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A second look at the Mareva injunction

University of British Columbia

The form of interlocutory injunction commonly called "Mareva" is a recent judicial invention. It was initially designed by the United Kingdom courts to restrain a debtor, prior to judgment, from removing his assets beyond the jurisdiction of the court so as to prevent a creditor from subsequently executing upon a judgment. Prior to 1975, this particular remedy was practically unknown to the common law and injunctions were not granted for such purposes. In the intervening eight years, both the practice and the procedure for obtaining the injunction have been expanded and refined. The use of the injunction has spread to Canada and to other Commonwealth nations. Its legitimacy was mooted for several years following the first reported case. The burden of this thesis is to examine the principle and the extensions authorized for its application both in Canada and abroad, to probe the sources of its invention and to reflect on its appropriate use within the Canadian context. This is done, as it were, as a second view, with the dispassion that distance in time safely allows and with regard to the learnings that extensive experience in the courts might afford. The examination begins with a review of the law prior to Mareva, continues with the reasoning utilised by the English court in its adoption from civil law processes and questions the authenticity of the Court's logic in such a step. An extensive review is made of similar remedies available in some other jurisdictions and the thesis concludes with an analysis of the dangers inherent in simply importing the English practice to the Canadian scene, a course which ostensibly the Canadian courts have initially followed.

Text

2010-04-15

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http://hdl.handle.net/2429/23695

Law

University of British Columbia

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