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Asset freezing is a form of interim or interlocutory injunction which prevents a defendant to an action from dealing with or dissipating its assets so as to frustrate a potential judgment. It is widely recognised in other common law jurisdictions[1] 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 process.

Origins in Mareva

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The legal order itself is in the form of an injunction, which in Commonwealth jurisdictions is also known as a freezing order, Mareva injunction, Mareva order or Mareva regime, after the 1975 case Mareva Compania Naviera SA v International Bulkcarriers SA,[2] although the first recorded instance of such an order in English jurisprudence was Nippon Yusen Kaisha v Karageorgis,[3] decided one month before Mareva. The Civil Procedure Rules 1998 now define a Mareva injunction as a "freezing order".

In England and Wales, the jurisdiction to issue an asset freezing order arises in part from the Judicature Act 1873, which provided that "A mandamus or an injunction may be granted or a receiver appointed by an interlocutory Order of the Court in all cases in which it shall appear to the Court to be just or convenient". Relying on this, Jessel MR in 1878 declared, "I have unlimited power to grant an injunction in any case where it would be right or just to do so".[4]

Asset freezing is not a security,[5] nor a means to pressure a judgment debtor,[6] nor is it a type of asset forfeiture since it does not confer upon anyone else a proprietary interest in the defendant's assets.[7] 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,[8] whereas an example of the latter would be hiding the assets in overseas banks on receiving notice of the action.

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.[9] It is recognised as being quite harsh on defendants because the order is often granted at the pre-trial stage in ex parte hearings, based on affidavit evidence alone.

To prevent potential injustice and abuse of the court's powers in an ex parte proceeding, moving parties are required to provide full and frank disclosure at such proceeding.[10] The moving party must make a balanced presentation of the facts and law, including all relevant facts and law which may explain the respondent's position if known to the moving party, even if such facts would not have changed the court's decision.[10] If the court is misled on a material fact, or if there is less than full and frank disclosure, the court will typically not continue the injunction.[10]

A Mareva injunction is often combined with an Anton Piller order 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, and the two orders have been described by Lord Donaldson as being the law's "nuclear weapons".[11][12][self-published source?]

A motion for Mareva injunction is also frequently brought together with a Norwich Pharmacal order, or more commonly known as a tracing order. A Norwich Pharmacal order is form of pre-action discovery that allows an aggrieved party to trace otherwise hidden or dissipated assets, with a view to their preservation.

Application

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While it is not advisable to obtain such an order on purely strategic grounds,[13] asset freezing has a persuasive effect on settlement negotiations.[14] While a claimant obtaining an order can expect to face subsequent opposition in court from the defendant, the freezing order is generally considered to be the beginning of the end for the defendant as they will be unable to defend themselves with very limited or no available income. The claimant will have no restrictions on legal fee spending, putting huge financial pressure on the defendant,[15][16] and negotiation and settlement avoid the return to court.[16]

In many jurisdictions, freezing injunctions brought ex parte are only granted for a very short period, usually a few days. At the end of this period, the moving party is required to return to court to justify the continuance of the injunction, this time with notice to the opposing party, so as to allow the latter a chance to contest the injunction on its merits.[17]

Current orders issued by the court do not generally call for a blanket freezing of assets, and they are currently worded in more nuanced terms according to the situation concerned.[16]

The process is regarded as a high-stakes exercise for several reasons:[18]

  1. The application is almost always made without notice, to prevent the fraudster defendant from spiriting away their assets before the freezing order is granted. Applicant's counsel is therefore required to make full and frank disclosure of all material facts, and the applicable law, to the court.
  2. As with most injunctions, the applicant must provide an undertaking to the court to compensate the defendant for any damage caused by the order.
  3. A freezing order that is improperly or sloppily obtained, or one that is drafted too broadly or imprecisely, will cost the party, and its counsel, heavily in terms of credibility with the court.

Extension to EU

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Similar provision can be found in the exercise of:

It has been extended to other members of the European Union, by virtue of Article 9(2) of the Directive on the enforcement of intellectual property rights.[22] Since January 2017, a uniform European Account Preservation Order has been implemented in all EU member states (other than Denmark and the United Kingdom).[23]

United States

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Mareva was rejected by the Supreme Court of the United States in 1999 in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.[24] For the majority, Justice Scalia held that, as such jurisdiction did not exist at the time of the passage of the Judiciary Act of 1789, the federal courts had no authority to exercise it. In dissent, Justice Ginsburg asserted that the federal courts' exercise of its equity jurisdiction was never that static. While Grupo Mexicano is consistent with other Supreme Court jurisprudence in the matter of preliminary injunctions,[25] there has been debate as to whether this decision should be reversed.[26]

At the state level, the New York Court of Appeals reached a similar conclusion to that of the Supreme Court in 2000, in Credit Agricole v. Rossiyskiy.[27]

In place of Mareva, US civil jurisprudence relies more on prejudgment writs of attachment,[28] preliminary injunctions and temporary restraining orders,[29] which have a more limited scope of application.[30]

Nature of order

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Although it is mistakenly believed that a freezing injunction provides security over the defendant's assets for a possible judgment, or secures a judgment already obtained, Lord Donaldson MR explained in Polly Peck International Plc v Nadir that such is not the case:[31]

So far as it lies in their power, the courts will not permit the course of justice to be frustrated by a defendant taking action, the purpose of which is to render nugatory or less effective any judgment or order which the plaintiff may thereafter obtain.

