The Mareva Injunction and Anton Piller Order

28 Pages·1999·0.57 MB·English

International Law
Quarterly
Volume XV, No. 5 THE FLORIDA BAR Spring 1998
Outgoing Chair’s Report
by Edward M. Joffe reception. The following day Dr. 1. Estate Planning for the Inter-
Gayle Carson, nationally prominent national Client, October 9,
Thank you for motivational speaker, addressed us 1997.
the opportunity to on successful time management. 2. Considerations in Selecting Off
serve as your chair That afternoon an introductory pro- Shore Jurisdictions (in conjunc-
this past year. In gram on the Internet was well re- tion with Joint Meeting of the
August 1997, the ceived. At lunch, Dr. Robert Jarvis of ABA International Law & Prac-
section held a re- Nova Law School spoke on Ethics in tice Section, IABA and TFB In-
treat at the Ritz International Law. The following day ternational Law), November 13,
Carlton in West we held a section business meeting. 1997.
Palm Beach. That The section sponsored a number of 3. Helms Burton and Other Re-
Friday night we successful seminars this year and lated Trade Issues in Cuba, (in
hosted a reception was honored to co-host several pro- conjunction with Joint Meeting
for the Board of Governors who were grams with the ABA in November. of the ABA/IABA/TFB), Novem-
also attending a retreat at the same The following were our seminar ac- ber 13, 1997.
hotel. Over 80 people attended the tivities: 4. 10th Annual Legal Aspects of
Doing Business in Latin
America, February 5-6, 1998.
Changes Under the
5. 19th Annual Immigration Law
Immigration Reform Act of See “Chair’s Report,” page 6
1996
INSIDE:
those individuals who violate their
by Larry S. Rifkin, Esq. immigration status by staying longer Terrific Tantalizing “Titanic” Tour
Introduction than permitted or engaging in unau- Triumphs!!.................................... 2
The Illegal Immigration Reform thorized employment, often with Choice of Law and Forum: Swift
and Immigrant Responsibility Act, harsh consequences. This supple- Justice in England Including Pre-
Judgment Tactics & Relief and
Division C of the Omnibus Appro- ment will focus on those changes
Enforcement throughout Europe. 4
priations Bill (“the Immigration Re- which will have the greatest impact
International Tax Briefs................ 11
form Act of 1996” or “the 1996 Act”) on aliens seeking entry as both The Mareva Injunction and
signed into law by President William nonimmigrants and as immigrants to Anton Piller Order: The Nuclear
J. Clinton on September 30, 1996,1 the United States. As of April 1, 1997, Weapons of English Commercial
brought wide sweeping changes to all of the provisions of the new legis- Litigation.................................... 12
our immigration system with par- lation are in effect, however, the Im- 6-21. Standards for Certification of
ticular emphasis on creating disad- migration & Naturalization Service a Board Certified International
vantages to those who ignore the law. (INS) has published regulations Lawyer........................................ 22
Many of the new provisions affect See “Reform Act,” page 24
06/98
Terrific Tantalizing “Titanic” Tour
Triumphs!!
by Drucilla E. Bell
“Cruising on Titanic on a freezing Sunday night.
The watch was in the cold crow’s nest; no iceberg was in sight.
Below the Band was playing. Ships’ lights were burning bright.
Cruising toward that iceberg on a freezing Sunday night.......
there to greet “their” SS France.
(Sung to the tune of “Sailing Since that time she has cruised the
Mediterranean in the summer and
Down the River” — by Cap-
the Caribbean in the winter. She
tain Edward Fink, US Navy
crosses beautifully, causing just a
Ret.) hint of the sea with her soft rolls.
For entertainment, there was the
The Travel Law Committee of Jimmy Dorsey orchestra, a wonder-
the International Law Section has ful string quartet, a jazz band,
enjoyed another success with the Broadway shows, and even Edwin
transatlantic Titanic CLE cruise Neumann speaking on the use and
that also included visiting legal cen- misuse of English and whether the
ters and seeing the sights of St. Media can be trusted. On the pool
Martin, Madeira (Portugal), aft deck, there was a Caribbean
Malaga (Spain), Marseilles Reggae band playing most after-
(France), and the French Riviera. noons. There were also theme
After leaving the port of Miami, a part of the presentations: The Con- nights with Italian food and Italian
sea-day started the courses with in- spiracy Theory - was it really the Ti- singing by the waiters, Caribbean
troductions of faculty and staff to our tanic that sank? Why did J. P. Mor- night, Western night and each with
thirty-some participants. The courses gan and 55 of his best friends all of the respective theme for the Midnight
offered were “Travel Law for Travel whom had booked passage on the Ti- buffet. There were also currently re-
Agents” (and attorneys) in the morn- tanic cancel at the last minute? Mor- leased movies on the television, where
ings and CLE ala “Memories of the gan had the most spacious and luxu- you could also see tapes of Mr.
Titanic” in the afternoons. The fac- rious “Owner’s Cabin” ever in history, Neuman’s talks, shore trip guides and
ulty for the trip consisted of Drucilla but canceled due to illness, and was of course, shopping advice.
