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Arbitral awards ought to be included in the reforms proposed for the avoidance of
doubt, even though it may well be that under the law as it stands, a court could grant
Mareva relief in aid of a foreign arbitration. Presently, by section 2GC(1)(c) of the
Arbitration Ordinance, Cap 341, the court may, in relation to a particular arbitration
proceeding, "grant an interim injunction or direct any other interim measure to be
taken". It was assumed in Leviathan Shipping Co Ltd v Sky Sailing Overseas Co Ltd
[1998]
4 HKC 347, that this was a formula wide enough to encompass Mareva
injunctions and international arbitrations.
This should be put beyond doubt.
Recommendation 46: The jurisdiction to grant a Mareva injunction in aid of
foreign proceedings or arbitrations should be confined to proceedings and
arbitrations capable of leading, in the ordinary course, to a judgment or arbitral
award which can be enforced in Hong Kong.
Secondly, the reforms should be directed at overcoming the two legal obstacles which
were found by the Privy Council to stand in the way of recognizing the relevant
jurisdiction. They should aim at:-
(a)
granting to the court power to grant a Mareva injunction to restrain a defendant
from disposing of assets in Hong Kong without that injunction necessarily being
ancillary to any action in Hong Kong for the substantive enforcement of legal or
equitable rights; and,
(b)
making it possible for a plaintiff who seeks such relief to obtain leave under
Order 11 to serve a defendant abroad with a writ or originating summons which
seeks solely a Mareva injunction in Hong Kong.
Notes
Although, as previously discussed, the Channel Tunnel case is authority for treating s 37(1) of the
Supreme Court Act 1981 (our equivalent being s 21L(1) of the HCO) as a sufficient basis for
granting an interim (non-Mareva) injunction in support of a foreign arbitration (provided jurisdiction
is founded against the defendant and the plaintiff has a recognized cause of action against him), it
cannot safely be relied on as the basis for claiming a Mareva jurisdiction in the present context.
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