Case law Developments in PIL

Worldwide Freezing Injunctions Granted in Common Law Jurisdictions: A Civil Law Perspective

Freezing orders, i.e., orders that prevent a person from disposing of their assets pending a determination as to the existence of a claim, are governed by procedural rules that vary greatly from one legal system to another.

English courts, and more generally the courts of common law jurisdictions, may grant orders that can prove remarkably powerful in practice.

Unlike the freezing injunctions that civil law courts are normally permitted to issue, which operate in rem, English freezing orders are in personam measures. They are not given in respect of one or more assets designated for this purpose,  but rather address the person of the (alleged) debtor. The latter will found themselves in contempt of court, and face the relevant penalties (which may include imprisonment, in some circumstances), if they ignore or breach the order.

How Well Do Freezing Injunctions Travel Abroad?

Injunctions granted in common law countries may aim to prevent the person concerned from disposing of any of their assets, mo matter whether those assets are located in the forum State. The issue arises then of whether a “worldwide” freezing injunction may be given effect in a State other than the State of origin, notably a State whose law ignores in personam precautionary orders.

The enforceability of a foreign worldwide freezing injunction can only be at issue, in reality, where and to the extent to which the law of the State where the assets are located includes interim measures among the foreign decisions that are eligible, in principle, for recognition and enforcement.

Domestic rules on the recognition and enforcement of foreign decisions mostly exclude interim measures from their scope, but some internationally uniform texts provide otherwise, subject to appropriate safeguards. That is the case, in particular, of the Brussels I bis Regulation, pursuant to Article 2(a), which applies to provisional measures originating in a Member State of the Union.

The markedly different approach to freezing orders followed by civil law and common law jurisdictions, respectively, involves that injunctions emanating from a common law country could be denied (recognition and) enforcement in a civil law country on grounds of public policy. Secondly, where a common law injunction is not prevented as such from having effect in a civil law State, the issue may arise of whether, and how, the measure should undergo some adaptation (as the term is understood in Article 54 of the Brussels I bis Regulation) in the State requested, at the stage of enforcement.

The View or the Italian Supreme Court’s on the Issue

A ruling of the Italian Supreme Court (order No 25064, of 16 September 2021) provides an illustration of the kind of concerns that may surround the first of the two issues above (the second issue will not be discussed here).

The Case in a Nutshell

The Supreme Court’s ruling, in reality, only deals with the issue in an indirect way. The question, in fact, was not whether a foreign freezing injunction qualified for enforcement in Italy, but rather whether a foreign judgment on the merits ought to be denied recognition on the ground that, in the course of the proceedings leading to that judgment, a freezing injunction had been granted against the party that eventually lost the case.

By a judgment of 2011, the Royal Court of Guernsey awarded damages to Credit Suisse Trust Ltd for the negligent performance by N.G. and others of their obligations under a contract for professional services (it is worth noting that during the period when the United Kingdom was a Member State of the European Union, Guernsey was neither a Member State nor an Associate Member of the Union; some EU law provisions applied to Guernsey and in Guernsey, but these did not include legislation on judicial cooperation in civil matters, such as the Brussels I Regulation).

Credit Suisse Trust filed an application with the Court of Appeal of Rome to have the judgment enforced in Italy. The Court, however, dismissed the request on the ground that the judgment failed to meet the requirements for recognition set out in Article 64(b) and (g) of the Italian Statute on Private International Law. Article 64(b) provides that a foreign judgment may not be recognized in Italy if the act instituting the proceedings was not served upon the defendant in conformity with the law of the State of origin and if the basic rights of defence (“i diritti essenziali della difesa”) were violated in the proceedings in that State. Article 64(g), for its part, stipulates that a foreign judgment may not be given effect in Italy if doing so would contravene public policy.

The Court of Appeal came to this conclusion based on the fact that, on 26 January 2011, upon a request by Credit Suisse Trust, the Royal Court of Guernsey had granted a freezing order which restrained N.G. from dealing with his assets, whether located in Guernsey or anywhere else in the world, under penalty of contempt of court. The order belonged to the kind of interim measures that English courts used to refer to as Mareva injunctions.

The measure in question, the Court of Appeal noted, was an in personam freezing injunction, whereas, under Italian law, a freezing order cannot operate otherwise than in rem, meaning that it necessarily refers to one or more particular assets, specified in the order itself.

Additionally, the Court of Appeal noted that the Guernsey Court had ordered that the respondent disclose his most valuable assets, and do so within days, again under penalty of contempt, whereas Italian law courts are generally not permitted to impose a duty of disclosure of this kind, let alone one requiring such a prompt reaction, in connection with an asset preservation order. According to the Court of Appeal, the Royal Court of Guernsey had, by granting a freezing injunction with the described characteristics, undermined the ability of N.G. to present his case, and had significantly limited N.G.’s right to deal with his assets.

The result, the Court of Appeal found, was all the more objectionable since the orders of the Royal Court of Guernsey apparently failed to put any burden on the other party in the proceedings and its assets. In the view of the Court of Appeal, all this substantiated a violation of the principle of the equality of arms, as well as of the principle whereby all parties should be given an opportunity to effectively present their case, which implies the right to adequate time and facilities to prepare a defence.

