PRIVACY/BANKING/ELECTRONIC FUNDS TRANSFER LAW

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TOWARDS TRANSNATIONAL PRINCIPLES OF PROVISIONAL AND PROTECTIVE RELIEF
by Gerrit F. Merkel*

Cite as : (2006) 3 SCC (Jour) 9

The international banking system of today, characterised by the relaxation of exchange controls and electronic banking, which make the international transfer of funds virtually instantaneous, has created a commercial environment in which the development of effective interim protection is of the utmost importance. As noted by a leading commentator, "pre-emptive remedies frequently have a decisive effect on the outcome of litigation",1 and are especially significant in transnational litigation, where the fact that one party often has relatively weak connections with the forum increases the pressure to settle before the substantive proceedings.2

This article examines the operation of the English freezing injunction as one of the most important forms of interim protection in the context of transnational litigation. It will be suggested that the freezing injunction as developed in England should serve as a model for the formulation of a uniform set of transnational principles of provisional and protective relief.

I. The scope of provisional and protective relief

1. Functions of provisional and protective relief3

Despite various attempts to define the scope of "provisional and protective relief", at present this phrase remains "without settled boundaries".4

Two principal functions of provisional and protective relief in the context of civil and commercial litigation have been identified by the International Law Association's Principles on Provisional and Protective Measures in International Litigation5-

1. maintenance of status quo pending determination of the merits at trial; and

2. the preservation of assets out of which an ultimate judgment can be satisfied.

Further important functions of provisional and protective relief include-

3. identification of assets through disclosure;

4. preservation of evidence;

5. provision of interim payments;

6. the "shepherding of assets";6

7. personal restraint; and

8. the provision of security for costs.

The following discussion focuses on what has been described as the most important form of "without notice" protective relief (formerly denoted as ex parte relief), namely, orders for the preservation of assets and ancillary disclosure orders for the identification of such assets.7

2. The English freezing injunction

In English law the preservation of assets is the province of an interim injunction originally known as Mareva injunction8, after the second case in which such an order was granted, but has recently been renamed "freezing injunction".9 Freezing injunctions are essentially designed to protect the effectiveness of the ultimate judgment by preventing the defendant from removing his assets from the jurisdiction and from otherwise dissipating his assets pending the final ruling. The injunction operates by freezing the defendant's assets (commonly funds in a bank account) in order to make such assets available for satisfaction of a future judgment, provided of course the applicant succeeds in the substantive proceedings.

The practice has been adopted by the legal systems of Canada, Australia and New Zealand, but has not been adopted by the Federal Courts of the United States of America, which employ a writ of attachment instead.

In England, freezing injunctions are now almost invariably supported by an ancillary disclosure order, which compels the respondent to produce detailed information about his assets, so as to ensure that the injunction can operate effectively.

II. The mechanics of provisional and protective relief—The English freezing injunction in the transnational context

This section examines the operation of the English freezing injunction in the following transnational contexts-

1. Worldwide protective relief in support of substantive proceedings before the English court.

2. Protective relief in support of civil litigation taking place in:

(a) a Brussels or Lugano Contracting State; or

(b) another foreign jurisdiction.

1. Worldwide protective relief in support of primary litigation in England10

In this scenario a worldwide freezing injunction is sought in England, England being the jurisdiction in which the applicant's substantive claim is likely to be litigated. Regularly, such application is motivated by the anticipation that, due to insufficient assets of the defendant within the English jurisdiction, it will be necessary to enforce a future judgment against those of the defendant's assets, which are located in foreign jurisdictions.

(a) Jurisdiction to grant provisional and protective relief

Section 37(1) of the Supreme Court Act, 1981 stipulates that the High Court has power to grant an injunction, including a freezing injunction, "in all cases in which it appears to the court to be just and convenient to do so".

In England the court's jurisdiction to grant a freezing injunction against a person "depends not on territorial jurisdiction of the English court over assets within its jurisdiction, but on the unlimited jurisdiction of the English court in personam against any person" who is properly made a party to English proceedings.11 It has been affirmed by the European Court of Justice (ECJ) in Van Uden Maritime BV v. Kommanditgesellschaft in Firma Deco-Line12 that provided the English court has jurisdiction over the substance of a claim, the court equally has jurisdiction to grant interim relief for the preservation of status quo awaiting adjudication of the merits. Hence, provided the defendant is personally subject to the English court's jurisdiction, it follows from the in personam nature of freezing injunctions that the court may grant a freezing injunction having worldwide effect in order to control the defendant's actions abroad.13 However, the court will generally only grant a worldwide freezing injunction if it is satisfied that there are no, or only insufficient assets within the English jurisdiction.14

(b) Extra-territorial freezing injunctions15

Worldwide freezing injunctions "are nowadays routinely made in cases of international fraud"16 and almost invariably comprise an order for attachment of foreign assets as well as an ancillary disclosure order, so as to obtain information about the assets in question.17 In fact, insofar as practical and tactical considerations are concerned, the disclosure order, if effective, is likely to constitute the most important aspect of the relief in relation to foreign assets, and is often the underlying motivation for an application for a freezing injunction.18 If granted in combination with an ancillary disclosure order, the English freezing injunction operates primarily as a "holding injunction" to enable the applicant to apply for appropriate interim or substantive relief in the courts of the relevant foreign jurisdiction.19

In order to safeguard the respondent against oppressive proceedings and an uncalled for multiplicity of actions, the standard terms stipulate that where a freezing injunction has been granted on a worldwide basis, the court's permission is required, before the applicant may-

begin proceedings against the respondent in any other jurisdiction or use information obtained as a result of an order of this Court in this jurisdiction for the purpose of any civil or criminal proceedings in any other jurisdiction;

or

seek to enforce this order in any country outside England and Wales or seek an order of a similar nature including orders conferring a charge or other security against the respondent or the respondent's assets.20

Moreover, it is clear from the so-called "Babanaft proviso" that the English court is not purporting to subject non-parties resident in another jurisdiction to the contempt powers of the English court. The proviso reads as follows21-

"(1) Except as provided in para (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this Court.