E. Bell, Captain Ed Fink and discovered with his mistress a few We stopped after the first sea-day
Laurence Gore, the organizer and days later - paintings he had planned at St. Martin’s for swimming, snorkel-
creator of this imaginative adven- to ship on the Titanic were not “pack- ing, shopping - but there was a postal
ture, for Seminars at Sea Travel. Pre- aged” in time for the leaving of the strike so we couldn’t mail any post
sentations in the Travel Law field Titanic. cards from there. Then it was six days
related to How a Travel Agent can The SS Norway was built for at sea, marked by setting your clocks
Limit Liability , What to do when You Transatlantic crossings in 1960 as ahead an hour each night. During this
get Sued, Health and International the SS France, one of the few ships time, we had a couple of hours of class
Considerations, Negotiating Sales not built solely for profit but as a every morning and afternoon. Cap-
Contracts - a guidebook for the travel showcase of French national pride. In tain Fink had searched the Internet
agent in their legal minefield. The the early 1970’s with the fuel short- for everything he could find about the
Continuing Legal Education portion age and the prevalence of flights Titanic. Joe and I would almost al-
was geared to the Titanic disaster of across the Atlantic, she was retired ways attend breakfast in the dining
1912: Changes in the Contract of Pas- from service. In the early 1970’s she room and the midnight buffet, where
sage; Admiralty changes, the Ice Pa- was purchased by Norwegian Carib- there was open seating so we always
trol and Saving of Lives at Sea Act bean Lines and cruised the Carib- met new people. When we told them
that came out of the disaster (totally bean, not returning to her home port about the seminars, especially the
new concept of a “seat in a lifeboat until 1986, as the SS Norway. She Titanic, they often asked to sit in on
for every passenger”!); Immigration was purchased at a cost of a session - a few attended the rest of
Changes over the years entitled $18,000,000. After 5 years and $ the seminar even though they missed
Steerage to Peerage; Suits, Claims 150,000,000 in construction and re- the first one or two.
and Investigations on Both Sides of furbishment, she crossed the ocean On Saturday evening, we had a
the Ocean; and the most intriguing again. When she arrived in LeHavre sample meal of the kind served
in 1997, there were 100,000 people aboard the Titanic - and of course, a
2
where the grapes French Riviera where some of the
were fermented group stayed in Nice and the rest
into wine. These went on to Monaco, to try their hand
wicker baskets on in the casino in Monte Carlo.
runners are now Having enjoyed such a delightful
used as bobsleds to trip and learning so much about law
ride the tourists at the time of the Titanic, Seminars
down the hill, on a at Sea will be offering The Con-
paved road, be- spiracy Theory portion of this cruise
tween walls around with a costume dinner on shorter
houses and gar- cruises: October 25 in the Western
dens, guided by two Carribean; December 6 in the East-
fellows in straw ern Carribean; December 13 in the
hats guiding it Western Carribean; December 6 in
with ropes. We the Southern Caribbean; June 29 in
then landed on Alaska; and New Year’s Eve in the
Titanic Party! At this function, par- Malaga (Spain) after crossing Caribbean. With so many questions
ticipants were asked questions about through the Straits of Gibraltar and left unanswered, there is an Encore
the Titanic, myth or fact? We heard seeing the silhouette of the Pruden- cruise planned when the SS Norway
music from the SS Titanic, some wore tial Logo in the distance at 3:30 am returns from Barcelona on October
costumes like the Titanic passengers (Rock of Gibraltar). Malaga is a beau- 10, with even more information on
would have worn (see photos) and tiful woodsy terrain with Moorish the Titanic, questions, issues and
then sang Captain Fink’s tribute to forts and beautiful cathedrals. We ideas on its untimely demise in 1912.
the Titanic, an excerpt of which ap- also saw Toromolinos, a beautiful Prior to leaving on the transatlantic
pears at the beginning of this article. Mediterranean beach, with all that cruise, we will also be meeting and
With champagne as prizes for the con- implies. greeting the Barcelona Bar, with
Disembarkation took place in whom the Florida Bar International
Marseilles, France where the legal Law Section already has a signed
contingent was taken directly to the agreement of participation and coop-
Headquarters of the Chamber of eration. There will also be a July 8
Commerce and Industry and hosted cruise covering the
by the President. There we were Shipyard in Ire-
shown audio visuals of the economic land where the Ti-
development and accomplishments tanic was built, and
of Marseille, the oldest city in France. other historic Ti-
At the City Hall, a wonderful recep- tanic sites. Contact
tion with champagne, caviar, finger Seminars at Sea at
[phone] or
test, everyone had a glorious time. check the web site
After crossing the Atlantic, we at http://
toured the Island of Madeira which www.Seminarsatsea.com.
is part of Portugal. This is where
Madeira wine comes from; Madeira
means “wood” so the woody taste of Drucilla E. Bell is a sole practitio-
the wine should be no surprise. In ner in Clearwater and Seminole,
early times, the grapes were brought Florida, who emphasizes interna-
down the mountains in wicker bas- tional law and business, immigration
kets, slid down paths to the winery and travel law in her practice. In ad-
dition to having taught Comparative
sandwiches, and fruit was served and Legal Systems in Estonia in the first
Larry Gore, representing Fort Lau- semester of a new private law school
derdale, exchanged gifts with the in the fall of 1996, she has also
Deputy Mayor of Marseille (develop- worked with various foreign groups
ing a sister-city relationship). The and individuals on immigration and
Marseille Bar Association also other legal problems and represents
greeted us and officially invited the many foreign nationals in their quest
Florida Bar to the opening of the for business immigration visas, and
French Bar next year, which is a cer- in the development of successful busi-
emony of much pomp and circum- nesses in the United States. Her ac-
stance. We then went to the balcony tivities in the Florida Bar have in-
of City Hall and had a beautiful view cluded being past Chair of the
of the Marseille harbor and the city Administrative Law Section, serving
scape. We proceeded to tour the on the Foreign Legal Consultants
Committee, being Vice Chair of the
3 Travel Law Committee, being chair of
the 1998 June Seminar and in 1998-
International Law Section, American Bar Association, New York, April 29 - May 2,
1998
Choice of Law and Forum: Swift Justice in
England Including Pre-Judgment Tactics &
Relief and Enforcement throughout Europe
by George C. J. Moore
Attorney (Florida) and Association meeting today. English Law will itself be upheld in
Barrister (England & Wales) What, then, accounts for this para- England.
