Asset freezing is a form of interim or interlocutory injunction which prevents a defendant to an action from dealing with or dissipating its assets so as to frustrate a potential judgment . It is widely recognised 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 .
44-478: Mareva may refer to: A Mareva injunction , a court order to freeze assets Mareva Galanter , a French actress and beauty contestant Mareva Grabowski-Mitsotakis (born 1967), Greek business executive Alana Mareva , fictional character in The 4400 Mareva, a factory name or vitola de galera for the classical Cuban cigar size Petit Corona Topics referred to by
88-450: A proprietary interest in the defendant's assets. 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, whereas an example of
132-537: A common ex parte procedure in intellectual property related cases in some other countries, such as Canada, France, and Italy. Anton Piller orders are known in France and Belgium as saisie-contrefaçon (literally, "infringement seizure") orders—in Belgium also as saisie-description (literally, "descriptive seizure") orders. The court order may only allow the description of the alleged counterfeited goods and processes, with
176-419: A defendant taking action, the purpose of which is to render nugatory or less effective any judgment or order which the plaintiff may thereafter obtain. In 2007, Lord Bingham declared: Mareva (or freezing) injunctions were from the beginning, and continue to be, granted for an important but limited purpose: to prevent a defendant dissipating his assets with the intention or effect of frustrating enforcement of
220-551: A detailed description, with or without effective seizure, of the allegedly infringing articles or processes. Such order shall be provisionally enforced. It may be subjected to a security on the part of the plaintiff. In that same order, the President of the Court may authorise the bailiff to carry out any enquiry required to ascertain the origin, nature and scope of the infringement. ... (emphasis added) Similar provisions are now required in
264-446: A final order requiring the third party to pay the debt to the judgment creditor) is available to secure payment of County Court judgments . Informal de facto freezing may also be undertaken in most common law jurisdictions by a third-party guardian or assetholder, where he has been informed that those assets are imposed with a constructive trust in favour of someone other than the apparent owner. The freeze may be effected by issuing
308-501: A letter to the asset holder or guardian in question, informing them of the true origin or beneficial ownership of the targeted funds or assets, and advising them of their potential accessory civil and possible criminal liability in the event of any transfer or disposal of the assets in question. Such devices may be employed in cases where a victim of fraud suspects that targeted funds or assets may be transferred to another location where it might be impractical to gain access to them. However,
352-487: A more limited scope of application. Although it is mistakenly believed that a freezing injunction provides security over the defendant's assets for a possible judgment, or secures a judgment already obtained, Lord Donaldson MR explained in Polly Peck International Plc v Nadir that such is not the case: So far as it lies in their power, the courts will not permit the course of justice to be frustrated by
396-534: A patent application or the owner of a utility certificate application or the owner of a patent or of a utility certificate shall have the possibility of furnishing proof by any means whatsoever of the infringement of which he claims to be a victim. He shall further be entitled, on an order given by the President of the First Instance Court of the place of the presumed infringement, to direct any bailiffs, accompanied by experts of his own choice, to proceed with
440-618: A person to refuse to do anything on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty". Hugh Laddie is generally credited with the "invention" of the Anton Piller order. An obituary in The Daily Telegraph stated that he later described the Anton Piller order "as a Frankenstein's monster that went far beyond his original design brief". In some jurisdictions (for example, Hong Kong and South Africa) where there
484-411: A prospective judgment. They are not a proprietary remedy. They are not granted to give a claimant advance security for his claim, although they may have that effect. They are not an end in themselves. They are a supplementary remedy, granted to protect the efficacy of court proceedings, domestic or foreign. In Group Seven , Hildyard J outlined the current scope of freezing orders that can be issued by
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#1732916810214528-453: A receiver appointed by an interlocutory Order of the Court in all cases in which it shall appear to the Court to be just or convenient..." Relying on this, Jessel MR in 1878 declared, "I have unlimited power to grant an injunction in any case where it would be right or just to do so..." Asset freezing is not a security, nor a means to pressure a judgment debtor, nor is it a type of asset forfeiture since it does not confer upon anyone else
572-610: A result of an Anton Piller order, the court must ensure precautionary steps are taken to prevent any potential prejudice – including removal of counsel if no alternative is available. The Quebec Court of Appeal has recognized Anton Piller orders as being valid in that province under its civil law . Anton Piller orders have been granted by the High Court in William A. Grogan (copyright owner of RAMDIS) v. Monaghan Electrical Ltd & Michael Traynor (1998) related to an unlicensed copy of
616-498: A search warrant to enter a man's house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say, "Get out." That was established in the leading case of Entick v. Carrington . None of us would wish to whittle down that principle in
660-435: A somewhat formal distinction. But it is a valid one: only the companies have authority to deal with and dispose of their assets. However, the person's shares in the company are subject to it, and any conduct by him (not in the course of ordinary business) that diminishes the value of those shares will infringe that order. Subsequent jurisprudence has extended the reach of freezing orders to third parties against whom there
