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8 UWSLRev 21
C M Hetherington[*]
In 1975 the Mareva[1] was first awarded to prevent a potential debtor pre-emptively frustrating satisfaction of a future judgment by disposing of the assets necessary to satisfy it[2] . The grant of such an order was contrary to long established authority that equity would not inhibit a debtor’s dealings with its property before a judgment justified execution orders against specific assets[3] . Inevitably, in these circumstances, the Mareva was launched into legal doctrine with a dramatic splash of controversy. It was described as a ‘nuclear weapon’ of the law[4] involving a ‘fearful authority’[5] granted without jurisdiction and in defiance of existing authority, by a Court of Appeal ‘nakedly exercising legislative power and usurping the functions of Parliament’[6] . In contrast, its inventor, Lord Denning MR, said that the Mareva was the ‘greatest judicial reform’ of his time[7] and other judges enthusiastically employed the Mareva to curb the frequent abuse of legal process which ‘cried out for a procedural remedy of the kind’[8] .
Thirty years later the doctrinal debate is far from exhausted. It remains uncertain on what, if any, proper doctrinal basis the Mareva rests. It is unclear whether the Mareva represents a development of equitable jurisdiction[9] , an exercise of the superior courts’ inherent jurisdiction to prevent abuse of process[10] , a statutory remedy[11] , a special exception to the general law[12] , or a doctrinal heresy[13] that is here to stay[14] . Notwithstanding all these uncertainties, in practical terms, the Mareva has gone from strength to strength. It has become a commonplace remedy and indeed an unashamedly expansive[15] part of the courts’ ‘accepted armoury’[16] . In addition, on the world stage the Mareva provides a useful form of interim urgent transnational relief, valued outside as well as inside the common law world, for its superior flexibility and aptitude to meet emerging needs before global treaties and conventions have had time to develop[17] , and with apparent potential to fulfil a greater future role supporting the administration of justice internationally[18] .
The writer’s purpose is to attempt an evaluation of the Mareva thirty years after its creation and suggest where its future may lie.
The writer’s argument will be that, although Mareva was first invented in defiance of existing equitable authority on injunctions, it was justified on legal principle and policy, and it is now justified also by reference to authority as it has developed. It is one of the ‘recent, radical and generally beneficial judicial inventions’[19] that have ‘expanded the boundaries’ [20] in the area of injunctions, to create a remedy that is potent, flexible and just.
The writer’s suggestion will be that the law on injunctions should now be restated to acknowledge that Mareva has extended the boundaries of equitable jurisdiction, and created a further exception to the previous principles. So doing, it is urged, would be beneficial in several important respects. It would place Mareva’s doctrinal legitimacy beyond doubt, advance doctrinal coherence, cast light on the thus far intractable mystery of ‘what a Mareva does’ and ‘how, juristically it does it’[21] , provide a basis for reconsideration of contrary authorities, such as that in the United States Supreme Court decision in the Grupo Mexicano[22] case, and facilitate the development of Mareva’s role as a source of urgent interim transnational relief.
A form of relief known as the writ of foreign attachment had existed in the City of London as far back as the late 15th century. Under that process, a claimant bringing a claim for the recovery of a debt against a defendant not within the jurisdiction of the court, was able to have the defendant’s assets (including debts) attached, in the hands of third parties to be found within the jurisdiction of the court[23] . However, foreign attachment had fallen into disuse by the mid-19th century, and may have been abolished by various English legislative reforms of that time[24] , although it continued in some of the adoptive jurisdictions, including the United States of America and some of the Australian states[25] . Similar remedies, including the French form of attachment known as ‘saisie conservatoire’ [26] existed and were available to litigants elsewhere[27] . In this respect, the English common law was defective:
(S)ince the abandonment of the ‘foreign attachment’ order, English law had lacked any means of preventing the debtor from dissipating all of his assets while awaiting a judgment on the merits, and many English lawyers envied the protective attachment order available under French law.[28]
The gap in the English law was a serious one. Judgment debt evasion was and had historically been a notorious problem. It had attracted persistent legislative attention, in the form of the legislation relating to fraudulent preferences and bankruptcy[29] . However, the remedies so provided were in practical terms ineffective against foreign debtors who put assets beyond the court’s jurisdiction pre-trial. And equity would not grant an injunction to restrain a defendant from disposing of his assets merely because the plaintiff feared that by the time it obtained judgment the defendant would have no assets against which execution could be levied. It was ‘settled law’[30] that ‘(y)ou cannot get an injunction to restrain a man who is alleged to be a debtor from parting with his property’[31] .
Furthermore, a change in the law was thought to be wholly undesirable:
It would be a fearful authority for this court to assume for it would interfere with the concerns of almost every company in the kingdom against which a creditor might suppose that he had demands, which he had not established in a court of justice, but which he was about to proceed to establish.[32]
The position was no different if the claim was against a foreign-based party. In that context equally: ‘it is not competent for a court, merely quia timet, to restrain a respondent from dealing with the property[33] .
In 1968 the report of the Payne Committee on the Enforcement of Judgment Debts[34] had recommended that the court should have power, on the application of a creditor before or after judgment, to make an order restraining a debtor from removing property out of the jurisdiction or otherwise dealing with it, but no consequent legislative action was taken.
In summary, in spite of the known inadequacy of the law, it seems that it was generally seen as holding an appropriate balance between the rights of creditors and the liberties of debtors, the foreign attachment procedure was allowed to die, and in the result judgment debt evasion was an enduring problem which the law could not match, and there was no evident legislative or judicial desire to do anything a situation in which -
... civil law remedies were inadequate to deal with cases in which there was often no serious dispute: the problem was simply the enforcement of the law against a party who was determined to evade it.[35]
Developments in the mid 1970s drew fresh attention to the problem. The international shipping industry was adversely affected by a downturn in the commodities and futures markets. One consequence was that foreign charterers or foreign shipping companies (typically operated under ‘flags of convenience’ by ‘one ship companies’), incurred liabilities in England that they could not meet, and frequently sought to frustrate the effect of future judgments by removing from the jurisdiction funds that might otherwise have been available for execution. Such endeavours were facilitated by the abolition of exchange control regulation in the United Kingdom and the growth of modern systems of electronic funds transfer that created the ‘age of easy mobility of capital’[36] .
The 1975 cases that led to the creation of Mareva occurred in that international shipping context. In Nippon Yusen Kaisha v. Karageorgis[37] and Mareva Compania Naviera SA v. International Bulk Carriers SA[38] (Mareva) shipowners brought action against charterers in respect of unpaid hire. The charterers were out of the jurisdiction and could not be traced, but they had funds in bank accounts in London. After the writs were issued, but before judgment had been obtained, ex parte injunctions were sought because the shipowners might otherwise suffer the injustice of the charterers transferring the funds out of the country before execution pursuant to judgment could be levied against them, with no possibility of the shipowners invoking the procedures available against domestic judgment defaulters. In a radical departure from existing practice and authority, ‘an example of spontaneous judicial creativity ex nihilo rather than gradual legal development’[39] , the injunctions were granted.
Mareva thus changed the law by allowing the grant of orders restraining a defendant from disposing of those of its assets as might be needed to meet the plaintiff’s pending claim. Its object was to prevent a defendant from hiding or alienating assets to frustrate satisfaction of the judgment and execution orders the plaintiff hoped to obtain through the ordinary processes of law. Its effect was to ‘freeze’ assets pending resolution of matters in issue to that end[40] .
As a result Mareva partly filled the gap in English law left by the loss of the writ of attachment[41] which, along with the French form of attachment known as ‘saisie conservatoire’ [42] and similar remedies elsewhere[43] , inhibited judgment evasion, albeit through the different means of a remedy in rem affecting the assets themselves, rather than through in personam relief which is the case with the Mareva.
By the end of 1975 it was established that a plaintiff who could show an undisputed claim or a strong prima facie claim against a foreign debtor and evidence that the debtor had moveable assets within the jurisdiction which unless enjoined he was likely to remove could obtain an order restraining dealings with the assets[44] . By 1979 the Mareva had become a commonplace remedy, with applications being made in the Commercial Court in London at the rate of about 20 per month, most of them being granted ex parte and remaining unchallenged by the foreign defendants against whom they were usually awarded[45] . By 1982 it had ‘pervaded the whole of our law’[46] , it had received statutory approval, was employed generally against foreign and domestic defendants alike, in respect of commercial and non-commercial matters[47] . By 1984 applications were said to be running at over 1,000 a month[48] . Rarely had Lord Denning been ‘so successful so quickly in establishing and maintaining such a body of novel principle’[49] .
In spite of an initial mixed reception overseas, particularly in Australia[50] , the Mareva spread rapidly to other parts of the common law world, and by 1995 it was reported as having been accepted as part of the law of the Republic of Ireland, the Isle of Man, Jersey, Hong Kong, Singapore, Malaysia, Australia, New Zealand, the Canadian common law provinces, the Barbados, Trinidad and Tobago, the Cayman Islands, Bermuda, Gibraltar, the Turks and Caicos Islands and the Bahamas[51] . In 2002 the authors of Meagher, Gummow & Lehane’s Equity Doctrines and Remedies reported from Australia that it was ‘more popular still’[52] .
Providing as it did a much needed remedy that filled a gap and cured a serious and known defect in the law, Mareva seems perhaps an unremarkable if unexpected development. At the same time, the claim that it is based on unconvincing or even spurious reasoning and is without any proper doctrinal or jurisdictional foundation[53] has persisted, and it is to those issues we now turn.
In 1975 in London when the Mareva was first introduced, it was said that the jurisdiction to grant it arose from the statutory power to grant injunctions when it appeared to the court to be ‘just or convenient’ to make such an order. That power had been created by the statutes that implemented the judicature system. Those statutes confirmed that the various divisions of the new single court enjoyed all the powers of the previously existing courts of law and equity[54] , and they specifically allowed the grant of injunctions when ‘just or convenient’[55] .