Introduction mount position of English law and Unlike the contract laws of many
“Justice delayed,” is more than the English forum? What does closer U.S. states, English law does not re-
ever, “justice denied.” Less tolerant examination reveal of its workings quire that the law chosen by the par-
than ever is today’s business world of and its enduringly steadfast attrac- ties to govern a contract have any
instantaneous communications and tiveness? Is it more than the history connection or association with the
multi-million dollar transactions. In- and allure of London? For sure. This parties, the performance, or any
creasingly, there is zero business tol- paper aims to explain why this at- other aspect of the contract. For
erance for slow-grinding justice and traction is well-founded, addressing nearly a century and a half, English
its systemically-flawed delivery of the following points of inquiry: law has left no doubt that it is the
long-delayed relief and unnecessar- 1. Why English Law is the pre- intent of the parties which dictates
ily exacerbated damages. At the same ferred choice of law in international in contract and that an express selec-
time there is no abatement of the real contracts. tion of governing law will be upheld.
world’s need for swift, reliable, cost- 2. Why the English Court is the This is true whatever the system cho-
efficient justice to give effect to busi- preferred forum for international liti- sen, even in the total absence of any
ness agreements. But where, if any- gation. connection or association between
where, is this to be found? Is this not 3. Why justice is swift and predict- England and the contract short, of
an ever more elusive quest? able in England, including limited course, of furthering an illicit
Well, sadly it is, except in a few discovery, trials without jury, limita- scheme.
arenas of the globe where the rule of tions on damages, the English rule on Such freedom of choice extends to
law and common sense remain dog- costs and fees, and constraints on the law governing formal and mate-
gedly at work, countenancing little of trial publicity. rial validity, interpretation, perfor-
the nonsense and dilatory tactics 4. Special prejudgment tactics mance, extinguishment, and rem-
which law in action and litigators on and relief under English Law: edies. Selection of different systems
the rampage all too often dump onto Mareva injunctions and Anton Pillar of law to apply to various aspects of
the real world’s bottom line. orders, and a contract will also be upheld in En-
England is such a place, one of the 5. Enforcement of English Court gland.
world’s steadfast providers of judgments in England and through- In like manner, the European
prompt, reliable, cost-efficient justice. out the European Union. Union’s Rome Convention, which de-
And, drawn to this exceptional ser- termines the “applicable law” for con-
vice, come a stream of adherents — 1. Why English Law is the pre- tracts entering into force after April
such that in more than half of all ferred choice of law in interna- 1, 1991, accords primacy to the par-
suits brought before England’s highly tional contracts. ties’ intentions and, above all, to ex-
esteemed Commercial Court all par- At least three reasons account for press choice of governing law. Imple-
ties are foreign. Knowledge of swift English law’s being the preferred mented in England by The Contracts
justice in England has brought them choice of law in international con- (Applicable Law) Act 1990, the prin-
there, thousands of foreign business tracts: (A) Certainty that the choice ciples of the Rome Convention and
persons who have deliberately cho- of English law will itself be upheld in English common law do not differ in
sen both a foreign law and a foreign England, (B) Flexibility under En- any fundamental way — only the
court — English law and the English glish law in selection of contract nomenclature is changed, with the
Court — to uphold and address their structure and terms and certainty “proper law” under English common
international contracts. that English law will uphold what- law becoming the “applicable law”
And so it is that English law is the ever terms are agreed, and (C) Pre- under the Rome Convention and the
world’s predominant, preeminent dictability of the outcome in the event corresponding provisions of the U.K.
choice of law and choice of forum, ri- of breach. Act.
valed only by New York, the jurisdic- Articles 3(1) and 4(1) of the Act
tion which hosts this American Bar (A) Certainty that the choice of contain the basic rules for ascertain-
4
ment of the applicable law. Article ness which also likes the what you anything that is overlooked or ig-
3(1) treats an express choice of law agree to is what you get approach of nored may well come back to haunt.
as conclusive and provides that a con- English contract law. Thus, we have the notorious by-prod-
tract “shall be governed by the law As described at an ABA seminar uct of freedom in English contract
chosen by the parties.” The Conven- last year by Richard Field, whose pre- law — the throw in everything in-
tion takes the approach of English sentation was a source of inspiration cluding the Kitchen sink approach.
common law and expressly rejected for the present panel, “The standard Brevity goes out the window, con-
notions advanced by writers that the applied [in England] to attempts to tracts are long, and almost nothing,
principle of the parties’ autonomy is imply contractual terms is a harsh if that, is left to chance.
limited by a doctrine forbidding par- one depending upon necessity to give
ties to avoid the application of the business efficacy to the transaction. C. Predictability of the outcome in
rules of a system of law which they Reasonableness is not regarded as an the event of breach
do not like by resorting to and select- appropriate standard to imply terms The final reason why English law
ing another system. Article 3(3) also into a contractual bargain. The courts is the preferred choice of law for in-
confirms that the chosen law need do not countenance the re-writing of ternational contracts lies is its prac-
have no connection with the contract. contracts by the implication of terms tical efficacy when, in instances of
Thus, in England, under both com- designed by one party which the ben- breach, certainty of choice of law rolls
mon law and the terms of the Rome efit of hindsight.” into certainty and predictability of
Convention, as adopted in England There is no counterpart, for ex- outcome, as recalcitrant parties wind
and throughout the European Union, ample, in English law to the United up as defendants and are forced to
express choice of law to govern a con- States U.C.C. requirement, contained face and meet their obligations. This
tract is upheld as sacred and enforce- in section 1-203 and infused thereby is the true test of judicial efficacy. The
able. In short, express choice of law throughout contractual relations, courts of England are known world-
is, in England, ironclad and invio- that obliges parties to duties of good wide for their efficiency in delivering
lable. faith in performance of all contrac- prompt, predictable, cost-effective
tual obligations. Nor, to cite another justice. We now turn to the second
(B) Flexibility under English law example, is there any equivalent in point of inquiry: Why the English
in selection of contract structure and English law to the U.S. “doctrine of Court is the preferred forum for in-
terms and certainty that English law validation” which comes to the rescue ternational litigation.