  1. It is not the purpose of a Mareva injunction to prevent a defendant acting as he would have acted in the absence of a claim against him. Whilst a defendant who is a natural person can and should be enjoined from indulging in a spending spree undertaken with the intention of dissipating or reducing his assets before the day of judgment, he cannot be required to reduce his ordinary standard of living with a view to putting by sums to satisfy a judgment which may or may not be given in the future. Equally no defendant, whether a natural or a juridical person, can be enjoined in terms which will prevent him from carrying on his business in the ordinary way or from meeting his debts or other obligations as they come due prior to judgment being given in the action.
  2. Justice requires that defendants be free to incur and discharge obligations in respect of professional advice and assistance in resisting the plaintiff's claims.
  3. It is not the purpose of a Mareva injunction to render the plaintiff a secured creditor, although this may be the result if the defendant offers a third party guarantee or bond in order to avoid such an injunction being imposed.
  4. The approach called for by the decision in American Cyanamid Co v Ethicon Ltd[32] has, as such, no application to the grant or refusal of Mareva injunctions which proceed on principles which are quite different from those applicable to other interlocutory injunctions.

In 2007, Lord Bingham declared:

Mareva (or freezing) injunctions were from the beginning, and continue to be, granted for an important but limited purpose: to prevent a defendant dissipating his assets with the intention or effect of frustrating enforcement of a prospective judgment. They are not a proprietary remedy. They are not granted to give a claimant advance security for his claim, although they may have that effect. They are not an end in themselves. They are a supplementary remedy, granted to protect the efficacy of court proceedings, domestic or foreign.[33]

Current scope

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In Group Seven,[34] Hildyard J outlined the current scope of freezing orders that can be issued by the Court:

  1. It is designed to prevent injustice to a successful claimant by preserving assets and funds from being disposed of or dissipated before a judgment is satisfied.
  2. "His assets" refers to "assets belonging to that person, not to assets belonging to another person" and without words clearly extending the scope of the phrase "his assets", assets owned beneficially by someone else will not be subject to the freezing order.
  3. A freezing order is a precautionary measure taken urgently to protect the claimant against the risk of dissipation, disposal, reduction in value, or loss of assets pending a fuller examination as to what assets would in reality be available to the claimant for the purposes of enforcing a judgment.
  4. If the words are ambiguous, or admit of a more restrictive interpretation, so that it is arguable whether or not the assets in question fall within their scope, the court is unlikely to treat a dealing with such assets as a contempt of court.
  5. "Assets" also covers assets which are not in the legal ownership of the defendant but in respect of which the defendant "retains the power to direct how the assets should be dealt with."
  6. The phrase "his assets" is extended to include also "assets held by a foreign trust or a Liechtenstein Anstalt[35] when the defendant retains beneficial ownership or effective control of the asset."
  7. It is clear that those words in the standard form do not extend to assets of which the defendant remains the legal owner but holds for the benefit of someone else.
  8. If it is desired and found appropriate to extend the scope of the injunction to assets held in trust (in the case of a façade or sham), additional wording must be included to make that clear, and the Court will only do this sparingly.
  9. As to piercing or lifting the corporate veil, ownership and control of a company are not themselves sufficient to provide justification for that course, even when no unconnected third party is involved and it might be perceived that the interests of justice would be served by it.
  10. Even where the circumstances are such as to justify the exceptional step of piercing or lifting the corporate veil, the effect is not to alter the beneficial ownership of the company's assets: it is simply to provide for such asset to be available in defined circumstances to the claimant.

In 2014, Lakatamia[36] emphasized that the assets of a company wholly owned by a person subject to a freezing order are not automatically subject to the order. In that case, Rimer J noted:

The owner is of course able to control the destiny of the company's assets. But that does not make them his assets... First, [the order] is still only concerned with dispositions of assets belonging beneficially to the defendant, which these assets do not. Secondly, Mr Su has no authority to instruct the companies how to deal with their assets. All he has is the power, as an agent of the company, to procure the company to make dispositions of its assets. Such dispositions, when made, are made in consequence of decisions made by the organs of the company. They are not dispositions made by the company in compliance with instructions from Mr Su. That may seem to be a somewhat formal distinction. But it is a valid one: only the companies have authority to deal with and dispose of their assets.[37]

However, the person's shares in the company are subject to it, and any conduct by him (not in the course of ordinary business) that diminishes the value of those shares will infringe that order.[38]

Chabra relief

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Subsequent jurisprudence[39] has extended the reach of freezing orders to third parties against whom there is no substantive cause of action, but where there is good reason to suppose that their assets may in truth be the assets of the defendant against whom a cause of action is asserted. This type of order is known as Chabra relief, and has been described as possessing certain characteristics:[40]

  1. It may be exercised where there is good reason to suppose that assets held in the name of a defendant against whom the claimant asserts no cause of action (the NCAD) would be amenable to some process, ultimately enforceable by the courts, by which the assets would be available to satisfy a judgment against a defendant whom the claimant asserts to be liable upon his substantive claim (the CAD).
  2. The test of "good reason to suppose" is that of a good arguable case.
  3. The jurisdiction will be exercised where it is just and convenient to do so.
  4. Assets will be treated as in truth the assets of the CAD if they are held as nominee or trustee for it as the ultimate beneficial owner.
  5. Substantial control by the CAD over the assets in the name of the NCAD is often a relevant consideration, but substantial control is not the test for the existence and exercise of the Chabra jurisdiction. It is relevant where there is a question of beneficial ownership, and where there is a real risk that assets may be dissipated in the absence of a freezing order.

Available alternatives

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Depending on the circumstances, alternative types of orders may be more attractive to an applicant:[41]

  1. orders preserving property or securing a specified fund (where the balance of convenience favours making such an order),
  2. a proprietary injunction (i.e., one that covers a specific asset or assets, as opposed to the defendant's assets in general),
  3. the appointment of a receiver to hold assets of the defendant (where the injunction is insufficient on its own and where there is a measurable risk that a defendant will act in breach of the injunction), or
  4. the appointment of a provisional liquidator (where the applicant is likely to obtain a winding-up order on the hearing of the petition).

