Is there Finally a Backlash Against Rule B Attachments? - Part 2 Chapter 12 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
The telephone call is similar to ones you have had before and so you know that it will likely end with a client who is unhappy. Your non-U.S. client informs you that the bank just called to tell it that its multimilliondollar electronic funds transfer (EFT) was attached.
“It must be a mistake,” she says, because the transfer related to a transaction that had nothing to do with the United States and the payment was a transfer from its bank in France to the other side’s bank in Brazil.
You have the unenviable task of explaining that, at least in the context of Rule B maritime attachments, the law as it has developed in the Second Circuit permits the attachment of a U.S.-dollar EFT if the defendant is either the originator or beneficiary of it and the originator bank, beneficiary bank or intermediary bank is in New York. The attitude of your client goes from bad to worse when you further explain that there is little, if anything, that can be done to free up the frozen money and that future U.S. dollar EFTs will also be at risk of attachment.
This is the current state of the law in the U.S. Court of Appeals for the Second Circuit. But some recent decisions seem to reflect an attitude on the part of at least some district court judges that Rule B attachments have gone too far and that it is time for the pendulum to swing back. Indeed, when lawyers are advising their clients that the best way to avoid Rule B attachments is to conduct maritime and perhaps other transactions in a currency other than U.S. dollars, there are emerging risks of a significant reduction in the use of the dollar as the dominant currency of international commerce.