(2) The terms of this order will affect the following persons in a country or State outside the jurisdiction of this Court-

(a) the respondent or his officer or agent appointed by power of attorney;

(b) any person who-

(i) is subject to the jurisdiction of this Court;

(ii) has been given notice of this order at his residence or place of business within the jurisdiction of this Court; and

(iii) is able to prevent acts or omissions outside the jurisdiction of this Court which constitute or assist in a breach of the terms of this order; and

(c) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or State."

(c) The position of international banks22

Although the "Babanaft proviso" is an important safeguard against the assertion of exorbitant jurisdiction, the proviso offers only limited protection for multinational parties such as banks, which are generally organised as single corporate entities operating globally through branches in various jurisdictions. As a result of this organisational structure, an international bank with a branch in England is, as an entity, potentially subject to the jurisdiction of the English courts.23

In this connection it has been held in Securities and Investments Board v. Pantell SA24 with regard to the above proviso that where an account, which is held by the defendant with the foreign branch of an English bank has been subjected to a freezing injunction, the bank, being based in England and accordingly subject to the English jurisdiction, must not permit any transactions in connection with the defendant's bank account once notified of the order. The bank was effectively treated as a single corporate entity and service at the head office in London had the effect of compelling compliance with the order by the branch located abroad.

As regards the situation where the defendant holds an account with the English branch of a foreign bank or with a subsidiary of a foreign bank, it appears that the foreign bank, due to its presence in England, will equally be subject to the court's contempt powers. As a result the foreign bank is potentially put in a position in which its contractual and regulatory obligations under the law of the place where the account is situated are in direct conflict with the extraterritorial order of the English court.

This problem has been addressed by a further proviso, which has been adopted in the English Commercial Court.25 This so-called "Baltic proviso" has been endorsed by the Court of Appeal in its judgment in Bank of China v. NBM LLC in relation to a freezing injunction in order to ensure that26-

Nothing in the order shall, in respect of assets located outside England and Wales, prevent the non-party, that is, the respondent's bank or its subsidiaries from complying with-

(1) what it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or State in which those assets are situated or under the proper law of any bank account in question; and

(2) any orders of the courts of that country or State provided reasonable notice of any application for such an order by the non-party bank or any of its subsidiaries (to the extent such notice is permitted by the criminal law of such country or State) is given to the claimant's solicitors.

The Court of Appeal recommended further that a similar provision should be included with regard to all freezing injunctions having extraterritorial effect.

As noted by Andrews and McLachlan, many of the above complications can be avoided if, after an effective disclosure order has been obtained, the applicant seeks parallel and direct relief in the foreign jurisdictions where the assets are located.27

2. English protective relief in support of primary litigation abroad28

In this scenario, proceedings have been commenced, or are contemplated, in a foreign forum to whose jurisdiction the defendant is amenable. The claimant considers it to be necessary to protect his position by seeking interim relief in England. This will be the case, a fortiori, if the only assets against which a potential judgment of the foreign forum can be enforced are located within the English jurisdiction. In such circumstances an English freezing injunction constitutes the only effective device to prevent the defendant from making itself judgment-proof.

Support for such judicial assistance has been clearly expressed by Millett, L.J. in Crdit Suisse Fides Trust SA v. Cuoghi29-

"Where a defendant and his assets are located outside the jurisdiction of the court seised of the substantive proceedings, it is in my opinion most appropriate that protective measures should be granted by those courts best able to make their orders effective. In relation to orders taking direct effect against the assets, this means the courts of the State where the assets are located; but in relation to orders in personam, including orders for disclosure, this means the courts of the State where the person enjoined resides."

His Lordship continued:

"Commercial necessity has encouraged national courts to provide assistance to each other without waiting for such cooperation to be sanctioned by international convention. ... It is becoming widely accepted that comity between the courts of different countries requires mutual respect for the territorial integrity of each other's jurisdiction, but that this should not inhibit a court in one jurisdiction from rendering whatever assistance it properly can to a court in another in respect of assets located or persons resident within the territory of the former."

(a) Protective relief in support of primary litigation in another EU Member (or Lugano Convention) State30

In this scenario proceedings have been, or are to be, commenced in a State which is a party to the Brussels I Regulation or Lugano Convention. The English courts have jurisdiction to grant "without notice" interim relief in support of such foreign proceedings in accordance with Section 25 of the Civil Jurisdiction and Judgments Act, 1982, which gave effect to the United Kingdom's obligations to implement Article 24 of the 1968 Brussels Convention31

(i) Section 25 of the Civil Jurisdiction and Judgments Act, 1982

Section 25(1) of the 1982 Act stipulates that the English High Court has power to grant interim relief where-

(a) proceedings have been or are to be commenced in a Brussels or Lugano Contracting State other than the United Kingdom; and

(b) there are or will be proceedings whose subject-matter is within the scope of the 1968 Convention as determined by Article 1, that is, "civil and commercial matters".

Section 25(2) further provides that32-

"The court may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject-matter of the proceedings in question makes it inexpedient for the court to grant it."

As stated by Millett, L.J., it follows from the statutory regime of the 1982 Act that33-

"On an application for interim relief under sub-section (1), the court is not bound to grant relief, but may decline to do so if in its opinion the fact that it is exercising an ancillary jurisdiction in support of substantive proceedings elsewhere makes it inexpedient to grant it. It is the ancillary or subordinate nature of the jurisdiction rather than its source which is material, and the test is one of expediency."

The remainder of this section considers those aspects of provisional and protective relief, which arise specifically within the context of the Brussels regime. Matters of general application to freezing injunctions in transnational litigation will be discussed in sub-section (b) below.

(ii) The meaning of "provisional, including protective measures"

It has been held by ECJ in Reichert v. Dresdner Bank (No. 2)34 that the reference to "provisional, including protective, measures", in what is now Article 31 of the Brussels I Regulation, must be given an autonomous community meaning, denoting measures which "are intended to preserve a factual or legal situation so as to safeguard rights, an application for the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter".

Freezing injunctions are clearly covered by this definition of "provisional, including protective, measures".