will uphold whatever terms are of usurious loan agreements, trans-
agreed planting them from oblivion under 2. Why the English Court is
Freedom to choose the governing the parties’ chosen law into safe har- the preferred forum for interna-
law is but one aspect of the primacy bor under another system which is tional litigation.
of freedom inherent throughout the invoked and applied to uphold and With freedom comes responsibility.
laissez faire policy of English contract enforce an otherwise void transac- The primacy of freedom to contract
law. The priority attached to freedom tion. under English law has its flipside,
of contract conveys great latitude for The vast scope for creative con- which is certainty in enforcement of
parties to customize a commercial tracting under English law is well obligation. Not without pain go those
agreement with virtually no formal evident in relation to international in England who indulge their whims
or material prerequisites, short of financial transactions which are very in negotiating and thereafter neglect
bare embodiment of an offer, accep- liberally facilitated by English laws or default on their contractual obli-
tance, and consideration. The parties governing security arrangements, gations. English law is, first and fore-
are afforded maximum flexibility and trust mechanisms, assignments, debt most, business law.
unconstrained capacity to structure transfers, set-offs, and liquidation With public policy strongly de-
an agreement and construct its terms schemes. voted to freedom of contract came an
to suit their unique purposes and de- Underling this liberality, which unwavering commitment on the part
signs. permeates the spirit and much of the of the English Court to correspond-
Under English law, formal requi- letter of English commercial law, is ing responsibility and the importance
sites are absolutely minimal. So, too, English understatement, a low key of upholding bargains freely entered
are material requisites. Legislated approach to control. Indeed, this of- into. To be sure, therefore, contracts
requirements are virtually non-exis- ten amounts to self-regulation, as are binding. Agreements are strictly
tent, whether express or implied. In contrasted to what many would de- enforced. Debts are to be paid. For-
the absence of dictates and stringent scribe in the U.S. as heavy-handed giveness and grace cannot be pre-
demands, the parties have maximum government regulation. In essence, sumed. True, penalties and uncon-
flexibility to craft an innovative ex- the English tradition is to rely upon scionable terms are not
change of bargains with full confi- gentlemanly regulation by consensus countenanced and all contracts are
dence that no court in England will, and self-observance of informal but subject to equity, but business be
in retrospect, rewrite, recast, blue- well-understood rules of the game. done, pay as you go, and pay if you
line, amend or otherwise emasculate In English law the primacy of free- lose, including interest and payment
the terms of the agreement. This dom and the unconstrained flexibil- of the victor’s attorney fee — in ac-
makes English law a good friend to ity of the parties to prescribe their cordance with “the English rule.”
creative entrepreneurship and a own contractual terms and condi- Such is the historical approach of the
trusted ally of bread-and-butter busi- tions carries a concomitant risk that continued...
5
English forum in addressing contrac- Court are nominated by the Lord
tual irresponsibility or deviation. Not Chancellor from the judges of the tion for expertise and efficiency is
just buyer, but all parties, beware. Queen’s Bench Division who have further enhanced by the sophistica-
And so it is still today. No nonsense, special experience in commercial tion of London’s specialist barristers,
prompt, predictable, efficient justice. matters. Prior to appointment as solicitors and expert witnesses whose
For these reasons, the court of judges of the Queen’s Bench Division work, focusing on commercial trans-
England is the preferred forum for and then subsequently as judges of actions and disputes, contributes to
international litigation, and this is the Commercial Court, they invari- early identification of issues, rapid
why, in addition to providing for En- ably ranked among the most distin- elimination of speculative cases, and
glish law to govern the contract, guished barristers in commercial quick trial, even in complex, multi-
many contracts also provide that the practice. party litigation.
English Court shall have jurisdiction. Except by consent, the powers of The Court is far more than a na-
Commercial Court judges are no tional or domestic court; it is an in-
The Commercial Court greater than those of any other judge. ternational commercial court the
The specific magnet which ac- However, the procedure in the Court overwhelming majority of whose
counts for the English Court’s popu- is more flexible than the normal pro- judgments are directed to foreign
larity as the preferred forum for in- cedure, and control over Commercial parties. The Court’s popularity and
ternational business disputes is the Court litigation clearly rests with the expertise are evident in the numbers:
Commercial Court. Actually a sepa- judge, not the parties. Moreover, the three-quarters of all Commercial
rate list kept in London, Liverpool judges, who act singly, regard it as cases have either a foreign plaintiff
and Manchester to hear commercial their duty to be available at short or defendant, and over half of its
actions, the Commercial Court is a notice at any stage of an action on the cases consist of entirely foreign par-
sub-division of the Queen’s Bench initiative of either party, so that dis- ties.
