International Law

Pre-emptive Remedies Available Worldwide

By Rick Rein

With ponzi schemes and similar frauds coming to light recently because of the economic turmoil, the availability of pre-emptive remedies to seize assets is an important concern for litigants. Whether one calls them freezing orders, Mareva injunctions, pre-judgment injunctions or some other identifier, orders thatseek to prevent a party from disposing of assets seems to be available in many jurisdictions, usually through ex parte applications. The requirements for obtaining a freezing order differs from jurisdiction to jurisdiction, but the remedy remains the same whether assets are held by the defendant or by third parties.

For instance in Canada, pre-emptive remedies are available ex parte to preserve assets and enjoin further concealment or transfer. Canada seems to have gone further than other jurisdictions by allowing the claimant to participate in the raid to identify and discover evidence at the defendant's or third parties' premises. In that situation, a court appoints an independent supervising solicitor who attends the raid to ensure that rights are not violated and the order is properly followed.

In Argentina, pre-emptive measures are likewise allowed under federal and provincial law. In addition to attachment orders and injunctive relief, courts have allowed Anton Piller type orders to seize evidence to preserve it. All of these measures are available at a third parties' premises.

In Austria, pre-emptive remedies of attachment and restraint orders are available. But, Anton Piller type orders are not.

In the United Kingdom, courts are moreflexible and creative than legal systems where legal systems are defined by statutes. Engish courts are credited with inventing Mareva injunctions, Anton Piller orders and Norwich Pharmacal orders for pre-suit discovery. A further advantage in the English system is that courts can actually tailor make remedies, including an interim order that not only restrains a party from disposing of assets but also orders that party to disclose certain documents  or a search and seizure order that requires a defendant to allow a claimant's solicitor to search the premises and remove evidence. Also, remedies are afforded to parties involved in foreign proceedings, not only those involved in UK proceedings.

The United States is not a litigator's paradise when it comes to pre-emptive remedies. Asset freezes and preliminary injunctions are much more difficult to obtain. Asset attachments can only be ordered if certain statutory criteria are met. Preliminary injunctions, if not permitted under certain statutes, can only be obtained where equitable relief is sought.

Full post as published by International Asset Recovery Law Blog on May 05, 2009 (boomark / email).