Commercial Court clarifies scope of standard undertaking not to enforce worldwide freezing order abroad without court’s permission

The Commercial Court has recently considered the scope of the standard undertaking provided in connection with worldwide freezing orders, which requires the applicant to seek the court’s permission before seeking to enforce the order outside England and Wales, or seeking an order of a “similar nature”: Akcine Bendrove Bankas Snoras v Antonov [2018] EWHC 887 (Comm).

The court held that the claimant bank was not in breach of its undertaking by obtaining orders in Lithuania and Switzerland seizing certain of the respondent’s assets, as the foreign courts had independent jurisdiction to make the orders which did not derive from the making of the worldwide freezing order in England.

This decision provides welcome clarification as to the scope of the standard undertaking, and should provide some comfort to those seeking to secure assets abroad based on a separate and independent right or jurisdiction, where they have also obtained an English freezing order.

The decision also suggests that, where there has been a breach of the undertaking, the court may be inclined to grant retrospective permission and continue the freezing order unless the respondent can present clear evidence that the foreign order has had an oppressive or prejudicial impact.

Gareth Keillor and Rosanna Pinker in our disputes team consider the decision further below. Continue reading

Cross-Border Litigation – international perspectives

We are pleased to publish the second issue of our periodic publication “Cross-Border Litigation”, designed to highlight legal and practical issues specific to litigation with an international aspect.

Tapping into the expertise of the firm’s leading commercial litigators across the globe, the publication gives readers the benefit of their hands-on experience and flags key developments that should be on commercial parties’ radars.

The topics covered in this issue include:

  • Highlights of recent developments from across the globe
  • The Singapore International Commercial Court
    Has it lived up to the hype?
  • Cross-border litigation and Brexit
    What we know so far
  • Partner Spotlight on Helmut Görling
    His journey from a police detective to head of our corporate crime team in Frankfurt
  • Using disclosed documents for multiple proceedings
    Recent judgments suggesting a restrictive approach
  • Jurisdiction disputes
    When will the English courts take into account politics, corruption and other obstacles to justice in foreign jurisdictions?
  • India related commercial contracts
    Getting your dispute resolution and governing law clauses right

To download the publication, click here.

To read the previous Issue 1 (March 2017), click here

High Court orders foreign defendant to disclose assets worldwide to aid execution

The High Court has reaffirmed its jurisdiction under section 37(1) of the Supreme Court Act 1981 to compel defendants who are subject to the court’s jurisdiction to disclose their assets worldwide in order to aid execution of a judgment or (as in this case) arbitration award, despite the absence of a freezing injunction: Cruz City 1 Mauritius Holdings v Unitech Limited and others [2013] EWHC 1323 (Comm).

Section 37(1) provides that the High Court may “grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so”. Previous cases held that this gave the court jurisdiction to order disclosure of assets worldwide in aid of execution, even if there was no freezing injunction in aid of execution. The defendants in the present case argued that, to the extent that such cases decided that a foreign defendant could be ordered to disclose assets outside the jurisdiction in aid of execution, they were no longer good law following Masri v Consolidated Contractors International (No 4) [2008] UKHL 43. In Masri the House of Lords held that CPR 71.2, which allows a judgment creditor to apply for an order requiring an officer of a corporate judgment debtor to attend court to provide information needed to enforce the judgment, did not have extraterritorial effect; i.e. the court had no jurisdiction to compel a company officer who was outside the court’s jurisdiction to attend court to provide such information.

In the present case, the High Court held that Masri did not prevent the court from granting an order under section 37(1) requiring the defendants to provide disclosure “verified by an affidavit of a proper officer”. The critical distinction was that the defendants in this case were subject to the jurisdiction of the English court, even if all of their “proper officers” were likely to be outside the jurisdiction. Unlike in Masri the court was not asked to make an order against a non-party outside the court’s jurisdiction. Click here to read more about the decision on our arbitration blog.