Posts Tagged ex parte
Update 8 November 2019 the Court yesterday confirmed the AG’s Opinion.
Like quite a few of the Opinions and Judgment in my recent blog posts, Szpunar AG’s recent Opinion in C-555/18 KHK v BAC (*mutters his usual rant on the idiocy of the parties’ anonimisation rule*) was issued just before many of us took a short summer break. Carlos Santaló Gorisseemingly did not and I am happy to refer in the main to his analysis.
The Advocate General refers first of all to the infamous decision in 125/79 Denilauler, excluding ex parte provisional or protective measures from enforcement under the then Brussels Convention. The European Account Preservation Order Regulation 655/2014 was intended to fix this particular chink in the European civil procedure armour. Which national decisions fit with its definition of ‘authentic instrument’ is the subject of current proceedings, and Szpunar AG as Carlos reports takes a balanced approach between facilitating free movement without assisting abuse.
Of note is that the EAPO Regulation hitherto has received very little practice. Clarification of its precise scope is crucial.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.15, Heading 18.104.22.168.1.
Banca Turco: Popplewell J explains that worlwide freezing orders, particularly ex parte, are not extended willy-nilly.
In  EWHC 662 (Comm) Banca Turco Romana, Popplewell J explained his reasons for discontinuing ex parte freezing orders, with reference among others to C-391/95 Van Uden. At 22-23 he discusses the not entirely clear application of the jurisdictional rules of Brussels I, which indicated that that Regulation was engaged either via Article 2 (now 4: domicile in Romania) or 4 (now 6): residual Member State (here: Romanian) jurisdictional rules, which go on to be sheltered under the Brussels I Regulation.
At 20 he refers to the earlier case of ICICI Bank UK plc v Diminco NV  EWHC 3124 (Comm) in which he summarised the English Courts’ requirements for the issuing of ex parte freezing orders where the defendant is neither resident within the jurisdiction nor someone over whom the court has or would assume in personam jurisdiction for some other reason:
‘the court will only grant a freezing order extending to foreign assets in exceptional circumstances. It is likely to be necessary for the applicant to establish at least three things:
(a) that there is a real connecting link between the subject matter of the measure sought and the territorial jurisdiction of the English court in the sense referred to in Van Uden;
(b) that the case is one where it is appropriate within the limits of comity for the English court to act as an international policeman in relation to assets abroad; and that will not be appropriate unless it is practical for an order to be made and unless the order can be enforced in practice if it is disobeyed; the court will not make an order even within the limits of comity if there is no effective sanction which it could apply if the order were disobeyed, as will often be the case if the defendant has no presence within the jurisdiction and is not subject to the in personam of the English court;
(c) it is just and expedient to grant worldwide relief, taking into account the discretionary factors identified at paragraph 115 of the Motorola case. They are (i) whether the making of the order will interfere with the management of the case in the primary court, e.g. where the order is inconsistent with an order in the primary court or overlaps with it; (ii) whether it is the policy in the primary jurisdiction not itself to make to make worldwide freezing/disclosure orders; (iii) whether there is a danger that the orders made will give rise to disharmony or confusion and/or risk of conflicting, inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located; (iv) whether at the time the order is sought there is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order; and (v) whether in a case where jurisdiction is resisted and disobedience may be expected the court will be making an order which it cannot enforce.”
In Banca Turco discontinuation was ultimately mostly based not on any slip-up of jurisdictional basis, but rather on the absence of full disclosure by the requesting party: at 45: ‘The importance of the duty of disclosure has often been emphasised. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, which is a basic principle of fairness. Derogation from that basic principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. If the court is to adopt that procedure where justice so requires, it must be able to rely on the party who appears alone to present the evidence and argument in a way which is not merely designed to promote its own interests, but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make. It is a duty owed to the court which exists in order to ensure the integrity of the court’s process. The sanction available to the court to preserve that integrity is not only to deprive the applicant of any advantage gained by the order, but also to refuse to renew it.’