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Worldwide freezing orders

A worldwide freezing order (WFO), formerly called a Mareva injunction, restrains a defendant from disposing, dealing, or diminishing the value of their assets wherever they are. These injunctions are available from an English court, but need to be enforced by a foreign court where the assets are located. This can be done only if the English court granting the WFO provides permission to enforce the WFO abroad.

In Dadourian Group International Inc & others v Simms & others [2006] EWCA Civ 339, eight guidelines that control an English court's discretion in granting permission were enunciated:

  • permission is granted where it is just, convenient, and not oppressive;
  • relevant facts such as the proportionality of the steps proposed to be taken abroad should be considered;
  • interests of all parties must be balanced;
  • permission is limited to foreign relief equal and not superior to the WFO's terms;
  • supporting evidence should be of a high standard, including evidence as to the applicable foreign law and practice, the nature of the proposed proceedings, and the assets and the names of the parties holding the assets;
  • permission requires showing a real prospect that the assets are within the foreign jurisdiction;
  • evidence of a risk of dissipation of the assets must be provided; and
  • permission usually will be made on notice to the respondent but, in cases of urgency, it might be given without notice, provided the respondent is given an opportunity to have the matter reconsidered.

The evidentiary standard imposed requires careful collection of facts and data, taking care not to alert the defendant, who might dissipate the assets before permission to enforce is granted. Applicants also need to show that the relief available in the foreign court is comparable to the WFO. These would add to the time required to prepare an application.

Dev Krishan

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