This chapter is divided into two sections. The first provides a summary of the conclusions relating to the substantive scope of freezing injunctions. It proposes a number of changes to the preconditions for obtaining a freezing injunction in order to improve certainty and create a level playing field in litigation. The need to establish a good arguable case on the merits is considered, taking into account some positive developments in this area. The case law on the real risk of dissipation of assets is the main focus of criticism. The second section of the chapter contains some thematic comments on the international scope of freezing injunctions and explains the need for a more restrictive approach in future cases.

This chapter critically analyses the origins of the modern freezing injunction. The analysis is not limited to the landmark cases in 1975, Karageorgis and Mareva, covered in detail in this chapter. It argues that an important part of the historical foundations of freezing injunctions is the original exception to the general rule: the proprietary freezing injunction. Understanding the nature of the proprietary freezing injunction is crucial in order to assess the legitimacy of extending the scope of the exception to non-proprietary claims in 1975. The chapter recognises that there is now an important new category of freezing injunction, the so-called Chabra injunction against third parties. A detailed analysis of the scope of Chabra injunctions reveals serious concerns about a level playing field in litigation.

This chapter undertakes analysis of the English case law concerned with the jurisdictional preconditions for freezing injunctions in support of English substantive proceedings and analyses the jurisdictional preconditions in support of foreign substantive proceedings. Then it discusses the international scope of Chabra injunctions (freezing injunctions against third parties against whom there is no cause of action). The chapter examines the consistency of the current framework with the international systemic perspective on the purpose of jurisdictional rules. This theoretical perspective requires a multilateral and horizontal approach to the existence of jurisdiction rather than the unilateral and vertical approach that exists under the rules of jurisdiction of English national law.

This chapter lays down the foundations for the central argument of the book, that the principle of equipage equality is the primary function of freezing injunctions. This is in contrast to the prevailing, traditional view that freezing injunctions are simply a weapon against unscrupulous defendants and concerned with the enforcement of judgments. In fact, the rules on freezing injunctions, by balancing the rights of the parties, also protect defendants from unnecessary interference with their assets. The principle of equipage equality has important implications for the scope of freezing injunctions. This chapter deals with the implications on their substantive scope. These include issues relating to the basic requirements such as real risk of dissipation of the assets. It is argued that some aspects of the current substantive preconditions of freezing injunctions are inconsistent with equipage equality and that the overall balance created by the substantive preconditions is excessively favourable to the claimant

This chapter recognises the practical reality that in high-value, cross-border commercial litigation it is frequent to see claimants making applications for more than one type of interim relief. In addition to a freezing injunction and an ancillary disclosure order, the complexity of the facts and the defendant’s conduct may lead the claimant to apply for an anti-suit injunction, an anti-enforcement injunction, a Norwich Pharmacal order and/or a receivership order. It is suggested that this potential for a ‘kitchen sink’ approach to interim relief raises concerns about the financial pressure on defendants, the pressure on the English courts, and the consistency of the courts’ reasoning relating to the extraterritorial scope of interim relief. The significance of taking into account the pressure on the courts cannot be underestimated as the potential for delays resulting from interim relief may undermine access to justice. The chapter examines the relationship between freezing injunctions and other types of interim relief.

This chapter considers the following two questions about the future of freezing injunctions. First, what changes should be made to the jurisdictional preconditions of freezing injunctions in order to effectively fulfil the international function of the rules of jurisdiction? Second, by what means and on what basis should we allocate regulatory authority in this field? A ‘bold proposal’ for an international agreement is considered. While that would be the ideal solution in this field, some modest solutions are then proposed. Modest solutions rely on the implementation of changes only at the domestic level. The counter-arguments to the proposals based on functional theories of jurisdiction are also considered. The functional theories are heavily dependent on the principle of territoriality. The role of the doctrine of forum non conveniens is discussed in the context of modest proposals.

This chapter discusses the purpose of freezing injunctions and their potential for exploitation by unscrupulous claimants for tactical and strategtic aims. Emphasis is placed on the use of freezing injunction for unmeritorious purposes due to the potential of the injunction to ruin a thriving business. An overview of the key requirements for obtaining freezing injunctions is provided with a view to identifying potential problems with each requirement in domestic and international cases. A number of hypothetical scenarios is used to illustrate concerns about the current scope of freezing injunctions. It is demonstrated that these concerns are not limited to the protection of defendants but also the interests of foreign states.

This chapter examines the extent to which the current jurisdictional preconditions for freezing injunctions are consistent with any theories underpinning the rules of jurisdiction in private international law. As a starting point, it identifies different perspectives on the purpose of private international law and the purpose of jurisdictional rules. The chapter engages in a detailed discussion of the use of the term jurisdiction and its different interpretations in an attempt to eliminate the confusion surrounding the application of private international rules in the context of freezing injunctions. It explores the difference between personal jurisdiction and subject-matter jurisdiction and their respective relevance in extraterritorial freezing injunction cases. The core of the chapter is the emphasis on the link between public international and private international law, drawing upon Mills’ international systemic perspective. The potential significance of the doctrine of comity is taken into consideration.