Abstract
The granting of interlocutory injunctions prohibiting the disposal of assets by a defendant was originally regarded to be contrary to the judicial practice in England, but this changed in 1975 when the Nippon Yusen Kaisha case was considered by the English courts. In the same year, the Court of Appeal in Mareva Compania Naviera coined the term Mareva injunction for such prohibitory orders. These orders are currently known as freezing orders. These interlocutory injunctions have been granted on a discretionary basis. Each judgment has been based on a discretion justified by reference to the facts of the case. But, in 2006 in the Dadourian Group International case, the Court of Appeal decided to offer guidelines on how courts should exercise discretion to enforce worldwide freezing orders abroad. The Court of Appeal, however, made it clear that these guidelines must not be treated as exclusive and that each case must be considered on its own merits. The court developed eight guidelines in this regard.
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Notes
For a very comprehensive work on the Mareva injunction including the legal issues pertaining thereto, see Mark SW Hoyle, The Mareva Injunction and Related Orders, London, LLP, latest edition.
[1975] 1 WLR 1093.
op. cit., at 1094–95.
Ibid.
[1975] 2 Lloyd's Rep 509.
[2006] 2 Lloyd's Law Reports 354.
See [2006] 2 Lloyd's Law Reports, op. cit., at 355.
op. cit., at 355.
[1989] 1 Lloyd's Law Reports 122.
[1985] 1 WLR 876.
op. cit., at 876.
op. cit., at 884.
op. cit, at 122.
[1988] 2 Lloyd's Rep 435.
[1989] 1 Lloyd's Rep 111.
(1890) 45 CH D 1.
[1980] 1 WLR 1275.
op. cit., at 1275.
[1985] 1 WLR 876.
op. cit., at 880.
Ibid.
[1986] 3 WLR 647.
op. cit., at 657–658.
op. cit., at 658.
op. cit., at 659.
[1982] QB 558.
[1982] QB 558 at 585.
Ashtiani, op. cit., at 661.
Interpool Ltd v Galani [1987] 3 WLR 1042.
op. cit., at 1046.
[1988] 2 Lloyd's Law Reports 435.
op. cit., at 436.
Ibid.
op. cit., at 439.
op. cit., at 442.
op. cit., 4443.
[1979] AC 210.
See further Babanaft, op. cit., at 444.
Babanaft, op. cit., at 436.
Ibid.
op. cit., at 442.
op. cit., at 442.
op. cit., at 443.
(1979) ECR 1055.
(1980) ECR 1553.
op. cit., at 443–444.
op. cit., at 444.
op. cit., at 444.
op. cit., at 1570.
Babanaft op. cit., at 446.
See further Jenard Report, Official Journal of the European Communities, No C 59 at 36.
Emphasis added.
Babanaft, op. cit., at 446.
Babanaft, op. cit., at 447.
[1989] 1 Lloyd's Law Reports 111.
See The Siskina, op. cit..
Republic of Haiti, op. cit., at 116.
Republic of Haiti, op. cit., at 117.
op. cit., at 1570.
Dadourian, op. cit., at 360.
See further Judgments Regulation, Article 6(1) and the Lugano Convention, Article 6(1), and also CPR 6.20(3).
Dadourian, op. cit., at 361.
Dadourian, op. cit., at 361.
Dadourian, op. cit., at 363.
Dadourian, op. cit., at 363.
CPR 23.9 — ‘(1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice. (2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person — (a) against whom the order was made; and (b) against whom the order was sought. (3) The order must contain a statement of the right to make an application to set asideor vary the order under rule 23.10.’.
Dadourian, op. cit., at 363.
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1 C. Chatterjee, studied law at the University of Cambridge and the University of London, is currently a Professor of International Commercial and Criminal Law at London Metropolitan University. He is also a Professorial Fellow at the Centre of Commercial Law Studies at Queen Mary, University of London. He has published extensively in the form of books and articles on various aspects of public international law, international economic law, international commercial law, including banking, trade, investment and international commercial arbitration. He has also worked as a legal consultant with international organisations to develop scientific papers on issues such as family, healthcare and drug abuse.
2 Anna Lefcovitch, possesses an LLM degree and is a solicitor of England and Wales. She is currently engaged by EC Harris LLP, a leading constructional consultancy and has published considerably on banking, construction law and Alternative Dispute Resolution (ADR).
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Chatterjee, C., Lefcovitch, A. Guidelines for enforcement of worldwide freezing orders: An analysis. J Bank Regul 8, 244–261 (2007). https://doi.org/10.1057/palgrave.jbr.2350050
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DOI: https://doi.org/10.1057/palgrave.jbr.2350050