A "third party debt order" (which consists of an interim freezing order and a final order requiring the third party to pay the debt to the judgment creditor) is available to secure payment of County Court judgments.[42]

Extrajudicial application: "Mareva by letter"

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Informal de facto freezing may also be undertaken in most common law jurisdictions by a third-party guardian or assetholder, where he has been informed that those assets are imposed with a constructive trust in favour of someone other than the apparent owner. The freeze may be effected by issuing a letter to the asset holder or guardian in question, informing them of the true origin or beneficial ownership of the targeted funds or assets, and advising them of their potential accessory civil and possible criminal liability in the event of any transfer or disposal of the assets in question. Such devices may be employed in cases where a victim of fraud suspects that targeted funds or assets may be transferred to another location where it might be impractical to gain access to them. However, the use of this technique within the United States is not generally accepted.[43]

Further reading

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See also

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References

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Revisions and contributorsEdit on WikipediaRead on Wikipedia

Asset freezing

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from Grokipedia
Asset freezing is a legal procedure imposed by courts or governmental authorities that temporarily restricts an individual, entity, or government from accessing, transferring, altering, or disposing of specified financial or other assets, such as bank accounts, , or economic resources, without necessarily seizing . This measure preserves the assets' availability pending resolution of legal proceedings or enforcement of sanctions, distinguishing it from outright . Asset freezing serves multiple critical purposes across legal domains. In the realm of , it targets individuals, groups, or entities designated for activities threatening global security, such as , weapons proliferation, or violations, by denying them the means to fund such actions. For instance, under resolutions, member states must freeze assets owned or controlled by listed parties, including indirect holdings like joint accounts or proceeds from criminal activities. Similarly, the implements asset freezes through its , blocking funds of those linked to threats like the or breaches of democratic norms, often aligning with UN mandates. In the United States, the Office of Foreign Assets Control (OFAC) enforces blocking orders that prohibit any dealings with blocked property, requiring reporting within 10 business days and applying to U.S. persons worldwide. Within domestic systems, asset freezing prevents the dissipation of crime proceeds, enabling eventual and disrupting or . law, for example, facilitates mutual recognition of freezing orders across member states (excluding and ) under Regulation (EU) 2018/1805, which complements Directive 2014/42/ on , ensuring swift action with safeguards from the Charter of Fundamental Rights. In civil litigation, freezing orders—known as Mareva injunctions in jurisdictions like —restrain defendants from removing assets to ensure they remain available to satisfy potential judgments, often issued to prevent evasion. Affected parties retain certain rights, including challenges to listings or rectification of underlying data, though exemptions for may apply in sanctions contexts. Breaches can result in severe penalties, underscoring the measure's role in upholding legal and financial integrity globally.

Definition and Purpose

Core Concept

Asset freezing is a legal mechanism that imposes a temporary restriction on an individual's or entity's access to, use of, or transfer of their assets, primarily to prevent the dissipation or concealment of those assets during ongoing litigation or criminal investigations. This provisional measure allows the asset owner to retain legal and possession but prohibits dealings that could undermine potential judgments or actions. It is typically granted as an interim or order by a or, in some cases, through administrative sanctions, requiring the applicant to demonstrate a good arguable case on the underlying claim. Key characteristics of asset freezing include its non-possessory nature, where the assets remain under the owner's control except for the imposed restrictions on disposal or transfer, distinguishing it from more invasive remedies. Its provisional status ensures it is not a final but a safeguard pending resolution of the dispute, often worldwide in scope for high-value cases to capture assets across jurisdictions. The requirement for a good arguable case serves as a threshold to balance the severity of the order against the respondent's rights, ensuring it is not issued lightly. Asset freezing differs from asset seizure, which involves the physical taking of control or forfeiture of by authorities, often leading to permanent loss of title, whereas freezing merely halts transactions without assuming ownership. It also contrasts with attachment, a remedy that places a specific on designated assets to secure a , typically targeting particular rather than broadly restraining dealings with all assets. In systems, this mechanism is exemplified by the Mareva , a judicial freezing order aimed at preserving assets in civil disputes. Common examples include court-ordered freezes on bank accounts to block withdrawals in litigation, restrictions on sales during proceedings, or prohibitions on transferring shares in commercial disputes, all designed to maintain the status quo until a final ruling. Asset freezing serves several primary legal objectives, including securing potential judgments by preventing defendants from dissipating assets that could otherwise frustrate , deterring the transfer or concealment of in anticipation of liability, facilitating cross-border where assets may be moved internationally to evade domestic courts, and supporting investigations by preserving and resources in criminal or regulatory proceedings, including tax claims enforced by government agencies such as the Internal Revenue Service (IRS) through levies that freeze bank accounts for unpaid taxes, as well as debt enforcement to collect outstanding obligations. These mechanisms apply broadly, including to high-profile individuals in cases involving legal disputes, lawsuits, tax evasion, criminal proceedings, or debt collection. In civil litigation, these orders play a crucial role in preserving the , ensuring that claimants can recover or remedies without the risk of asset depletion during ongoing disputes. Beyond civil contexts, asset freezing extends to non-litigious applications such as countering , enforcing , and combating , often pursuant to United Nations Security Council resolutions that mandate states to freeze funds linked to terrorist activities or proliferation. For instance, under UN Security Council Resolution 1373 (2001), member states are required to freeze assets to prevent their use in supporting , thereby protecting national and . Similarly, in sanctions enforcement, mechanisms like those administered by the U.S. (OFAC) block property to deter prohibited conduct and deny resources to targeted entities, while anti-money laundering frameworks prohibit the use of designated funds to disrupt illicit financial flows. These objectives are subject to a balancing test emphasizing proportionality, particularly under law such as Article 1 of Protocol No. 1 to the (ECHR), which protects the right to peaceful enjoyment of possessions and requires that any interference, including asset freezing, pursue a legitimate aim and not impose an excessive burden on the rights holder. The has held that freezing measures must be necessary in a democratic society and proportionate to the pursued goal, such as preventing asset dissipation, with courts assessing factors like the duration of the freeze and availability of to avoid violations of property rights. This framework ensures that while asset freezing effectively safeguards legal processes, it remains compatible with fundamental protections against arbitrary deprivation of property.

