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This monograph compares the key characteristics of the laws of four representative legal systems on provisional measures with two interlinked goals. It not only aims to canvass the main comparative advantages or disadvantages of the observed systems but it also tries to answer the ultimate question of which of the analyzed remedies is best suited for the changed circumstances brought by the 21st century? The English Mareva Injunction, that is now known as a ‘Freezing Order,’ is taken as the benchmark to which each of the targeted systems’ measures herein are primarily compared.
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As Robert Goff eloquently phrased it in the foreword to the second edition of Hoyle’s Freezing and Search Orders: “ That the Mareva jurisdiction is a success story is not in doubt. Its invention met a substantial need in [the UK]: its adoption in other common law countries shows that the need was as great for them as it was for us.” Hoyle ( 2006), foreword to the Second Edition at ix. For the fame Mareva acquired in the US, suffice to take a look at the cases and publications that follow the Grupo Mexicano case.
Judgment of the Court of First Chamber as of 25th of May 2016 in Case C-559/14.
See Briggs A. ( 2005), Chapter 6.03 captioned as “Interim Measures: the Freezing or Mareva injunction.”
See the related discussion in part 5 below.
Art. 35 of the Regulation (EU) No. 1215/ 2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
Some courts use the expression ‘preliminary attachment’ instead of ‘prejudgment attachment.’ See, e.g., Prospect Communications v. Herman [ 2013 WL 6276816] adjudicated by US District Court D. Minnesota [not reported in F.Supp.2d (2013)].
Note that while Rule 65 of the federal Rules of Civil Procedure uses the exact expression of ‘preliminary injunctions,’ Rule 64 on in rem provisional remedies fails to add the attribute ‘preliminary.’ For this reason scholars refer to them normally as ‘ prejudgment attachments’ when it is of importance to stress this feature, what otherwise follows from the title VIII containing the rules on ‘Provisional and Final Remedies.’ See, e.g., Tabb J.Ch. & Brubaker R. ( 2003), at 40 et seq.; Wasserman R. (1992) at 268 et seq.; Barrack et al. (June 2011), at 52.
See, for example, the following related excerpt from Roy Goode’s Commercial Law (Penguin, 2nd ed., 1995) at 1166: “ The court can also order discovery and interrogatories in aid of the Mareva injunction for the purpose of ascertaining the existence and location of assets to which the injunction can attach, though not for the purpose of ascertaining whether the defendant has committed a breach of the injunction.” [Emphasis added.]
See, e.g., Hess B. ( 2002), at 121.
See, e.g., Tetley (June 1999), at 1955. This article is not concerned with admiralty law and hence this particular types of in rem remedy is not going to be discussed herein.
Otherwise, the list of interim remedies English courts are empowered to grant are listed in rule 25.1 of the Civil Procedure Rules (CPR). These do not include attachments that would create inchoate liens like the US prejudgment attachments. However, as one of the leading commentators cautiously added, the list “ is not necessarily an exhaustive list of the remedies that can be obtained [and] it is at least still arguable that a court may be prepared to devise a remedy, or make an adaptation of an existing remedy not specifically provided for, in order to facilitate its overall task of doing what procedural justice may require.” In other words, there is a theoretical rather than realistic possibility that a court would invent an interim remedy not listed in the rules. Briggs, at 459.
The US Supreme Court has reiterated its ‘static approach’ to preliminary injunctions in a series of post-Grupo Mexicano decisions, making these pre-judgment remedies extraordinary, “ a drastic provisional remedy that should be sparingly granted.” DiSarro A. ( 2011), at 53.
As a recent sample decision properly representing the approach US courts typically apply when deciding on TROs and preliminary injunctions see Civil No. 13 CV 578 (issued on 24th of January 2013 by US District Court for the Northern District of Illinois, Eastern Division) in the case between the Federal Trade Commission et al . as plaintiffs and Fortune Hi- Tech Marketing Inc. et al.
The court issued (among others) the Temporary Restraining Order (TRO) and 1/ordered the defendants and third parties holding assets of the defendants to refrain from disposing with them, 2/appointed a law firm as a temporary receiver to take full control of the Defendants, 3/“ defendants and their officers, agents, servants, employees, and attorneys, and all other persons in active concert of participation with any of them,” if informed directly or indirectly about the court order, to cooperate with and hand over any property of the debtor held by them to the receiver, 4/repatriation of assets and documents in foreign countries, as well as 5/ expedited discovery.
In particular, the court not only set the expiration date of the TRO but also summoned the Defendant for a hearing “[…] to show cause, if any, why [the] Court should not enter a preliminary injunction, pending final rule on the Complaint, against [the Defendants] enjoining them from further violations [of a number of federal and States statutes], continuing the freeze of their assets; making the temporary Receiver’s appointment permanent, and imposing such additional relief as may be appropriate.”
Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)
Briggs A Civil Jurisdiction and Judgments (2005) Norton Rose, London-Singapore
Goode R (1995) Commercial law, 2nd edn, Penguin
Hoyle MSW Freezing and Search Orders (2006) Informa-London, 4th ed
Tabb CJ, Brubaker R (2003) Bankruptcy law—principles, policies, and practice. Anderson Publications, Cincinnati
DiSarro A (2011) Freeze frame: the Supreme Court’s reaffirmation of the substantive principles of preliminary injunctions. Gonzaga Law Rev 47(1):54–98
Tetley W (1999) Arrest, attachment, and related Maritime law procedures. Tulane Law Rev 73:1895–1985
Rudolf Meroni v Recoletos Limited, Judgment of the Court of First Chamber as of 25th of May 2016 (C-559/14)
Civil No. 13 CV 578 (issued on 24th of January 2013 at 1:45 p.m. by US District Court for the Northern District of Illinois, Eastern Division) in the case between the Federal Trade Commission et al. as plaintiffs and Fortune Hi-Tech Marketing Inc. et al. as defendants. See at https://www.ftc.gov/sites/default/files/documents/cases/2013/01/130128fhtmtro.pdf
Prospect Communications v. Herman [2013 WL 6276816] adjudicated by US District Court D. Minnesota (not reported in F.Supp.2d (2013)
Hess B (2002) Study No. JAI/A3/2002/02 on transparency of a Debtor’s assets, attachment of bank accounts and provisional and protective measures. http://ec.europa.eu/civiljustice/publications/docs/enforcement_judicial_decisions_180204_en.pdf
- Chapter 1
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