Volume XV, No. 5

International LawQuarterly

See “Chair’s Report,” page 6

06/98

THE FLORIDA BAR Spring 1998

INSIDE:

Terrific Tantalizing “Titanic” TourTriumphs!! .................................... 2

Choice of Law and Forum: SwiftJustice in England Including Pre-Judgment Tactics & Relief andEnforcement throughout Europe . 4

International Tax Briefs ................ 11The Mareva Injunction and

Anton Piller Order: The NuclearWeapons of English CommercialLitigation .................................... 12

6-21. Standards for Certification ofa Board Certified InternationalLawyer ........................................ 22

Outgoing Chair’s Reportreception. The following day Dr.Gayle Carson, nationally prominentmotivational speaker, addressed uson successful time management.That afternoon an introductory pro-gram on the Internet was well re-ceived. At lunch, Dr. Robert Jarvis ofNova Law School spoke on Ethics inInternational Law. The following daywe held a section business meeting.

The section sponsored a number ofsuccessful seminars this year andwas honored to co-host several pro-grams with the ABA in November.The following were our seminar ac-tivities:

1. Estate Planning for the Inter-national Client, October 9,1997.

2. Considerations in Selecting OffShore Jurisdictions (in conjunc-tion with Joint Meeting of theABA International Law & Prac-tice Section, IABA and TFB In-ternational Law), November 13,1997.

3. Helms Burton and Other Re-lated Trade Issues in Cuba, (inconjunction with Joint Meetingof the ABA/IABA/TFB), Novem-ber 13, 1997.

4. 10th Annual Legal Aspects ofDoing Business in LatinAmerica, February 5-6, 1998.

5. 19th Annual Immigration Law

by Edward M. Joffe

Thank you forthe opportunity toserve as your chairthis past year. InAugust 1997, thesection held a re-treat at the RitzCarlton in WestPalm Beach. ThatFriday night wehosted a reception

for the Board of Governors who werealso attending a retreat at the samehotel. Over 80 people attended the

Changes Under theImmigration Reform Act of1996by Larry S. Rifkin, Esq.Introduction

The Illegal Immigration Reformand Immigrant Responsibility Act,Division C of the Omnibus Appro-priations Bill (“the Immigration Re-form Act of 1996” or “the 1996 Act”)signed into law by President WilliamJ. Clinton on September 30, 1996,1

brought wide sweeping changes toour immigration system with par-ticular emphasis on creating disad-vantages to those who ignore the law.Many of the new provisions affect

those individuals who violate theirimmigration status by staying longerthan permitted or engaging in unau-thorized employment, often withharsh consequences. This supple-ment will focus on those changeswhich will have the greatest impacton aliens seeking entry as bothnonimmigrants and as immigrants tothe United States. As of April 1, 1997,all of the provisions of the new legis-lation are in effect, however, the Im-migration & Naturalization Service(INS) has published regulations

See “Reform Act,” page 24

2

Terrific Tantalizing “Titanic” TourTriumphs!!

by Drucilla E. Bell

“Cruising on Titanic on a freezing Sunday night.The watch was in the cold crow’s nest; no iceberg was in sight.

Below the Band was playing. Ships’ lights were burning bright.Cruising toward that iceberg on a freezing Sunday night.......

(Sung to the tune of “SailingDown the River” — by Cap-tain Edward Fink, US Navy

Ret.)

The Travel Law Committee ofthe International Law Section hasenjoyed another success with thetransatlantic Titanic CLE cruisethat also included visiting legal cen-ters and seeing the sights of St.Martin, Madeira (Portugal),Malaga (Spain), Marseilles(France), and the French Riviera.

After leaving the port of Miami, asea-day started the courses with in-troductions of faculty and staff to ourthirty-some participants. The coursesoffered were “Travel Law for TravelAgents” (and attorneys) in the morn-ings and CLE ala “Memories of theTitanic” in the afternoons. The fac-ulty for the trip consisted of DrucillaE. Bell, Captain Ed Fink andLaurence Gore, the organizer andcreator of this imaginative adven-ture, for Seminars at Sea Travel. Pre-sentations in the Travel Law fieldrelated to How a Travel Agent canLimit Liability , What to do when Youget Sued, Health and InternationalConsiderations, Negotiating SalesContracts - a guidebook for the travelagent in their legal minefield. TheContinuing Legal Education portionwas geared to the Titanic disaster of1912: Changes in the Contract of Pas-sage; Admiralty changes, the Ice Pa-trol and Saving of Lives at Sea Actthat came out of the disaster (totallynew concept of a “seat in a lifeboatfor every passenger”!); ImmigrationChanges over the years entitledSteerage to Peerage; Suits, Claimsand Investigations on Both Sides ofthe Ocean; and the most intriguing

