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22 Cards in this Set
- Front
- Back
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Introduction |
- ML 17 (2) (a) Functions - England - Granting powers? |
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ML 17 (2) (a) Functions |
The aim of IMPs under the model law are to stabilise weaker parties in order to maintain status quo, prevent irreparable harm, if there is relative likelihood of success |
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England |
Apply S44 (Non-mandatory) which focuses around evidence orders rather than freezing orders which are considered too extreme |
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Powers |
Granted to the courts only if the tribunal allows it and there is a case of urgency |
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Courts of the seat |
- ML 17 - AA 44 - RE Q's Estate - B v S - Ninemia Maritime |
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ML 17 |
The ML grants the courts the same power to issue IMPs as tribunals have. Again this is in order to allow the measures to be enforced by a coercive power. |
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AA 44 |
A non-mandatory provision that can be expressly excluded by the parties to an onerous degree |
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Re Q's Estate |
Here the AA expressly agree to exclude the courts jurisdiction concerning IMPs which was held to validly exclude S44 |
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B v S |
Excluding any notion of 'The English Courts' was sufficient to exclude S44 - emphasis is placed on party autonomy |
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Ninemia Maritime |
The test applied as to whether IMPs may be issued is based on the merits of the case and whether there is a real risk of asset dissipation |
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IMPs issued by non-seat courts |
- AA 2 (3) (b) - ML17 J - Econet - Derby v Welder - Mobil Cero Nego - Channel Tunnel - AG v Belize |
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ML 17 J |
The ML will still apply even if it is not the seat |
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AA 2 3 (b) |
Courts will refuse the power in AA 44 if the seat is not England if it is deemed inappropriate to do so |
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Econet |
Morrison ruled that the case must have an appropriate degree of connection with England in order for IMPs to be appropriate. Here the courts justified issuing IMPs despite the case being in Nigeria. |
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Derby v Welder |
IMPs concerning assets can only be issued if those assets are in England. For example, it would be inappropriate to issue a worldwide freezing order if assets required are held in England. |
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Mobil Cero Negro |
Considering whether IMPs from English courts are appropriate - look at whether one of the parties is English, there is a connection with England or assets in England |
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Channel Tunnel |
The courts should be very cautious approahing the exercise of protective measures. Cannot cut against the grain of the curial law of the seat |
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AG v Belize |
Citing Channel Tunnel with approval, courts can issue measures but must not go against the law of the seat when issuing IMPs |
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Academic Commentary |
- Mustil and Boydd - Born - Van Houtte |
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Mustil and Boyd |
Courts are not at liberty to issue IMPs when it encroaches on the seats power unless: it does not encroach in the power or it is absolutely necessary to preserve the procedure. Arbitrator will rarely grant IMPs unless procedure allows it |
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Born |
Establishes a list of reasons why courts should issue IMPs and why they are useful. 1) Prevent serious injury 2) Urgency requirement 3) Jurisdictional protection 4) Suitable categories of IMPs exist |
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Van Houtte |
Proposed plans for EXIMPs have been criticised. Arbitration is not the appropriate vehicle, there is no need, it abuses consensus, attacks defence rights (ML 18) enforcement will be difficult (ECJ) indicates bias and prejudice |
