Mareva injunction and Japanese provisional remedy
University of British Columbia
Master of Laws - LLM
Private rights are enforced by the powers of the state where an obligee fails to comply with a court order. However, there is a timelag between the time the parties recognize there is a dispute and the time a court order resolving the dispute is rendered. Therefore, it is necessary to prevent the obligee from changing its position to the detriment of the obligor during that period. In a pecuniary claim this may be achieved by freezing a debtor's assets. On the other hand, it is required that a debtor continue his business and ordinary life. The world's various legal systems have responded to these two, oftentimes conflicting requirements in a number of ways. Two basic mechanisms have been invoked: a remedy in rem, which is an order directly affecting assets and a remedy in personam, which is an order enforced by threat of imprisonment. This thesis attempts to analyze the Mareva injunction in England and Canada, which is an injunction issued in respect of a pecuniary claim to prevent a defendant from disposing of his assets. The Mareva injunction is compared with the Japanese provisional remedy. Through this analysis, this thesis brings to light the merits and demerits of both the Mareva injunction and the Japanese provisional remedy from the point of view of how effectively an order succeeds in freezing a defendant's assets. This thesis also suggests a new law which may improve current practices in Japan as to provisional remedies.
Law, Peter A. Allard School of