Interim Measures in Honduran Civil Proceedings: Securing Tomorrow’s Judgment Today
By Juan Carlos Benítez Contreras
A judicial proceeding, no matter how well-founded the claim may be, can take months or even years. During that time, a debtor may become insolvent, the disputed asset may be sold to a third party, or a company managed in bad faith may lose all its value. A favorable judgment that can no longer be enforced is, in practice, equivalent to having obtained no justice at all. Precisely to avoid that outcome, the Honduran Code of Civil Procedure (Decree No. 211-2006) devotes its Third Book to interim measures, one of the most valuable—and sometimes underutilized—tools in Honduran civil litigation.
Interim measures are temporary judicial orders intended to ensure the effectiveness and enforcement of the judgment ultimately rendered. Pursuant to Article 350 of the Code, they may be requested by the claimant or by a defendant filing a counterclaim in any proceeding. Three characteristics define their general framework: they are always granted upon a party’s request (except in certain non-dispositive proceedings), they may affect only the assets or rights of persons who are parties to the proceedings, and they are adopted under the responsibility of the party requesting them. This last point is particularly significant, as if it is later determined that the measure lacked sufficient grounds, the applicant will be liable for any damages caused, regardless of whether they acted negligently.
Article 351 requires the simultaneous existence of the two classic prerequisites of interim relief. The first is risk in delay (periculum in mora): the applicant must demonstrate that, without the immediate adoption of the measure, enforcement of a favorable judgment would become impossible or extremely difficult. It is not enough to invoke the abstract risk inherent in every lawsuit; a concrete and objective danger specific to the case must be shown. The second is the appearance of a valid right (fumus boni iuris): the applicant must provide sufficient justification of its claim so that the judge, without prejudging the merits, may provisionally and prima facie consider that the claim is well-founded. Article 351 further clarifies that interim measures intended to secure future compulsory enforcement cannot be granted against the State.
However, periculum in mora and fumus boni iuris are not the only factors determining the outcome of an application. In addition to these requirements, the posting of security constitutes a third element generally indispensable for the execution of an interim measure. As a general rule, the party requesting the measure must offer and provide sufficient security to cover any damages that the measure may cause the defendant if it is ultimately found to have been unjustified (Article 388). This counter-security balances the interests involved by protecting the party affected by a restriction imposed on the basis of a right that has not yet been definitively proven through judgment.
The security requirement is also governed by the principle of proportionality. Its amount is not determined arbitrarily but rather according to the nature and content of the claim and the value of the asset or right affected by the measure. Security set too low would leave the defendant insufficiently protected, while excessive security could render interim relief illusory by placing it beyond the applicant’s financial reach. The practical challenge lies in calculating a guarantee that is both sufficient to cover potential damages and reasonable in relation to the requested measure. It should also be noted that the State is exempt from providing security.
Article 352 allows interim measures to be requested at any stage of the proceedings and even before the lawsuit is filed. This possibility of obtaining pre-action interim relief is particularly useful when the element of surprise is crucial, for example, to prevent a future defendant from concealing or transferring assets. However, this benefit comes with a strict safeguard: if the claim is not filed within ten days following the execution of the measure, the measure automatically expires by operation of law, and the applicant will be ordered to pay costs as well as any damages caused. Accordingly, anyone seeking an advance interim measure must have the claim practically ready for filing.
The Code provides a broad range of interim measures, including the preventive attachment of assets, judicial intervention or administration of productive assets, seizure or deposit of property, preventive registration of the claim and other registry annotations, as well as temporary orders to act, refrain from acting, or abstain from certain conduct. The list, however, is not exhaustive, as judges may also grant unnamed or atypical measures when appropriate. The principle of proportionality governs this area, subject to a clear limitation of consistency with the request: the court may never grant a more burdensome measure than the one requested, but it may grant a less restrictive one, even if not specifically provided for in the Code, if it considers it sufficient to secure the claim (Articles 354 and 357).
An interim measure is not immutable. It may be modified, substituted, or lifted if the circumstances that justified its adoption change, and the affected party has procedural mechanisms available to challenge its appropriateness. Its nature is always ancillary, as it follows the fate of the main proceedings: it is lifted if the claim is dismissed and becomes effective through enforcement proceedings if the judgment is favorable.
One scenario deserving particular attention is the use of interim measures in arbitration proceedings, which are increasingly common in Honduran commercial practice. Unlike other jurisdictions in the region, such as Panama, where arbitral tribunals themselves may grant such measures, interim relief in Honduras remains essentially a matter external to arbitration. The Conciliation and Arbitration Act (Decree No. 161-2000) does not empower arbitrators to issue coercive measures, as the authority to order measures of a compulsory nature is reserved exclusively to the Judiciary. In practice, the participation of the arbitral tribunal in adopting interim relief is virtually nonexistent, and jurisdiction lies exclusively with the courts.
The Code of Civil Procedure addresses jurisdiction in Article 381.2: when an interim measure is requested in connection with arbitration proceedings, jurisdiction belongs to the court of the place where the award is to be enforced or where the measure is to take effect. This rule also extends to foreign arbitrations involving assets located in Honduras, unless otherwise provided by treaty. It is important to emphasize that seeking interim relief from a court does not constitute a waiver of the arbitration agreement or submit the merits of the dispute to the jurisdiction of the ordinary courts. Furthermore, unlike judicial proceedings—where interim measures may be requested even before the filing of a claim—in arbitration they are generally sought after the arbitration has commenced.
The substantive requirements are essentially the same as those applicable in judicial proceedings: the requested measure must be precisely identified, its legal grounds must be established through supporting evidence, and the appropriate security must be offered. However, arbitration presents its own challenges. The confidentiality that characterizes arbitral proceedings can make it difficult to prove a party’s status before the court without compromising the confidentiality of the process. Additionally, the absence of specific rules regarding security leaves its amount largely to the discretion of the court or the parties, creating the risk of setting amounts that may be insufficient or excessive depending on the nature of the arbitration. For this reason, properly assessing the amount and proportionality of security is equally essential in the arbitral context. Finally, it is worth noting that Article 77 of the Conciliation and Arbitration Act expressly provides for precautionary measures necessary to ensure the effectiveness of an arbitral award when an action for annulment has been filed.
In a commercial environment where effective debt recovery and asset protection are constant concerns, an interim-relief strategy should be designed before filing a claim and not as an afterthought. Selecting the appropriate measure, properly establishing its legal requirements, calculating proportionate security, and anticipating expiration deadlines can make the difference between a judgment that can be enforced and a merely symbolic victory. At LEXINCORP HONDURAS, we can assist you in designing and implementing strategies to obtain interim measures that protect your rights from the very first day of a dispute, ensuring that the judicial protection ultimately obtained is truly effective.
Thank you for reading my article on interim measures in Honduran civil proceedings. I hope it has helped address some of your questions and concerns regarding this topic. As professionals specializing in civil procedural and arbitration matters, we are available to assist you with any needs in these fields and in any other area of law. Should you require legal advice or wish to learn more about our skills and experience, please do not hesitate to contact us. You may find me through our website at www.lexincorp.com or by email at jcbenitez@lexincorp.com and infohn@lexincorp.com. It will be a pleasure to work with you and help you achieve your objectives.