However, the authorities as they stood in 1975 indicated that the legislature had not intended by the enactment of the ‘just or convenient’ power to grant the new court any greater injunctive power than had previously been enjoyed by the court of equity[56] . That led to the argument that the ‘just or convenient’ injunction could not be available where traditional equitable requirements for injunctions were not satisfied. In particular, with respect to Mareva, it was argued that the injunction could not be granted because the applicant relied only on a ‘cause of action’ (such as a claim in debt or damages) rather than a ‘right’ (such as a proprietary claim) relating to the assets with which dealings were sought to be enjoined[57] . The alternative view was that any restrictions equity had imposed on the grant of equitable injunctions did not narrow the scope of the ‘just or convenient’ statutory power.
Lord Denning favoured the latter view when those arguments were canvassed before the Court of Appeal in 1978 in the Pertamina[58] . His Lordship’s view was that the wealth of authority to the contrary was either wrong or outdated[59] . The existence of a ‘right’ in the orthodox sense was not a prerequisite to jurisdiction[60] . The quality of the claim was instead a matter for consideration by the court in the exercise of its discretion[61] . Relief would be refused if the applicant ‘has no legal or equitable right whatever’[62] . ‘Right’ in this sense included a claim in debt or damages and equally ‘whether the defendant is within the jurisdiction or outside it’[63] . Furthermore, the authorities were irrelevant to decision in a case where the defendant was extraterritorial[64] . In such cases appropriate analogy lay with the atrophied procedure of foreign attachment, its extant successor, the American writ of foreign attachment, and the civil law equivalent known as saisie conservatoire[65] .
In these early days of the Mareva, there was much controversy and uncertainty as to its scope and legitimacy. In particular, it was difficult to accept that the Judicature Acts’ ‘just or convenient’ injunctive powers had increased the scope of the powers in the face of a century’s ‘established precedent[66] that the legislature had no such intention. But Mareva’s popularity was such that the United Kingdom Parliament acted swiftly in an attempt[67] to confirm its availability against foreign defendants[68] after the House of Lords decision in the Siskina[69] suggested a restriction to local defendants.
In the early 1980s Robert Goff J restructured the rationale for the Mareva in a manner that suggested a different jurisdictional basis. Robert Goff J thought that the function of the Mareva was to anticipate the defendant’s procedural abuse rather than the plaintiff’s remedies as a future judgment creditor[70] . It was then reasoned that the power to grant Mareva could arise from the courts’ inherent powers to prevent the ‘abuse of process’ and ‘injustice’[71] which would result from foreign defendants,
making themselves judgment-proof by removing their assets from the jurisdiction or by disposing of those assets within the jurisdiction to shareholders or others who might be amicably disposed, and doing so before judgment and execution.[72]
A superior court inherently enjoys all the powers that are necessary to enable it ‘to fulfil itself as a court of law’; ‘to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner’[73] . The reasoning was that before judgment entitled the plaintiff to charging orders against the defendant’s assets, the defendant and its property enjoys an immunity; a defendant who exploits that immunity by removing or disposing of its assets for the purpose of, or with the effect of, rendering itself judgment-proof, abuses the procedures of the court, and Mareva is therefore justified to prevent that abuse[74] . Mareva could thus be seen as a ‘protective measure in respect of an enforcement process’:
It is relief granted to facilitate the process of execution or enforcement which will arise when, but only when, the judgment for payment of an amount of money has been obtained. The court is looking ahead to that stage, and taking steps designed to ensure that the defendant cannot defeat the purpose of the judgment by thwarting in advance the efficacy of the process by which the court will enforce compliance. He is not to be permitted to steal a march on the court’s own enforcement process. If a prospective judgment debtor can look and plan ahead, so can the court.[75]
Inherent and like Statutory Powers to Prevent ‘Abuse of Process’ as the Source of Power for a Jurisdiction to be Exercised in an Equitable Manner to Produce a Remedy that is Potent, Flexible and Just
The abuse of process approach found favour in the Australian[76] and New Zealand[77] courts, including the High Court of Australia[78] , providing not only the rationale for the remedy, but also the source of judicial power to award it. Mareva is described as ‘the paradigm example of an order to prevent the frustration of a court’s process’, but one to be administered by the court both with caution and a principled flexibility[79] . Thus it appears that a jurisdiction provided by inherent and comparable statutory powers, and justified by an abuse of process theory, is shaped by equitable principle.
In the early days of the Mareva there had been concern that such a potent ex parte discretionary remedy would be open to abuse producing injustice. The initial response was an attempt to generate stringent criteria to guide the exercise of judicial discretion in a manner that seemed unusually restrictive in relation to what was considered an equitable remedy[80] . While it is now less clear that Mareva is an equitable remedy strictly speaking[81] , the High Court of Australia has now made it increasingly clear that it should be administered and developed in the courts with the principled flexibility equity normally applies with respect to equitable remedies[82] though with due regard to its abuse inhibiting role[83] .
How the principled flexibility operates and interacts with other considerations arising for a court considering a Mareva application is explained by the High Court of Australia in Cardile. The court’s preliminary task arises at the ‘jurisdictional level’[84] . The court will have jurisdiction if it finds, first, that there is a serious question to be tried as to whether assets presently under the control of the defendant could be available to satisfy the future judgment, and, secondly, whether there is a danger of such assets being dealt with so that the court’s process will be frustrated[85] .
Once the court has found jurisdiction so determined to have arisen, the remainder of its task is to apply principle in the usual manner, except that regard must be had to the special nature and consequences of Marevas. In this regard the High Court in Cardile, while considering a case of orders against a third party, took the opportunity both to set out their views on the appropriate relationship between flexibility and principle and to affirm that the Mareva jurisdiction in general needed to be exercised with ‘care’ because a Mareva was a ‘drastic’ interlocutory remedy ‘granted at the suit of a plaintiff whose status as a creditor is in dispute and who need not be a secured creditor’ and in circumstances where there may be difficulties associated with the quantification and recovery of damages pursuant to the undertaking if it should turn out that the order should not have been granted[86] :
[T]he development of this ancillary jurisdiction to grant Marevas has been an evolving process and the courts have approached the different factual situations as they have arisen ‘flexibly’. There is a temptation to use the term ‘flexible’ to cloak a lack of analytical rigour and to escape the need to find a doctrinal and principled basis for orders that are made. There are significant differences between an order protective of the court’s process set in train against a party to an action, including the efficacy of execution available to a judgment creditor, and an order extending to the property of persons who are not parties and who cannot be shown to have frustrated, actually or prospectively, the administration of justice. It has been truly said that a Mareva does not deprive the party subject to its restraint either of title to or possession of the assets to which the order extends. Nor does the order improve the position of claimants in an insolvency of the judgment debtor. It operates in personam and not as an attachment. Nevertheless, those statements should not obscure the reality that the granting of a Mareva is bound to have a significant impact on the property of the person against whom it is made: in a practical sense it operates as a very tight ‘negative pledge’ species of security over property, to which the contempt sanction is attached. It requires a high degree of caution on the part of a court invited to make an order of that kind. An order lightly or wrongly granted may have a capacity to impair or restrict commerce just as much as one appropriately granted may facilitate and ensure its due conduct.
....
Discretionary considerations generally also should carefully be weighed before an order is made. Has the applicant proceeded diligently and expeditiously? Has a money judgment been recovered in the proceedings? Are proceedings (for example, civil conspiracy proceedings, available against the third party?
Why, if some proceedings are available, have they not been taken? Why if proceedings are available against the third party and have not been taken and the court is still minded to make a Mareva, should not the grant of relief be conditioned upon an undertaking by the applicant to commence, and ensure so far as is possible the expedition of, such proceedings? It is difficult to conceive of cases where such an undertaking would not be required. Questions of this kind may be just as relevant to the decision to grant Mareva relief as they are to a decision to dissolve it. These are matters to which courts should be alive.[87]
The High Court specifically rejected arguments that would have narrowed the principles governing the circumstances in which orders may be made against third parties, preferring the view that principle needed to be stated broadly enough to allow orders that ensured fulfilment of the abuse of process goal of the Mareva:
In our opinion such an order may, and we emphasise the word ‘may’ be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using, or has exercised a power of disposition over, or is otherwise in possession of, assets, including ‘claims and expectancies’ of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against the actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor. [88]
Also, as is observed in the first of the above quoted extracts from Cardile, Marevas, in common with equitable orders generally, have a coercive character consequent upon the nature of the penalties that are available for disobedience. A person who wilfully disobeys an order is regarded as in contempt of court, and may be punished by imprisonment or sequestration of assets[89] .
The potency of this coercive relief is of particular value in ensuring the efficacy of Marevas where relevant assets are held by third parties. Third parties who knowingly assist a person bound by an order to disobey its terms will also be liable in contempt[90] . A corporation, whether within or without the jurisdiction, cannot be imprisoned, but any of its officers or agents who knowing of the terms of the order, carries out any act or direction at odds with the order, will attract personal liability in contempt[91] . A defendant who is out of the jurisdiction cannot be imprisoned, but any third party who assists the absent defendant to defy the Mareva can be. An absent defendant is unlikely to be able to remove assets from the jurisdiction, or dispose of them inside, without the assistance of a domestic agent of some sort. Even where an overseas defendant has arrangements with a domestic bank permitting it to transfer bank funds electronically, it will still be necessary for the paying bank to carry out the electronic instruction to transfer. If that bank is on notice of the terms of the Mareva it will need to block any such transfer to avoid it and its relevant agents or employees being liable in contempt.