(iii) Recognition and enforcement of provisional and protective measures within the Brussels regime

In its judgment in Denilauler v. Couchet Frres35 ECJ held that orders for provisional and protective relief made "without notice" to the respondent cannot be recognised or enforced under the regime of the Brussels I Regulation and Lugano Convention, since the respondent has not been given fair notice of such proceedings. Accordingly, ECJ concluded that it would be inappropriate to enforce "without notice" orders in the courts of other Member States. Apparently, this will be the case even in circumstances where the respondent has had an opportunity to contest the order in a subsequent "with notice" hearing.36

It is submitted that this position is unsatisfactory. The better view, as suggested by Andrews, is that "once the respondent has in fact had such a fair opportunity, the order should no longer be categorised for this purpose as "without notice" or "ex parte".37

(iv) The requirement of "a real connecting link"—the jurisprudence of the European Court of Justice

In Van Uden Maritime BV v. Kommanditgesellschaft in Firma Deco-Line12 ECJ reaffirmed its statement in Denilauler v. Couchet Frres35 that the courts of the place where the assets subject to the measures sought are located, are those best able to assess whether or not interim relief should be granted.38

ECJ held that39-

"The granting of provisional or protective measures ... is conditional on ... the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the contracting State of the court before which those measures are sought."

Moreover, ECJ stated with regard to the potentially pre-emptive effect of interim payments on the substantive ruling that40-

"Interim payment of a contractual consideration does not constitute a provisional measure within the meaning of Article 31 unless ... the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made."

The editor of the current edition of Dicey and Morris on the Conflict of Laws notes with regard to the effect of the above decision that neither the Court of Appeal decision in Crdit Suisse Fides Trust SA v. Cuoghi16 nor the ruling in Republic of Haiti v. Duvalier "would require reconsideration in the light of this ruling", since "in each case, notwithstanding the worldwide nature of the relief, there was a real connecting link with England, which was the only place where an effective order could be made".41

However, a different conclusion may also be reached: even though the ruling in Van Uden12 was concerned with interim payments, Andrews is certainly right to note that the restrictive approach of this case might adumbrate a more general restriction concerning freezing injunctions, so as to "prevent English courts granting such an injunction under the Brussels regime on a worldwide basis, or indeed in respect of assets located anywhere other than England".42

In view of these implications, it is probably best to confine the requirement as to the location of assets in Van Uden12 ruling to interim payments, as has been suggested by Peel.43

(b) Protective Relief in Support of Primary Litigation Outside the Scope of the Brussels I Regulation

(i) The Civil Jurisdiction and Judgments Act, 1982 (Interim Relief) Order, 199744

Following the enactment of the 1997 Order the English High Court now has power to grant interim relief under Section 25(1) of the Civil Jurisdiction and Judgments Act, 1982 in relation to-

(a) proceedings commenced or to be commenced otherwise than in a Brussels or Lugano Contracting State;

(b) proceedings whose subject-matter is not within the scope of the 1968 Convention as determined by Article 1 thereof.

As stated by Millett, L.J. in Crdit Suisse case16, with the adoption of the 1997 Order "the position has now been reached ... that the High Court has power to grant interim relief in aid of substantive proceedings elsewhere of whatever kind and wherever taking place".45 As a result, the English courts are finally in a position to render assistance by way of freezing injunctions and ancillary disclosure orders to other jurisdictions throughout the world. Moreover, the 1997 Order has not only led to significant improvements in the fight against large-scale and sophisticated transnational fraud, but also to improvements in the context of international insolvency litigation, as interim relief is now also available in support of insolvency proceedings which have been initiated abroad.46

Yet, in order to justify the intervention of the English High Court a connecting factor will normally have to be shown, such as the respondent's residence or presence of his assets within the English jurisdiction. In this context the liberal English rules governing service of process enable the High Court to assert jurisdiction as regards protective relief, where the respondent has assets in England but is not present within the jurisdiction, by granting permission for service out of the jurisdiction.47 Permission is not required as regards service of process outside the jurisdiction of the English High Court on persons domiciled in another Convention or EU Member State.48

(ii) The exercise of jurisdiction under Section 25 of the Civil Jurisdiction and Judgments Act, 1982.

In its ruling in Crdit Suisse Fides Trust SA v Cuoghi16 the Court of Appeal held that a worldwide freezing injunction should be granted in support of foreign proceedings whenever it is just and convenient to do so.49

In this case Crdit Suisse applied to the English court for relief under Section 25(1) of the 1982 Act and obtained the following interrelated orders in aid of substantive proceedings for civil fraud pending in Switzerland (a party to the Lugano Convention) against the defendant, Mr Cuoghi. (The defendant was resident in England, where he also carried on business.)

(1) a worldwide freezing injunction against Cuoghi, in order to prevent the latter from dissipating his assets wherever located; and

(2) an ancillary disclosure order requiring the defendant to disclose by affidavit the location of his worldwide assets.

Given the fact that Cuoghi was resident in England, that under Swiss law the Swiss court had no jurisdiction to grant such orders against a non-resident, and that there was no indication that the Swiss court would object to such assistance from the English courts, the Court of Appeal concluded that it was not "inexpedient" to grant such wide-ranging relief.

With regard to the question of when it is inexpedient to grant a freezing injunction under Section 25 of the Civil Jurisdiction and Judgments Act, 1982 Lord Bingham, C.J. set out important guidelines in Crdit Suisse case.50 The issue has recently been reconsidered by the Court of Appeal in Motorola Credit Corpn. v. Uzan (No. 2).51 Having reviewed the guidelines in Crdit Suisse case16 and other relevant authorities, the Court of Appeal identified the following six considerations52-

(1) Whether the making of the order will interfere with the management of the case in the primary court eg. where the order is inconsistent with an order in the primary court or overlaps with it.

(2) Whether it is the policy in the primary jurisdiction not itself to make worldwide freezing/disclosure orders.

As noted by Lord Bingham, C.J. in Crdit Suisse case16, it may weigh against the grant of relief by the English court that "the primary court could have granted such relief and has not done so, particularly if the primary court has been asked to grant such relief and declined".53

(3) Whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting, inconsistent or overlapping orders in other jurisdictions, in particular the courts of the State where the person enjoined resides or where the assets affected are located. If so, then respect for the territorial jurisdiction of that State should discourage the English court from using its unusually wide powers against a foreign defendant.

(4) Whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order.

(5) Whether, in a case where jurisdiction is resisted and disobedience to be expected, the court will be making an order which it cannot enforce.

