That an arbitral award in your client’s favour is only as good as its prospects for enforcement is not a controversial proposition. Notwithstanding this, enforcement is too often regarded as a separate step in the process – a hurdle to be overcome only after the arbitral award has been obtained. For some cases, approaching arbitration proceedings with this view could be a fatal mistake.
In circumstances where a claimant fears that the respondent may dissipate funds or assets that would otherwise be available for satisfaction of the award, then it should consider taking early action to preserve those assets for the purposes of enforcement. The most powerful tool in English law for doing this is the freezing injunction (formerly known as the “Mareva” injunction). So powerful that it has been described as a “nuclear weapon”.
Unsurprisingly, therefore, this is relief which is both highly desirable and not available unless certain legal hurdles are cleared. These hurdles are a well-trodden path in English law. Less explored, however, is the overlapping jurisdiction of the English court and an English-seated tribunal to grant a freezing injunction. This article considers the interplay between these two jurisdictions and offers practical suggestions to ensure that an applicant who has secured the “nuclear weapon” does not drop it through potential cracks in the jurisdiction between court and tribunal. This is explored in Sections IV and V of this article, which draw a distinction between the initial grant of the freezing injunction and steps required to maintain that relief.