In addition, sometimes courts grant orders against third parties holding assets belonging to the defendant or otherwise potentially available for satisfaction of judgment[92] . In such cases the third parties are, of course, bound directly by the orders if they are within the jurisdiction of the court.
It is suggested that the High Court’s approach can be summarised as follows: if the court is satisfied that there is a serious question to be tried and that assets may be removed to thwart judgment (and thus that jurisdiction has arisen), the remainder of the its task is concerned with the principled application of an equitable or equity like flexibility to ensure that any Mareva made is both just (having regard to the likely serious practical consequences for the parties of granting or withholding relief) and efficacious (having regard to the need to protect the court’s process and the rights of the litigants).
An ‘Abuse of Process’ Rationale Directed to Protecting both the Administration of Justice and the Litigants’ Rights
The approach expounded in Cardile appears to have confirmed and facilitated the Mareva’s development in Australia by providing a measure against which advocated criteria for award and particular proposed orders could be considered and their practical effect in the individual case estimated. The exercise of judicial discretion could thus be guided by the need to fulfil the purpose of preventing the courts’ processes from being abused or frustrated, thus ensuring the flexibility of the remedy, rather than subjecting it to ‘rigid rules’ ‘carved in stone’[93] :
In truth, it is dangerous and inappropriate, in my view, to speak in terms of tests, hurdles or rules. Mareva relief is discretionary, the discretion being exercised by reference to considerations the relevance of which is suggested by the purpose for which the relief is granted ....[94]
As the High Court of Australia put it in Cardile, it is necessary to keep ‘the source of the remedy in view when considering the form of the remedy in each particular case’ as well as the seriousness of the adverse consequences for one party or the other if an order is wrongly granted or withheld[95] .
In the result it seems that in Mareva we have a remedy that has the two interactive purposes of protecting and defending the court’s process and also operating ‘to protect and defend the interests of the potential judgment creditor’[96] . Process exists and thus merits protection ‘not for its own sake, but for the protection and enforcement of the rights of litigants’[97] . It seems to follow that the relief needed to protect the court’s process has to be decided with reference to the position of the litigants in the particular case, and the litigants’ entitlements are to be determined having regard to what is needed to protect the court’s process in the circumstances.
Counsel appears to have been grappling with this issue in a submission in the Privy Council case of Mercedes Benz AC v. Leiduck:
A Mareva injunction is not just a procedural facility to maintain the status quo. Its fundamental purpose is to protect private rights, in particular, a plaintiff’s right not to be deprived of the fruits of his judgment.[98]
The twin purpose approach seems to apply equally to situations in which Mareva jurisdiction arises from statute[99] . It seems also to assist with the rationalisation of the position when a Mareva order does not directly protect the court’s processes or judgments, as happens when a Mareva is granted against a third party who is not in a direct position to frustrate or abuse the court’s process or relevant judgment. Other commentary has suggested that in such circumstances the aim of the court is more ‘generalised’ and that the court’s purpose is to protect the integrity of its processes once those processes have been set in motion, thereby ensuring the proper administration of justice by preserving the status quo[100] .
Extending the Boundaries of Equity: The Consequence of Recognising that Mareva Intends to Protect the Litigants’ Rights as well as the Administration of Justice
However, recognising that Mareva is awarded to protect the litigants’ rights as well as the court’s process and the administration of justice, inevitably raises again the fundamental question of Mareva’s doctrinal legitimacy. How can Mareva be granted to protect a plaintiff’s prospective rights of execution, in the face of the established authorities to the contrary[101] ? Can a court rely on its inherent powers to control process or on express statutory powers to, for example, ‘make orders of such kinds ... as the Court thinks appropriate’[102] , so as to make orders to protect litigants’ rights that are inconsistent with what other relevant law relating to those rights allows? As Stephenson LJ said in one of the Mareva cases of the early 1980s:
In my judgment a judge has the duty to prevent his court being misused as far as the law allows, but the means by which he can perform that duty are limited by the authority of Parliament, of the rules of his court and of decided cases.[103]
And, even if the exercise of the inherent or analogous statutory powers can be so justified, do we not end up in a strange and unsatisfactory position of having two inconsistent bodies of law, with the law on inherent powers indicating a contrary result from that suggested by the law on injunctions in respect of the litigants’ same rights, in that equity would decline an injunction, but inherent powers would justify an equivalent order in the same circumstances? It seems that acknowledging the dual purpose of Mareva unavoidably takes it out of a discrete ‘abuse of process’ and ‘administration of justice’ box, and forces us to face the doctrinal inconsistency that is apparent as soon as it is acknowledged that Mareva exists at least in part to protect the interests of litigants.
This seems to raise the question whether perhaps the time has come when it is desirable to admit that Mareva has ‘expanded the boundaries in this area of jurisprudence’[104] by admitting into the province of equity a species of injunction not previously allowed. To put it another way, perhaps we should acknowledge that Mareva constitutes inter alia a further [105] exception in the law relating to equitable injunctions, permitting orders restraining disposal of assets in the absence of a judgment or existing cause of action[106] or a proprietary claim[107] , so long as the circumstances of the Mareva hypothesis exist.
The suggested acknowledgment that Mareva has extended the boundaries of jurisdiction or created an exception in the law of injunctions would not need to disturb existing views that Mareva jurisdiction is derivable from inherent powers or relevant statutory powers as well as from equity.
The problem with Mareva is one of jurisdiction in the sense of doctrinal authority, rather than jurisdiction in the sense of power or authority to adjudicate[108] , as is acknowledged in leading Australian texts, implicitly by Meagher, Heydon & Leeming[109] and explicitly by Spry[110] . What is disputed is not the adequacy of the courts’ powers to grant Marevas[111] , but whether authority, principle, or policy justifies them in doing so, i.e. whether or not it is an acceptable piece of judicial law reform.
Judicial law reform occurs when a court applies authority, principle, or policy[112] to change the law. It is an application of legal authority to repair a defect in existing judge-made law[113] , and an application of principle to apply accepted reasoning to new conditions[114] , such as by, in the ‘time honoured way’ ‘adjust(ing) the law to the age of cyberspace, the genome and global human rights’[115] .
Reform by application of legal policy occurs when a court changes law in a manner that cannot be justified by reference to either existing legal authority or legal principle. This occurs when, for example, judges change law to achieve a purpose such as finding a ‘balance between the legal conservation of values from the past and the alteration of legal rules to accommodate new values’[116] or to alter the common law ‘to reflect contemporary values and assumptions’[117] or to adopt reasoning consistent with international treaties to which the country is a party[118] or to make up for the fact that the legislative process cannot proceed at a pace that corresponds with the quickly changing needs of contemporary society’[119] . All such endeavours can be said to have a political aspect, in that their acceptability depends upon achieving ‘a reasonable level of public confidence’[120] in the outcome.
The position of Mareva in this respect seems at present to be as follows:
While the creation of Mareva did not involve the application of existing authority to remedy a defect in the law, the advent and development of Mareva itself has now created fresh authority modifying the old authority. Thus now, if not initially, Mareva is justified on authority.
Mareva was not brought into existence in 1975 through a change in law produced by the application of legal authority. Rather, the existing authorities were to the contrary. However, since then, the older authorities that would not allow a plaintiff an injunction restraining an alleged debtor’s dealings with assets have lost much of their force. Even in the early days of the Mareva it was doubted ‘[h]ow far those authorities imprison the courts a century later or fossilise their practice’[121] . Now injunctions are not to be ‘imprisoned in a cage of unyielding rules derived from ancient cases’[122] . Moreover, the Mareva cases themselves, are authority that orders may be granted which in substance conform with the description of an injunction in equity[123] for the purpose of restraining asset disposition in circumstances that conform with the Mareva hypothesis.
Mareva is justified as judicial law reform effected through the application of principle relating to the courts’ inherent power, and, it is suggested that to the extent of any remaining inconsistency, the principles relating to injunctions should yield to produce doctrinal coherence. Mareva may also be justified on the principles relevant today to determining the scope of equitable and statutory injunctive powers.
Mareva was brought into existence by a fresh application of principle to produce judicial law reform. In Australia, the principle on which Mareva is founded in Cardile is that the courts can and do develop doctrines and remedies to protect the integrity of process[124] . That principle extends to allowing the grant of a Mareva to restrain disposal of assets needed to satisfy a future judgment, if the court is satisfied that there is a serious question to be tried and that assets may be removed to thwart judgment (and thus that jurisdiction has arisen), and that the grant of the order would be just (having regard to the likely serious practical consequences for the parties of granting or withholding relief) and efficacious (having regard to the need to protect the court’s process and the rights of the litigants). Such an order will be justified, although the plaintiff can show only a prospective cause of action, and no proprietary right or existing cause of action[125] . This, it is suggested, involves the fresh judicial application of known principle to a different circumstance to create new law.
Notions such as that there is no ‘fresh circumstance’ in judgment debt evasion, or that such a remedy could not have lain undiscovered for centuries , should, it is suggested, be disregarded[126] . A ‘fresh circumstance’ arose in the Mareva context when the court perceived the scale of the commercial problem, the inability of the law as it stood to deal with it, and the desirability of the court finding an effective solution, and it is well accepted that equitable remedies and principles are made not found[127] .
In addition, principle in 2005 may suggest that Mareva should be embraced by the ‘just or convenient’ injunctive powers, which, under likely current interpretation, are ‘not to be narrowed by judicial analysis’ and, although subject in interpretation to the influence of equity history, not altered in meaning merely because their meaning appears to be contrary to earlier equitable rules’[128] . On the contrary, the interpretation of ‘just or convenient’ may now be subject to the ‘gravitational pull’ of modern statutes allowing the emergency freezing of assets for the purpose of thwarting organised crime, terrorism and the like[129] .