Historical Origins

Mareva Injunction in Common Law

Prior to the development of the Mareva injunction, English provided limited remedies for asset freezing, primarily through foreign attachment orders or equitable , both of which were constrained by strict jurisdictional requirements that necessitated the assets to be located within and a proprietary claim to be established. These mechanisms often proved inadequate in commercial disputes involving foreign parties or movable assets, as courts lacked the power to restrain dealings with property outside the or to act preventively without an accrued . The foundational remedy emerged in the landmark case of Mareva Compania Naviera SA v International Bulkcarriers SA 2 Lloyd's Rep 509, decided by the Court of Appeal. In this dispute, Greek shipowners sought unpaid hire and damages from Lebanese charterers who had received funds in a bank but risked dissipating them abroad. The Court of Appeal, led by Lord Denning MR, granted an injunction freezing the defendants' worldwide assets, marking the first recognition of such a broad interim order to preserve assets pending trial. This decision overcame prior limitations by invoking the court's inherent equitable under the Supreme Court of Judicature (Consolidation) Act 1925, s 45(1), which empowered injunctions where "just or convenient." The Mareva injunction established core principles that remain central to its application: the applicant must demonstrate a good arguable case on the merits, a real risk that the will dissipate assets to frustrate enforcement, and, for applications, full and frank disclosure of all material facts to the court. These criteria ensure the remedy's use is proportionate and justified, balancing against the 's property rights, with the injunction operating to bind the personally rather than attaching specific assets. The doctrine evolved through subsequent case law and statutory reinforcement, with section 37 of the Senior Courts Act 1981 codifying the High Court's power to grant such injunctions "in all cases in which it appears to the court to be just or convenient," explicitly extending to worldwide assets and confirming the pre-existing authority. A significant expansion occurred with the Chabra jurisdiction, originating in TSB Private Bank International SA v Chabra 1 WLR 231, which permitted freezing orders against non-parties (such as companies controlled by the defendant) where there was no direct against them but a strong arguable case that their assets represented the defendant's and were at risk of dissipation. This development enhanced the injunction's effectiveness in complex structures aimed at shielding assets.

Early Extensions to Other Jurisdictions

The principles of the Mareva injunction, originating in English , began to extend to other jurisdictions in the late , adapting to local legal frameworks while addressing the need to prevent asset dissipation in cross-border disputes. In , the affirmed the availability of Mareva injunctions, including those with worldwide effect, in Jackson v Sterling Industries Ltd (1987), where it upheld the Federal Court's jurisdiction under section 23 of the Act 1976 to restrain asset disposal but struck down orders that effectively created security interests beyond mere preservation. This decision marked a key step in broadening the remedy's scope, allowing Australian courts to freeze assets globally to protect plaintiffs from judgment-proofing tactics. Canadian courts similarly embraced the Mareva injunction in Chitel v Rothbart (1982), with the Ontario Court of Appeal establishing five prerequisites for its grant: a strong case, evidence of assets at risk of dissipation, balance of convenience favoring the applicant, an undertaking as to , and—most stringently—full and frank disclosure by the applicant of all material facts, which exceeded the UK's emphasis on candor to safeguard against abuse. This framework, derived from English precedents, enabled Canadian courts to issue freezing orders over assets within and outside the , though initially requiring a connection to provincial assets. The Mareva concept also influenced other Commonwealth nations, such as and , where courts adapted it to existing procedural rules rather than adopting it verbatim. In , principles akin to Mareva were incorporated through Order XXXVIII Rule 5 of the Code of (1908), permitting pre-judgment attachment of property if there is to believe the might dispose of assets to obstruct execution of a , effectively freezing them to preserve the suit's . In , as a jurisdiction, courts integrated Mareva injunctions into by the 1980s, granting them under inherent equitable powers to restrain asset dealings, often in commercial litigation, while aligning with local rules on interim relief. Early extensions faced significant challenges, including conflicts with principles of local sovereignty, as foreign courts were reluctant to enforce extraterritorial orders without reciprocal arrangements, and practical enforcement difficulties in a pre-globalization era lacking unified international mechanisms for asset tracing and compliance. These hurdles often limited the injunctions' effectiveness to domestic assets, prompting cautious judicial application to avoid overreach.