On the other hand, as stated in Crdit Suisse case54-

"It may be thought to weigh in favour of granting such relief that a defendant is present in England and so liable to effective enforcement of an order made in personam, always provided that by granting such relief this Court does not tread on the toes of the primary court or any other court involved in the case. On any application under Section 25 the English court must recognise that its role is subordinate to and must be supportive of that of the primary court."

(6) In such cases the position of each defendant has to be considered separately.

In accordance with these considerations, the Court of Appeal held that on the facts of Motorola Credit Corpn. v. Uzan (No. 2)51 it was "inexpedient to grant the relief claimed" against two of the defendants, who were citizens and residents of Turkey and who had no assets in, nor any other connection with England, since "no sanction was available against them in the event of their disobedience".55 By contrast, given the fact that the remaining defendants had the requisite residential and proprietary connections with England, the court upheld the freezing injunctions as applicable to the latter.56

(iii) The requirement of "a real connecting link"-the English jurisprudence57

The decision in Republic of Haiti v. Duvalier58:

In the exceptional case of Republic of Haiti v. Duvalier58 the Court of Appeal granted a worldwide freezing injunction and ancillary disclosure order so as to compel the firm of English solicitors, which had been employed by the defendant, to disclose the location of their client's worldwide assets.

What is remarkable about this case is that the order was granted notwithstanding the fact that the case had only very weak connections with England, that is, the location of the relevant information controlled by Duvalier's solicitors in London. All the relevant assets were situated outside the court's jurisdiction and the defendant was neither domiciled nor resident in England. The very weak connections with England were clearly recognised by Staughton, L.J., who emphasised that the case under consideration was "most unusual".59 His Lordship stated that the determinative element of the case was "the plain and admitted intention of the defendants to move their assets out of the reach of the courts of law", linked with the sophisticated asset concealment scheme and the vast amount of money involved.60 The exceptional nature of this case has also been noted in Motorola Credit Corpn. v. Uzan (No. 2)51, where the Court of Appeal stated that "albeit the fraud alleged in Motorola case61 ... was, if correct, fraud on a massive scale, we do not think it stands relevant comparison with Duvalier case58".

Although the decision in Duvalier case58 can be justified on the basis "that England was the only place which had any known connection with the asset concealment scheme and was therefore the place where information was most likely to be obtainable",62 Collins is certainly right to note that the decision "goes to the very edge of what is permissible", and is probably best explained on, and should be confined to its exceptional facts.63

The decision in Motorola Credit Corpn. v. Uzan (No. 2)51:

In this case the Court of Appeal expressly endorsed the observations of Millett, L.J.51 in Crdit Suisse case16 "to the effect that international fraud requires courts, within the limits of comity, to render whatever assistance they properly can without the need for express provision by an international convention requiring it".64 However, in the same paragraph the court went on to stress the need for "the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction ... of the court before which those measures are sought".65

The decision in Motorola case51 clearly reaffirms that the grant of a freezing injunction in support of foreign proceedings is dependant upon the existence of a connecting factor such as the respondent's residence, the presence of his assets and in exceptional circumstances, such as in Duvalier case58, the presence of relevant information within the English jurisdiction.

(iv) The significance of a "real sanction"

A very important aspect of the connecting factors referred to above relates to the fact that they lay the foundations of the sanctions which are necessary for the enforcement of protective measures in the present context. It follows that it will be inexpedient to grant freezing relief where a connecting factor is lacking, as there will be no appropriate sanction available against the respondent in the event of disobedience.

The significance of the availability of a "real sanction" with regard to the exercise of the court's discretion whether or not to grant freezing relief can be demonstrated by a comparison of the decisions in Motorola Credit Corpn. v. Uzan (No. 2)51 and Derby & Co. Ltd. v. Weldon (Nos. 3 & 4)66

Each case involved certain defendants which had, according to the evidence, no assets within the English jurisdiction. However, while the freezing injunctions were discharged in Motorola decision51, the Court of Appeal upheld the freezing injunction in Derby case66, on the ground that "a sufficient sanction" existed in the fact that "in the event of disobedience, the court could bar the defendant's right to defend". Both cases have been correctly decided and can be explained on the basis of the availability of sanctions in each case.

Given the fact that in Derby case66 the worldwide freezing injunction was granted in support of substantive proceedings taking place in England, the court was in a position to bar the defendant's right to defend in the event of disobedience. If so barred, the defendant "would become a fugitive from a final judgment given against it without its explanations having been heard and which might well be enforced against it by other courts".67 Accordingly, there existed a real sanction notwithstanding the fact that the defendant held no assets in England.68 In Motorola case51, on the other hand, the respective freezing injunctions were sought in support of substantive proceedings taking place in New York. This had the consequence that the English court was unable to strike out the defence of the defendants and to enter judgment against them in the substantive proceedings. It followed that on the facts of the case it was inexpedient to grant the relief claimed since no sanction was available against the defendants in the event of their disobedience.69

(v) Refco Inc v. Eastern Trading Co.70-an excessive exercise of jurisdiction?

It has been stated in obiter dicta by a majority in Refco Inc v. Eastern Trading Co.70 that the English High Court retains jurisdiction to grant a freezing injunction where the court seised of the substantive proceedings has jurisdiction to grant interim relief similar to an English freezing order, but is unable to do so on the facts of the dispute. This will be a fortiori the case where the foreign court supports such an order of the English court.

Morritt, L.J. stated that he could not see "why it should make a difference that the foreign court has jurisdiction but is, in principle, unable to exercise it as opposed to a case where it has no jurisdiction at all".71 His Lordship concluded that the English court should be able to grant ancillary relief in such a case, provided it did not hamper the case management in the foreign court.

Millett, L.J. dissenting, considered that the approach of the majority would be excessive and that it would be contrary to notions of comity between nations for an English court to ignore the limitations of the foreign system of relief, that is, "to grant relief which the Court seised of the substantive proceedings would have refused to grant even if the defendants were resident within its jurisdiction and had assets located there".72

Unfortunately, the Court of Appeal in Motorola Credit Corpn. v. Uzan (No. 2)73 did not express an opinion as to the merits of these two different approaches in Refco case70. However, it is difficult to see how the grant of an English freezing injunction could offend notions of comity where the order has been expressly sanctioned by the foreign court seised of the substantive proceedings. It is submitted that judicial cooperation along these lines is more likely to promote than to harm the comity of nations. Hence, the better view is that the courts should follow the more flexible approach of the majority in Refco case70.74

(vi) English protective measures which supplement foreign relief

The English court has power to grant a freezing injunction in addition to a related order, issued by the foreign court seised of the substantive proceedings, even if the English remedy partly coincides with the relief granted in the primary forum.