There is also the question, raised above, whether the Mareva development should now be acknowledged as modifying the relevant principles in equitable doctrine to create an exception in the law on injunctions, which would in turn have a likely impact on the interpretation of the ‘just or convenient’ power.
Modern authority on the application of principle would support such an acknowledgment. The imperative of doctrinal coherence favours the breaking down of rigid categories[130] , with one field of law deferring to another, where necessary to produce coherence[131] . Equitable principle’s ‘dynamic quality’[132] is apt to keep remedies free of ‘inflexible rules’ so that they are available to ‘fulfil [their] purposes’[133] .
Mareva may also be justified if need be on the basis of policy. The ‘fearful authority’ thinking has been displaced by the hypothetical obligation avoiding Mareva defendant. Mareva complements, rather than usurps, legislative power and policy. And careful judicial management has prevented the feared consequences of the award of Mareva from materialising.
As Mareva is, on the reasoning above, justified as judicial law reform on the basis of principle, there is no need for it to pass the more exacting test of public acceptability for change pursuant to policy. However, it is suggested that Mareva could well pass that test as well.
In policy thinking, the notion of a ‘fearful authority for the courts to assume to interfere in the concerns of almost every company in the kingdom’, that can ‘wreak havoc with the defendant’s business’ allowing ‘an unscrupulous plaintiff [to] ruin his opponent’[134] , has been displaced by the Mareva conception of a hypothetical defendant usually having no real dispute with the plaintiff, but who seeks to evade its obligations by leaving the plaintiff to sue, puts in a specious defence, and hopes by disposing of its assets to end up ‘snapping his fingers at any judgment which may be given against him’[135] .
Mareva, it is suggested, complements and supports legislative power and policy rather than ‘usurping’ it[136] . ‘Gravitational pull’[137] may be seen as exerted on the interpretation of statutes from which Mareva jurisdiction arises, and on the development of relevant equity doctrine and inherent powers reasoning, by modern statutes allowing the emergency freezing of assets with a view to thwarting local and international organised crime, money laundering, terrorism and the like[138] . Mareva thus initially anticipated and now complements analogous legislative action.
And, although Meagher, Heydon & Leeming continue in each successive edition of their work to claim that the feared consequences of wrongly granted Marevas keep materialising, they produce little data to support the argument[139] , and to the contrary is the acknowledged popularity of[140] and the demonstrated need for some such remedy. Moreover, there is ample indication in the reported cases of the care which the courts take to prevent those feared consequences arising[141] .
It is suggested that the Mareva authorities built up over the past 30 years indicate the existence of the suggested exception, justified both in principle and in policy, and now in authority, in the need to defend the administration of justice and litigants’ rights.
It is further suggested that this development should be acknowledged in a restatement of the relevant law on injunctions. Under such a restatement –
> Mareva would continue to have the multiple sources of jurisdictional power it now has[142] ;
> Mareva would continue to develop in accordance with the ‘abuse of process’ rationale, to fulfil the twin purposes, identified in the cases and discussed above, of protecting the administration of justice and the litigants’ rights;
> the doctrinal inconsistency between the law on inherent powers and the law on injunctions would be removed; and,
> Mareva’s administration could comfortably continue in the existing equitable fashion.
Such a development could be beneficial both to the present understanding and the future growth of Mareva. In particular, and as explained below, it could –
> cast light on the thus far intractable mystery of ‘what a Mareva does’ and ‘how, juristically it does it’[143] ;
> provide a basis for a reconsideration of the arguments accepted by the majority of the Supreme Court of the United States of America in the 1999 case of Grupo Mexicano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc., et al[144] to reject Mareva entirely; and,
> facilitate Mareva’s role as a source of urgent interim transnational relief.
In the Privy Council’s decision in the 1996 Privy Council case of Mercedes Benz AG v. Leiduck[145] , Lord Mustill, speaking for the majority, appeared to despair of finding any coherent doctrinal basis for the Mareva. His Lordship began by remarking that attempting to ascertain ‘not only what a Mareva injunction does, but also how, juristically it does it’ should be, but is not, straightforward[146] . His Lordship spent little time on the inherent powers approach[147] , then went on to reject Lord Denning’s theory that Mareva was a species of attachment, and the view that the judicature system injunctive power was wider than the equitable power[148] . Finally, Lord Mustill explained that, once it was accepted that the wider view of the injunctive power was wrong, the attempt to extend it to overseas defendants by s37 of the Supreme Court Act 1981 (UK) failed, leaving the only possible basis for the Mareva as ‘a special exception to the general law’[149] , which may leave it as what others have described as ‘a sui generis remedy with no doctrinal roots’.[150]
Trying to ascertain ‘what a Mareva does’ and ‘how, juristically it does it’ is, it is suggested, never likely to be easy, unless a doctrinal restatement of the law on injunctions acknowledges and justifies the Mareva exception. In addition to Lord Mustill’s concerns, we have, as we have seen above, an Australian Mareva, derived from inherent and similar statutory powers, rationalised on ‘abuse of process’, directed both to the administration of justice and the protection of rights of litigants, administered as if it was equitable, but not as yet overtly acknowledged as comprehended within the relevant equitable authorities, principles or policies on injunctions.
Such a restatement could also assist in countering the arguments accepted by the majority of the Supreme Court of the United States of America the Grupo Mexicano case. In that case Justice Ginsburg, on behalf of the four minority judges, urged that a Mareva, grounded ‘in equity’s traditional power to remedy the ‘abuse’ of legal process by defendants and the ‘injustice’ that would result from defendants ‘making themselves judgment-proof’, should be part of United States federal law[151] . Her Honour expressly adopted the present writer’s 1983 exposition on ‘abuse of process’[152] :
Although the cases reveal some uncertainty regarding Mareva’s jurisdictional basis, the better-reasoned and more recent decisions ground Mareva in equity’s traditional power to remedy the ‘abuse’ of legal process by defendants and the ‘injustice’ that would result from defendants ‘making themselves judgment-proof’ by disposing of their assets during the pendency of litigation ... see Hetherington, ‘Introduction to the Mareva Injunction’ in Mareva Injunctions 1, 10-13, and 95, 20 (M. Hetherington ed. 1983)(explaining the doctrinal basis of this jurisdictional theory and citing cases adopting it). That grounding, in my judgment, is secure.
But the majority rejected the Mareva reasoning. Justice Scalia delivered the majority judgment which rejected in principle the propriety of a judicial reform of the kind involved in the Mareva[153] . The majority judgment did not investigate the possible benefits of the Mareva. Instead it focused on commentary suggestive that the Mareva was dangerous, unprincipled and unauthorised: it was ‘a dramatic departure from prior practice’, a ‘nuclear weapon of the law’ and ‘a powerful weapon of oppression’ ‘susceptible of the grossest abuse’ by a ‘prowling creditor’ or ‘unscrupulous litigant’[154] . Justice Scalia explained:
We do not question the proposition that equity is flexible; but in the federal system, at least, that flexibility is confined within the broad boundaries of traditional equitable relief. To accord a type of relief that has never been available before – and especially (as here) a type of relief that has been specifically disclaimed by longstanding judicial precedent – is to invoke a ‘default rule,’ post, at 11, not of flexibility but of omnipotence. When there are indeed new conditions that might call for a wrenching departure from past practice, Congress is in a much better position than we both to perceive them and to design the appropriate remedy. Despite the dissent’s allusion to the ‘increasing complexities of modern business relations,’ post, at 5 ... and to the bygone ‘age of slow-moving capital and comparatively immobile wealth,’ post, at 6, we suspect that there is absolutely nothing new about debtors’ trying to avoid paying their debts, or seeking to favour some creditors over others – or even about their seeking to achieve these ends through ‘sophisticated ... strategies,’ post, at 7. The law of fraudulent conveyances and bankruptcy was developed to prevent such conduct; an equitable power to restrict a debtor’s use of his unencumbered property before judgment was not.[155]
One commentator saw the majority’s discussion as ‘superficial and based on obsolete material’[156] , while another suggests that its historical perspective was incomplete, and, in particular, overlooked the fact that foreign attachment had not atrophied in the United States of America, as it had in England[157] . Essentially, though, the doctrinal reasoning of the Privy Council case and the United States Supreme Court decisions are indistinguishable on the fundamental issue. Each court thought that accepted traditional equitable doctrine did not allow the Mareva at all. That will predictably remain the case unless and until a Mareva exception is acknowledged as part of the law relating to injunctions.
As indicated above, the motivation for creating the Mareva in 1975 was the need to deal with an acknowledged transnational judgment evasion problem that arose when foreign defendants removed from the jurisdiction assets that would otherwise have been available for satisfaction of judgment. In this respect, the common law was defective:
(S)ince the abandonment of the ‘foreign attachment’ order, English law had lacked any means of preventing the debtor from dissipating all of his assets while awaiting a judgment on the merits, and many English lawyers envied the protective attachment order available under French law. One may in fact speculate that Lord Denning MR who was a great student of both English and Continental legal history, saw it as a very useful additional device.[158]
But when the Mareva came, its in personam, equitable and abuse inhibiting characteristics meant that it brought different and often more efficacious qualities to transnational litigation. The various forms of attachment are substantively superior in that they operate in a manner more closely comparable with a security, but in significant practical and procedural respects they remain inferior to the Mareva.
Marevas are routinely granted on a pre-emptive ex parte basis without the defendant being warned by the issue of substantive proceedings and without formal and expensive proceedings[159] . Usually an undertaking as to damages is required, but this is not considered as onerous or expensive as the security called for with the attachments[160] . Unlike attachments, Marevas can inhibit dealings with or require relocation[161] of assets of unlimited classes[162] and held in any capacity[163] or location[164] , assisted by ancillary orders requiring disclosure of the existence and location of assets[165] . Defendants subject to Marevas can be allowed access to part of the assets for business expenses[166] or living expenses[167] or any amounts beyond a specified maximum sum[168] .