Types of Freezing Orders

Judicial Freezing Orders

Judicial freezing orders, also known as freezing s or Mareva orders, are court-issued interim remedies designed to preserve a 's assets during litigation by prohibiting their disposal or dissipation, ensuring they remain available for potential judgment enforcement. These orders are typically granted in civil proceedings where there is a risk that the defendant might remove or diminish assets to frustrate the claimant's recovery. The Mareva injunction serves as the archetype for such orders in jurisdictions. Freezing orders can be classified by their geographic scope and procedural nature. Domestic orders restrict dealings with assets located within the issuing , such as or , to maintain control over local property. In contrast, worldwide orders extend to assets anywhere globally, often requiring evidence of the defendant's connections to the and may include provisions for foreign enforcement, as seen in cases like Severstal Export GmbH v Bhushan Steel Ltd NSWSC 63. Procedurally, applications are common for urgency, allowing the order to be obtained without notice to the to prevent preemptive asset movement, but they are temporary and lead to an inter partes hearing within 7-14 days where the can challenge the order. Inter partes applications involve both parties from the outset and are used when there is less immediate risk. Courts grant freezing orders only upon meeting stringent criteria to balance the parties' interests. The applicant must demonstrate a good arguable case or serious issue to be tried on the merits of the underlying claim. A real risk of dissipation is essential, requiring solid evidence—beyond mere —that the defendant is likely to unjustifiably remove or diminish assets, such as through past fraudulent conduct, as in Patterson v BTR Engineering (Aust) Pty Ltd (1989) 18 NSWLR 319. The balance of convenience must favor the order, weighing the potential harm to the claimant from asset loss against any prejudice to the , ensuring it is just and convenient under principles from Ninemia Maritime Corp v Trave Schiffahrts GmbH & Co KG 1 WLR 1412. Additionally, the order must not cause undue hardship, often by excluding reasonable living expenses, legal costs, and business needs, with the applicant typically providing a cross-undertaking in to cover any losses if the order proves unjustified. In applications, applicants bear a heightened of full and frank disclosure, presenting all facts, including those unfavorable to their case, to enable fair judicial assessment. Failure to disclose can result in severe consequences, such as immediate discharge of the order, as established in Thomas A Edison Ltd v Bullock () 15 CLR 679, or even proceedings if deliberate. Courts emphasize this obligation to mitigate the risks of without-notice proceedings, with non-disclosure often leading to set-aside applications at the return hearing. These orders find frequent application in various disputes to safeguard assets. In commercial litigation, they preserve funds in or recovery cases, such as disputes over sales where risks arise from ongoing operations. cases commonly invoke them to freeze proceeds from scams or , exemplified by their use against unknown persons in thefts to trace and secure digital assets. In , particularly matrimonial proceedings, freezing orders protect shared assets during , preventing one from transferring or funds to evade division, as in MTH v Croft NSWSC 986 where transfers to related parties were restrained.

Extrajudicial and Sanctions-Based Orders

Extrajudicial asset freezing refers to administrative measures imposed by governments or international bodies without prior , primarily through sanctions regimes to address threats to international peace, security, or objectives. These orders differ from court-issued injunctions by relying on executive authority and are often implemented swiftly to prevent asset dissipation. A key mechanism is the Security Council's use of Chapter VII of the UN Charter, which empowers the Council to impose non-military measures under Article 41, including targeted financial sanctions like asset freezes, to respond to threats such as . For instance, Resolution 1267 (1999) established a sanctions regime against Al-Qaida and associated entities, mandating member states to freeze funds and economic resources. Similarly, Resolution 1373 (2001) requires states to freeze assets of persons financing terrorist acts, with the Council designating targets through committees that maintain lists like the ISIL (Da'esh) & Al-Qaida Sanctions List. In the United States, the Office of Foreign Assets Control (OFAC) administers such freezes by designating individuals, entities, or governments as Specially Designated Nationals (SDNs) on its list, blocking all property and interests in property under U.S. without prior notice to the designee. Upon identification of a blocked transaction, financial institutions must freeze the assets, report to OFAC within 10 business days, and hold them in interest-bearing accounts, prohibiting any dealings except those authorized by license. This applies to a broad scope, including financial accounts, , vessels, and contingent interests. The employs comparable regimes under Council Regulation (EU) No 269/2014, where the Council designates targets linked to actions undermining Ukraine's , imposing asset freezes and prohibitions on providing funds or economic resources, enforced by member states without judicial involvement at the designation stage. Targets encompass individuals, companies, and entities, with freezes covering bank accounts, securities, and other assets worldwide if held by EU persons or in EU territory. Post-2022, sanctions against have significantly expanded these measures in response to its invasion of . The immobilized approximately €210 billion in assets of the by February 2022, with subsequent packages adding asset freezes on over 2,500 individuals and entities as of 2025, including a ban on crypto-asset services to Russian nationals (expanded from an initial €10,000 threshold in 2022 to a full ). The 19th sanctions package, adopted on October 23, 2025, further added 69 individuals and numerous entities to the asset freeze lists while targeting crypto providers and stablecoins to curb evasion. In 2024, the and adapted frameworks to utilize extraordinary revenues from these frozen assets—estimated at $300–$330 billion globally—for a $50 billion loan to , marking a novel use of windfall profits without outright seizure. The U.S. OFAC has similarly designated , vessels, and crypto facilitators, freezing billions in related assets.

Procedures for Obtaining and Enforcing

Application Process

The application process for a judicial freezing order, such as a Mareva injunction in jurisdictions like , begins with the claimant filing an application notice accompanied by a detailed or . This evidence must demonstrate a good arguable case on the underlying claim, a real risk that the defendant will dissipate assets to frustrate enforcement of a potential judgment, and that the balance of convenience favors granting the order. The application is governed by the (CPR), particularly Part 25 for interim remedies (as amended effective April 6, 2025, via The Civil Procedure (Amendment) Rules 2025), and is typically lodged with the ; new model orders for freezing injunctions were published on February 13, 2025. Urgency plays a central role, allowing for ex parte applications without notice to the when there is a of immediate asset dissipation; such hearings can occur the same day or within hours, with an granted pending a full inter partes hearing. In non-emergency cases, applications proceed on notice, with hearings scheduled within weeks depending on court availability. Regardless of the approach, the applicant must provide a cross-undertaking in , committing to compensate the for any losses if the order is later discharged as unjustified. Jurisdictional requirements mandate a sufficient connection to the forum, such as the presence of assets within the or the defendant's domicile or submission to the court's authority; for worldwide freezing orders, additional factors like enforceability under international conventions must be addressed. For administrative or sanctions-based freezing orders, such as those imposed by the U.S. (OFAC), there is no private application process; instead, financial institutions must identify and block assets upon matching sanctioned parties, reporting blocked transactions to OFAC within 10 business days under 31 CFR §§ 501.603 and 501.604, with initial reports filed electronically via the OFAC Reporting System (ORS) as required since August 8, 2024. The (FinCEN) supports this through mandatory Suspicious Activity Reports (SARs) filed by institutions for transactions indicative of or sanctions evasion, due no later than 30 calendar days after initial detection, which can trigger regulatory investigations potentially leading to OFAC blocks. These reports do not directly initiate freezes but provide for government action, often resulting in asset blocking within days of confirmation. Recordkeeping for such transactions was extended to 10 years effective March 21, 2025.