The following guidelines as to the grant of supplementary relief under Section 25 of the 1982 Act have been put forward by Neuberger, J.:75

1. particular caution is required, given the fact that the English court is likely to be less appraised of the facts which occur in a foreign context than in a case where it is exercising primary jurisdiction;

2. yet, comity and the need to stop international fraud mean "that the High Court should not be too worried about granting an injunction" taking into account that Section 25(2) provides that an order should be made unless it is "inexpedient to do so";

3. "although it should be slow to do so, it might be appropriate for the High Court to grant a freezing order even where the foreign court has refused to grant an order";

4. the mere fact that a worldwide freezing injunction has been granted by the principal foreign court does not prevent the High Court from granting a freezing order, taking into account that in the reverse situation the High Court as the primary court frequently grants worldwide freezing orders on terms that specifically envisage that the claimant will apply for freezing orders in other jurisdictions;

5. before overlapping freezing orders are granted under Section 25 "the court should expect to be given cogent reasons to justify it" taking into account the related danger of increased costs and court time and "the risk of double jeopardy for defendants and the opportunity for forum shopping by the claimants";

6. where it is appropriate to grant overlapping freezing relief a provision should be included which indicates which court is to have "the primary role for enforcing the overlapping injunctions"-this is normally the court seised of the substantive litigation;

7. "save in a case of good reason to the contrary", it is in general desirable that the overlapping order should "track precisely the terms of the order made by the foreign court".

III. The future-towards transnational principles of provisional and protective relief

1. The cause for a uniform set of principles

"In a genuine European area of justice, individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal and administrative systems in the Member States."76

The significance of judicial cooperation and the need for transnational rules on provisional measures has been empathetically restated by the Presidency Conclusions of the 1999 Tampere European Council meeting.77

It is submitted that in order to overcome the problems associated with differences in the various national forms of provisional and protective relief, which often encourage forum shopping, it will be necessary to address this lack of uniformity not only on a European but on a transnational basis.

2. Four approaches to transnational principles of provisional and protective relief

(a) The International Law Association-Principles on Provisional and Protective Measures in International Litigation

(b) A European Provisional and Protective Measure-A proposal by W.A. Kennett

(c) Principles of a Common Protective Order-A blueprint by N.H. Andrews

(d) The American Law Institute/UNIDROIT Working Group- Principles and Rules of Transnational Civil Procedure

Only a brief overview will be given of the first three of the above projects and proposals. The fourth and most recent project will be considered in more detail.

(a) The International Law Association-Principles on Provisional and Protective Measures in International Litigation78

Promulgated in 1996, the 22 paras of the International Law Association (1996) Principles are generally in line with English practice, with the exception of those provisions which relate to territorial scope.79

The Principles "are intended to be of general application in international litigation" and focus particularly on the preservation of assets for the satisfaction of an ultimate judgment. This is to be achieved by "measures to freeze the assets of the defendant held in the form of sums in a bank account".80

(b) A European Provisional and Protective Measure-A proposal by W.A. Kennett81

Kennett proposes to formulate a harmonised European protective measure which will provide for minimum standards and guarantees. The proposal is based to a large extent on the International Law Association (1996) Principles and is generally in accordance with English practice.

It is envisaged that the measure will "coexist with national measures granted ex parte".82 Litigants would thus be able to choose between existing national measures, which may be particularly apposite in a given case, and the European measure, "which could rapidly be enforced in other Contracting States" if necessary.83 Given the fact that a number of courts, such as the London Commercial Court, have developed particularly specialised expertise in the context of provisional and protective relief, it seems appropriate to especially draw on such experience when endeavouring to create a uniform system of protective relief in the sphere of transnational commercial litigation.84

The measure is envisaged to operate within the framework of a European Judicial Network, which will provide the infrastructure for coordinated information which flows between courts through direct communication between the judicial authorities of the Member States.85 Within such a system it would be possible to designate a court, ideally the court hearing the merits of a case, to exercise supervisory functions and to monitor the use of provisional and protective relief in any case in which such relief is granted.86

(c) Principles of a Common Protective Order-A blueprint by N.H. Andrews87

This blueprint proposes a uniform set of principles to govern provisional and protective relief which would be appropriate for, and could be adopted by, the leading trading nations of the world and could gradually be extended to other jurisdictions.

This set of principles adopts the essence of freezing injunctions, disclosure and civil search orders, as available in England and in many other common law jurisdictions. The proposal envisages a reciprocal system of recognition and enforcement of such judicial orders, even when made "without notice" to the respondent.88 It is envisaged that each participating State should nominate an appropriate court or judicial authority, which may grant protective relief under these principles.89

(d) The American Law Institute/UNIDROIT Working Group-Principles and Rules of Transnational Civil Procedure90

(i) The project

This project of the American Law Institute (ALI) and UNIDROIT (The International Institute for the Unification of Private Law) endeavours to formulate Principles and Rules of Transnational Civil Procedure in order to offer "a system of fair procedure for litigants involved in legal disputes arising from transnational commercial transactions".91 If adopted by all or the majority of the modern legal systems, any forum concerned with the resolution and adjudication of transnational commercial disputes would hence follow the same procedure. This would not only reduce problems associated with forum shopping but would also facilitate the mutual recognition and enforcement of judgments between the participating jurisdictions.

There are two aspects to the project, namely, the formulation of a set of general principles intended to serve as "interpretative guides" to the Rules which, as the second aspect of the project, form "a more detailed body of procedural law" and could be readily adopted or adapted in national jurisdictions as "a model implementation of the Principles".92

Alternatively, the Principles could be adopted as interpretive guides of existing national codes of procedure.93

(ii) Features of the proposed Principles and Rules on provisional and protective measures

The proposed Principles and Rules on provisional and protective measures are generally in line with English practice and are intended also to be available in support of arbitral proceedings.94 The substantive provisions on provisional and protective relief can be found in Principle 8 and Rule 17.95

Territorial scope-Principle 2.396

A court may grant provisional measures with respect to a person or to property in the territory of the forum State, even if the court does not have jurisdiction over the controversy.