704-421: A tracing order. A Norwich Order is form of pre-action discovery, that allows an aggrieved party to trace otherwise hidden or dissipated assets, with a view to their preservation. While it is not advisable to obtain such an order on purely strategic grounds, asset freezing has a persuasive effect on settlement negotiations. While a claimant obtaining an order can expect to face subsequent opposition in court from
748-442: A very short period, usually a few days. At the end of this period, the moving party is required to return to court to justify the continuance of the injunction, this time with notice to the opposing party, so as to allow the latter a chance to contest the injunction on its merits. Current orders issued by the court do not generally call for a blanket freezing of assets, and they are currently worded in more nuanced terms according to
792-463: Is different from Wikidata All article disambiguation pages All disambiguation pages Mareva injunction 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 1975 case Mareva Compania Naviera SA v International Bulkcarriers SA , although
836-523: Is named after the 1975 English case of Anton Piller KG v Manufacturing Processes Limited , dealing with the theft of trade secrets, although the first reported such order was granted by Templeman J earlier that year. They are now formally known as search orders in England and Wales, New Zealand, Australia, and India. In Anton Piller , Lord Denning described the nature of the relief: Let me say at once that no court in this land has any power to issue
880-599: Is no statutory search order, the Anton Piller order is still often used. In South Africa, for example, in Mathias International Ltd v Baillache , the applicants instituted motion proceedings in which they claimed (i) an Anton Piller order and (ii) interdictory relief directed at prohibiting unlawful competition by the first and second respondents using the applicants' "confidential information". In Lock International plc v Beswick , Anton Piller orders were described as "intrusive". Anton Piller orders also constitute
924-474: Is no substantive cause of action, but where there is good reason to suppose that their assets may in truth be the assets of the defendant against whom a cause of action is asserted. This type of order is known as Chabra relief, and has been described as possessing certain characteristics: Depending on the circumstances, alternative types of orders may be more attractive to an applicant: A "third party debt order" (which consists of an interim freezing order and
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#1732916810214968-709: Is not taken lightly by the courts and can result in penalties for its breach (see Columbia Picture Industries v Robinson [1987] Ch 38). Also of great importance is the likely effect of a search upon occupants of the premises, given in particular that the intrusion would otherwise be a trespass: Adani Mining Pty Ltd v Pennings (2020). The Supreme Court of Canada , in Celanese Canada Inc. v. Murray Demolition Corp. established guidelines for Anton Piller orders. The orders are meant to protect evidence from being destroyed, not to gain litigious advantage, and should only be issued if: The Court laid out basic protection for
1012-439: Is the onus upon an applicant to establish proper grounds for obtaining such an order. This is due to the largely ex parte nature of the application. As such, an applicant must demonstrate not only that it has reasonable grounds for success in its case but must put the likely counter arguments of a respondent if that respondent were present to oppose the order being granted. This is a heavy burden faced by an applicant: its avoidance
1056-473: The Court: In 2014, Lakatamia emphasized that the assets of a company wholly owned by a person subject to a freezing order are not automatically subject to the order. In that case, Rimer J noted: The owner is of course able to control the destiny of the company's assets. But that does not make them his assets... First, [the order] is still only concerned with dispositions of assets belonging beneficially to
1100-639: The RAMDIS software system, Joblin-Purser v. Jackman and Microsoft v. Brightpoint , but the issue has not come before the Supreme Court and, owing to the civil nature of the order and the strong protection given to the family home in the constitution , it currently exists in something of a grey area. The Anton Piller case is the basis for rule 33.3 of the High Court rules. This rule states that: Orders comparable to Anton Piller orders have long been available in
1144-628: The United Kingdom). Mareva was rejected by the Supreme Court of the United States in 1999 in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. For the majority, Justice Scalia held that, as such jurisdiction did not exist at the time of the passage of the Judiciary Act of 1789 , the federal courts had no authority to exercise it. In dissent, Justice Ginsburg asserted that
1188-512: The United States under section 503(a) of the Copyright Act (17 USC, § 503(a)), which provides for the impounding of allegedly infringing copies of works and equipment for making them. In recent years, questions have been raised about the abusive use of these orders, and the doubtful constitutionality of the procedures used. More recent decisions in the field have tended to require that impoundment must be necessary, reasonable, and comport with
1232-512: The aim of obtaining evidence of infringement, or may additionally allow real seizure to take place in addition to the description measures. Such a seizure is enforced by a bailiff , usually accompanied by at least one expert. It can take place on the premises of the alleged infringer, but also at a trade fair for instance. Art. L. 615-5. of the French Intellectual Property Code reads as follows (excerpt only): The owner of
1276-402: 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, and the two orders have been described by Lord Donaldson as being the law's "nuclear weapons." A motion for Mareva injunction is also frequently brought together with a Norwich Pharmacal order , or more commonly known as
