Enforcement of Foreign Judgments and Awards

Enforcement of Foreign Judgments and Awards; Emergency Relief; Mareva Injunction

The Mareva injunction is a powerful tool for levelling the playing field when dealing with those who, left to their own devices, would dissipate their assets, with a view to frustrating the claims of their creditors.  While the commencement of litigation is the traditional juncture to seek such extraordinary relief, based in part on the idea that a defendant might then take steps to dissipate assets, it is not the only stage of the process at which such an order is available. If a Mareva was either not granted, or not sought, at the front end of the process, but then a money judgment is obtained, some defendants might then take steps to remove, conceal or consume assets, while an appeal is pending, thereby exploiting the automatic stay of execution imposed.
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In a decision sure to please the international arbitration bar and those who pursue asset recovery in fraud matters alike, our team was recently successful before the highest court in British Columbia. The BC Court of Appeal reinforced the importance of Canada’s international obligations to recognize and enforce arbitral awards and to treat foreign litigants as favourably as British Columbians at all stages of proceedings, including the pursuit of extraordinary relief such as Mareva injunctions. Madam Justice Garson, writing for a unanimous Court that included Madam Justice Levine and Madam Justice Neilson, overturned a decision of Madam Justice Ross, which had declared a Mareva injunction to have been wrongly granted, in part, based on the “limited association” of the parties to British Columbia. In reaffirming the flexible approach to Mareva injunctions taken by British Columbia Courts, the panel explicitly rejected the conclusion of Justice Ross that the appellant had failed to meet the full, frank and fair disclosure obligations of a party seeking an injunction on ex parte basis.
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