International Construction Law Review
THE POWER TO GRANT MAREVA INJUNCTIONS IN AID OF FOREIGN PROCEEDINGS: PRINCIPLES, RECENT DEVELOPMENTS, AND THE CIVIL JUSTICE (MISCELLANEOUS AMENDMENTS) BILL 2007 IN HONG KONG
HENRY SUEN1
Barrister of Gray’s Inn and Lecturer at the Department of Building and Construction, City University of Hong Kong
SAI ON CHEUNG2
Associate Professor at the Department of Building and Construction, City University of Hong Kong
Introduction
Imagine this scenario: two years ago, X (the client) and Y (the contractor) entered into a construction contract for the construction of a house. Clause 10 of the contract states: “any dispute between the parties will be resolved by arbitrators appointed by HKIAC, and the seat of arbitration will be London.” Let us say that recently a dispute arose over Y’s faulty workmanship. The parties are about to resolve the dispute in London. Having heard news about Y’s plan to transfer its assets located in Hong Kong (Y has no assets in London), X now wants to apply for a Mareva
injunction to restrain Y from doing so. The problem is that Y has no connection with Hong Kong for a High Court judge to establish personal jurisdiction over Y by way of service ex juris.
X is worried that Y may transfer its assets away before the arbitral award can be enforced against Y’s assets in Hong Kong. X wants to know whether the High Court judge can grant interim relief in his favour to freeze Y’s assets pending the arbitral award in London. This is the theme of this article—the court’s power to grant interim relief in aid of foreign proceedings.
The traditional view was represented by The Siskina (Owners of cargo lately laden on board)
v. Distos Compania Naviera SA
3
(commonly known as The Siskina
). In The Siskina,
the House of Lords held that the right to Mareva
injunction relief is dependent upon there being a cause of action which can
1 Henry Suen email: henry.suen@cityu.edu.hk
2 Sai On Cheung email: bcsoc@cityu.edu.hk
3 [1979] AC 210 (HL).
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