part of the presentations: The Con-spiracy Theory - was it really the Ti-tanic that sank? Why did J. P. Mor-gan and 55 of his best friends all ofwhom had booked passage on the Ti-tanic cancel at the last minute? Mor-gan had the most spacious and luxu-rious “Owner’s Cabin” ever in history,but canceled due to illness, and wasdiscovered with his mistress a fewdays later - paintings he had plannedto ship on the Titanic were not “pack-aged” in time for the leaving of theTitanic.

The SS Norway was built forTransatlantic crossings in 1960 asthe SS France, one of the few shipsnot built solely for profit but as ashowcase of French national pride. Inthe early 1970’s with the fuel short-age and the prevalence of flightsacross the Atlantic, she was retiredfrom service. In the early 1970’s shewas purchased by Norwegian Carib-bean Lines and cruised the Carib-bean, not returning to her home portuntil 1986, as the SS Norway. Shewas purchased at a cost of$18,000,000. After 5 years and $150,000,000 in construction and re-furbishment, she crossed the oceanagain. When she arrived in LeHavrein 1997, there were 100,000 people

there to greet “their” SS France.Since that time she has cruised theMediterranean in the summer andthe Caribbean in the winter. Shecrosses beautifully, causing just ahint of the sea with her soft rolls.For entertainment, there was theJimmy Dorsey orchestra, a wonder-ful string quartet, a jazz band,Broadway shows, and even EdwinNeumann speaking on the use andmisuse of English and whether theMedia can be trusted. On the poolaft deck, there was a CaribbeanReggae band playing most after-noons. There were also theme

nights with Italian food and Italiansinging by the waiters, Caribbeannight, Western night and each withthe respective theme for the Midnightbuffet. There were also currently re-leased movies on the television, whereyou could also see tapes of Mr.Neuman’s talks, shore trip guides andof course, shopping advice.

We stopped after the first sea-dayat St. Martin’s for swimming, snorkel-ing, shopping - but there was a postalstrike so we couldn’t mail any postcards from there. Then it was six daysat sea, marked by setting your clocksahead an hour each night. During thistime, we had a couple of hours of classevery morning and afternoon. Cap-tain Fink had searched the Internetfor everything he could find about theTitanic. Joe and I would almost al-ways attend breakfast in the diningroom and the midnight buffet, wherethere was open seating so we alwaysmet new people. When we told themabout the seminars, especially theTitanic, they often asked to sit in ona session - a few attended the rest ofthe seminar even though they missedthe first one or two.

On Saturday evening, we had asample meal of the kind servedaboard the Titanic - and of course, a

3

Titanic Party! At this function, par-ticipants were asked questions aboutthe Titanic, myth or fact? We heardmusic from the SS Titanic, some worecostumes like the Titanic passengerswould have worn (see photos) andthen sang Captain Fink’s tribute tothe Titanic, an excerpt of which ap-pears at the beginning of this article.With champagne as prizes for the con-

test, everyone had a glorious time.After crossing the Atlantic, we

toured the Island of Madeira whichis part of Portugal. This is whereMadeira wine comes from; Madeirameans “wood” so the woody taste ofthe wine should be no surprise. Inearly times, the grapes were broughtdown the mountains in wicker bas-kets, slid down paths to the winery

where the grapeswere fermentedinto wine. Thesewicker baskets onrunners are nowused as bobsleds toride the touristsdown the hill, on apaved road, be-tween walls aroundhouses and gar-dens, guided by twofellows in strawhats guiding itwith ropes. Wethen landed on

Malaga (Spain) after crossingthrough the Straits of Gibraltar andseeing the silhouette of the Pruden-tial Logo in the distance at 3:30 am(Rock of Gibraltar). Malaga is a beau-tiful woodsy terrain with Moorishforts and beautiful cathedrals. Wealso saw Toromolinos, a beautifulMediterranean beach, with all thatimplies.

