Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Standard view
Full view
of .
Look up keyword
Like this
4Activity
0 of .
Results for:
No results containing your search query
P. 1
When would it be appropriate for a court in a common-law jurisdiction to freeze assets within its own jurisdiction in support of litigation proceeding in another jurisdiction?

When would it be appropriate for a court in a common-law jurisdiction to freeze assets within its own jurisdiction in support of litigation proceeding in another jurisdiction?

Ratings: (0)|Views: 129|Likes:
An essay for the 2012 Undergraduate Awards Competition by Conor McCormick. Originally submitted for Law at None, with lecturer Dr David Capper in the category of Law
An essay for the 2012 Undergraduate Awards Competition by Conor McCormick. Originally submitted for Law at None, with lecturer Dr David Capper in the category of Law

More info:

Published by: Undergraduate Awards on Aug 30, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
See more
See less

10/27/2013

 
UNDERGRADUATE AWARDS LAW SUBMISSION
 When would it be appropriate for a court in a common-law jurisdiction to freezeassets within its own jurisdiction in support of litigation proceeding in another jurisdiction?
ABSTRACT
A legal judgement is of minimal worth to a claimant if they are unable to
enforce
a judicialfinding in their favour. Such an inherently anti-climactic result is the very dilemma anasset-freezing order seeks to obviate. However, although the asset-freezing order is adevice which has been developed with unpredicted speed and variety, various decisions indifferent jurisdictions regarding the appropriateness of its deployment remain antithetical.Specifically, there are intense jurisdictional differences in response to pleas to freeze assetsin one common-law jurisdiction in support of litigation proceeding in another. Theintention behind this paper is to dispel reasons against the granting of an order in thisscenario and to illustrate precisely why those submissions are unfounded and, moreimportantly, unhelpful to successful claimants.An analysis of how the order has evolved and been adapted in order to overcometheoretical and procedural difficulties in this jurisdiction will reveal the strength of thedevice in its present form. Exposition of the delicate balance achieved by the structure ofasset-freezing orders between ensuring effective remedy enforcement for claimants withoutsacrificing due protection for defendants will galvanise the argument for its use. In order toguarantee that jurisdiction-hopping cannot aid a devious defendant committed to robbingthe claimant of a viable remedy, it is submitted that there is a spectrum of change required.At one end of the spectrum jurisdictions requiring minor legal updates are identified, at theother end jurisdictions in need of substantial modification are highlighted.The potential impact of approximating the laws of different jurisdictions on this question isprodigious. The power of an asset-freezing order is presently undermined by the fact that it
can be avoided. To eliminate ‘safe
-
haven’ regions –
where assets can be placed and remainuntouchable consequent to present jurisdictional disparities
would cement the credibilityof the asset-freezing order and charge it with the global reach it requires in order to securefaith in judicial remedy enforcement, and indeed faith in the entire legal system.
 
Undergraduate Awards 2012: Law
2
 When would it be appropriate for a court in a common-law jurisdiction to freezeassets within its own jurisdiction in support of litigation proceeding in another jurisdiction?
 INTRODUCTIONAn asset-freezing order
(“AFO”)
is the name given to what, until rebranded by theCivil Procedure Rules 1998,
1
was known as a
 Mareva
injunction. The first business ofthis essay is to encapsulate the life of the
 Mareva
by charting its growth over the pastthirty-seven years in a brief biography. A dissection of the anatomy of an AFO willfollow. Subsequently, consideration will be given to the importance of inter- jurisdictional litigation. Whether the AFO needs to be adapted in order to transcend jurisdictional borders in the way posed by this question will then be discussed,before a conclusion is reached.
 MAREVA
:
 
THIS IS YOUR LIFE
 
Dastardly defendants prior to 1975 benefitted from a serious gap in the law. In orderto avoid the enforcement of judgements against them, said defendants were able towhisk their assets away to a different jurisdiction beyond the reach of any claimantswho might wage a successful claim against them. This loophole endured due to the
“conventional wisdom”
2
of the time grounded in
Lister v Stubbs
3
 
which was said toprevent restraining defendants from dealing with their assets until judgement wasentered against them. This seeming barrier has long since been dismissed asnonsensical because the injunction sought then required money to be paid into court,converting the claimant into a secured creditor.
4
As will be explained hereafter, theinterim relief design of a
 Mareva
never envisaged preferential treatment to claimantsin this way and was not intended to be proprietary in nature, thus
Lister 
was apernicious authority precluding the revolutionary development to come.
1
CPR 25.1(1)(f)
2
Philip Pettit,
Equity and the Law of Trusts
(11
th
edn, OUP 2009) 625
 
3
(1890) 45 Ch D 1 (CA)
4
David Capper,
 Mareva Injunctions
(SLS Publications (NI) 1988) 17
 
Undergraduate Awards 2012: Law
3Then, in
Nippon Yusen
5
the loophole was reduced without reference to
Lister 
; thecourt basing its power on the predecessor
6
to s 37(1) of the Senior Courts Act 1981, asthe court h
eld it was “just and convenient” to grant a freezing order on the facts.
 Mareva
v
International Bulkcarriers Ltd
7
was the second case to grant an order to freezeassets in anticipation of dissipation, and became the eponym of the doctrine whichevolved rapidly thereafter.
Lister 
was referred to the court but was not fatal (neitherwas it settled as bad authority as Roskill J was concerned it may have had greaterinfluence at an
inter partes
hearing, however the doctrine survived an
inter partes
 hearing in the
Rasu Maritime
8
case
). Lord Denning again based the court’s power to
grant the order on its inherent jurisdiction under s 37(1), limiting its reach to foreignbased defendants. Although this limitation appears curious, it has been suggestedthat a broader rule would have risked rejection by higher authorities.
9
 The next hurdle to jump was the procedural point deployed in
The Siskina
10
whichestablished that a
 Mareva
injunction could only be granted where there was a causeof action within the jurisdiction. Whilst relief was not granted in the case, thesurvival of the principal generally was an achievement nonetheless.Further expansion of the principle occurred when it was decided that it was possibleto grant a
 Mareva
injunction against both a foreign based defendant and a defendantwithin the jurisdiction.
11
The latter was included to prevent the possibility ofdefendants collaborating with others within a jurisdiction who could transfer theirassets to another jurisdiction to stultify judgement.
12
 
5
[1975] 1 WLR 1093
6
Supreme Court of Judicature (Consolidation) Act 1925, s 45(1)
7
 
[1975] 2 Lloyd’s Rep 509
 
8
[1978] QB 644 (CA)
9
 
David Capper, “The
 Mareva
Injunction
 
From Birth to Adulthood” in E. O’Dell (ed),
The LeadingCases of the Twentieth Century
(Round Hall, 2000) 260
10
[1979] AC 210 (CA and HL)
11
Chartered Bank
v
Daklouche
[1980] 1 All ER 205 (CA);
Barclay-Johnson
v
Yuill
[1980] 3 All ER 190 (ChD);
Rahman
v
 Abu-Taha
[1980] 1 WLR 1268 (CA)
12
See n 9, 263

Activity (4)

You've already reviewed this. Edit your review.
1 hundred reads
1 thousand reads
UnderstandableMe liked this
ualii liked this

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->