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Marevas in aid of foreign proceedings

Success under local law not necessary

The Hong Kong Court of Final Appeal has held that a court in Hong Kong considering a the equivalent of a Mareva injunction under s 21M of the High Court Ordinance (Cap 4) in aid of proceedings in England need not consider the strength of the substantive English claim under Hong Kong law: Compania Sud Americana de Vapores S.A. v Hin-Pro International Logistics Ltd [2016] HKCFA 79 .

The Court of Appeal had held that "the court must ask itself whether the facts of the case warrant the grant of interim relief if the substantive proceedings were brought in Hong Kong. This entails the judge hearing the application to examine the strength and arguability of an applicant’s claim in the context of Hong Kong law rather than simply accepting a decision of the foreign court": [2015] HKCA 107 at [32].

In the Court of Final Appeal, Lord Phillips of Worth Matravers giving the judgment of the court said at [48] that the three questions where an injunction is sought under s 21M in aid of foreign proceedings are whether (1) the plaintiff has a good arguable case before the foreign court; (2) there is a real risk that the defendant will dissipate his assets if the Mareva is not granted; and (3) it is unjust or inconvenient to grant the injunction. Where the foreign court has answered the first question positively in interlocutory proceedings, its conclusions will normally carry weight with the Hong Kong court.

He said at [50] that the underlying cause of action has little significance. Foreign judgments will be enforced in Hong Kong even though the claim is one that would not have succeeded under the law of Hong Kong. There is no reason in principle why the prospect of such a judgment should not receive the protection of a Mareva injunction.