Division of the High Court. Founded putes before the Commercial Court Invoking the jurisdiction of the
in 1895 to specialize in commercial are dealt with as quickly as possible. Commercial Court is achieved by is-
cases, the Commercial Court has a Pleadings in the Commercial suance in London, Liverpool or
distinguished reputation for exper- Court are in the form of points of Manchester of a summons which is
tise and objectivity. claim and must be as brief as pos- marked at the top with the words,
The Commercial Court’s jurisdic- sible. Applications for particulars are “Commercial Court,” and upon issue
tion is defined by Order 72 of the not allowed unless deemed essential. of the summons so marked, the ac-
Rules of the Supreme Court to in- By consent the strict rules of evi- tion is entered immediately in the
clude “any cause arising out of the dence are relaxed. Thus evidence is commercial list. Actions may also be
ordinary transactions of merchants admitted which would generally be transferred to the Commercial Court
and traders . . ., the export or import excluded, and the calling of live wit- apart from this procedure and, in-
of merchandise, affreightment, insur- nesses is often waived in favor of de- deed, actions commenced in the Com-
ance, banking, mercantile agency and ciding cases on documentary evi- mercial Court may be removed from
mercantile usage.” dence alone. the list. Any party who seeks the re-
The judges of the Commercial The Commercial Court’s reputa- moval of an action from the Commer-
continued, next page
Chair’s Report March 21, 1998, in West Palm Beach CLE qualifications on or before
from page 1 and has concentrated on preparing March 1, 1999. In addition to the
the application for certification. We regular course work, lecturing, teach-
anticipate the application being ing or attending a university course;
available for distribution between writing; and individual study can
Update, February 19-21, 1998. July 1st and August 31, 1998. qualify for CLE credits.
Between October 22-25, 1998, the Certification requires an applicant Applicants will be approved to sit
New York State Bar Association is to be: a member in good standing of for the examination by late fall. The
meeting at the Biltmore Hotel in Mi- a bar for no less than 5 years at the International Law Section contem-
ami. Our Section contemplates join- time of the application; demonstrate plates preparing a certification re-
ing by participating in the CLE and substantial involvement in the prac- view course in February, 1999. The
social programs. tice of International Law during the examination will be given in March,
The most significant event on the 3 years preceeding the application; as 1999.
horizon for the section is the enact- well as at least 75 hours of CLE for Those who successfully pass the
ment of a certification program for the same period, peer review; and exam will be certified effective July
international lawyers. The section obtaining a passing grade on the ex- 1, 1999. Certification is effective for
anticipates providing CLE for our amination. five years. At that time, re-certifica-
members to permit them to qualify Because the 75 hour CLE require- tion will require demonstration of
for this certification. ment pre-requisite for this next year substantial involvement, completion
The International Law Certifica- may have been unanticipated, we will of the CLE requirement and peer re-
tion Committee initially met on permit applicants to submit their view.
6
cial Court, when it has been set down is, more than a mere prima facie case. conducting discovery in England,
in that list, must apply within seven With respect to contracts, the each party impliedly undertakes not
days of giving notice of intention to plaintiff seeking leave for service out- to use the documents which are dis-
defend. side the jurisdiction must show a closed for any ulterior or improper
Finally, it should be noted that spe- strong probability that at least one of purpose. The use of such documents
cial Mercantile Courts have been cre- the heads under Order 11, Rule 1(1) in breach of that implied undertak-
ated in both the Midlands and the is satisfied. These include (a) a con- ing will amount to a contempt of
South-West of England to deal with tract made within the U.K., (b) a con- court. Thus in one case a solicitor who
commercial cases. These amount to tract made by an agent trading or passed documents to a journalist to
new Queen’s Bench lists in the dis- residing within the U.K., (c) a con- assist in the preparation of an article
trict registries concerned and have tract which “is by its terms or impli- was held to be in contempt, even
the capacity to deal with a wide vari- cation to be governed by English law,” though the documents had been read
ety of commercial cases. Cases follow (d) a contract which “contains a term in open court. Nor can a party gener-
the rules of court relating to commer- to the effect that the High Court shall ally rely upon such documents in
cial practice before the Commercial have jurisdiction to hear and deter- other proceedings — only if such
Court. mine any action in respect of the con- document has previously been read
tract,” and (e) where the claim is or referred to in open court. If there
3. Why justice is swift and pre- brought in respect of a breach com- is a real risk of the plaintiff using
dictable in England, including mitted within the jurisdiction — ir- documents for an improper collateral
limited discovery, trials without respective of where the contract was purpose, the court may restrict in-
jury, limitations on damages, the made and irrespective of whether the spection, for example, to a party’s
English rule on costs and fees, breach within England was preceded counsel.
and constraints on trial public- or accompanied by a breach commit- Under the Rules, discovery may
ity. ted elsewhere. take place in two ways, without or-
This section discusses long arm Conveniently, it is for English law der and by order. Since 1962, with the
jurisdiction and service outside the to determine whether English law is introduction of “automatic” discovery,
U.K., limited discovery, summons for the agreed or proper law of the con- parties must make discovery by ex-
directions, trials without jury, limita- tract, whether the parties agreed to changing lists within 14 days of the
tions on damages and permissible jurisdiction of the English Court, or close of pleadings. The lists include
claims, the English rule on costs and the whereabouts of any alleged relevant documents which the party
fees, and constraints on trial public- breach. Express choice of English law has in his possession, custody or
ity. may itself be deemed sufficient to power and which he does not object
ground the jurisdiction of the English to produce; relevant documents as
Long arm jurisdiction and service Court. above which he objects to produce;
outside the U.K. Forum shopping is highly unpopu- and relevant documents which pre-
No leave of court is required in lar with English judges, particularly viously were in the party’s posses-
respect of claims to which the Civil where the parties have previously sion, custody or power. A party must
Jurisdiction and Judgments Act 1982 agreed to English jurisdiction, and also serve a notice of a place and time
applies. This Act applies to proceed- parties who initiate or threaten pro- within seven days for inspection of
ings against persons domiciled in the ceedings elsewhere will very likely be the documents in the list, other than
European Union under the Brussels enjoined. those which he objects to produce.