Some of the assets can be made available to pay expenses of third parties in complying with orders[169] or other costs such as legal costs[170] .
Mareva has developed and is shaped on each occasion with a view to ‘helping litigants in their cases whether at home or abroad’[171] . In this respect the role of the English judges has been compared with that of a chef in a high-class restaurant who puts on the menu:
We have taken great care with your menu, but if your favourite dish isn’t here, tell the chef and he will be happy to cook it for you.[172]
The case of The Republic of Haiti v. Duvalier [173] exemplifies the ability of the court to tailor effective Marevas in the transnational context. The Republic of Haiti was litigating a claim in France for alleged embezzlement of USD120 million against the Duvaliers, residents of France. The Republic sought and obtained a world wide Mareva against the Duvaliers, the real object of which was to obtain disclosure from the Duvaliers’ English solicitors about the Duvaliers’ world wide assets, with a view to seeking more specific orders in the countries where the assets were located. The Duvaliers argued that it was wrong in principle to make orders against persons not resident in England as to what they should or should not do out of the jurisdiction. The English Court of Appeal dismissed the argument, saying that the case demanded ‘international co-operation between all nations’[174] .
In consequence Schlosser comments that plaintiffs in the relevant jurisdictions:
...now feel compelled to go before the English judiciary to borrow its recently developed magic curial arm. This did not happen because the territorial limits of the French jurisdiction would have been any obstacle to giving adequate protection. It happened because of the internal shortcomings of French civil procedure.[175]
The procedural superiority of the Mareva has thus attracted litigants seeking orders against overseas defendants[176] , over foreign, even ‘worldwide’ assets[177] , and in aid of overseas court proceedings or arbitrations[178] . Marevas obtained in countries that exercise Mareva jurisdiction can be enforced in places such as the United States where, at least federally, they cannot be granted[179] .
However, the Mareva has important transnational limitations. In Mercedes Benz AG v. Leiduck [180] the Privy Council on appeal from Hong Kong held that the Hong Kong courts had no jurisdiction to grant a Mareva in respect of Hong Kong located assets in aid of proceedings in Monaco where the defendant also resided. The presence of assets within the jurisdiction was not enough to found jurisdiction. What was lacking was personal jurisdiction in that the defendant could not be validly served with Hong Kong proceedings, pursuant either to the general law of Hong Kong, or some applicable statutory provision or rule of court[181] .
Lord Nicholls of Birkenhead argued strongly in dissent that the decision would allow an international operator to escape into a jurisdictional ‘black hole’[182] . A ‘principled’ exercise of the Mareva jurisdiction, whose criterion was ‘injustice’[183] suggested that Mareva should be available ‘in respect of an anticipated foreign judgment which would be recognised and enforceable in Hong Kong as it is in respect of an anticipated judgment of the Hong Kong court itself’[184] . His Lordship adopted and quoted from the view of Lord Browne-Wilkinson in Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd:
Given the international character of much contemporary litigation and the need to promote mutual assistance between the courts of the various jurisdictions which such litigation straddles, it would be a serious matter if the English courts were unable to grant interlocutory relief in cases where the substantive trial and the ultimate decision of the case might ultimately take place in a court outside England.[185]
Many seem to agree that it is desirable that the Mareva continue and expand as ‘a strong weapon in the hands of companies active in the world market’, who may need its assistance in dealing with novel and urgent problems[186] , allowing our courts in the future to co-operate with and support the endeavours of other courts internationally for the benefit of the participants in our ‘ever shrinking world, in which trade and commerce flow across all national boundaries’[187] by providing orders in relation to assets that may be needed to satisfy foreign judgments generally[188] . But as the Privy Council’s decision in the Mercedes Benz case shows, clarification or progress in the transnational development of Mareva is difficult without a higher degree of doctrinal coherence.
The current position it seems can be summarised thus. There is no clearly agreed basis on which Mareva can be said to be justified by reference to existing legal authority, principle or policy, there is an inconsistency in the law in that the law on injunctions is at odds with the law relating to inherent powers which allows Marevas to be awarded, although there is very broad agreement that the Mareva is ‘useful and necessary in practice’[189] , and there is no real likelihood that it will be ‘overturned on the grounds that it is a creature of heresy’[190] , particularly as the legislature has sought more than once to preserve it when it seemed endangered in the courts[191] .
However, analysis shows that Mareva can be justified historically on principle and policy, and currently also on the authorities as they have developed. It is suggested therefore, that, thirty years after Mareva’s creation, it may well be time to find a more doctrinally coherent position for this remedy[192] , recognising the impact Mareva may be seen as having made on equitable doctrine, and at the same time the place of equitable doctrine in the administration of Mareva. This could put Mareva’s doctrinal legitimacy beyond doubt, clarify its juristic operation, further doctrinal coherence, create the circumstance in which courts such as the United States Supreme Court may reconsider, and strengthen its foundations for future growth in the international trade sphere.
[*] Solicitor, New South Wales; Adjunct Fellow, University of Western Sydney; Fellow, Centre for Transnational Commercial Law, Bond University, Queensland. The writer thanks an anonymous referee and Peter Devonshire of the University of Auckland for their comments on an earlier version of this article.
[1] In this paper the expression the ‘Mareva’ will be used to refer to the form of relief. The original expression ‘Mareva Injunction’ has been displaced by other expressions in various places. For example, in Australia the expression ‘Mareva order’ was adopted by the High Court of Australia, to avoid confusion as to its jurisdictional or doctrinal basis: see Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, 401 per Gaudron, McHugh, Gummow and Callinan JJ; while the Privy Council referred to ‘Mareva relief’ in Mercedes Benz AC v. Leiduck [1996] 1 AC 284, 300 per Lord Mustill delivering the majority judgment of the Privy Council; 306 per Lord Nicholls of Birkenhead in dissent.
[2] In Nippon Yusen Kaisha v. Karageorgis [1975] 1 WLR 1093 and in Mareva Compania Naviera SA .v International Bulkcarriers SA [1975] 2 Lloyd’s Rep. 509.
[3] Unless the plaintiff had a legal or equitable interest in the property with which dealings were sought to be enjoined: see Lister v. Stubbs (1890) 45 ChD 1.
[4] Per Donaldson LJ in Bank Mellat v. Nikpour [1985] FSR 87, 92; see also Ough & Flenley, The Mareva Injunction and Anton Piller Order: Practice and Precedents, xi (2d ed. 1993).
[5] Per Bray CJ in Pivovaroff v. Chernabaeff (1978) 12 SASR 329, 338-340, adopting the view expressed by Lord Hatherley LC in Mills v. Northern Railway of Buenos Ayres Co (1870) LR 5 Ch App 621, 628.
[6] See Meagher, Gummow, Lehane, Equity Doctrines and Remedies, 3rd ed (1992) #2185 ff; 4th ed (2002)(by Meagher, Heydon, Leeming) 21-430 ff; see also Bray CJ in Pivovarof v. Chernabaef (1978) 12 SASR 329, 338-340.
[7] In The Due Process of Law (1979) p 134.
[8] Per Rogers J in Turner v. Sylvestre [1981] 2 NSWLR 295, 299.
[9] The High Court of Australia in Cardile v. Led Builders Pty Ltd (1999) 198 CLR 380, 398-400, as in the earlier case of Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, does not seem to find Mareva within equitable injunctive powers, but within powers ‘to prevent the frustration of a court’s process’. However, Kirby J in Cardile does not seem to exclude Mareva from equity (420ff), Mason P in Harris v. Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56 NSWLR 298, 337 recently classed the Mareva amongst ‘new remedies being fashioned by equity’, and the comment of Gleeson CJ in Australian Broadcasting Commission v. Lenah Game Meats Pty Ltd [2001] HCA 63 at [12], made in a discourse on interlocutory injunctions, that Mareva is one of the remedies that have ‘expanded the boundaries in this area of jurisprudence’, seems to put Mareva somewhere in or near equity.
[10] See discussion in Hetherington, ‘Inherent Powers and the Mareva Jurisdiction’ (1983) 10 Sydney Law Review 77. This seems to be the view of the High Court of Australia: see cases referred to in footnote 9 above.
[11] Several different statutory bases have been considered. These include the judicature system statutory ‘just and convenient’ injunctive provisions, broad powers such as those granted by s23 of the Federal Court of Australia Act 1976 (Cth), and provisions such as s37(3) of the Supreme Court Act 1981 (UK) enacted with a view to ensuring the validity of Marevas: see discussion in Cardile v. Led Builders Pty Ltd (1999) 198 CLR 380 and Mercedes Benz AG v. Leiduck [1996] 1 AC 284
[12] Mercedes Benz AG v. Leiduck [1996] 1 AC 284, 301 per Lord Mustill.
[13] That is the view of Meagher, Gummow, Lehane, Equity Doctrines and Remedies, 3rd ed (1992) #2185 ff; 4th ed (2002)(by Meagher, Heydon, Leeming) 21-430 ff and also of the majority of the Supreme Court of the United States of America in Grupo Mexicano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc. 119 S.Ct. 1961 (1999).
[14] Mercedes Benz AG v. Leiduck [1996] 1 AC 284, 299 per Lord Mustill.
[15] Reaching with increasing complexity into the ever growing sophistication of evasive dealings: see Devonshire, ‘Pre-emptive Orders Against Evasive Dealings: An assessment of Recent Trends’ [2004] JBL 357; ‘Freezing Orders, Disappearing Assets and the Problem of Enjoining Non-Parties’ (2002) 118 LQR 124; ‘Mareva Injunctions and Third Parties: Exposing the Subtext’ (1999) 62 MLR 539; see also discussion in, Meagher, Heydon, Leeming, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-430.
[16] Jackson v. Sterling Industries Ltd [1987] HCA 23; [1987] 162 CLR 612, per Deane J.
