domicile if you are being sued as an insurer, consumer or employee (your best hope is to say you are being sued as a consumer). Otherwise, you have to apply to the courts of Italy (again, by email in a form attached to the draft regulation). But the attachment is an embarrassment. Some people might decide just to let him have the money and walk away. After all, life isn't fair.

No legal system should be complacent about pricing litigants out of remedies. But there are no easy answers. The EAPO, a sort of DIY freezing/attachment order available throughout Europe which can be applied for by letter, fax or email, is a great idea. But the fairness of the procedure heavily depends upon the alleged debtor's right to set the EAPO aside.

We can say goodbye to the injustice of many litigants being priced out of injunctive relief in Europe. But instead, we must say hello to the injustice of many other litigants being forced to urgently apply to overseas legal systems, with which they are unfamiliar, in order to unfreeze their assets. They may be priced out of legal representation, too.

It is also true that the English court has been prepared to grant freezing injunctions relating to assets abroad for many years. But this has been subject to safeguards for the alleged debtor that are not in the EAPO procedure. It is also true that the European Commission has concluded that there should be protection for those sued as "consumers, insureds and employees". They can apply to have the EAPO set aside in their own courts. But that still leaves quite a lot of others.

It is, of course, a question of finding the right balance. A legal system cannot be perfect but, at the end of the day, it should enjoy a measure of public confidence. Do Europeans yet have sufficient confidence in the courts of other European states for the proposed EAPO procedure to be regarded as fair? This is the question we need to address.

Robert Hunter is a partner in Herbert Smith's dispute resolution group.