Convention which requires that such The chief ground for objecting is
actions be commenced in the courts Limited Discovery privilege, which is very narrowly con-
of the defendant’s domicile.To this There are enormous differences strued.
general rule, there are exceptions, between American and English prac- There are two important circum-
among which are two important ones tices in relation to discovery. There is stances when discovery by order is
relating to proceedings in contract. no counterpart to the U.S. deposition required. The first is where the action
Suits in contract may be brought in in England, certainly not the ‘fishing- is one to which the rule requiring
a jurisdiction other than that of the expedition’ type of deposing which is automatic discovery is not applicable
defendant’s domicile when (a) the aimed at developing further causes or where a party has failed to com-
parties have agreed in a contract in of action or turning up anything re- ply with that rule. In such a case
writing that the contract shall be motely relevant. In fact, in the late there must be an application for an
subject to the jurisdiction of a specific 1970’s the British Parliament en- order for discovery of all relevant
court, such as the English Court, or acted the Protection of Trading Inter- documents, if discovery is required.
(b) the performance of the contract is ests Act to block American litigators The second case arises where a party
to occur in a different jurisdiction, from deposing company officials in is dissatisfied with his opponent’s
such as in England. In other cases, Britain, a practice sharply con- list. He may then apply for discovery
leave of the court is required for ser- demned as another form of United of particular documents.
vice outside the jurisdiction. Leave is States extra-territoriality. A party who is served with a list
discretionary and requires a showing In England, discovery relates es- of documents may believe that rel-
of “a good arguable case”, which con- sentially to documents and to con- evant documents which the maker of
notes actionability under English law trolled use of interrogatories. the list has, or has had, in his posses-
and a good chance of succeeding, that Another major difference is that in continued...
7
sion are not included in his list. This the party on whom they are served A further consequence of non-jury
may be due to a bona fide belief on is obliged either to answer them or trial of commercial, and indeed vir-
the maker’s part, that the document apply to the court for them to be var- tually all civil matters in England, is
in question is not relevant to the ac- ied or disallowed. “Fishing” to dis- far greater predictability of award
tion or to an omission, accidental or cover a fresh cause of action or de- and level of damages, and a general
deliberate. In either case application fense is not permitted, nor are the non-predisposition to “deep pocket li-
may be made for an order for discov- interrogatories allowed if they are in ability.” This, within an overall cul-
ery of the documents in question. any way oppressive or put an undue ture of constrained litigiousness com-
This application must be accompa- burden on the person being interro- bined with the small size and
nied by an affidavit setting out the gated. Questions put, not for pur- familiarity of the commercial bar, re-
grounds for the deponent’s belief and poses of the present action, but with sults in an altogether different legal
identifying the documents of which a view to future litigation, will also atmosphere which puts all parties at
discovery is required. If the other be disallowed. a greater advantage in evaluating
party admits the existence of the If a party’s answers are evasive or the actual prospects of any proposed
documents in question but denies ambiguous, he may be ordered to or pending action.
their relevance, the master assigned make a further answer either on af- In England, there is usually no
to the case may inspect them in or- fidavit or by oral examination. recovery for loss arising from adverse
der to decide whether they are in fact market movement and, quite differ-
relevant. In addition, that party may Summons for Directions ent from U.S. practice, punitive dam-
be required to make an affidavit stat- The intent of the Summons for ages have no place in English com-
ing whether or not any particular Directions, which occurs after the mercial law. Assessment of damages
document is, or has at any time been, close of pleadings and before the ac- by judges acting alone without a jury
in his possession, custody or power tion is set down for trial, is to provide makes for far more reliable, predict-
and, if it no longer is, what has be- a thorough stocktaking of the action, able and proportionate remedies —
come of it. with the court reviewing trial prepa- altogether a stark contrast to the
Another major difference between rations, giving directions for any fur- relatively free-wheeling atmosphere
U.S. and English practice is that dis- ther preparations and directions on and results which are obtained on
covery and inspection against third evidential matters and on the time, this side of the Atlantic. Further-
parties is almost non-existent. There place and mode of trial. Other poten- more, there is no counterpart in the
is, as a rule, no procedure for obtain- tial subjects include directions limit- U.K. to the U.S. practices of triple
ing discovery against persons who ing the areas of dispute or number of damages or class actions.
are not parties to an action. They can, expert witnesses, admission of evi-
of course, be compelled to attend the dence by affidavit, whether or not the The English Rule on Costs and Fees
trial and to produce at that stage parties have made all reasonable In England, under the well-known
documents in their possession by agreements and admissions and the “English rule,” costs follow the event.
means of subpoena duces tecum. But recording of additional agreements The loser pays not only the victor’s
there is a rule, sometimes known as so made — or recordal of refusal with court costs but attorney fees as well.
the “mere witness” rule, whereby dis- a view toward subsequent award of There are limits to this, of course, as
covery cannot be obtained against a costs and fees. Also, the court may where a party has conducted the liti-
person against whom no relief is consider consolidation of actions or gation dishonestly or recovered only
sought but who might be a witness trying certain issues before others, a small part of the claim. In an ex-
in an action. possibly resulting in a split trial, an treme case, a successful plaintiff may
increasingly frequent occurrence be- have to pay the costs of the defen-
Interrogatories cause of the enormous savings in dant, and there is jurisdiction to or-
Interrogatories are questions put costs which often results. der a successful defendant to pay the
to an opposing party for answer on plaintiff’s attorney fees but this
oath in writing. They may relate to Trials without Jury would occur in only the most excep-
any matter relevant to the action. A huge contrast with American, tional of circumstances. Ultimately,
Broadly speaking, any question including New York jurisprudence, is the award of “costs,” which is defined
which could be asked of a witness at that, in trial of commercial matters in England to include attorney fees,
the trial may be asked of the oppos- in England, there are no juries. Dur- is within the discretion of the court.
