|
Preface |
7 |
|
|
Contents |
10 |
|
|
1 Introduction |
13 |
|
|
1.1 The Problem Stated and the Roadmap to the Monograph |
13 |
|
|
1.2 Terminology Caveats |
14 |
|
|
References |
17 |
|
|
2 Provisional Measures in France and the United Kingdom |
19 |
|
|
2.1 Background |
19 |
|
|
2.2 Definitions: The French Saisie Conservatoire |
20 |
|
|
2.2.1 Saisie Conservatoire in Comparison to the Référé |
21 |
|
|
2.3 Definitions: The English Mareva Injunction or Freezing Order |
22 |
|
|
2.4 The Basic Problem: Locating a Debtor’s Assets and Preventing Their Removal |
24 |
|
|
2.5 The Mareva Injunction or Freezing Order |
25 |
|
|
2.5.1 Historical Origins of the Freezing Order or Mareva Injunction |
25 |
|
|
2.5.2 The Key Characteristics of the Mareva Injunction |
27 |
|
|
2.5.3 Expansion of the Scope of Mareva Injunctions and Freezing Orders |
28 |
|
|
2.6 The Saisie Conservatoire |
30 |
|
|
2.6.1 A Brief Legislative History of the Saisie Conservatoire |
30 |
|
|
2.6.2 The Key Characteristics of the Saisie Conservatoire |
31 |
|
|
2.7 The Procedure for Obtaining a Saisie Conservatoire and Mareva Injunction Freezing Order |
33 |
|
|
2.7.1 The Procedure for Obtaining the Saisie Conservatoire |
33 |
|
|
2.7.2 The Procedure for Obtaining a Mareva Injunction or Freezing Order |
35 |
|
|
2.8 On the Role of Contempt of Court Rules |
37 |
|
|
2.9 A Comparison of the Saisie Conservatoire and the Freezing Order Mareva Injunction as Remedies for a Creditor Seeking to Enforce a Claim |
40 |
|
|
2.9.1 Speed, Simplicity and Cost |
40 |
|
|
2.9.2 The Consequences of Obtaining a Saisie Conservatoire and Freezing Order and the Effect of the Order |
40 |
|
|
2.9.3 Counter Security or Undertakings in Damages |
41 |
|
|
2.9.4 Ancillary Orders Which Can Be Granted by the Courts to Assist Enforcement of Provisional Measures |
41 |
|
|
2.10 Jurisdiction, Recognition and Enforceability of Freezing Orders in EU Member States—Potential Conflicts and Uncertainties |
42 |
|
|
2.10.1 General Considerations |
42 |
|
|
2.10.2 Jurisdiction-Related Issues |
43 |
|
|
2.10.3 Recognition and Enforcement of Mareva Injunction Freezing Order by Member States of the European Union |
45 |
|
|
2.10.4 Worldwide Freezing Orders Before French Courts and the European Court of Justice |
45 |
|
|
2.11 Conclusions |
48 |
|
|
References |
51 |
|
|
3 Provisional Measures in the United States |
54 |
|
|
3.1 A Brief History of US Law on Provisional Measures |
55 |
|
|
3.2 Synopsys of US Law on Provisional Measures |
58 |
|
|
3.2.1 The Federal Rules of Civil Procedure |
58 |
|
|
3.2.2 State Law Variations |
62 |
|
|
3.2.3 Constitutional Due Process Limitations Common to Prejudgment Remedies |
63 |
|
|
3.2.4 The Uniform Asset-Protection Orders Act 2012 |
64 |
|
|
3.3 Mareva Injunctions and the US System of Provisional Measures: Differences and Commonalities |
66 |
|
|
3.3.1 The American Provisional Measures v. the English Mareva Injunction: The Main Inherent Limitations of the American System |
66 |
|
|
3.3.2 The American Provisional Measures v. the English Mareva Injunction: Policy and Practical Differences |
68 |
|
|
3.3.3 The Tokens of Efficiency of the American System |
70 |
|
|
3.4 Positioning US Law |
72 |
|
|
References |
73 |
|
|
4 Post-socialist Jurisdictions: Provisional Measures in Hungary |
76 |
|
|
4.1 The Limits of Research: On the Hungarian Legal System and Scholarship |
77 |
|
|
4.2 An Overview of the History of Provisional Measures in Hungary in Modern Times (1867—Present Time) |
79 |
|
|
4.3 Present Time Statutory Law |
81 |
|
|
4.3.1 A Terminology Caveat |
81 |
|
|
4.3.2 The Main Features of the Law on Provisional Measures |
82 |
|
|
4.4 What Contemporary Hungarian Court Cases Can Tell Us About Ex Parte and Other Provisional Measures |
83 |
|
|
4.4.1 Case Law as a Source for Analysis: Limitations and Key Features |
83 |
|
|
4.4.2 Why a Mareva Injunction-Type Ex Parte Provisional Measure Is Needed in Hungary? |
84 |
|
|
4.4.3 What Are Non-Ex Parte Provisional Measures Used for in Hungary? |
86 |
|
|
4.5 Contempt of Court Rules in Hungary |
89 |
|
|
4.6 Positioning Hungarian Law on the European and Global Landscape |
90 |
|
|
References |
91 |
|
|
5 The European Account Preservation Order: Nuclear Weapon or Paper Tiger? |
94 |
|
|
References |
97 |
|
|
6 Conclusions and Possible Ways Forward |
98 |
|