Lawrence W. Newman and David Zaslowsky
It is often prudent for claimants or potential claimants to seek an attachment of the assets of a respondent against whom the claimant hopes to prevail in order to secure enforcement of the expected arbitral award. Since anecdotal evidence suggests that arbitration award debtors are increasingly unwilling or unable to pay awards, obtaining security against such an eventuality becomes increasingly important. To what extent do the laws in the United States authorize courts to order this kind of provisional measure?
Unfortunately, federal law does not deal with pre-judgment or pre-award attachments, deferring, in Rule 64 of the Federal Rules of Civil Procedure, to state law. New York law, as set forth in CPLR §7502(c), permits claimants in existing or expected arbitrations to obtain an attachment of a respondent’s assets provided that the claimant can show that the expected award would be rendered “ineffectual” without the attachment.
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