Disembarkation took place inMarseilles, France where the legalcontingent was taken directly to theHeadquarters of the Chamber ofCommerce and Industry and hostedby the President. There we wereshown audio visuals of the economicdevelopment and accomplishmentsof Marseille, the oldest city in France.At the City Hall, a wonderful recep-tion with champagne, caviar, finger

sandwiches, and fruit was served andLarry Gore, representing Fort Lau-derdale, exchanged gifts with theDeputy Mayor of Marseille (develop-ing a sister-city relationship). TheMarseille Bar Association alsogreeted us and officially invited theFlorida Bar to the opening of theFrench Bar next year, which is a cer-emony of much pomp and circum-stance. We then went to the balconyof City Hall and had a beautiful viewof the Marseille harbor and the cityscape. We proceeded to tour the

French Riviera where some of thegroup stayed in Nice and the restwent on to Monaco, to try their handin the casino in Monte Carlo.

Having enjoyed such a delightfultrip and learning so much about lawat the time of the Titanic, Seminarsat Sea will be offering The Con-spiracy Theory portion of this cruisewith a costume dinner on shortercruises: October 25 in the WesternCarribean; December 6 in the East-ern Carribean; December 13 in theWestern Carribean; December 6 inthe Southern Caribbean; June 29 inAlaska; and New Year’s Eve in theCaribbean. With so many questionsleft unanswered, there is an Encorecruise planned when the SS Norwayreturns from Barcelona on October10, with even more information onthe Titanic, questions, issues andideas on its untimely demise in 1912.Prior to leaving on the transatlanticcruise, we will also be meeting andgreeting the Barcelona Bar, withwhom the Florida Bar InternationalLaw Section already has a signedagreement of participation and coop-eration. There will also be a July 8

cruise covering theShipyard in Ire-land where the Ti-tanic was built, andother historic Ti-tanic sites. ContactSeminars at Sea at(800) 491-3567 orcheck the web siteat http://

www.Seminarsatsea.com.

Drucilla E. Bell is a sole practitio-ner in Clearwater and Seminole,Florida, who emphasizes interna-tional law and business, immigrationand travel law in her practice. In ad-dition to having taught ComparativeLegal Systems in Estonia in the firstsemester of a new private law schoolin the fall of 1996, she has alsoworked with various foreign groupsand individuals on immigration andother legal problems and representsmany foreign nationals in their questfor business immigration visas, andin the development of successful busi-nesses in the United States. Her ac-tivities in the Florida Bar have in-cluded being past Chair of theAdministrative Law Section, servingon the Foreign Legal ConsultantsCommittee, being Vice Chair of theTravel Law Committee, being chair ofthe 1998 June Seminar and in 1998-

4

International Law Section, American Bar Association, New York, April 29 - May 2,1998

Choice of Law and Forum: Swift Justice inEngland Including Pre-Judgment Tactics &Relief and Enforcement throughout Europeby George C. J. Moore

Attorney (Florida) andBarrister (England & Wales)Introduction

“Justice delayed,” is more thanever, “justice denied.” Less tolerantthan ever is today’s business world ofinstantaneous communications andmulti-million dollar transactions. In-creasingly, there is zero business tol-erance for slow-grinding justice andits systemically-flawed delivery oflong-delayed relief and unnecessar-ily exacerbated damages. At the sametime there is no abatement of the realworld’s need for swift, reliable, cost-efficient justice to give effect to busi-ness agreements. But where, if any-where, is this to be found? Is this notan ever more elusive quest?

Well, sadly it is, except in a fewarenas of the globe where the rule oflaw and common sense remain dog-gedly at work, countenancing little ofthe nonsense and dilatory tacticswhich law in action and litigators onthe rampage all too often dump ontothe real world’s bottom line.

England is such a place, one of theworld’s steadfast providers ofprompt, reliable, cost-efficient justice.And, drawn to this exceptional ser-vice, come a stream of adherents —such that in more than half of allsuits brought before England’s highlyesteemed Commercial Court all par-ties are foreign. Knowledge of swiftjustice in England has brought themthere, thousands of foreign businesspersons who have deliberately cho-sen both a foreign law and a foreigncourt — English law and the EnglishCourt — to uphold and address theirinternational contracts.