Credit Suisse Trust sought to have the ruling of the Court of Appeal quashed by the Italian Supreme Court. The move proved successful.

The Supreme Court’s Ruling

The Corte di Cassazione held that the fact that the order was of a kind unknown to Italian law does not entail, as such, that the proceedings were unfair, let alone that the resulting judgment should be barred from recognition. The public policy defence, taken in its procedural limb, can only succeed, the Supreme Court reasoned, where it clearly appears that the proceedings before the court of origin were tainted by a serious violation of basic procedural rights.

Thus, a judgment on the substance of the case may not be refused recognition on grounds of public policy for reasons relating to an interim measure given in the course of the proceedings in the State of origin, unless it is established that, by granting such a measure, the court of origin violated the procedural rights of the party concerned in such a fundamental way as to undermine the fairness of the whole proceedings. The Corte di Cassazione, however, found no evidence of such a violation in the circumstances. In fact, the Court considered that the freezing order and the disclosure order came with appropriate safeguards and concluded that the Guernsey judgment fulfilled the conditions for recognition in Italy.

The Supreme Court reached this conclusion based on an analysis of the concerns underlying the common law and the Italian law approach to freezing injunctions.

The Court began by observing that Interim measures, specifically those aimed at preserving assets, are an essential component of all domestic legal systems. They are not meant, as such, to discriminate the alleged debtor vis-à-vis the requesting party. The goal of interim measures is rather to ensure the effectiveness of the decision that the court is ultimately asked to render and avert such risks as may be associated with the time needed to bring the proceedings on the substance to an end.

While the goal pursued is basically common to all legal systems, each jurisdiction surrounds interim measures with the safeguards that it considers appropriate. One should not give a decisive weight to the diversity of these safeguards, the Supreme Court argued, insofar as they all ensure the equality of the parties’ arms.

One key question, then, is whether, in the State of origin, the person affected by the order had been granted “arms” which enabled him to react to the “arms” of the other party. In the case at hand, the Supreme Court noted, the Royal Court of Guernsey had retained the power to revoke and modify the measure upon a request by the alleged debtor, and had the power to require the applicant to enter into such undertakings on such terms as may be specified, notably to compensate such prejudice as the freezing order may cause to the other party. Significantly, the Supreme Court added, a failure to comply with such an undertaking may result in the applicant, too, being in contempt of court, in the same way as the respondent in the event of a failure to observe the freezing or the disclosure orders.

The Supreme Court further observed that the fact that the Guernsey orders involved the threat of harsh penalties in case of non-compliance does not entail that the granting of the measures in question necessarily involve a violation of procedural public policy.

The Court acknowledged that indirect coercive measures raise some delicate issues. It noted, however, that recourse to coercive measures to promote compliance with a court order is not alien to the Italian legal system: Article 388 of the Italian criminal code, for example, makes it a criminal offense to deliberately evade from an order given in court proceedings, and Article 127 of the Italian code on intellectual property goes as far as to criminalize any failure to answer (or any false information in response to) the questions that a court may ask where seized of proceedings relating to counterfeiting and other infringements of intellectual property rights. According to the Supreme Court, this is an indication that the mere fact that the provision of penalties, in common law jurisdictions, for the non-compliance of freezing orders is not in itself a reason to regard such orders as inconsistent with Italian public policy.

A more detailed analysis of the ruling (in English) can be found in a comment which appeared on the open-access journal Italian Review of International and Comparative Law, published by Brill.

A follow-up to this post, by Stefano Ferrero, was published on this blog on 17 March 2o23, under the title “Further Remarks on the Enforceability of Worldwide Freezing Orders in Italy”.

3 comments on “Worldwide Freezing Injunctions Granted in Common Law Jurisdictions: A Civil Law Perspective

  1. Matthias Lehmann

    Many thanks for relaying this fascinating decision! The Corte di cassazione deserves to be commended for its open and realistic view of how the common law operates. In personam injunctions should not be a reason to deny the resulting judgment res judicata effect.

  2. Many thanks indeed, Pietro. The same issues were raised and addressed similarly in France. First, a distinction between the civil nature of the remedy as opposed to the nature of the sanctions was put forward. Second, the injunction itself was found to be compliant with public policy.
    In fact, it seems that the only serious argument is the one raised in Gambazzi. What might be contrary to public policy is a judgment on the merits rendered against a defendant who was debarred from defending because he had not complied with a Mareva injunction, and thus “lost” on the merits on that ground alone.

  3. Adrian Briggs

    To pick up the reference to the case of Gambazzi, if the application is to enforce or otherwise give effect to the Mareva injunction, it is not obvious what a judgment on the merits would actually mean. The court applies a test which seeks to weigh the competing interests of the freezer and the frozen, and if it makes the order, it makes an order which it is always prepared to reconsider, vary, set aside and so forth. I’m not sure where the observation about merits fits in. Avvocato Gambazzi was resisting the enforcement in Italy of a judgment ordering compensation on a fraud claim which he had, through fault of his own, been prevented from defending; it seems that the Mareva/disclosure orders in that case were relevant to his being debarred, but the recognition/enforcement was not about the Mareva order.

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