Freezing injunctions are one of the most powerful interim measures available under English law to preserve assets pending or following arbitral proceedings. They play a critical role in preventing award debtors from frustrating enforcement by dissipating assets. The following overview highlights when and how such relief can be obtained, supported by key case law, and sets out the main procedural requirements.
Before or after arbitral award being rendered?
It is common for an application for a freezing injunction to be made prior to the arbitral award being rendered. However, under English law, there is clear authority that the Court also has jurisdiction to grant a freezing injunction post-award in support of enforcement: Celtic Resources Holdings v Arduina Holding BV [2006] EWHC 2553 (Comm).
Was arbitration seated in England?
If an award relates to an arbitration seated in England, Wales or Northern Ireland, the court may grant a worldwide freezing order even where there are no assets within the jurisdiction and enforcement will take place abroad: U&M Mining Zambia Ltd v. Konkola Copper Mines. If the award relates to an arbitration seated outside England, Wales and Northern Ireland, the court may grant such relief, but the freezing order will normally be confined to assets located in England, Wales and Northern Ireland.
Supporting enforcement?
The English courts may consider granting a worldwide freezing order in support of the enforcement of a foreign arbitral award where there is evidence of fraud and sufficient connections to the jurisdiction (ArcelorMittal USA LLC v. Essar Steel Limited and others [2019] EWHC 724 (Comm)).
Against a non-party?
It may also be possible to obtain an interim measure against a non-party to the arbitration that holds assets on behalf of the award debtor. Based on the current authorities, the non-party must be within the jurisdiction of the English courts (Cruz City 1 Mauritius Holdings v. Unitech [2014] EWHC 3704 (Comm); DTEK Trading SA v. Sergey Morozov and another [2017] EWHC 94 (Comm)).
How to apply?
The general court rules relating to interim relief, including the requirements that apply for freezing orders, are contained in Rule 25 of the CPR. As set out in Rule 25, an application for a freezing order may be made ex-parte and will require supporting evidence in the form of an affidavit making full and frank disclosure of all material facts, including those going against the grant of the order (PD 25A 3(1)).
In order to grant freezing injunction, court needs to be satisfied with the following requirements:
- A cause of action is justiciable in England and Wales.
- There is a good arguable case.
- The defendant having assets within the jurisdiction.
- There is a real risk that the defendant may dissipate those assets before judgment can be enforced.
- The defendant will be adequately protected by the claimant’s undertaking in damages.
The application and the supporting evidence, with the court’s order, will need to be served on the respondent and any third parties holding assets on behalf of the respondent. The respondent (or anyone served with or notified of the freezing order) may apply to court to have the order varied or set aside.
Takeaways:
- Freezing injunctions are not limited to the pre-award stage. Courts retain jurisdiction to grant them both before and after an award to secure enforcement.
- The seat of arbitration is central - English-seated arbitrations benefit from broader access to worldwide freezing relief than foreign-seated arbitrations.
- Courts may step in to assist with enforcement of foreign awards where fraud and asset dissipation risks justify extraordinary intervention.
- Relief can extend beyond the debtor to third parties, but jurisdictional limits remain a decisive factor.
At Fortior Law, we regularly assist clients in obtaining and resisting freezing injunctions before the English courts, both at the pre-award stage and in support of enforcement. Our team ensures that applications are meticulously prepared and supported by comprehensive evidence to maximise the chances of success.
If you or your company are considering applying for a freezing injunction in England, contact our London office at [email protected].