And so it is that English law is theworld’s predominant, preeminentchoice of law and choice of forum, ri-valed only by New York, the jurisdic-tion which hosts this American Bar

Association meeting today.What, then, accounts for this para-

mount position of English law andthe English forum? What does closerexamination reveal of its workingsand its enduringly steadfast attrac-tiveness? Is it more than the historyand allure of London? For sure. Thispaper aims to explain why this at-traction is well-founded, addressingthe following points of inquiry:

1. Why English Law is the pre-ferred choice of law in internationalcontracts.

2. Why the English Court is thepreferred forum for international liti-gation.

3. Why justice is swift and predict-able in England, including limiteddiscovery, trials without jury, limita-tions on damages, the English rule oncosts and fees, and constraints ontrial publicity.

4. Special prejudgment tacticsand relief under English Law:Mareva injunctions and Anton Pillarorders, and

5. Enforcement of English Courtjudgments in England and through-out the European Union.

1. Why English Law is the pre-ferred choice of law in interna-tional contracts.

At least three reasons account forEnglish law’s being the preferredchoice of law in international con-tracts: (A) Certainty that the choiceof English law will itself be upheld inEngland, (B) Flexibility under En-glish law in selection of contractstructure and terms and certaintythat English law will uphold what-ever terms are agreed, and (C) Pre-dictability of the outcome in the eventof breach.

(A) Certainty that the choice of

English Law will itself be upheld inEngland.

Unlike the contract laws of manyU.S. states, English law does not re-quire that the law chosen by the par-ties to govern a contract have anyconnection or association with theparties, the performance, or anyother aspect of the contract. Fornearly a century and a half, Englishlaw has left no doubt that it is theintent of the parties which dictatesin contract and that an express selec-tion of governing law will be upheld.This is true whatever the system cho-sen, even in the total absence of anyconnection or association betweenEngland and the contract short, ofcourse, of furthering an illicitscheme.

Such freedom of choice extends tothe law governing formal and mate-rial validity, interpretation, perfor-mance, extinguishment, and rem-edies. Selection of different systemsof law to apply to various aspects ofa contract will also be upheld in En-gland.

In like manner, the EuropeanUnion’s Rome Convention, which de-termines the “applicable law” for con-tracts entering into force after April1, 1991, accords primacy to the par-ties’ intentions and, above all, to ex-press choice of governing law. Imple-mented in England by The Contracts(Applicable Law) Act 1990, the prin-ciples of the Rome Convention andEnglish common law do not differ inany fundamental way — only thenomenclature is changed, with the“proper law” under English commonlaw becoming the “applicable law”under the Rome Convention and thecorresponding provisions of the U.K.Act.

Articles 3(1) and 4(1) of the Actcontain the basic rules for ascertain-

5

ment of the applicable law. Article3(1) treats an express choice of lawas conclusive and provides that a con-tract “shall be governed by the lawchosen by the parties.” The Conven-tion takes the approach of Englishcommon law and expressly rejectednotions advanced by writers that theprinciple of the parties’ autonomy islimited by a doctrine forbidding par-ties to avoid the application of therules of a system of law which theydo not like by resorting to and select-ing another system. Article 3(3) alsoconfirms that the chosen law needhave no connection with the contract.

Thus, in England, under both com-mon law and the terms of the RomeConvention, as adopted in Englandand throughout the European Union,express choice of law to govern a con-tract is upheld as sacred and enforce-able. In short, express choice of lawis, in England, ironclad and invio-lable.

(B) Flexibility under English lawin selection of contract structure andterms and certainty that English lawwill uphold whatever terms areagreed

Freedom to choose the governinglaw is but one aspect of the primacyof freedom inherent throughout thelaissez faire policy of English contractlaw. The priority attached to freedomof contract conveys great latitude forparties to customize a commercialagreement with virtually no formalor material prerequisites, short ofbare embodiment of an offer, accep-tance, and consideration. The partiesare afforded maximum flexibility andunconstrained capacity to structurean agreement and construct its termsto suit their unique purposes and de-signs.

Under English law, formal requi-sites are absolutely minimal. So, too,are material requisites. Legislatedrequirements are virtually non-exis-tent, whether express or implied. Inthe absence of dictates and stringentdemands, the parties have maximumflexibility to craft an innovative ex-change of bargains with full confi-dence that no court in England will,in retrospect, rewrite, recast, blue-line, amend or otherwise emasculatethe terms of the agreement. Thismakes English law a good friend tocreative entrepreneurship and atrusted ally of bread-and-butter busi-

ness which also likes the what youagree to is what you get approach ofEnglish contract law.