ing party in the form of an interroga- ing the past century, jury trial in civil The discretion is not absolute, but
tory, with the notable exception of cases has virtually been superseded subject to certain statutory and prac-
questions as to the witness’s credit or by trial by judge alone, the principal tical limitations, including “reason
credibility. Interrogatories are usu- notable exception being trials for and justice”, especially in the case of
ally aimed at discovering the facts defamation. As a result, legal argu- multi-party litigation.
and they cannot extend to asking a ment is far more refined and there is In like manner, costs may be
party to disclose his means of proof no pressure on the parties or the awarded as to various stages in in-
or to name his witnesses. court to reduce complex cases down terlocutory proceedings, and both
A party has an automatic right to to a few simple issues or themes. parties have the option during the
serve interrogatories. Rules intro- course of litigation to make payment
duced in 1990 provide for service of Limitations on Damages and Permis- into court with the result that if the
interrogatories without order, and sible Claims successful plaintiff recovers no more
8
than the amount paid in, he will be junction to restrain a party from tiff can adduce sufficient evidence as
ordered to pay the defendant’s costs moving assets overseas, or otherwise to the existence and location of assets
of those causes of action from the dealing with assets located in En- which the injunction would affect;
date of the payment in. gland, whether or not that party is and (c) whether there is a real risk
Costs are assessed or “taxed” by domiciled or present there. The in- that the defendant may deal with
the court and in the usual course of junction can restrain a defendant those assets so as to render nugatory
events, even a litigant who is com- from improperly disposing of assets, any judgment which the plaintiff
pletely successful will often have to or concealing or moving them abroad, may obtain.
pay some costs himself. thereby making himself “judgment The injunction can be extended to
Contingency fees remain pro- proof” and stultifying an action cover bank accounts standing in the
scribed in England as unlawful on brought against him. name of another person, such as the
the grounds of public policy, it being In many cases the grant or refusal defendant’s spouse, if there is evi-
considered inappropriate that an ad- or discharge of a Mareva injunction dence that the money in the account
vocate should have a stake in the is determinative of the action. If the belongs to the defendant. If the de-
outcome of the case. Nevertheless, injunction is refused, or granted but fendant is the majority shareholder
“conditional fees” are in the process later discharged, a plaintiff may per- of a company which has substantial
of being approved. A White Paper ceive little point in continuing with assets, the injunction can also be
published by the government in 1989 the litigation. If the injunction is made against that company, which
suggested concession in relation to granted, and survives an inter partes should be added as a co-defendant in
cases where difficulties in financing hearing, the defendant may well con- the action.
litigation did exist, and a 1990 cede defeat. The paralyzing effect the As to (c), a risk of dissipation may
amendment to the Solicitors Act 1974 injunction has on business and the be shown in a variety of different
authorized the introduction of condi- injury to its reputation may render ways, such as evidence of dishonest
tional fee agreements in circum- futile any further opposition to the behavior by the defendant, unreli-
stances prescribed by the Lord Chan- plaintiff’s claim. ability in the past, evasiveness in the
cellor. The effect of the Act is that a A Mareva injunction can be subject proceedings, such as a will-
fee may be increased by a specified granted: (a) pre-trial or post-trial; (b) ingness to retract admissions and/or
percentage, in accordance with regu- against any defendant whether for- rely upon implausible defenses,
lations to be made by the Lord Chan- eign-based or English-based; and (c) statements of intent by the defen-
cellor, provided that is specified in in respect of assets in this country or, dant, a lack of any established busi-
the fee agreement. The percentage if English assets are insufficient to ness reputation or possession of a
increase cannot be recovered under cover the claim, in other countries. poor reputation, a propensity to
an order of costs against an unsuc- The application must be made to change domicile or move assets regu-
cessful party. The use of such agree- a judge and is usually made ex parte, larly or at short notice, having only
ments has yet to be authorized by the possibly even before the action has weak or non-existent links with the
Lord Chancellor, but it is likely to commenced. If the defendant is domi- U.K. except for assets invested there,
involve some personal injury cases ciled in the U.K., or in another mem- or being based in a country in which
and, possibly, actions in defamation ber state of the European Union, ser- it is difficult to enforce English judg-
for which legal aid is not available. vice overseas can be effected without ments.
Such agreements will not be avail- leave of court. Otherwise, leave is The plaintiff’s undertakings will
able for criminal cases and there ap- necessary under Order 11, rule 1(2) include, among others, undertaking
pears to be no prospect for their ap- of the Rules of the Supreme Court. as to damages and indemnification of
plication in commercial litigation. In applying, there are in essence only any person upon whom notice of the
three issues: order is served in respect of any ex-
Constraints on Trial Publicity (a) whether the plaintiff has a good penses and liabilities incurred in
Another element of predictability arguable case; (b) whether the plain- continued...
in trials in England is absence of law-
yer press-baiting. A barrister must
not comment to or in any news or
current affairs media concerning the The International Law Quarterly is prepared and published by the International Law Sec-
tion. The opinions presented in the articles are solely those of the individual contributors.
facts or issues arising in a particular
case. Edward M. Joffe, Miami...............................................................................................Chair
L. Jana' Sigars, Miami.......................................................................................Chair-elect
4. Special Prejudgment Tac- Thomas L. Raleigh, III, Orlando..........................................................................Secretary
tics and Relief under English Todd G. Kocourek, Talahassee............................................................................Treasurer
Law: Mareva Injunctions and Jeremy R. Page, Miami..........................................................................Newsletter Editor
Anton Pillar Orders. Kim B. Tomlin, Tallahassee............................................................Section Administrator
Lynn Brady, Tallahassee...........................................................................................Layout
The English court is empowered
with an array of interlocutory injunc-
Articles between 10 and 20 pages involving the various disciplines affecting international
tive remedies to preserve endan- trade and commerce may be submitted on computer disk with accompanying hard copy, or
gered assets and evidence, including on typewritten, double-spaced 8 1/2x11" paper (with the use of endnotes, rather than foot-
Mareva injunctions and Anton Pillar notes.) Please contact Jeremy Page if you have questions concerning the newsletter.