Implementation and Compliance Requirements

Once a freezing order is granted, enforcement begins with the prompt service of the order on the respondent (the party whose assets are targeted) and, where applicable, notification to relevant third parties such as banks or financial institutions holding the assets. In jurisdictions like , service typically occurs immediately after issuance, often accompanied by the supporting application documents and a penal notice warning of consequences for non-compliance. Notification to third parties is crucial to effectuate the freeze, as the order binds them upon receipt, requiring them to refrain from dealing with the specified assets and, in many cases, to provide on assets held for the respondent. Failure to serve or notify properly can undermine the order's effectiveness, potentially leading to its discharge if prejudice results to the respondent. Compliance requirements impose strict duties on both the respondent and third parties to ensure the order's integrity. The respondent is generally obligated to file an disclosing the nature, value, and location of their assets worldwide within a specified period, often 48 hours, and to provide ongoing updates on any changes; this disclosure aids in monitoring and prevents . Third parties, upon notification, must immediately freeze the relevant assets, cease any transactions involving them, and disclose details of holdings or dealings to the claimant or , with banks particularly required to implement internal controls to identify and segregate frozen accounts. The claimant, as the freezing party, bears responsibility for policing compliance by notifying appropriate third parties and reporting any suspected breaches to the , often through periodic affidavits or applications for variation. Breaches of these requirements carry severe penalties to deter non-compliance and uphold the court's authority. In jurisdictions such as the and , willful violation by the respondent or a notified third party constitutes , punishable by fines, sequestration of assets, , or adverse inferences in the underlying proceedings. For instance, banks failing to freeze assets after notification risk unlimited fines or officer , emphasizing the need for diligent internal verification processes. These sanctions apply equally to indirect assistance in dissipation, such as transferring funds post-notification. For cross-border enforcement, international cooperation mechanisms facilitate the implementation of freezing orders involving foreign assets. In civil matters, are commonly used to seek assistance from foreign courts to notify and enforce the order locally, particularly under systems deriving from the Mareva injunction. In criminal or sanctions contexts, Mutual Legal Assistance (MLATs) enable formal requests for asset freezing, with the , for example, using MLATs to coordinate with treaty partners for provisional measures like freezes during investigations. These tools ensure extraterritorial effect but require reciprocity and compliance with the requested jurisdiction's laws, often involving central authorities for transmission. Monitoring of freezing orders typically extends until the underlying dispute is resolved, such as through , settlement, or satisfaction of the , with the retaining to extend, vary, or discharge the order based on changed circumstances. During this period, claimants must demonstrate ongoing need, often via return date hearings shortly after issuance, while respondents can seek early variation if the freeze causes undue hardship. This interim nature preserves assets for potential enforcement without indefinite restraint.

Scope and Limitations

Assets Covered

Asset freezing orders typically encompass a broad range of tangible assets, including and , which are subject to to prevent dissipation. These physical properties can be frozen domestically or, in certain cases, worldwide, though enforcement may require coordination with local authorities. Intangible assets form a significant portion of those covered by freezing orders, such as bank accounts, shares in private and public companies, bonds, financial instruments, rights, and goodwill in businesses. Emerging digital assets like cryptocurrencies and non-fungible tokens (NFTs) have been recognized as subject to freezing since the , with courts adapting traditional principles to address their unique and volatility. The geographical scope of asset freezing depends on the type of order issued: domestic orders apply only to assets within the , while worldwide freezing orders can extend to assets located abroad, though their effectiveness is limited by private principles requiring a sufficient connecting link between the assets and the forum court. Challenges arise with foreign assets due to jurisdictional barriers and the need for ancillary proceedings in other countries to enforce the order. Courts assess the value of assets targeted for freezing to ensure proportionality, often limiting the order to the amount of the underlying claim plus costs and through a "maximum sum order" to avoid overreach. This valuation process involves evaluating the respondent's disclosed assets against the claim's worth, with orders sometimes specifying particular assets if their value meets or exceeds the required sum. Certain exceptions, such as assets necessary for basic living expenses, may be carved out from the freeze, as detailed in related legal provisions.

Exceptions and Alternatives

Exceptions to asset freezing orders typically allow for reasonable living expenses, legal fees, and pre-existing secured interests to ensure the orders do not unduly restrict basic necessities or legitimate third-party rights. In jurisdictions, standard freezing injunctions, such as Mareva orders, include carve-outs permitting the respondent to access funds for ordinary living costs, often capped at a specified monthly amount determined by the court based on the respondent's circumstances. Similarly, reasonable legal expenses for defending the underlying proceedings are exempted, with courts assessing the necessity and proportionality of such costs to avoid funding frivolous litigation. Pre-existing secured interests, such as those held by creditors with prior charges over the assets, are generally unaffected by the freezing order, preserving the priority of established security without converting the injunction into a proprietary remedy. In the context of sanctions-based asset freezes, humanitarian waivers provide additional exceptions, enabling access to frozen funds for essential needs like food, medicine, or aid delivery, as outlined in 2664, which applies a standing carve-out across UN sanctions regimes to facilitate humanitarian activities without prior approval. Alternatives to full asset freezing orders include disclosure-focused remedies like Norwich Pharmacal orders, which compel third parties to reveal information about assets or transactions, aiding in tracing without immediately restricting dealings. These orders are particularly useful when the location or nature of assets is unknown, serving as a preliminary step to identify targets for potential future freezes. Search orders, known as Anton Piller orders, authorize the entry and search of premises to seize evidence or documents related to asset dissipation, preserving proof of wrongdoing as an alternative to mere financial restraint. offers another option by appointing an independent party to manage and control assets, providing oversight and preventing misuse while allowing limited operations to continue, often used when freezing alone risks business collapse. Chabra relief extends freezing jurisdiction to third-party assets where there is a good arguable case that they beneficially belong to the defendant, named after the case TSB Private Bank International SA v Chabra, enabling courts to restrain such holdings to prevent evasion without a direct claim against the third party. A key limitation on asset freezing orders is the principle of proportionality, which requires courts to balance the risk of dissipation against potential violations of , ensuring the scope of the freeze is no broader than necessary to secure the claimant's interests. This assessment prevents excessive hardship, such as freezing core assets essential for the respondent's livelihood, and aligns with human rights standards under frameworks like the .

