Tibor Tajti

A Cross Border Study of Freezing Orders and Provisional Measures

“Rekli su nam da takva mjera dosad nikad nije bila izrečena. Engleski sudovi dosad nikad nisu zaplijenili imovinu dužnika ili mu ograničili pravo da njome raspolaže prije negoli bi bila donesena presuda.”1 Do prekretnice je došlo 1975. godine u nekoliko odluka Žalbenog suda Engleske i Walesa (Court of Appeal) kojima su određene privremene mjere zabrane raspolaganja imovinom i njezina premještanja izvan granica nadležnosti suda koji je odlučivao u postupku. Sud se pritom pozvao na zakonske odredbe kojima je sudovima dana sloboda izricanja privremenih mjera kad god im se to učini pravičnim i prikladnim.

Conclusions and Possible Ways Forward

This article has examined the provisional measures relating to freezing assets of two major common law jurisdictions and two important civil law systems. The authors were in particular guided by the cautionary words of the concurring and dissenting Justices of the US Supreme Court in the 1999 Grupo Mexicano case according to which the “age of slow-moving capital and comparatively immobile wealth” is bygone. This is a change that has inevitably increased the importance of provisional measures as well. While the validity of this train of thought might have been questioned in 1999, it could hardly be doubted anymore now close to the end of the second decade of the 21st century.

Provisional Measures in France and the United Kingdom

The object of the second chapter of this monograph is to examine the differences between the law and procedure of England and France in relation to provisional measures to arrest assets or order a party to refrain from disposing of his assets. Such measures are commonly sought by parties to freeze assets in order that the party can enforce an eventual judgment for commercial claims. In the first part of this section the history and principal features of the English Freezing Order (Mareva Injunction) and the French Saisie Conservatoire are presented focusing on the differences between the two remedies. In the second part of the section consideration is given to the enforceability and recognition of English Freezing Orders and French Saisies Conservatoires in the European Union when the two remedies are being sought in relation to substantive proceedings to be brought in other European Union member states.

Post-socialist Jurisdictions: Provisional Measures in Hungary

The law on provisional measures is far from being the same in those countries of the former socialist-block that have acceded to the European Union during the first two decades of the 21st century. We cannot present all of them here, to a great extent because the related English (or other foreign language) literature is extremely scarce and typically limited to description of statutory law. Hungary has been chosen, not just because of language proficiency considerations, but also because Hungarian law represents the conservative end of the spectrum of provisional measure laws. In particular, because it does not know ex parte provisional measures, in stark contrast not only to English, French or US law but also to the laws of some of the countries of the region, like the Czech Republic.

The European Account Preservation Order: Nuclear Weapon or Paper Tiger?

Proper assessment of the utility of the Mareva Injunction and the Saisie Conservatoire would not be possible without casting a few words on one of the most recent European developments: the availability of the European Account Preservation Order (hereinafter: EAPO) since 18 January 2017 when Regulation 655/2014—that created it—came into being.

Provisional Measures in the United States

Notwithstanding their common origins, English and US law on provisional measures are different today and they may be conceived as two developed yet distinct contemporary regulatory models. Consequently, it is worthwhile to juxtapose the two not only for this reason but also because of the discourse that has been ongoing in the US ever since Justice Scalia formulating the majority opinion rejected the introduction of the American version of English Mareva Injunction into the US legal system in the famous Grupo Mexicano case in 1999.