[17] See McLachlan, ‘International Litigation and the Reworking of the Conflict of Laws’ (2004) 120 LQR 580; Schwarz, ‘Freezing Orders in the context of the Lugano Convention and the TRIPS Agreement’, Post-graduated Studies Intellectual Property ETH Zurich (2000-2001) p 6; Kessedjian, ‘Note on Provisional and Protective Measures in Private International Law and Comparative Law’, Hague Conference on Private International Law Judgments, Prel.Doc.No 10, October 1998.
[18] Such a role is supported by the strong minority judgments of Lord Nicholls of Birkenhead in Mercedes Benz AG v. Leiduck [1996] 1 AC 284 and Ginsburg J in Grupo Mexicano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc., et al. 119 S.Ct. 1961 (1999); by McLachlan in ‘International Litigation and the Reworking of the Conflict of Laws’ (2004) 120 LQR 580, Collins in ‘The Siskina Again: an Opportunity Missed’ (1996) 112 LQR 8.
[19] Australian Broadcasting Commission v. Lenah Game Meats Pty Ltd [2001] HCA 63, 158 per Kirby J.
[20] Per Gleeson CJ in Australian Broadcasting Commission v. Lenah Game Meats Pty Ltd [2001] HCA 63 at [12].
[21] Mercedes Benz AG v. Leiduck [1996] 1 AC 284, 299 per Lord Mustill.
[22] Grupo Mexicano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc. 119 S.Ct. 1961 (1999).
[23] See Mayor of London v. London Joint Stock Bank (1880-81) 6 App Cas 393.
[24] See Hodgekiss, ‘Mareva Injunctions and Their Remedial Alternatives’ in Hetherington (ed), Mareva Injunctions (1983) p 101.
[25] See Nygh & Davies, Conflicts of Laws in Australia 7th ed (2002) 84 and Bailey, ‘Foreign Attachment in Victoria’ Mareva Injunctions in (ed) Hetherington (1983) pp 77 ff.
[26] See Tetley, ‘Arrest, Attachment and Related Maritime Law Procedure’ (1999) 73 Tul.L.Rev 1895; Achillas, ‘Restructuring and Insolvency Practice France’ http://www.practicallaw.com/isp.article.jsp?item=:299437.
[27] For a summary see Hodgekiss, ‘Mareva Injunctions and Their Remedial Alternatives’ in Hetherington (1983) pp 96-118.
[28] Kessedjian, ‘Note on Provisional and Protective Measures in Private International Law and Comparative Law’, Hague Conference on Private International Law Judgments, Prel.Doc.No 10, October 1998, p 6.
[29] See Wyvill, ‘Law of Fraudulent Conveyances as the Jurisdictional Foundation for Mareva Injunctions’ (1999) ALJ 672.
[30] See discussion of Lord Diplock in Siskina v. Distos Compania Naviera S.A. ‘The Siskina’ [1979] AC 210, 260.
[31] Lister & Co v. Stubbs (1890) 45 ChD 1, 14 per Cotton LJ.
[32] Mills v. Northern Rwy Co of Buenos Ayres Co (1870) LR 5 ChApp 621, 628 per Lord Hatherley LC.
[33] Newton v. Newton (1885) 11 PD 11, 13 per Sir John Hannen P.
[34] Cmnd. 3909.
[35] See comments of Lord Hoffmann in his 1998 foreword to the 4th edition of Gee, Mareva Injunctions and Anton Piller Relief, (1998) at xiii.
[36] See Ginsburg J in Grupo Mexicano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc., et al. 119 S.Ct. 1961 (1999), 1977
[38] [1975] 2 Lloyd’s Rep 509.
[39] Stevens, ‘Equity’s Manhattan Project: the Creation and Evolution of the Mareva Injunction’ Denning Law Journal, 25, 27-29.
[40] See Hetherington, ‘Introduction to the Mareva Injunction’ in Hetherington (1983) and authorities there cited.
[41] See Bailey loc cit 88-94.
[42] See Tetley, ‘Arrest, Attachment and Related Maritime Law Procedure’ (1999) 73 Tul.L.Rev 1895 loc cit and Achillas loc cit.
[43] For a summary see Hodgekiss, ‘Mareva Injunctions and Their Remedial Alternatives’ in Hetherington (1983) pp 96-118.
[44] See cases discussed in Hetherington ‘Introduction to the Mareva Injunction’ in Hetherington (1983) 5-6.
[45] Per Mustill J Third Chandris Shipping Corporation et al v. Unimarine SA [1979] 2 All ER 972, 974.
[46] Z. Ltd v. A. [1982] 1 All ER 556, 571.
[47] See Hetherington ‘Introduction to the Mareva Injunction’ in Hetherington (1983).
[48] Shenton, ‘Attachments and Other Interim Court Remedies in Support of Arbitration’ [1984] International Business Law 101, 104.
[49] Bennett, ‘The Effect of the Mareva Injunction’ Hetherington (1983) 56, 61-62.
[50] See Hetherington ‘Introduction to the Mareva Injunction’ in Hetherington (1983) 1, 17-22 and Farmer, ‘Procedures and Enforcement’, in Hetherington (1983) 35, 54.
[51] See Gee, Mareva Injunctions and Anton Piller Relief, 3rd ed (1995); 4th ed (1998) p 11.
[52] Meagher, Heydon, Leeming, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-430.
[53] See Stevens, ‘Equity’s Manhattan Project: the Creation and Evolution of the Mareva Injunction’ Denning Law Journal, 25, 27; Meagher, Gummow, Lehane, Equity Doctrines and Remedies, 3rd ed (1992) #2185 ff; 4th ed (2002) (by Meagher, Heydon, Leeming) 21-430 ff.
[54] The original provision was s18 of the Supreme Court of Judicature Act 1873 (Imp), replaced by s45 Supreme Court of Judicature (Consolidation) Act 1925 (Imp), then s19 Supreme Court Act 1981. There are also equivalents in various former colonial jurisdictions, eg s24 Supreme Court Act 1970 (NSW).
[55] In s25 (8) Supreme Court of Judicature Act 1873 (now s37 (1) of the Supreme Court Act 1981 (UK)), as extended to overseas defendants by s37 (3) Supreme Court Act 1981 (UK)); the equivalent current provision in New South Wales is s66 (4) Supreme Court Act 1970.
[56] North London Railway Co v. Great Northern Railway Co (1883) 11 QBD 30.
[57] In particular Lister v. Stubbs (1890) 45 ChD 1; see Mareva [1975] 2 Lloyd’s Rep 509, 510.
[58] In Rasu Maritima SA v. Perusahaan Pertambangan Minyak Dan Gas Buni Negara (the ‘Pertamina’) [1978] QB 644, 648-661.
[59] Pertamina [1978] 1 QB 644, 659-661.
[60] Pertamina [1978] 1 QB 644, 659-661, 633.
[61] Ibid.
[62] Mareva [1975] 1 Lloyd’s Rep. 509, 510.
[63] Pertamina [1978] 1 QB 644, 663.
[64] Pertamina [1978] 1 QB 644, 659.
[65] Id 657-658. See also Third Chandris [1979] 1 QB 645, 670 per Lawton LJ.
[66] Meagher, Heydon, Leeming, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-435.
[67] The attempt failed according to the Privy Council in Mercedes Benz AG v. Leiduck [1996] 1 AC 284 in that it assumed the legitimacy of Mareva as a remedy and sought merely to endorse it: see Lord Mustill’s explanation at 299-301.
[68] s37 (3) Supreme Court Act 1981 (UK).
[70] The Angel Bell [1980] 1 All ER 480.
[71] Per Robert Goff J in The Angel Bell [1980] 1 All ER 480, 487, 486.
[72] Id 484 quoting from the judgment of Donaldson LJ in earlier proceedings.
[73] Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems, 23, 27 and 28.
[74] Hetherington, ‘Inherent Powers and the Mareva Jurisdiction’ [1983] SydLawRw 6; (1983) 10 Sydney Law Review 76, 83.
[75] Per Lord Nicholls of Birkenhead in Mercedes Benz AG v. Leiduck [1996] 1 AC 284, 306.
[76] See discussion of Rogers J in Turner v. Sylvestre [1981] 2 NSWLR 295, 303 and Riley McKay Pty Ltd [1982] 1 NSWLR 264, 272 ff. The position in the various Australian States and Territories is described in Meagher, Heydon & Leeming op cit #21-455 and Kunc & Hepburn loc cit #2003.
[77] See discussion of Baker J in Hunt v. BP Exploration Co (Libya) Ltd [1980] 1 NZLR 104.
[78] Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612.
[79] Cardile v. Led Builders Pty Ltd (1999) 198 CLR 380, 393ff per Gaudron, McHugh, Gummow and Callinan JJ.
[80] See Hetherington, ‘Introduction to the Mareva Injunction’ in Hetherington (1983), 10-11.
[81] The High Court of Australia has classed Mareva as ‘an accepted part of the armoury of a court of law and equity to prevent the abuse or frustration of its process’ (per Deane J in Jackson v. Sterling Industries Ltd [1987] HCA 23; [1987] 162 CLR 612, 612), and, as amongst the ‘doctrines and remedies, outside the injunction as understood in courts of equity, to protect the integrity of its processes once set in motion’ without identifying it unequivocally as either equitable or not equitable (per Gaudron, McHugh, Gummow and Callinan JJ in Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, 399. The Privy Council saw Mareva as lacking any doctrinal basis and as simply a ‘special exception to the general law’ in Mercedes Benz AG v. Leiduck [1996] 1 AC 284, 301, while Mason P in Harris v. Digital Pulse Pty Ltd [2003] 10 at #205 recently classed the Mareva amongst ‘new remedies being fashioned by equity’ and Gleeson CJ at #12 in Australian Broadcasting Commission v. Lenah Game Meats Pty Ltd [2001] HCA 63, in a discourse on interlocutory injunctions, said that Mareva is one of the remedies that have ‘expanded the boundaries in this area of jurisprudence’.