Effects and Challenges

Impacts on Affected Parties

Asset freezing orders impose severe liquidity constraints on defendants by prohibiting access to bank accounts, investments, and other assets, often preventing them from paying mortgages, salaries, or even basic living expenses without court approval. This restriction can halt business operations entirely, as frozen funds lock up payroll and operational capital, potentially leading to temporary or permanent closure of enterprises. Additionally, the public nature of such orders inflicts reputational harm, damaging defendants' personal and professional standing through media coverage and the stigma of alleged wrongdoing. Defendants also face the risk of wrongful freezing, where assets are restrained without sufficient basis, exacerbating financial distress if the order is later discharged. For claimants, freezing orders provide essential by preserving disputed assets pending resolution, ensuring potential recovery of judgments. However, claimants must furnish a cross-undertaking in , committing to compensate defendants and affected third parties for losses if the order proves unjustified, which can result in substantial financial liability. may require claimants to post , such as funds into court or disclosure of assets, to back this undertaking, adding to the costs of obtaining and maintaining the order. Third parties, including banks and co-owners, encounter significant compliance burdens when implementing freezing orders, as financial institutions must swiftly identify, monitor, and restrict targeted assets to avoid severe penalties for non-compliance. Innocent assets, such as those in joint accounts held with non-targeted individuals like spouses, can be inadvertently frozen, disrupting access to shared funds and imposing undue hardship on unaffected parties. In sanctions contexts, these burdens may prompt international banks to curtail operations in affected jurisdictions altogether, amplifying economic isolation. On a broader scale, asset freezing through serves as a key tool in to pressure targeted regimes, as evidenced by measures against following its 2022 invasion of , which froze over $300 billion in reserves held abroad. These actions have disrupted global trade, particularly in the sector, where phased bans on imports of Russian and gas starting in 2022 drove up prices and forced supply shifts to markets like and , straining import-dependent economies. By 2025, intensified freezes on entities like and —such as the full blocking sanctions imposed in 2025, effective November 21 with wind-down periods—further curtailed Russia's energy revenues, contributing to volatility in worldwide fuel markets and broader inflationary pressures. Individuals or entities subject to judicial freezing orders may challenge them on grounds such as material non-disclosure of relevant facts by the applicant, significant changes in circumstances that undermine the original basis for the order, or lack of over the assets or parties involved. In jurisdictions like , where freezing orders are governed by Part 25, affected parties typically apply to vary, discharge, or set aside the order at the return date hearing or through urgent or inter partes applications to the court that granted it. The appeal process for freezing orders often involves expedited applications to higher courts, such as the Court of Appeal in , to review the decision on granting, varying, or discharging the order, with the possibility of seeking a stay pending to prevent immediate . Courts may grant such stays if there is a real prospect of success on and it would be just to do so, balancing the interests of all parties. Damages remedies for wrongful freezing orders primarily arise through the applicant's cross-undertaking in damages, a standard condition requiring compensation for any losses suffered by the respondent if the order is later found unjustified or discharged. This undertaking is enforced by an into damages, assessed on the same principles as , including direct financial losses such as lost opportunities or costs incurred due to the freeze. In exceptional cases, respondents may pursue claims for or malicious institution of civil proceedings if the freezing order was obtained without and with improper motive, though such claims require proof of favorable termination of the underlying action and are rarely successful. For sanctions-based asset freezes, delisting procedures provide specific recourse mechanisms. Under United Nations sanctions regimes, designated individuals, groups, or entities can submit delisting requests to the UN Council's Focal Point for De-listing for most lists (established by resolution 1730 (2006)), which verifies and forwards the request to designating states for review, or to the Office of the Ombudsperson for the ISIL (Da'esh) and Al-Qaida sanctions list, where the Ombudsperson conducts an independent assessment and recommends to the Sanctions Committee. Recent updates, such as UN Security Council resolution 2744 (2024), introduce enhanced procedures for exemption requests from asset freezes to address humanitarian needs. In the European Union, persons or entities subject to asset freezing under restrictive measures can request reconsideration directly from the Council of the European Union and challenge the listing decision before the General Court of the European Union pursuant to Articles 263 and 275 of the Treaty on the Functioning of the European Union. The General Court reviews the lawfulness of the measures, including whether the grounds for designation are well-founded and rights to defense were respected, with appeals possible to the Court of Justice of the European Union on points of law. Annual reviews by the Council may also lead to amendments or delistings based on evolving circumstances.