orders. The court may grant an in-
9
complying with the order. situated, details of bank and other arranges for sale of the property
The provisos and limitations of the accounts, nature and extent of seized in execution, normally by pub-
injunction will allow the defendant to shareholdings in specified compa- lic auction.
draw reasonable living expenses and nies, names and addresses of other Garnishee proceedings — These
to pay debts in the ordinary course alleged wrongdoers, the precise proceedings enable the creditor to
of business. They will give the defen- whereabouts of any document relat- have assigned the benefit of any debt
dant, and anyone else affected by the ing to transactions in respect of owed by a third party. The most com-
order, liberty to apply to set aside or which the plaintiff claims, and orders mon object of garnishee proceedings
vary the order, or to seek further di- to deliver up any documents such as is the judgment debtor’s bank ac-
rections. share certificates, books of account, count. Future earnings cannot be
A worldwide Mareva injunction in bank statements, etc. In several cases garnished.
standard form expressly states the injunctions were granted restraining Charging order — The judgment
extent to which the order operates a defendant from leaving the coun- creditor may apply ex parte for an
unless and until it is recognized by try and requiring him to deliver up order imposing a charge or lien on
the courts of the overseas country in his passports, the modern equivalent certain property, including any inter-
question. The worldwide Mareva in- of the ancient writ of ne exeat regno. est held by the debtor in land, secu-
junction is now available in aid of rities of various kinds, funds on de-
substantive proceedings of all types 5. Enforcement of English posit in court, and any interest under
in other states, in accordance with Court Judgments in England. a trust. If the charge is registered, a
the Civil Jurisdiction and Judgments The judgment creditor’s rights in purchaser takes the land subject to
Act (Interim Relief) Order 1997. respect of which he brought the ac- the charge. Registration amounts to
The Mareva injunction may also tion are extinguished by the judg- notice and priority is obtained over
include various orders for discovery, ment. In their place he has a judg- subsequent chargees. A land charge
as described under Anton Pillar or- ment debt which may consist of an may be enforced by an order for sale
ders below. award of damages and taxed costs, in in the Chancery Division of the High
addition to which may be included Court.
Anton Piller orders interest at a statutory rate from the Appointment of a receiver — This
These are orders compelling de- date of judgment. The judgment is a method of enforcement directed
fendants to permit the plaintiff’s creditor may proceed to enforce the at the interception of certain income
agents to enter the defendant’s pre- judgment by any of the following and profits, such as rents, before they
mises, search for and, in most cases, methods prescribed by Order 45, rule reach the debtor to preclude his dis-
seize certain documents or property. 1: posing of them to the detriment of the
The order is a special form of man- (a) writ of fieri facias judgment creditor.
datory injunction. It does not amount (b) garnishee proceedings
to a search warrant and therefore no (c) a charging order Enforcement of English Court Judg-
forcible entry of premises can be (d) the appointment of a receiver ments throughout the European
made. However, a defendant who (e) writ of sequestration. Union
fails to comply with the order can be Writ of fieri facias (fi-fa) — This is The Civil Jurisdiction and Judg-
committed for contempt. directed to the sheriff of the county ments Act 1982 incorporates into
Orders in this form are uniquely where property to be seized is lo- English law the provisions of the E.C.
British; they are unknown in the rest cated. Where the debtor has property Convention on Jurisdiction and
of Europe and in the U.S. The Civil in more than one county, concurrent Judgments in Civil and Commercial
Procedure Act 1997 places the courts’ writs may be issued. The writ com- Matters, 1968 (the Brussels Conven-
jurisdiction to make these orders on mands the sheriff to cause to be made tion). The Lugano Convention, con-
a statutory footing. (fieri facias) a sum sufficient to sat- cluded in 1989 by the European
In practice, Anton Piller orders are isfy the judgment debt and interest Union member states and those of
most commonly sought against in- together with the costs of execution. the European Free Trade Area (Aus-
fringers of copyright, patents, trade The sheriff may enter the judgment tria, Finland, Iceland, Norway, Swe-
marks and the like. An Anton Piller debtor’s land or the land of a third den and Switzerland) operates par-
order in standard form requires the party if the debtor’s goods are there. allel to the Brussels Convention and
defendant to disclose immediately, He may seize and sell property of all was enacted into English law by the
and later verity by affidavit, the types, except that which is exempt Civil Jurisdiction and Judgments Act
whereabouts of any infringing ar- from execution. Exempt property 1991. Title III of the Brussels Con-
ticles and the names and addresses comprises freehold interests in land, vention deals with recognition and
of any persons known to be involved equitable interests in land, fixtures enforcement of judgments rendered
in the alleged wrongdoing. attached to land, chattels, wearing by the courts of other states.
apparel, bedding and “tools and Under the Conventions, recogni-
Mareva injunctions and Anton Piller implements of trade.” tion is automatic. The Conventions
orders in aid of discovery A writ of execution may be issued covers all types of judgments and not
Mareva injunctions and Anton within the six years following the merely those for sums of money.
Piller orders often include a variety judgment or order, or later with Thus, any decree, order, writ of execu-
of discovery orders, such as to nature, leave, and may be executed within tion, determination of costs and so
location and value of assets wherever twelve months of issue. The sheriff forth is included. The judgment need
10