Recent UK Case Law: Worldwide Freezing Orders in the Enforcement of Arbitral Awards

January 16, 2018

A High Court in England and Wales recently confirmed the Court’s ability to order a worldwide freezing order (WFO) to aid enforcement of an arbitral award as a judgment of the Court. 

In the recent decision of Great Station Properties v UMS Holding Limited [2017] EWHC 3330 (Comm), Mr Justice Teare granted a WFO where an arbitration award had concluded that the Respondents were liable to pay the Claimants US$305.8 million. 

The case demonstrates that a WFO can be a powerful weapon in the enforcement of arbitration awards as judgments of the court and, in particular, in the enforcement of London arbitration awards where no assets are located within the jurisdiction. It further emphasises London as a favourable seat in international arbitration.

What Is a Worldwide Freezing Order?

WFOs continue to be powerful weapons in the armoury available in UK litigation. 

A freezing order is an interim injunction that restrains a party from disposing of, or dealing with, its assets to ensure that the assets in question remain available until an arbitral award or court judgment can be enforced. They are not a proprietary remedy but are granted to give a claimant advance security for its claim where the claimant believes that there is a real risk that the defendant will dissipate its assets. 

Points to consider when seeking a WFO:

  • An application for a freezing order is usually made ex parte or without notice to a respondent as giving notice would defeat the purpose of the injunction. As a result, an applicant has a duty to provide full and frank disclosure of all material facts, even if they are not in the applicant’s favour.
  • An applicant must give an undertaking that they will be responsible for damages if it is ultimately found that they were not entitled to the interim relief granted.
  • Courts have a wide discretion to grant a freezing order. It can be granted, in appropriate circumstances, against assets outside the jurisdiction where the seat of the arbitration is in England, and against third parties resident outside the jurisdiction who own assets that are in fact beneficially owned by a respondent.
  • A freezing order can be granted in pending arbitral or court proceedings or post award and judgment.

Breakdown of the Recent Decision

The principal issue for the Court in the decision of Great Station Properties v UMS Holding Limited was whether the Claimants had established the necessary risk of dissipation of assets by the Respondents, three companies beneficially owned by businessman Mr Grigorishin.

Mr Justice Teare held the following:

  • It was clear from the tribunal’s findings that Mr Grigorishin used companies within his control to ensure that profits which ought to have been shared with the Claimants were instead paid to companies within his control, directly harming the interests of the Claimants. 
  • This was solid evidence demonstrating that there was a real risk that Mr Grigorishin may use companies within his control to seek to ensure that assets of the Respondents were beyond the reach of the Claimants when they sought to execute the judgment on those assets. Teare J was unable to accept the Respondents’ submission that the illicit scheme operated by Mr Grigorishin from 2012 to 2013 was of “historical interest only.”
  • This risk was increased by solid evidence that: (i) there had been a lack of probity by Mr Grigorishin in his dealings with Ukrainian authorities; and (ii) the substitution of bearer investment certificates for shares had made dissipation easier.

The Court granted the WFO even though: (i) none of the Respondents’ assets were located in England; and (ii) proceedings had been initiated in Cyprus (where the Respondents’ assets were located) to register and enforce the English judgment. 

Teare J considered that where the English Court had given permission for an award to be enforced as a judgment of a Court it was in the public interest that the judgment of the Court be respected and enforced. A WFO is a means of ensuring, so far as that is possible, that a judgment will be enforced.