[82] This conclusion, it is urged, follows from the application and formulation of the equitable principles in the reported cases on Marevas eg Cardile v. Led Builders Pty Limited (1999) 198 CLR 380; Republic of Haiti v. Duvalier [1990] 1 QB 202.
[83] See, for example, the exposition of principle in Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, 403-405 per Gaudron, McHugh, Gummow and Callinan JJ.
[84] Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, 389-340 per Gaudron, McHugh, Gummow and Callinan JJ in their joint judgment.
[85] Ibid.
[87] Id 403, 404 per Gaudron, McHugh, Gummow and Callinan JJ in their joint judgment.
[88] Id 405-406 per Gaudron, McHugh, Gummow and Callinan JJ in their joint judgment.
[86] Id 403, 404 per Gaudron, McHugh, Gummow and Callinan JJ in their joint judgment.
[89] Australian Consolidated Press Ltd v. Morgan [1965] HCA 21; (1965) 112 CLR 483, 498; a specific Mareva application of this occurred in Deputy Commissioner of Taxation v. Uysal [2004] VSC 287 (Byrne J, 13 August 2004).
[90] Z Ltd v. A [1982] 1 All ER 556; see also discussion in Tyree ‘Mareva Injunctions and the Banks’ in Hetherington (1983) 63-76.
[91] See Phonographic Performance Ltd v. Amusement Caterers (Peckham) Ltd [1964] Ch 195.
[92] Cardile v. Led Builders Pty Limited (1999) 198 CLR 380; see Devonshire, ‘Pre-emptive Orders Against Evasive Dealings: An assessment of Recent Trends’ [2004] JBL 357; ‘Freezing Orders, Disappearing Assets and the Problem of Enjoining Non-Parties’ (2002) 118 LQR 124; ‘Mareva Injunctions and Third Parties: Exposing the Subtext’ (1999) 62 MLR 539; Meagher, Heydon, Leeming, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-430.
[93] Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, per Kirby J 424; see also Patterson v. BTR Engineering (Australia) Ltd (1989) 18 NSWLR 319.
[94] Reches Pty Ltd v. Tadiram Ltd (1998) 155 ALR 478, 484 per Lehane J.
[95] Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, per Gaudron, McHugh, Gummow and Callinan JJ 399, 403.
[96] Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, per Kirby J 425; see also the view of Devonshire that ‘there is a pronounced focus on protecting the integrity of the justice system as well as the rights of individual litigations’ finding expression ‘in a more purposive and flexible approach’ in ‘Pre-emptive Orders Against Evasive Dealings: An Assessment of Recent Trends’ [2004] JBL 357, 359.
[97] National Australia Bank Limited v. Bond Brewing Holdings Limited [1991] VicRp 31; (1991) 1 VR 386, 553-554 per Brooking J.
[98] [1996] 1 AC 284, 292.
[99] Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, per Gaudron, McHugh, Gummow and Callinan JJ 393; see discussion in Karkar and Rosenbery, ‘Mareva Relief’ , Victorian Bar Compulsory Continuing Legal Education Programme (2004).
[100] Kunc & Hepburn, ‘Mareva Orders’ in Parkinson (ed), The Principles of Equity, 2nd ed (2003) 683.
[101] The posing of this question should not be regarded as a concession to the Meagher, Heydon & Leeming view in Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-435 that ‘there is no jurisdiction at all to grant a Mareva injunction’. Although there may have been ‘a century of established precedent ... against it’ it does not follow that ‘there is no jurisdiction’ to grant it. The present writer explains in this article that the jurisdictional issue is not concerned with a want of power or authority to adjudicate, but with whether Mareva can be justified by reference to authority, principle or policy, and, further, how the change in the law that Mareva produced, is capable of justification on principle and policy, and, in the light of the authorities of the last 30 years, now on authority as well. As will be shown, under current thinking an inconsistency in the law as is here acknowledged is better resolved by one field of law deferring to another to produce coherence that leaves doctrines and remedies free to fulfil their purposes than by deference of the newer to the older law.
[102] See s23 Federal Court of Australia Act 1976 (Cth). The High Court of Australia regards the courts’ inherent powers to prevent abuse or frustration of process, as comprehended by any such relevant statutory powers: see Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, 623 per Deane J; Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, 393 Gaudron, McHugh, Gummow and Callinan JJ. An alternative formulation is that the inherent powers are implied or confirmed in the statutory powers: see Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, 618 per Wilson and Dawson JJ; Spry, Equitable Remedies, 5th ed (1997) 515.
[103] Bekhor v. Bilton [1981] EWCA Civ 8; [1981] 2 All ER 565, 583.
[104] To use the language employed by Gleeson CJ in the Lenah Game Meats case: see footnote 9 above.
[105] Meagher, Heydon & Leeming in Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-040 acknowledge the existence of the exception that arises where an injunction is granted, ‘against B, although one has no cause of action against him and he has done nothing unlawful and does not threaten to do anything unlawful, if it is necessary to do so in order to obtain full relief against A, against whom one has a good cause of action’.
The Mareva circumstance would surely justify an exception at least as well. The exception the authors acknowledge is analogous to the award of a Mareva against a third party holding assets, as in the Cardile case. If a restraint can be justified in equity in those circumstances, it would a fortiori be justified against the alleged debtor to retrain disposal of assets it holds itself. Any suggestion in #21-445 that the decision in Australian Broadcasting Commission v. Lenah Game Meats Pty Ltd [2001] HCA 63 is relevant should be resisted. In Lenah Meats an injunction was refused against a third party who was not an agent or repository of the alleged debtor’s assets, or in any other way mixed up in wrongful behaviour of another party against whom action was being taken or sought to be taken (as is required for the invocation of the principle in Norwich Pharmacol Co v. Commrs of Customs & Excise [1973] UKHL 6; [1974] AC 133: see discussion in Devonshire, ‘Pre-emptive Orders Against Evasive Dealings: An assessment of Recent Trends’ [2004] JBL 357).
[106] A prospective cause of action suffices: Patterson v. BTR Engineering (Australia) Ltd (1989) 12 NSWLR 319.
[107] The High Court of Australia has indicated that no proprietary interest is needed for Mareva: see Cardile v. Led Builders Pty Ltd (1999) 198 CLR 380, 389 per Gaudron, McHugh, Gummow and Callinan JJ.
[108] See Australian Securities & Investments Commission v. Edensor Nominees (2001) 204 CLR 559.
[109] Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-430.
[110] Equitable Remedies, 5th ed (1997) 514-517.
[111] See discussion in Spry op cit 516.
[112] See exposition of Justice Kirby in the Hamlyn Lectures, 55th series ‘Judicial Activism’ Part 4 Concordat (2003).
[113] See Justice McHugh in ‘The Strengths of the Weakest Arm’ paper delivered at Australian Bar Association Conference, Florence, on 2 July 2004 and Justice Kirby in [2001] HCA 29; (2001) 206 CLR 512, 594.
[114] See Sir Owen Dixon in ‘Concerning Judicial Method’ in Judge Woinski (ed) Jesting Pilate and Other Papers and Addresses (1965) 152, n17 158.
[115] Justice Kirby in the Hamlyn Lectures, 55th series ‘Judicial Activism’ Part 4 Concordat (2003).
[116] See Sir Gerard Brennan in ‘Commentary: Who Controls the Law in Australia?’ in Australian Lawyers and Social Change (1976) 146.
[117] Justice Mc McHugh in ‘The Strengths of the Weakest Arm’ paper delivered at Australian Bar Association Conference, Florence, 2 July 2004.
[118] See discussion of Justice Gleeson in ‘Global Influences on the Australian Judiciary’ paper delivered at the Australian Bar Association Conference, Paris, 8 July 2002.
[119] Justice McHugh in ‘The Strengths of the Weakest Arm’ paper delivered at Australian Bar Association Conference, Florence, on 2 July 2004.
[120] Justice Gleeson suggests this in relation to the judicial exercise of discretionary sentencing powers in the criminal law. It is suggested that acceptability applies in a similar way to judicial law reform of this kind.
[121] Per Stephenson LJ in Bekhor v. Bilton [1981] EWCA Civ 8; [1981] 2 All ER 565, 585.
[122] Per Kirby J in Australian Broadcasting Commission v. Lenah Game Meats Pty Ltd [2001] HCA 63, [159].
[123] See Meagher, Heydon & Leeming, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-005.
[124] At 399 per Gaudron, McHugh, Gummow & Callinan JJ.
[125] Patterson v. BTR Engineering (Australia) Ltd (1989) 18 NSWLR 319. However, this authority was considered but not clearly accepted in Mercedes Benz v. Leiduck [1996] 1 AC 284; see comments of Lord Mustill, especially at 304 and of Lord Nicholls at 312.
[126] See Grupo Mexicano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc., et al. 119 S.Ct. 1961 (1999), 1969-1970, per Scalia J and Meagher, Heydon, Leeming, op cit #21-455.
[127] Re Hallett’s Estate: Knatchbull v. Hallett (1880) 13 ChD 696, 710 per Sir George Jessel MR.
[128] Kirby J in Australian Broadcasting Commission v. Lenah Game Meats Pty Ltd [2001] HCA 63 at [159] & [164] provides a helpful analysis. His Honour sees a ‘just and convenient’ injunctive provision as ‘not to be narrowed by judicial analysis which distorts the meaning derived from the words used’, and, while the history of equity ‘is imported by the very nature of the remedy of ‘injunction’, the court ‘is not excused from obeying legislative provisions merely because their meaning appears to be contrary to earlier non-statutory rules’.
