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Freezing Assets: the Mechanics Behind Cross-Border Injunctions

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Freezing Assets: the Mechanics Behind Cross-Border Injunctions Freezing Assets The mechanics behind cross-border injunctions Virtual Round Table Series Disputes Working Group 2019 Virtual Series | Freezing Assets irglobal.com | page 3 Freezing Assets The mechanics behind cross-border injunctions Many modern organisations, regardless of size, treatment and may be subject to specialised tion on Execution of Preventive Measures, make own assets in multiple locations across the legislation, such as the Mareva Injunction Order it more likely that domestic courts will recognise world. The advent of technology, together with (MIO), which compels a bank to immediately foreign judgments. accessible international markets, means dealing freeze those accounts. If the process of securing multiple cross-border with clients across borders is easier than ever If the debt in dispute is large enough, it may be injunctions via the civil law courts is proving too before. As a result of this trend, businesses may necessary for a creditor to require injunctions to challenging, a creditor may attempt to turn to have money in foreign bank accounts, stock be brought on multiple assets in multiple loca- the criminal courts. If the actions of a debtor in foreign warehouses, or significant tangible tions, which is incredibly complex without the are proven to be criminal (e.g. fraudulent), the assets such as offices, vehicles or land. correct legal advice in each location. Any delay greater powers of law enforcement agencies In the event of a commercial dispute with one of to the process, or erroneous filing, could delay can be put to work. Dovetailing with a criminal those companies, a creditor may find it neces- the process to the extent that assets are no investigation can be a powerful way to reach the sary to freeze some of those assets, in order longer discoverable and, therefore, an injunction intended goal for a creditor. to satisfy a monetary claim against the debtor. is unenforceable. This feature examines the injunction process The cross-border injunctions required to do Any unjustified attempt to freeze assets, will from the perspective of 10 legal experts in the this are notoriously difficult to execute effec- also incur compensation, meaning that not only area of commercial dispute resolution. They tively, due to the intricacies of the various local does the legal process need to be quick, it also detail the process in their jurisdiction, looking at laws of countries in which assets are located. needs to be accurate. To that end, any tools that the injunctions available and the tools used to Extra complexity is added, because of the need can aid discovery of assets are very useful. aid discovery of assets. for accurate discovery, alongside secrecy and The European Union has something called We include expert examination from Austria, speed of execution, in order to prevent a debtor the European Account Preservation Order, Germany, The Netherlands, USA, United dispersing those assets. which allows creditors to freeze debtor bank Kingdom, Cayman Islands, Turkey, Spain, Turks Injunctions are dealt with differently depending accounts in any EU member state. They are & Caicos Islands and the Dominican Republic. on the asset. Real estate assets are often subject useful because they can be processed without Readers with an interest in a particular jurisdic- to specific requirements, such as presenting a the debtor’s awareness. Elsewhere Anton Pillar tion can dip into the content for the specifics court order granting an embargo before the offi- Orders and Norwich Pharmacal Orders are they require. cial register of deeds. This effectively creates a particularly useful in offshore jurisdictions. They lien on the property in question. More mobile allow for the seizure of documentation and the assets, such as vehicles, are easier to hide and forced divulgence of beneficial ownership by are usually dealt with by a court officer, who may third parties, such as banks or internet service be able to physically transfer the assets into the providers, that hold assets for anonymous hands of a guardian. Highly liquid assets, such clients. Networks of treaties between certain as cash in bank accounts, often require special countries, such as the Inter-American Conven- The View from IR Ross Nicholls Each discussion features just one representative Business Development Director per jurisdiction, with the subject matter chosen Our Virtual Series publications bring together a by the steering committee of the relevant working number of the network’s members to discuss a group. The goal is to provide insight into chal- different practice area-related topic. The partic- lenges and opportunities identified by specialist