On 3 October 2018, the French Supreme Court for private and criminal matters (Cour de cassation) ruled that the res judicata of a freezing order issued by a Cyprus court did not prevent French courts from authorizing provisional attachments over the same assets.
A Cyprus company had obtained a worldwide Mareva injunction and a disclosure order from the District Court of Limassol directed against several French companies. The Mareva Injunction covered all assets of the defendants. The plaintiff had also initiated proceedings on the merits in Cyprus.
Several years later, the plaintiff sought provisional attachments (saisie conservatoire) in France on assets which also fell within the ambit of the Mareva injunction. The defendants challenged the order of the French court to authorize the French attachments on the ground that the Cyprus Mareva injunction was res judicata in France and thus prohibited that a French court issue a similar order.
The Cour de cassation rejected the challenge. On the argument related to the Cyprus injunction, it held that (1) the Mareva injunction was res judicata in France, but (2) it did not have the same object as a saisie conservatoire, because the latter acted in rem, whereas the injunction acted in personam.
The Court finally held that it could not identify any doubt with respect to the interpretation of Article 36(1) and 41(1) of the Brussels I bis Regulation, and would thus not refer the case to the CJEU, which suggests that the court considered that it was applying this instrument.
In 2011, the Cour de cassation had already recognised that a Greek decision dismissing an application for a provisional attachment was res judicata in France and thus prevented a French court from allowing the same application. In that case, the Greek and French measures all acted in rem.
Yet, the proposition that two functionally equivalent remedies do not have the same object in the context of the Brussels I bis Regulation is hard to reconcile with the case law of the CJEU on lis pendens which has interpreted broadly the requirement that proceedings have the same object.
Finally, I understand that, unlike English freezing orders, Cyprus Mareva injunctions do not include proviso related to their enforcement through local remedies in foreign countries (Dadourian guidelines).