As described at an ABA seminarlast year by Richard Field, whose pre-sentation was a source of inspirationfor the present panel, “The standardapplied [in England] to attempts toimply contractual terms is a harshone depending upon necessity to givebusiness efficacy to the transaction.Reasonableness is not regarded as anappropriate standard to imply termsinto a contractual bargain. The courtsdo not countenance the re-writing ofcontracts by the implication of termsdesigned by one party which the ben-efit of hindsight.”

There is no counterpart, for ex-ample, in English law to the UnitedStates U.C.C. requirement, containedin section 1-203 and infused therebythroughout contractual relations,that obliges parties to duties of goodfaith in performance of all contrac-tual obligations. Nor, to cite anotherexample, is there any equivalent inEnglish law to the U.S. “doctrine ofvalidation” which comes to the rescueof usurious loan agreements, trans-planting them from oblivion underthe parties’ chosen law into safe har-bor under another system which isinvoked and applied to uphold andenforce an otherwise void transac-tion.

The vast scope for creative con-tracting under English law is wellevident in relation to internationalfinancial transactions which are veryliberally facilitated by English lawsgoverning security arrangements,trust mechanisms, assignments, debttransfers, set-offs, and liquidationschemes.

Underling this liberality, whichpermeates the spirit and much of theletter of English commercial law, isEnglish understatement, a low keyapproach to control. Indeed, this of-ten amounts to self-regulation, ascontrasted to what many would de-scribe in the U.S. as heavy-handedgovernment regulation. In essence,the English tradition is to rely upongentlemanly regulation by consensusand self-observance of informal butwell-understood rules of the game.

In English law the primacy of free-dom and the unconstrained flexibil-ity of the parties to prescribe theirown contractual terms and condi-tions carries a concomitant risk that

anything that is overlooked or ig-nored may well come back to haunt.Thus, we have the notorious by-prod-uct of freedom in English contractlaw — the throw in everything in-cluding the Kitchen sink approach.Brevity goes out the window, con-tracts are long, and almost nothing,if that, is left to chance.

C. Predictability of the outcome inthe event of breach

The final reason why English lawis the preferred choice of law for in-ternational contracts lies is its prac-tical efficacy when, in instances ofbreach, certainty of choice of law rollsinto certainty and predictability ofoutcome, as recalcitrant parties windup as defendants and are forced toface and meet their obligations. Thisis the true test of judicial efficacy. Thecourts of England are known world-wide for their efficiency in deliveringprompt, predictable, cost-effectivejustice. We now turn to the secondpoint of inquiry: Why the EnglishCourt is the preferred forum for in-ternational litigation.

2. Why the English Court isthe preferred forum for interna-tional litigation.

With freedom comes responsibility.The primacy of freedom to contractunder English law has its flipside,which is certainty in enforcement ofobligation. Not without pain go thosein England who indulge their whimsin negotiating and thereafter neglector default on their contractual obli-gations. English law is, first and fore-most, business law.

With public policy strongly de-voted to freedom of contract came anunwavering commitment on the partof the English Court to correspond-ing responsibility and the importanceof upholding bargains freely enteredinto. To be sure, therefore, contractsare binding. Agreements are strictlyenforced. Debts are to be paid. For-giveness and grace cannot be pre-sumed. True, penalties and uncon-scionable terms are notcountenanced and all contracts aresubject to equity, but business bedone, pay as you go, and pay if youlose, including interest and paymentof the victor’s attorney fee — in ac-cordance with “the English rule.”Such is the historical approach of the

continued...

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English forum in addressing contrac-tual irresponsibility or deviation. Notjust buyer, but all parties, beware.And so it is still today. No nonsense,prompt, predictable, efficient justice.

For these reasons, the court ofEngland is the preferred forum forinternational litigation, and this iswhy, in addition to providing for En-glish law to govern the contract,many contracts also provide that theEnglish Court shall have jurisdiction.

The Commercial CourtThe specific magnet which ac-

counts for the English Court’s popu-larity as the preferred forum for in-ternational business disputes is theCommercial Court. Actually a sepa-rate list kept in London, Liverpooland Manchester to hear commercialactions, the Commercial Court is asub-division of the Queen’s BenchDivision of the High Court. Foundedin 1895 to specialize in commercialcases, the Commercial Court has adistinguished reputation for exper-tise and objectivity.

