Lloyd's Maritime and Commercial Law Quarterly
WORLDWIDE FREEZING ORDERS IN EUROPE
Louise Merrett *
English courts commonly grant worldwide freezing orders in domestic cases, and will also make such orders in aid of foreign proceedings, under the Civil Jurisdiction and Judgments Act 1982, s 25, unless it is inexpedient to do so. The interrelationship between the inexpediency test under s 25(2) and the “real connecting link” test applied by the European Court of Justice in
Van Uden has yet to be fully explored. In this article it will be suggested that a case can be made for continuing to allow worldwide relief given the
in personam nature of the order, but it is recognized that the case is not straightforward, and that there are grounds for fearing that the ECJ may well take a different view
I. INTRODUCTION
A worldwide freezing order is an interim order restraining the defendant from disposing of or dealing with his assets anywhere in the world. Such an order can provide a claimant with the means of preventing a defendant from acting in a way which would render any judgment obtained against him worthless. Together with search orders, the freezing injunction has been described as one of the two nuclear weapons in the commercial court’s armoury.1
But it must be open to serious doubt as to whether, and, if so, for how long, this weapon will be available against European defendants. Put simply, the issue is as to the scope of the well-known decision of the European Court of Justice in Van Uden Maritime BV
v. Kommanditgesellschaft in Firma Deco-Line
.2
But the question of how Van Uden
impacts on the current English practice raises important issues about the nature of a worldwide freezing order, when it will be granted and how such orders can be enforced. Some of these issues were considered in the recent decision of the Court of Appeal in Banco Nacional de Comercio Exterior SNC
v. Empresa de Telecomunicationes de Cuba SA
.3
Whilst that decision clarifies some points it leaves many issues unanswered.
II. THE DECISION IN VAN UDEN
The Brussels Regulation4
(“BR”) contains a specific provision dealing with protective and provisional measures. Article 31 provides: