The
Mareva injunction (variously known also as a
freezing order,
Mareva order or
Mareva regime), in
CommonwealthThe Commonwealth of Nations, often referred to as the Commonwealth and previously as the British Commonwealth, is an intergovernmental organisation of fifty-three independent member states. Most of them were formerly part of the British Empire. They co-operate within a framework of common values...
jurisdictions, is a
court orderAn injunction is an equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the...
which freezes assets so that a
defendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute....
to an
actionA lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant's actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
cannot dissipate their assets from beyond the
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.Alternatively, jurisdiction is the authority given...
of a court so as to frustrate a judgment. It is named for
Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509, decided in 1975, although the first recorded instance of such an order in English jurisprudence was
Nippon Yusen Kaisha v Karageorgis in 1975, decided very shortly before the
Mareva decision; however, in the UK the
Civil Procedure Rules 1998The Civil Procedure Rules 1998 are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales...
now define a Mareva order as a "freezing" order.
The
Mareva injunction (variously known also as a
freezing order,
Mareva order or
Mareva regime), in
CommonwealthThe Commonwealth of Nations, often referred to as the Commonwealth and previously as the British Commonwealth, is an intergovernmental organisation of fifty-three independent member states. Most of them were formerly part of the British Empire. They co-operate within a framework of common values...
jurisdictions, is a
court orderAn injunction is an equitable remedy in the form of a court order, whereby a party is required to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction faces civil or criminal penalties and may have to pay damages or accept sanctions for failing to follow the...
which freezes assets so that a
defendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute....
to an
actionA lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant's actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
cannot dissipate their assets from beyond the
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.Alternatively, jurisdiction is the authority given...
of a court so as to frustrate a judgment. It is named for
Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509, decided in 1975, although the first recorded instance of such an order in English jurisprudence was
Nippon Yusen Kaisha v Karageorgis in 1975, decided very shortly before the
Mareva decision; however, in the UK the
Civil Procedure Rules 1998The Civil Procedure Rules 1998 are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales...
now define a Mareva order as a "freezing" order. 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 processAbuse of process is a common law intentional tort. It is to be distinguished from malicious prosecution, another type of tort that involves misuse of the public right of access to the courts....
.
It is not a security (
Jackson v Sterling Industries Ltd), nor a means to pressure a judgment debtor (
Camdex International Ltd v Bank of Zambia (No. 2)), nor does it confer a proprietary interest in the assets of the judgment debtor (
Cretanor Maritime Co Ltd v Irish Marine Management Ltd). 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 (
Iraqi Ministry of Defence v Arcepey Shipping Co SA), whereas an example of the latter would be hiding the assets in overseas banks on receiving notice of the action.
It is recognised as being quite harsh on defendants because the order is often granted at the pre-trial stage in
ex parteEx parte is a Latin legal term meaning "from one party" .An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In Australian, Canadian, U.K., India, U.S...
hearings, based on
affidavitAn affidavit is a formal sworn statement of fact, signed by the author, who is called the affiant or deponent, and witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public or commissioner of oaths. The name is Medieval Latin for he has declared upon...
evidence alone. A Mareva injunction is often combined with an
Anton Piller orderIn British and British-derived legal systems, an Anton Piller order is a court order that provides the right to search premises and seize evidence without prior warning...
in these circumstances. This can be disastrous for a defendant as 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.
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 (
Ninemia Maritime corporation v Trave Schiffahrtgesellschaft m.b.H und Co.K.G [1983] 1 WLR 1412).
Similar provisions are now required to be available in the rest of Europe, under Article 9(2) of the European Union
Directive on the enforcement of intellectual property rightsDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights is a European Union directive in the field of intellectual property law, made under the internal market provisions of the Treaty of Rome...
, approved in April 2004.