Chief Justice Spigelman, “Freezing Orders in International Commercial Litigation”

James Spigelman

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The Honourable James Jacob Spigelman, AC (Supreme Court of New South Wales), has published, “Freezing Orders in International Commercial Litigation“, Singapore Academy of Law Journal, Vol. 22, pp. 490-512, 2010.  The abstract reads:

Changes in the economy, in technology and in public policy, notably the easing of exchange controls, have transformed the ease and speed with which assets, particularly liquid assets and records, can be moved and hidden in fulfillment of acts of fraud and corruption. The development of freezing orders (Mareva orders) and search orders (Anton Pillar orders) by common law judges was a practical adaptation to this new challenge, drawing on similar concepts in the civil law.

One application of these orders continues to cause difficulty: the extension of such orders beyond the territorial jurisdiction of the court requested to provide a remedy. This is one of a number of contexts in which cross border issues require new forms of judicial assistance and co-operation. This paper considers the difficulty that has arisen in the making of orders in aid of foreign judicial and arbitral proceedings with respect to assets within the jurisdiction. The paper describes the various ways in which major jurisdictions have addressed this issue, and concludes that an inherent power to make an order in aid of foreign proceedings should be recognised as a common law principle by reason of the significance of reciprocity in the international law of nations. This is one step in reducing the transaction costs that impede mutually beneficial exchange by international trade and investment.

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