Mareva Injunction

We sometimes hope that there is a magic spell to compel a person from not doing or doing something. But, we are not living in a magical world. Therefore, no one can force or control you against your will.

Realistically, we can still achieve that. Not by magic, but with a court order– injunction. There are so many types of injunction granted by the court. Once established, the court can order someone to stop doing things. For example, a man is no longer allowed to enter this neighbourhood. But, on the other hand, the court can compel a person to compensate in monetary form to another person.

Nevertheless, only serious matters can consider by the court. Therefore, the above examples are only for explanation purposes. In this article, we will only discuss ‘Mareva injunction’.

This specific injunction is derived from the landmark case of Mareva Compania Naviera SA v International Bulk Carriers SA(“The Mareva”) [1980] 1 All ER 213. It is originated from the United Kingdom. It intended to stop a shipping dispute and prevent the foreign party from transferring the money out of the country.

The legal definition is an ‘asset preservation order’ or a ‘freezing order’ in other countries. Mareva injunction aims to prohibit the defendant from disposing of his or her assets out of the jurisdiction before the plaintiff secures any judgment.

In simple words, it is a court order from stopping a person from moving their assets (money, property, belongings) out of the country before the plaintiff (the person who file an application against them) get a judgment.

Let’s read below to see how Mareva injunction is incorporated in Malaysia.

The prominent national case of 1MDB is an excellent illustration of the Mareva injunction. Amid the legal suit, 1Malaysia Development Berhad (1MDB) and its subsidiaries filed a Mareva injunction against our former Prime Minister.

It is a Mareva injunction with the condition. Our former prime minister is allowed to withdraw RM100,000 for covering his living expenses. Other than that, Najib has to get written permission from 1MDB if he wants more.

Upon the injunction, Najid unable to use or move any of his assets out of the country until further legal proceedings. His lawyer can choose to apply to set aside the injunction. Nevertheless, there is no further update on the case.

From Malaysia’s context, the Malaysian court can issue a Mareva injunction that is effective worldwide. Due to the convenience of owning an asset overseas, it is reasonable to cover all assets of a person (if all the assets, including the overseas, are under the same person’s name).

The earlier worldwide Mareva injunction dated back in 2005 (a case from stopping the person from embezzling his assets within and outside of Malaysia- Metrowangsa Asset Management Sdn Bhd & Anor v Ahmad b Hj Hassan & Ors [2005] 1 MLJ 654).

Until now, the recent Court of Appeal case (The Customs and Tax Administration of The Kingdom of Denmark v Saling Capital Ltd & 39 Ors). Malaysia’s Court of Appeal granted the injunction as the party fulfilled the requirement of the principle.

The application of Mareva injunction (including worldwide) uses the same principles. For a party to file a case, the applicant must have:

• A good arguable case
• There is a real threat of the defendant transferring their assets out of the country
• The assets must be within the jurisdiction (for example, within Malaysia to file a case in Malaysia)

A Mareva injunction is merely safeguarding the assets and funds. It does not provide any additional rights over the property. Rahayu Partnership offers a wide range of services that cover internationally and locally. We urge everyone to take care and stay safe. Contact us if you need a consultation.

References:

1. https://www.freemalaysiatoday.com/category/nation/2022/02/09/najib-to-mount-strong-challenge-against-mareva-injunction-says-lawyer/ 
2. Mareva Injunction as a Preventive Relief – IIUM Journals
3. https://www.theedgemarkets.com/article/najib-strongly-challenge-mareva-injunction-freezing-his-assets

By Rahayu Partnership, Malaysia
Law Firm Website: www.rahayupartnership.com