ipants share their expertise and offer a unique practitioners. perspective from the jurisdiction they operate in. We firmly believe the power of a global network This initiative highlights the emphasis we place on comes from sharing ideas and expertise, enabling collaboration within the IR Global community and our members to better serve their clients’ interna- the need for effective knowledge sharing. tional needs. irglobal.com | page 3 Virtual Series | Freezing Assets SPAIN NETHERLANDS AUSTRIA Roger Canals John Wolfs Dr. Klaus Oblin Partner, Arco Abogados Managing Director, Wolfs Partner, OBLIN Rechtsanwälte 34 934 871 020 Advocaten GmbH [email protected] 31 433561570 43 1 505 37 05 Roger has more than 15 years’ experience as [email protected] [email protected] a lawyer. He has developed his career in top John Wolfs, is a thoroughbred entrepreneur and Klaus Oblin specialises in commercial and civil Spanish law firms, providing legal advice to both founder of Wolfs Advocaten. He has worked law-related disputes. He also acts as counsel and Spanish and International companies operating as an attorney for 26 years, initially for leading arbitrator in arbitrations under the rules of bodies in a wide range of areas such as life sciences, firms in Washington DC and Rotterdam, before such as the International Chamber of Commerce retailing, construction, real estate, engineering, founding Wolfs Advocaten in Maastricht 16 years (ICC), the International Arbitral Centre of the chemical industries, automotive and pharma. ago. Austrian Federal Economic Chamber (VIAC), His command of English, French and Italian, Swiss Rules and UNCITRAL. The strategic geographical situation of the city along with Spanish and Catalan, has allowed him of Maastricht as well as his Maastricht roots, He regularly provides advice with regard to to build up a substantial international practice, brought him back to the city. various matters of commercial, contract and managing relevant international clients' interests construction law and the establishment of busi- in Spain, including ongoing legal advice and / John is well known for his creativity, specialist nesses. or managing of court cases and restructuring (sector) knowledge and the top quality service processes on their behalf. he provides. He is direct, proactive, construc- Klaus established OBLIN Rechtsanwaelte in tive and able to analyse situations quickly. He is 2004 and before that he worked for Freshfields also pragmatic. John Wolfs often lectures in the Bruckhaus Deringer and Vienna McDougal Love field of (international) transport and customs law, Eckis Smith & Boehmer. (international) commercial law and insurance law. He is a member of the ICC, International Centre In his private time, John enjoys playing squash for Dispute Resolution (ICDR) Austrian Arbitration and running. He has completed marathons in Association (ArbAut), German Institution of Arbi- New York, San Francisco and Amsterdam. tration (DIS) and the International Bar Associa- tion (IBA). irglobal.com | page 5 ENGLAND TURKS & CAICOS ISLANDS U.S - OHIO Frankie Tierney Stephen Wilson, QC Chris Niekamp Partner, Herrington Carmichael Partner, Graham Thompson Partner, Niekamp Weisensell 44 1276 686 222 1 649 339 4130 Mutersbaugh & Mastrantonio, frankie.tierney@herrington-carmichael. [email protected] LLP com Stephen heads the Litigation & Dispute Reso- 1 234 571 0485 Frankie specialises in commercial and complex lution practice group in the Turks and Caicos [email protected] litigation for both businesses and individuals. Islands (TCI) office. He has appeared in many of the TCI’s recent headline cases involving disputes Chris engages in a diverse Commercial and This includes contract disputes, property owner- in the tourism and hospitality, banking, real estate, Corporate Law practice. ship disputes, commercial landlord and tenant insurance and construction/building sectors. disputes. She also handles intellectual property He has represented national and local banking disputes, professional negligence claims, share- In addition to litigation and dispute resolu- institutions, large corporations and small busi- holder disputes and ‘unfair prejudice’ claims in tion, Stephen works on admiralty and shipping, nesses, debtors and creditors in all phases of the company courts. banking and finance, corporate and commercial, Bankruptcy and Collection matters. intellectual property, employment and labour and In a recent case, Frankie acted successfully for Chris has experience handling large and small property and development matters with members a high end hotel & leisure group in a breach of Chapter 11 cases on behalf of Secured Lenders, of his office and with attorneys at the firm’s other contract/ negligence claim against a leading Debtors, the Creditors’ Committee and the offices. provider which had supplied
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