Nature of the relief-Principle 8.197

The court may grant provisional relief when necessary to preserve the ability to grant effective relief by final judgment98 or to maintain or otherwise regulate the status quo.

Provisional and protective relief may be ordered "without notice". The provisions relating to procedural safeguards and threshold criteria for "without notice" relief, and to subsequent reconsideration of the order at a "with notice" hearing are in harmony with English practice.99

Under the Principles and Rules an applicant for protective relief is liable to compensate the respondent if it transpires that the relief should not have been granted, and can be required to post a bond as security.100 The provision of indemnification is to be regulated by the law of the forum.101 The effect of protective relief on non-parties is broadly in accordance with English practice.102

Recognition and enforcement-Rule 36.1103

A provisional measure in a proceeding conducted in another forum in substantial compliance with the Rules must be recognised and enforced unless substantive public policy requires otherwise.

It is submitted that the public policy qualification is a necessary safeguard, should the "quality of the procedures applicable in the various participating jurisdictions become "uneven", as a result of an increase in the number of participating jurisdictions.104

Judicial cooperation-Principle 31105

The courts of a State that has adopted the Principles should provide assistance to the courts of any other State that is conducting a proceeding consistent with the Principles, including the grant of protective or provisional relief and assistance in the identification, preservation, and production of evidence.

3. An appraisal

The compromise adopted by the ALI/UNIDROIT Principles and Rules, that is, the endorsement of the freezing injunction without excluding preliminary attachment orders, is to be welcomed.106

The German scholar Rolf Strner has however also pointed out that the majority of the European legal systems favour procedures operating in rem, such as preliminary attachment and saisie conservatoire.107 Strner argues that procedures which operate in personam, such as the English freezing injunction, constitute a "very dangerous" and coarser weapon than the more delimited in rem procedures, which he considers to be more in line with the principle of proportionality, while offering as much protection as the English freezing injunction.108

Strner concludes that with regard to a unified European model the English freezing order is not recommendable and favours the adoption of uniform orders for preliminary attachment instead.109

Likewise, it has been recognised in the commentary to the ALI/UNIDROIT Principles and Rules that the English in personam solution "may be very effective, especially in international litigation, but also may be subject to abuse".110

Notwithstanding these concerns, it is submitted that in order to be effective, transnational, provisional and protective relief should ideally operate in personam, if necessary on a worldwide basis. The effectiveness of in personam relief and its ability to operate with the requisite discretion any given situation may require has been demonstrated above in section three. The English freezing injunction may thus legitimately serve as a model for the formulation of a uniform set of transnational principles of provisional and protective relief, not least since "England has become the leading jurisdiction for interim protection in aid of foreign proceedings" as a result of the English freezing injunction.111 As stated by Bermann, "given its close consideration of the proper international scope of injunctions, UK case-law may be a useful source of guidance for American courts",112 and, it is submitted, for the formulation of transnational principles of protective relief in general.

The ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure clearly reflect the above considerations and succeed in providing a system of provisional and protective relief which is appropriate for transnational litigation in today's commercial environment.

IV. Conclusion

The development of the English freezing injunction has been an adequate and highly successful response to the exigencies of today's commercial environment. However, within the framework of a globalised economy it no longer suffices to rely solely on national forms of provisional and protective relief. Although doubts have been expressed as to the desirability of procedural uniformity in transnational commercial litigation,113 it is submitted that in the context of protective relief a uniform set of principles is required in order to ensure effective interim protection in transnational litigation. The path-breaking projects which have recently been undertaken in this context have yielded impressive results, heralding the beginning of a new era of judicial cooperation in transnational civil procedure.

---

* BA (Cantab). Particular thanks are due to Mr Neil Andrews for his support. Return to Text