1320-419: The defendant's permission. But it does do this: It brings pressure on the defendants to give permission. It does more. It actually orders him to give permission—with, I suppose, the result that if he does not give permission, he is guilty of contempt of Court . Because such an order does not give the accused party the ability to defend themselves, Anton Piller orders are only issued exceptionally and according to
1364-446: The defendant, the freezing order is generally considered to be the beginning of the end for the defendant as they will be unable to defend themselves with very limited/no available income. The claimant will have no restrictions on legal fee spending, putting huge financial pressure on the defendant, and negotiation and settlement avoid the return to court. In many jurisdictions, freezing injunctions brought ex parte are only granted for
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1408-455: The defendant, which these assets do not. Secondly, Mr Su has no authority to instruct the companies how to deal with their assets. All he has is the power, as an agent of the company, to procure the company to make dispositions of its assets. Such dispositions, when made, are made in consequence of decisions made by the organs of the company. They are not dispositions made by the company in compliance with instructions from Mr Su. That may seem to be
1452-767: The federal courts' exercise of its equity jurisdiction was never that static. While Grupo Mexicano is consistent with other Supreme Court jurisprudence in the matter of preliminary injunctions , there has been debate as to whether this decision should be reversed. At the state level, the New York Court of Appeals reached a similar conclusion to that of the Supreme Court in 2000, in Credit Agricole v. Rossiyskiy . In place of Mareva , US civil jurisprudence relies more on prejudgment writs of attachment , preliminary injunctions and temporary restraining orders , which have
1496-514: The first recorded instance of such an order in English jurisprudence was Nippon Yusen Kaisha v Karageorgis , decided one month before Mareva . The Civil Procedure Rules 1998 now define a Mareva injunction as a "freezing order". In UK, the jurisdiction to issue an asset freezing order arises in part from the Judicature Act 1873 , which provided that "A mandamus or an injunction may be granted or
1540-433: 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. It is recognised as being quite harsh on defendants because
1584-422: The order is often granted at the pre-trial stage in ex parte hearings, based on affidavit evidence alone. To prevent potential injustice and abuse of the court's powers in an ex parte proceeding, moving parties are required to provide full and frank disclosure at such proceeding. The moving party must make a balanced presentation of the facts and law, including all relevant facts and law which may explain
1628-406: The respondent's position if known to the moving party, even if such facts would not have changed the court's decision. If the court is misled on a material fact, or if there is less than full and frank disclosure, the court will typically not continue the injunction. A Mareva injunction is often combined with an Anton Piller order in these circumstances. This can be disastrous for a defendant as
1672-735: The rest of Europe, under Article 7 of the European Union Directive on the enforcement of intellectual property rights , approved in April 2004. Anton Piller orders are also used in Australia and are available on grounds similar to that of England. Each superior court jurisdiction provides rules and forms for the manner in which Anton Piller orders are available. In technical modern terminology, Anton Piller orders are referred to as "search orders", but "Anton Piller order" remains dominant in everyday use, including in universities. Of great importance
1716-416: The rights of parties involved. The protections in place are meant to protect solicitor-client privilege by preventing privileged documents from being disclosed. The search must be conducted according to the following guidelines: The supervising lawyer, referred to as an independent supervising solicitor (ISS), should: In addition, following the search: If counsel gains access to privileged documents as
1760-409: The same term [REDACTED] This disambiguation page lists articles associated with the title Mareva . If an internal link led you here, you may wish to change the link to point directly to the intended article. Retrieved from " https://en.wikipedia.org/w/index.php?title=Mareva&oldid=1254677126 " Category : Disambiguation pages Hidden categories: Short description
1804-560: The situation concerned. The process is regarded as a high-stakes exercise for several reasons: Similar provision can be found in the exercise of: It has been extended to other members of the European Union , by virtue of Article 9(2) of the Directive on the enforcement of intellectual property rights . Since January 2017, a uniform European Account Preservation Order has been implemented in all EU member States (other than Denmark and
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1848-421: The slightest. But the order sought in this case is not a search warrant. It does not authorise the plaintiffs' solicitors or anyone else to enter the defendant's premises against his will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window. It only authorises entry and inspection by the permission of the defendants. The plaintiff must get
1892-587: The three-step test set out by Ormrod LJ in Anton Piller : In England, it has been reported that approximately 500 Anton Piller orders were granted per year between 1975 and 1980. During the 1990s, this rate had dropped tenfold. Although the name persists in normal usage, the common law application of this order has been largely superseded by a statutory search order under the Civil Procedure Act 1997 . A search order under this act "does not affect any right of
1936-489: The use of this technique within the United States is not generally accepted. Anton Piller order In English and English-derived legal systems, an Anton Piller order (frequently misspelled Anton Pillar order ) is a court order that provides the right to search premises and seize evidence without prior warning. This is intended to prevent the destruction of relevant evidence , particularly in cases of alleged trademark, copyright or patent infringements. The order
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