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Section 12: Interim remedies and Marevas in aid of foreign proceedings
Proposal 16, which canvasses consolidating various interim remedies in a single rule,
was considered unnecessary in the light of the Working Party's decision to adopt
Proposal 75, as discussed above.
The Privy Council, in Mercedes Benz AG v Leiduck [1996] 1 AC 284, applying the
House of Lords' decision in Siskina (Cargo Owners) v Distos SA ("The Siskina")
[1979] AC 210, decided that it is in law not possible to obtain a Mareva injunction to
restrain a defendant who has assets in Hong Kong from dealing with those assets
pending resolution of the claim against him in a foreign court where, under the present
conflict of laws rules, the Hong Kong courts do not have jurisdiction to deal
substantively with that dispute. Accordingly, where a plaintiff has begun proceedings
in another jurisdiction, the Hong Kong courts are presently unable to give interim
Mareva relief, even though the qualifying conditions for such relief can otherwise be
satisfied and even though those foreign proceedings could, if successful, lead to
enforcement of the foreign judgment against the defendant in Hong Kong.
For policy reasons considered cogent and in the light of doctrinal developments which
have eroded the strictness of the view taken in
The Siskina, the Working Party
recommends that legislation be introduced empowering Hong Kong courts to grant
such Mareva relief where the foreign proceedings in question may lead to a judgment
or an arbitral award which would, in the ordinary course, be enforced in Hong Kong,
whether by registration or at common law. This would also entail legislation enabling
a Hong Kong writ or originating summons to be served outside the local jurisdiction in
relation to such free-standing Mareva proceedings. Supporting procedural rules would
also have to be introduced.
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