  1. Collins, "Provisional and Protective Measures in International Litigation" in Essays in International Litigation and the Conflict of Laws (Oxford University Press, Oxford, 1994), 3. Return to Text
  2. Maher and Rodger, "Provisional and Protective Remedies: The British Experience of the Brussels Convention", (1999) 48 ICLQ 302-39 (302-3). Return to Text
  3. For a succinct overview see Andrews, "Provisional and Protective Measures: Towards a Uniform Protective Order in Civil Matters", (2001-4) 6 Uniform Law Review 931-49 (933-5); and Kennett, The Enforcement of Judgments in Europe (2000), 157-9. Generally see Andrews, "Civil Procedure" in Birks (ed), English Private Law (2000), (with supplement 2002), Vol. II, paras 19.197-19.215; and Andrews, English Civil Procedure: Fundamentals of the New Civil Justice System (2003), Ch. 17. Return to Text
  4. Andrews (2001-4), supra fn 3, 933-4 and fn 7-8. Return to Text
  5. International Law Association, Principles on Provisional and Protective Measures in International Litigation, Helsinki 1996 (general reporter: McLachlan) in Crawford and Byers (eds), The International Law Association: Report of the Sixty-Seventh Conference held at Helsinki, Finland, 12 to 17 August, 1996 (1996), p. 185. Return to Text
  6. See Andrews (2001-4), supra fn 3, 934-5: English courts have the power to order or prohibit the transfer of the respondent's assets from one jurisdiction to another, so as to assist the "international shepherding of assets" and recognition of judgments. Return to Text
  7. Andrews (2001-4), supra fn 3, 933-4, fn 7-8. Return to Text
  8. Mareva Compania Naviera SA v. International Bulkcarriers SA, (1975) 2 Lloyd's Rep 509, CA. Return to Text
  9. Civil Procedure Rules, 1998, SI 1998/3132, hereafter CPR, Rule 25.1(1)(f). Return to Text
  10. See generally Gee, Mareva Injunctions and Anton Piller Relief (4th Edn., 1998), 62-72 cf now Gee, Gee on Commercial Injunctions (5th Edn., 2004). Return to Text
  11. Derby & Co. Ltd. v. Weldon (No. 6), (1990) 1 WLR 1139, 1149, CA, per Dillon, L.J. Return to Text
  12. Case C-391/95 Van Uden Maritime BV v. Kommanditgesellschaft in Firma Deco-Line, 1998 ECR I-7091, ECJ. Return to Text
  13. See e.g. Babanaft International Co. SA v. Bassatne, 1990 Ch 13, 38-41, CA; Derby & Co. Ltd. v. Weldon (No. 6), (1990) 1 WLR 1139, 1149, CA; Crdit Suisse Fides Trust SA v. Cuoghi, 1998 QB 818, 826, CA. Return to Text
  14. Derby & Co. Ltd. v. Weldon (Nos. 3 & 4), 1990 Ch 65, 79, CA. Return to Text
  15. See generally McLachlan, "Extraterritorial Orders Affecting Bank Deposits" in Meessen (ed), Extraterritorial Jurisdiction in Theory and Practice (1996); McLachlan, "The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation", (1998) 47 ICLQ 3-49 (33-8). Return to Text
  16. Crdit Suisse Fides Trust SA v. Cuoghi, 1998 QB 818, 824, CA, per Millett, L.J. Return to Text
  17. See generally Practice Direction, appended to the Civil Procedure Rules, Part 25, Annex; hereafter abbreviated PD with the relevant Part given in round brackets. Return to Text
  18. Crdit Suisse Fides Trust SA v. Cuoghi, 1998 QB 818, 827-8, CA, per Millett, L.J.; see also Dicey and Morris, Collins and others (eds), The Conflict of Laws (13th Edn., 2000), para 8.014; McLachlan (1996), supra fn 15, 57-8. Return to Text
  19. Babanaft International Co. SA v. Bassatne, 1990 Ch 13, 41, CA, per Nicholls, L.J. Return to Text
  20. PD (25), Annex, Schedule B, paras (9)-(10). Return to Text
  21. PD (25), Annex, para 19; Babanaft International Co. SA v. Bassatne, 1990 Ch 13, CA. Return to Text
  22. See generally Malek and Lewis, "Worldwide Mareva Injunctions: The Position of International Banks", 1990 LMCLQ 88-98. Return to Text
  23. Ibid., at 93. Return to Text
  24. Securities and Investments Board v. Pantell SA, 1990 Ch 426, 433, per Browne-Wilkinson, V.C. Return to Text
  25. For the current version see Admiralty and Commercial Courts Guide (2002), Appendix 5, para 20. Return to Text
  26. Bank of China v. NBM LLC, (2002) 1 WLR 844, 847, CA, emphasis added; cf PD (25), Annex, para 20. Return to Text
  27. Andrews (2003), supra fn 3, para 17.73; McLachlan (1996), supra fn 15, 49-50, 57-8. Return to Text
  28. See generally Gee (1998), supra fn 10, 82-96. Return to Text
  29. 1998 QB 818, 827, CA. Return to Text
  30. See generally Andrews (2000), supra fn 3, especially paras 19.197-19.215; Andrews (2003), supra fn 3, paras 17.74-17.104; Dicey and Morris, supra fn 18, paras 8.021-8.030; Gee (1998), supra fn 10, 86-89; Maher and Rodger, supra fn 2. Return to Text
  31. Now superseded by Article 31 of Council Regulation (EC) No. 44/2001, hereafter "Brussels I Regulation", the original wording of Article 24 of the 1968 Convention not having been modified. Return to Text
  32. Emphasis added. Return to Text
  33. Crdit Suisse Fides Trust SA v. Cuoghi, 1998 QB 818, 825-6, CA. Return to Text
  34. Case C-261/90 Reichert v. Dresdner Bank (No. 2), 1992 ECR I-2149, 34, EJC. Return to Text
  35. Case 125/79 Denilauler v. Couchet Frres, 1980 ECR 1553, 17-18, ECJ. Return to Text
  36. EMI Records Ltd. v. Modern Music GmbH, 1992 QB 115, Hobhouse, J., considering Case 125/79 Denilauler v. Couchet Frres, 1980 ECR 1553, ECJ. Return to Text
  37. Andrews (2003), supra fn 3, para 17.20. Return to Text
  38. Case C-391/95 Van Uden Maritime BV v. Kommanditgesellschaft in Firma Deco-Line, 1998 ECR I-7091, 38-39, ECJ. Return to Text
  39. Ibid., 48, ECJ, emphasis added. Return to Text
  40. Ibid., emphasis added. Return to Text
  41. Dicey and Morris, supra fn 18, para 8.027; cf Crdit Suisse Fides Trust SA v. Cuoghi, 1998 QB 818, CA and Republic of Haiti v. Duvalier, (1990) 1 QB 202, CA (considered below). Return to Text
  42. Andrews (2003), supra fn 3, paras 17.89-17.90. Return to Text
  43. Peel, "The Brussels Convention", (1998) 18 YBEL 689, 697. Return to Text
