Freezing injunctions and attachment orders compared – key similarities and differences

Whether known as "freezing injunctions/orders" (England & Wales, Hong Kong, Singapore), "pre-judgment attachments" (New York), "seizures" (Germany) or "arrestment orders" (Scotland), most jurisdictions around the world provide for a legal remedy to guard, so far as possible, against the Respondent dealing with or disposing of their assets in a way that would frustrate enforcement of a future or existing judgment.

These orders fall into two broad categories. The first is attachment orders, the predominant form of the remedy in civil jurisdictions, as well as certain common law jurisdictions, such as Scotland and the US. The second is the "Mareva-style" freezing injunctions, originally a creature of the English common law,[1] but now also available in many other common law jurisdictions such as the Abu Dhabi Global Market, Australia, Canada, Dubai International Finance Centre, Ireland, Hong Kong, New Zealand, and Singapore.

Further to the recent publication of our Global Guide to Freezing Orders (click here) – which provides a practical overview of freezing injunctions and their local law equivalents in more than 90 jurisdictions worldwide – we set out below some of the common similarities and differences between these two types of orders (albeit there are exceptions, which are detailed in the Guide).

Common similarities:

• A requirement on the Applicant to demonstrate a risk of asset dissipation or other steps by the Respondent which would make enforcement of any judgment more difficult.
• A restriction on the use of assets falling within the scope of the order (albeit effected differently).
• Available against a broad range of tangible and intangible assets, and at any stage in proceedings (including pre-commencement and after judgment).
• The Applicant being potentially liable to compensate the Respondent for any damage caused by the order, and having to provide related undertakings or security.
• Breaches of the order - whether by the Respondent or facilitated by third parties – being a contempt of court, or attracting other criminal or quasi-criminal liability.
• Available in support of substantive proceedings abroad, and arbitration proceedings or awards.

Common differences:

• Attachment orders “attach” or operate against specific assets, and therefore tend to involve taking control of, or otherwise securing, the relevant assets.
• Freezing injunctions, in contrast, operate against the Respondent themselves. They therefore restrain the Respondent in dealing with their assets, which remain in their control but subject to the terms of the order (albeit specific assets subject to the injunction will often be named in the freezing order).
• The execution of attachment orders typically involves a court official, bailiff or other enforcement authority, whereas Mareva injunctions are given effect by the Applicant notifying third parties and serving on the Respondent.
• There is broadly greater uniformity in the nature of the remedy between jurisdictions with freezing injunctions, than between those with attachment orders, where there can be significant differences in terms of the process for obtaining the remedy and how they operate in practice.

For further details on particular jurisdictions, please see our Global Freezing Order Guide (click here).

[1] Mareva Compania Naviera SA v International Bulk Carriers SA (The Mareva) [1980] 1 All E.R. 213.