International and Comparative Perspectives

European Union Framework

The European Union's framework for asset freezing is primarily grounded in the Common Foreign and Security Policy (CFSP), where Council decisions establish the political basis for restrictive measures, subsequently implemented through directly applicable regulations. For instance, Council Decision 2014/145/CFSP addresses actions undermining Ukraine's territorial integrity, leading to Council Regulation (EU) No 269/2014, which mandates the freezing of funds and economic resources for designated individuals and entities listed in Annex I, such as those involved in the annexation of Crimea. Similarly, Council Regulation (EU) No 833/2014, based on Council Decision 2014/512/CFSP, imposes sectoral sanctions including asset freezes on Russian state-owned banks like Sberbank and VTB, as detailed in Annex III, in response to Russia's destabilizing actions in Ukraine. These measures, adopted under Article 215 of the Treaty on the Functioning of the European Union, ensure uniform application across member states without requiring national transposition. Judicial cooperation enhances the enforceability of asset freezing orders within the , extending the principles of the Mareva —originally a provisional remedy to prevent asset dissipation—through the Brussels I Regulation (Regulation (EU) No 1215/2012). This regulation facilitates the recognition and enforcement of judgments, including provisional measures like freezing , across without the need for an procedure, promoting swift cross-border protection under Article 39. Article 35 further permits courts to issue such measures even when another has jurisdiction over the merits, ensuring effective enforcement while respecting procedural safeguards like the right to be heard. Following Brexit, the United Kingdom established an independent sanctions regime under the Sanctions and Anti-Money Laundering Act 2018, empowering ministers to designate individuals and entities for asset freezes, separate from EU processes. However, pre-existing EU regulations, including those on asset freezing, were retained as domestic law via the European Union (Withdrawal) Act 2018, maintaining continuity and allowing the UK to align its designations with EU lists in practice, such as mirroring sanctions against Russian targets. The Office of Financial Sanctions Implementation oversees compliance, prohibiting dealings with frozen assets unless licensed. A landmark case illustrating the EU's commitment to in asset freezing is Kadi and Al Barakaat International Foundation v Council and Commission (Joined Cases C-402/05 P and C-415/05 P, 2008), where the annulled a regulation freezing the applicants' assets for implementing UN Security Council resolutions against terrorism. The Court asserted full to review such measures for compliance with EU , including the , effective judicial protection, and the right to be heard, ruling that procedural deficiencies—such as failure to disclose evidence—rendered the freezes unlawful, even when derived from international obligations. This judgment underscored that EU prevails in safeguarding rights, requiring proportionate restrictions and opportunities for affected parties to challenge designations.

United States and Global Practices

In the , asset freezing is primarily governed by the (IEEPA) of 1977, which authorizes the President to declare national emergencies and impose , including the blocking of foreign assets, in response to unusual and extraordinary threats to , , or the economy. The Office of Foreign Assets Control (OFAC), a division of the U.S. Department of the Treasury, administers these sanctions through programs such as the Specially Designated Nationals (SDN) List, which identifies individuals, entities, and vessels subject to asset freezes, prohibiting U.S. persons from any dealings with their property or interests in property. This executive-led approach emphasizes blocking transactions and freezing assets held by or on behalf of designated parties to enforce objectives. Judicial involvement in U.S. asset freezing occurs mainly through temporary restraining orders (TROs) and preliminary injunctions under Federal Rule of Civil Procedure 65, often sought by agencies like the in civil enforcement actions to prevent asset dissipation before trial. Unlike the Mareva injunction common in jurisdictions, the U.S. lacks a general pre-judgment freezing remedy for private creditors, limiting such orders to specific statutory contexts like or securities violations. In criminal cases, courts focus on pretrial asset restraint and forfeiture under statutes like 18 U.S.C. § 982 and 21 U.S.C. § 853, allowing freezes of potentially forfeitable property based on to ensure availability for post-conviction seizure. Globally, asset freezing practices vary significantly, reflecting national priorities and geopolitical contexts. In , anti-corruption efforts under the and judicial authorities enable the freezing of assets linked to and , often as part of "" to recover proceeds from officials who flee abroad with illicit gains. , in response to Western sanctions following its 2022 invasion of , has implemented countermeasures including the freezing of foreign assets within its jurisdiction, such as those of and U.S. entities, to mirror imposed restrictions and protect national interests. In 2024 and 2025, nations and the advanced plans to utilize approximately €300 billion in frozen Russian sovereign assets—primarily held in Europe, including at in —to provide financial support to . Under a initiative agreed in 2024, €45 billion in extraordinary revenue from these assets was unlocked for aid. As of 2025, the Commission proposed options including a €140 billion loan to backed by the assets' interest or principal, or alternative grants of up to €90 billion, amid ongoing debates over legality, implementation, and potential lawsuits from asset holders. No final agreement has been reached, with concerns from countries like emphasizing the need for guarantees to avoid legal risks. International harmonization of asset freezing is advanced through the (FATF) standards on anti- (AML), particularly Recommendation 4, which requires countries to adopt measures for the rapid freezing and of proceeds from money laundering and terrorist financing without prior judicial decision in certain cases. These standards promote provisional measures like asset freezes to secure criminal property during investigations, with updated 2023 amendments enhancing tools for international cooperation in asset recovery. Recent trends as of 2025 highlight the extension of asset freezing to digital assets, with OFAC designating and freezing wallets and NFTs associated with sanctioned entities, resulting in over 1,050 frozen crypto addresses in 2024—a 33% increase from the prior year—to counter illicit finance in virtual assets. Enforcement challenges persist in non-cooperative jurisdictions identified by FATF, such as those with strategic deficiencies in AML regimes, complicating the tracing and freezing of cross-border assets amid geopolitical tensions.

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  103. https://www.reuters.com/business/finance/eus-von-der-leyen-says-three-options-or-combination-could-finance-ukraine-2025-11-17/
  104. https://www.fatf-gafi.org/en/publications/Fatfrecommendations/amendment-FATF-standards-global-asset-recovery.html
  105. https://coinlaw.io/ofac-sanctions-and-crypto-transactions-statistics/
  106. https://www.fatf-gafi.org/en/publications/High-risk-and-other-monitored-jurisdictions/Call-for-action-october-2025.html
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