[129] See further below under heading ‘Policy’.
[130] Tame v. State of New South Wales [2002] HCA 35; (2002) 76 ALJR 1348, #191 per Gummow and Kirby JJ.
[131] Harris v. Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56 NSWLR 298, 335 per Mason P.
[132] Australian Broadcasting Commission v. Lenah Game Meats Pty Ltd [2001] HCA 63 at [138] per Gummow and Hayne JJ.
[133] Australian Broadcasting Commission v. Lenah Game Meats Pty Ltd [2001] HCA 63 at [159] per Kirby J.
[134] Meagher, Heydon & Leeming, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-445; the authors of the book also persist in finding the practical consequences of Mareva ‘frightening’: see #21-430.
[135] Kerr J in the Pertamina [1978] QB 644, cited with approval by Lord Denning at 660-661 in his judgment in the Court of Appeal in that case. Lord Hoffmann in his 1998 foreword to the 4th edition of Gee, Mareva Injunctions and Anton Piller Relief, at xiii says: ‘ ... it became apparent that civil law remedies were inadequate to deal with cases in which there was often no serious dispute: the problem was simply the enforcement of the law against a party who was determined to evade it.’
[136] As is claimed by Meagher, Heydon & Leeming in Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-435.
[137] To use the expression employed by Mason P in Harris v. Digital Pulse Pty Ltd [2003] NSWCA 10 at [112].
[138] For example, under Chapter 2 of the Proceeds of Crime Act (2002) (Cth).
[139] In Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-445.
[140] Meagher, Heydon & Leeming, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, 4th ed (2002), #21-430.
[141] The Cardile case is a good example. In that case the High Court thought that the orders appealed from were excessive, and should be replaced with orders fashioned according to the criteria the Court set out, and which are recited in this article.
[142] See discussion in Spry, Equitable Remedies, 5th ed (1997) 514-517.
[143] Mercedes Benz AG v. Leiduck [1996] 1 AC 284, 299 per Lord Mustill.
[144] Grupo Mexicano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc. 119 S.Ct. 1961 (1999).
[146] [1996] 1 AC 284, 299.
[147] [1996] 1 AC 284, 297.
[148] [1996] 1 AC 284, 300.
[149] Ibid.
[150] See comment in Cardile v. Led Builders Pty Limited (1999) 198 CLR 380, 393 per
Gaudron, McHugh, Gummow and Callinan JJ.
[151] Ibid.
[152] Grupo Mexi cano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc. 119 S.Ct. 1961 (1999) at 1978. Scalia J for the majority agreed with the writer’s exposition in other respects at 1973: see note of Justice Young, ‘United States Supreme Court Outlaws Marevas’ at (1999) 73 ALJ 533
[153] Justice Scalia extra-judicially expresses a powerful hostility towards ‘judicial activism’: see for example item published in the New Zealand Herald on 23 October 2004 reporting comments at an International Law Conference held in Auckland, New Zealand.
[154] Grupo Mexi cano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc. 119 S.Ct. 1961 (1999) at 1973.
[155] Ibid at 1969-1970.
[156] Collins, ‘United States Supreme Court Rejects Mareva Jurisdiction’ (1999) 115 LQR 601, 604.
[157] Bushell, ‘Freezing Assets’ [2000] International Business Lawyer 3.
[158] Kessedjian, ‘Note on Provisional and Protective Measures in Private International Law and Comparative Law’, Hague Conference on Private International Law Judgments, Prel.Doc.No 10, October 1998, p 6
[159] Involving concepts not as fully developed elsewhere: Ibid, p 29.
[160] See Tetley loc cit.
[161] See Kessedjian loc cit p 9.
[162] See Tetley loc cit.
[163] Cardile v. Led Builders Pty Limited (1999) 198 CLR 380; see Devonshire, ‘Mareva Injunctions and Third Parties: Exposing the Subtext’ (1999) 62 Modern Law Review 539.
[164] Kessedjian loc cit p 9.
[165] Such an Anton Piller orders, subject to defendant’s rights to rely upon any applicable privilege against self-incrimination: Sociedada Nacional de Combustiveis de Angola OEE et al. v. Lundgvist et al. [1991] 2 QB 310; see also McLachlan, ‘The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation’ (1998) 47 ICLQ 3
[166] Iraqi Ministry of Defence v. Acepey Shipping Co SA (‘The Angel Bell’) (1981) All ER 480.
[167] TDK Tape Distributor Ltd v. Videochoice Ltd (1986) 1 WLR 141; see also discussion in National Australia Bank v. Blacker [2000] FCA 1458; [2000] 104 FCR 288.
[168] CZ v. AZ and AA-LL (1982) 2 WLR 288; Cardile v. Led Builders Pty Limited (1999) 198 CLR 380.
[169] Searose Ltd v. Seatrain (UK) Ltd [1981] 1 Lloyds Rep 556.
[170] Cardile v. Led Builders Pty Limited (1999) 198 CLR 380.
[171] Kessedjian, loc cit p 5.
[172] Ibid.
[174] [1990] 1 QB 202, 281 per Staughton LJ. The Civil Jurisdiction & Judgments Act 1982 (UK) had removed the personal jurisdiction issue with respect to France, along with any other countries that are parties to the Brussels or Lugano Conventions on Jurisdiction and the Enforcement of Judgments.
[175] Schlosser, ‘Co-ordinated Transnational Interaction in Civil Litigation and Arbitration’ (1990) 12 Michigan JIL 150.
[176] Republic of Haiti v. Duvalier [1990] 1 QB 202, although possibly only if the court has personal jurisdiction and the overseas defendant can be validly served with process in the substantive proceedings: see Mercedes Benz AG v. Leiduck [1966]1 AC 284. The personal jurisdiction issue did not arise in the Duvalier case because the UK courts have jurisdiction to grant interim relief under s25 of the Civil Jurisdiction and Judgments Act 1982 in support of substantive proceedings pending before the courts of another state which is a party to the Brussels or Lugano Conventions on Jurisdiction and the Enforcement of Judgments. Nygh & Davies in Conflict of Laws in Australia 7th ed (2002) 82-83 suggest that it is unclear whether an Australian court can grant a Mareva in respect of a party out of the jurisdiction but who can be served with process in the substantive proceedings.
[177] Hospital Products Ltd v. Ballabil Holdings Pty Limited [1984] 2NSWLR 662; Babanaft International Co SA v. Bassatne [1990] Ch 13; Derby & Co Ltd v. Weldon (No 1) [1990] Ch 48; (Nos 3&4) [1990] Ch 65; (No 6) [1990] 1 WLR 1139; see also Collins, ‘The Transnational Reach of Mareva Injunctions’ (1989) 105 LQR 262.
[178] South Carolina Insurance Co v. Assurantie Maatschappij ‘De Zeven Provincien’ NV [1987] AC 24; Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1999] AC 334; see also Michell, ‘The Mareva Injunction in Aid of Foreign Proceedings’ (1996) 34 Osgoode Hall Law Journal 741 and Schaefer, ‘New Solutions for Interim Measures of Protection in International Commercial Arbitration: English, German and Hong Kong Law Compared’ (1998) 2 EJCL 1.
[179] Where the Mareva is in support of a judgment or future judgment that will be accorded recognition in the particular US jurisdiction, i.e. the Supreme Court’s refusal of Mareva jurisdiction in the Grupo Mexicano case does not mean that it will be regarded as awarded without due process: see e.g. CIBC Mellon Trust Co v. Mora Hotal Corp NV (2003) NY Int. 59; see also Bushell, ‘Freezing Assets’ [2000] International Business Lawyer 3.
[181] [1996] 1 AC 284, 304 per Mustill LJ giving the majority judgment of the Privy Council; see also Spry, Equitable Remedies, 5th ed (1997) 532.
[182] [1996] 1 AC 284, 305.
[183] [1996] 1 AC 284, 308.
[184] [1996] 1 AC 284, 306-307.
[185] [1993] AC 334, 341.
[186] Particularly in developing fields, such as intellectual property litigation: see Schwarz, ‘Freezing Orders in the context of the Lugano Convention and the TRIPS Agreement’, Post-graduated Studies Intellectual Property ETH Zurich (2000-2001) pp 1-2, 30.
[187] See Third Interim Report: Declining & Referring Jurisdiction in International Litigation, International Law Association London Conference (2000) p 1.
[188] Including the minority judgments of Lord Nicholls of Birkenhead in Mercedes Benz AG v. Leiduck [1996] 1 AC 284 and Ginsburg J in Grupo Mexicano de Desarrollo, S.A., et al. v. Alliance Bond Fund, Inc. 119 S.Ct. 1961 (1999); McLachlan, ‘International Litigation and the Reworking of the Conflict of Laws’ (2004) 120 LQR 580; Collins, ‘The Siskina Again: an Opportunity Missed’ (1996) 112 LQR 8. It is apparent that the UK can maintain the Mareva jurisdiction consistently with its EU obligations: see Schwarz, ‘Freezing Orders in the context of the Lugano Convention and the TRIPS Agreement’, Post-graduated Studies Intellectual Property ETH Zurich (2000-2001) pp 22-23 and 30 ff.
[189] See ‘Note on Provisional and Protective Measures in Private International Law and Comparative Law’ prepared by Catherine Kessedjian, Hague Conference on Private International Law Judgments, Prel.Doc.No 10, October 1998.
[190] Stevens, ‘Equity’s Manhattan Project: the Creation and Evolution of the Mareva Injunction’ Denning Law Journal, 25
[191] See McLachlan, ‘International Litigation and the Reworking of the Conflict of Laws’ (2004) 120 LQR 580, 592
[192] In line with current judicial thinking: see, for example, Tame v. State of New South Wales [2002] HCA 35; (2002) 76 ALJR 1348
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