  44. The Civil Jurisdiction and Judgments Act, 1982 (Interim Relief) Order, 1997, SI 1997/302, hereafter "the 1997 Order", made pursuant to Section 25(3) of the Civil Jurisdiction and Judgments Act, 1982; noted Scott, (1997) 16 CJQ 185-8; cf Capper, "Further Trans-Jurisdictional Effects of Mareva Injunctions", (1998) 17 CJQ 35-40. Return to Text
  45. Crdit Suisse Fides Trust SA v. Cuoghi, 1998 QB 818, 825, CA. Return to Text
  46. Cf Smart, "Insolvency Proceedings and the Civil Jurisdiction and Judgments Act, 1982", (1998) 17 CJQ 149, 150-1. Return to Text
  47. CPR, Rule 6.20(4). Return to Text
  48. CPR, Rule 6.19(1)(b)(i). Return to Text
  49. Crdit Suisse Fides Trust SA v. Cuoghi, 1998 QB 818, CA; noted Lenon, (1997) 147 New LJ 1234-6. Return to Text
  50. Ibid., 1998 QB 818, 831-2, CA. Return to Text
  51. (2004) 1 WLR 113, CA. Return to Text
  52. Ibid., 115-116, CA. Return to Text
  53. Crdit Suisse Fides Trust SA v. Cuoghi, 1998 QB 818, 831-2, CA. Return to Text
  54. Ibid. Return to Text
  55. Motorola Credit Corpn. v. Uzan (No. 2), (2004) 1 WLR 113, 125, CA. Return to Text
  56. Ibid., 127-128, CA. Return to Text
  57. See generally Gee (1998), supra fn 10, 82-9. Return to Text
  58. Republic of Haiti v. Duvalier, (1990) 1 QB 202, CA; cf Dicey and Morris, supra fn 18, para 8.027. Return to Text
  59. Ibid., (1990) 1 QB 202, 216, CA. Return to Text
  60. Ibid., at 216-7. Return to Text
  61. Motorola Credit Corpn. v. Uzan (No. 2), (2004) 1 WLR 113, 123, CA. Return to Text
  62. Ibid., 66, CA, emphasis added. Return to Text
  63. Collins, "The Territorial Reach of Mareva Injunctions", (1989) 105 LQR 262 (281). Return to Text
  64. Motorola Credit Corpn. v. Uzan (No. 2), (2004) 1 WLR 113, 114, CA, emphasis added. Return to Text
  65. Ibid. Return to Text
  66. 1990 Ch 65, CA; noted Kaye, (1990) 9 CJQ 12-6. Return to Text
  67. Derby & Co. Ltd. v. Weldon (Nos. 3 & 4), 1990 Ch 65, 81, CA, per Lord Donaldson, M.R. Return to Text
  68. Cf Capper, "Worldwide Mareva Injunctions", (1991) 54 MLR 329, 337, where the commentator points out that the court's power to debar the respondent from defending the action may be of limited effect if the respondent keeps his assets in a jurisdiction in which English judgments and interlocutory orders cannot be enforced. Return to Text
  69. Motorola Credit Corpn. v. Uzan (No. 2), (2004) 1 WLR 113, 125, CA. Return to Text
  70. Refco Inc v. Eastern Trading Co., (1999) 1 Lloyd's Rep 159, CA. Return to Text
  71. Ibid., at 173; cf the comments of Potter, L.J. at 174. Return to Text
  72. Ibid., at 174 Return to Text
  73. Motorola Credit Corpn. v. Uzan (No. 2), (2004) 1 WLR 113, 76-80, 119, CA. Return to Text
  74. Andrews (2003), supra fn 3, para 17.102. Return to Text
  75. Ryan v. Friction Dynamics Ltd., THE TIMES, 14 June 2000, Neuberger, J.; cf Andrews (2003), supra fn 3, para 17.103. Return to Text
  76. Tampere Presidency Conclusions, para 28, see Kennett, supra fn 3, Appendix A, 318. Return to Text
  77. Ibid., paras 28-39; see generally Kennett, supra fn 3, Ch 2. Return to Text
  78. International Law Association, supra fn 5. Return to Text
  79. Ibid., Principles 11 and 17. Return to Text
  80. Ibid., Principle 2. Return to Text
  81. Kennett, supra fn 3, 145-56. Return to Text
  82. Ibid., at 151 Return to Text
  83. Ibid. Return to Text
  84. Ibid., at 161; cf Andrews (2001-4), supra fn 3, 938, fn 20. Return to Text
  85. Ibid., at 152-6. Return to Text
  86. Cf para 8(b) of the proposed Common Protective Order in Andrews (2001-4), supra fn 3, 940. Return to Text
  87. Andrews (2001-4), supra fn 3. Return to Text
  88. Ibid., at 932, 935-7 Return to Text
  89. Ibid., at 938 Return to Text
  90. American Law Institute and UNIDROIT, Principles and Rules of Transnational Civil Procedure, Final Draft, (reporters: Hazard, Taruffo, Strner, Gidi)—see http://www.ali.org. hereafter "the Principles and Rules". Return to Text
  91. Ibid., Introduction p. 7. On the application to arbitration see Commentary on the Principles and Rules of Transnational Civil Procedure, hereafter "the Commentary", P-E. Return to Text
  92. Supra fn 90, Preface and Introduction p. 3. Return to Text
  93. Ibid. Return to Text
  94. Ibid., Commentary P-8A, R-17A. The Rules apply to arbitral proceedings if so stipulated in the arbitration agreement; see Rule 2.1.3 and Commentary R-2F. Return to Text
  95. Ibid., Commentary P-8, R-17. Return to Text
  96. Ibid., Rule 4.4.2 and Commentary P-2D, R-4C. Return to Text
  97. Ibid., Rule 17.1 respectively. On disclosure see also Principle 18. Return to Text
  98. This clearly includes the grant of freezing injunctions under English law. Return to Text
  99. Supra fn 90, Principle 8.2, Rules 17.2 to 17.4 and Commentary P-8B to P-8E, R-17C to R-17E; see also Principles 1.4, 5.8 and Commentary P-1E, P-5G. Return to Text
  100. Ibid., Principle 8.3, Rules 17.5, 17.5.1 and Commentary P-8D, P-8F, R-17F. Return to Text
  101. Ibid., Commentary P-8F, R-17F. Return to Text
  102. Ibid., Rule 20 and Commentary R-20, R-17B. Return to Text
  103. Ibid., Principle 30 and Commentary P-30. Return to Text
  104. Andrews, supra fn 3 (2001-4), 938, fn 17, noted with regard to automatic recognition of "without notice" orders. Return to Text
  105. Supra fn 90, Rule 36.2 respectively; see also Commentary P-31, R-36B. Return to Text
  106. Cf Strner, "Einstweiliger Rechtsschutz" in Storme (ed), Procedural Laws in Europe: Towards Harmonisation (2003), p. 166. Return to Text
  107. Ibid., at 165-6 Return to Text
  108. Ibid. Return to Text
  109. Ibid., at 169, 184 and 185 for a summary in English. Return to Text
  110. American Law Institute and UNIDROIT, supra fn 90, Commentary R-20A. Return to Text
  111. Schlosser, supra fn 19, 392. Return to Text
  112. Bermann, "Provisional Relief in Transnational Litigation", (1997) 35 Columbia Journal of Transnational Law 553-617, 572. Return to Text
  113. Zuckerman, "Conference on 'The ALI-UNIDROIT Principles and Rules of Transnational Civil Procedure', hosted by the British Institute of International and Comparative Law, London, May 24, 2002", (2002) 21 CJQ 322-5. Return to Text
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