Asset freezing

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Asset freezing is a legal process which prevents a defendant to an action from dissipating their assets from beyond the jurisdiction of a court so as to frustrate a potential judgment. It is widely recognised[citation needed] in other common law jurisdictions and such orders can be made to have world-wide effect. It is variously construed as part of a court's inherent jurisdiction to restrain breaches of its process.

The legal order itself is in the form of an injunction, which in Commonwealth jurisdictions is also known as a freezing order, Mareva injunction, Mareva order or Mareva regime, after the case Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509, decided in 1975, although the first recorded instance of such an order in English jurisprudence was Nippon Yusen Kaisha v Karageorgis in 1975, decided very shortly before the Mareva decision; however, in the UK the Civil Procedure Rules 1998 now define a Mareva order as a "freezing" order.

Asset freezing is not a security (Jackson v Sterling Industries Ltd), nor a means to pressure a judgment debtor (Camdex International Ltd v Bank of Zambia (No. 2)), nor is it a type of asset forfeiture since it does not confer upon anyone else a proprietary interest in the defendant's assets (Cretanor Maritime Co Ltd v Irish Marine Management Ltd). However, some authorities have treated the Mareva injunction as an order to stop a judgment debtor from dissipating his assets so as to have the effect of frustrating judgment, rather than the more strenuous test of requiring an intent to abuse court procedure. An example of the former would be paying off a legitimate debt (Iraqi Ministry of Defence v Arcepey Shipping Co SA), whereas an example of the latter would be hiding the assets in overseas banks on receiving notice of the action.

A freezing order will usually only be made where the claimant can show that there was at least a good arguable case that they would succeed at trial and that the refusal of an injunction would involve a real risk that a judgment or award in their favour would remain unsatisfied (Ninemia Maritime corporation v Trave Schiffahrtgesellschaft m.b.H und Co.K.G [1983] 1 WLR 1412). It is recognised as being quite harsh on defendants because the order is often granted at the pre-trial stage in ex parte hearings, based on affidavit evidence alone. A Mareva injunction is often combined with an Anton Piller order in these circumstances. This can be disastrous for a defendant as the cumulative effect of these orders can be to destroy the whole of a business' custom by freezing most of its assets and revealing important information to its competitors.

Similar provisions are now required to be available in the rest of Europe, under Article 9(2) of the European Union Directive on the enforcement of intellectual property rights, approved in April 2004.

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