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48 www.hk-lawyer.org •  February 2018 When the Mareva Fails – Recourse against Third Parties By Jonathan D. Wong, Senior Associate Freshfields Bruckhaus Deringer Dr. Peter H. Chang, Knowledge Lawyer Freshfields Bruckhaus Deringer T he Mareva, or freezing injunction has for many years now been a 'stable and sharp knife' in a litigator's drawer, the potency of which was amply recognized by Donaldson LJ as "one of the law's two 'nuclear weapons'" in Bank Mellat v. Nikpour (Mohammed Ebrahim) [1985] FSR 87 CA, the other being the Anton Piller order. His Lordship's description is a fair one: the Mareva is intrusive in terms of interference with the Defendant's propriety rights and potentially oppressive due to its pre-judgment and ex parte nature, as well as the penal notice of contempt of Court in the event of the breach of the order. Coupled with orders to disclose assets, the Mareva injunction is inevitably high on the menu of options presented to clients when faced with a potentially questionable Defendant. The advent of internet and email fraud cases has also seen urgent Marevas increasingly deployed to secure and recover monies before they travel beyond the reach of an unlucky transferor. Yet with the speed at which international fund transfers can now be effected, even an urgent Mareva often comes too late to secure assets. In the event that the Mareva has been obtained in time, a Plaintiff still needs to contend with issues such as multi-entity and potentially complex corporate structures, fund transfers and beneficial ownerships; the Mareva also has to be served on the right entities (particularly banks) and those entities have to effectively implement the terms of the order. A failure or omission at any of these levels could mean the 'nuclear option' ends up a damp squib. The recent case of Grasberg Capital Asia Ltd v. Bank of Communications Ltd [2017] HKCFI 2013 (13 November 2017) ('Grasberg') revisits some of these issues: namely the extent of the duty owed by a recipient (in this case, a third-party bank

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