The Commercial Court’s jurisdic-tion is defined by Order 72 of theRules of the Supreme Court to in-clude “any cause arising out of theordinary transactions of merchantsand traders . . ., the export or importof merchandise, affreightment, insur-ance, banking, mercantile agency andmercantile usage.”

The judges of the Commercial

Chair’s Reportfrom page 1

Update, February 19-21, 1998.Between October 22-25, 1998, the

New York State Bar Association ismeeting at the Biltmore Hotel in Mi-ami. Our Section contemplates join-ing by participating in the CLE andsocial programs.

The most significant event on thehorizon for the section is the enact-ment of a certification program forinternational lawyers. The sectionanticipates providing CLE for ourmembers to permit them to qualifyfor this certification.

The International Law Certifica-tion Committee initially met on

March 21, 1998, in West Palm Beachand has concentrated on preparingthe application for certification. Weanticipate the application beingavailable for distribution betweenJuly 1st and August 31, 1998.

Certification requires an applicantto be: a member in good standing ofa bar for no less than 5 years at thetime of the application; demonstratesubstantial involvement in the prac-tice of International Law during the3 years preceeding the application; aswell as at least 75 hours of CLE forthe same period, peer review; andobtaining a passing grade on the ex-amination.

Because the 75 hour CLE require-ment pre-requisite for this next yearmay have been unanticipated, we willpermit applicants to submit their

CLE qualifications on or beforeMarch 1, 1999. In addition to theregular course work, lecturing, teach-ing or attending a university course;writing; and individual study canqualify for CLE credits.

Applicants will be approved to sitfor the examination by late fall. TheInternational Law Section contem-plates preparing a certification re-view course in February, 1999. Theexamination will be given in March,1999.

Those who successfully pass theexam will be certified effective July1, 1999. Certification is effective forfive years. At that time, re-certifica-tion will require demonstration ofsubstantial involvement, completionof the CLE requirement and peer re-view.

Court are nominated by the LordChancellor from the judges of theQueen’s Bench Division who havespecial experience in commercialmatters. Prior to appointment asjudges of the Queen’s Bench Divisionand then subsequently as judges ofthe Commercial Court, they invari-ably ranked among the most distin-guished barristers in commercialpractice.

Except by consent, the powers ofCommercial Court judges are nogreater than those of any other judge.However, the procedure in the Courtis more flexible than the normal pro-cedure, and control over CommercialCourt litigation clearly rests with thejudge, not the parties. Moreover, thejudges, who act singly, regard it astheir duty to be available at shortnotice at any stage of an action on theinitiative of either party, so that dis-putes before the Commercial Courtare dealt with as quickly as possible.

Pleadings in the CommercialCourt are in the form of points ofclaim and must be as brief as pos-sible. Applications for particulars arenot allowed unless deemed essential.By consent the strict rules of evi-dence are relaxed. Thus evidence isadmitted which would generally beexcluded, and the calling of live wit-nesses is often waived in favor of de-ciding cases on documentary evi-dence alone.

The Commercial Court’s reputa-

tion for expertise and efficiency isfurther enhanced by the sophistica-tion of London’s specialist barristers,solicitors and expert witnesses whosework, focusing on commercial trans-actions and disputes, contributes toearly identification of issues, rapidelimination of speculative cases, andquick trial, even in complex, multi-party litigation.

The Court is far more than a na-tional or domestic court; it is an in-ternational commercial court theoverwhelming majority of whosejudgments are directed to foreignparties. The Court’s popularity andexpertise are evident in the numbers:three-quarters of all Commercialcases have either a foreign plaintiffor defendant, and over half of itscases consist of entirely foreign par-ties.

Invoking the jurisdiction of theCommercial Court is achieved by is-suance in London, Liverpool orManchester of a summons which ismarked at the top with the words,“Commercial Court,” and upon issueof the summons so marked, the ac-tion is entered immediately in thecommercial list. Actions may also betransferred to the Commercial Courtapart from this procedure and, in-deed, actions commenced in the Com-mercial Court may be removed fromthe list. Any party who seeks the re-moval of an action from the Commer-

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cial Court, when it has been set downin that list, must apply within sevendays of giving notice of intention todefend.

Finally, it should be noted that spe-cial Mercantile Courts have been cre-ated in both the Midlands and theSouth-West of England to deal withcommercial cases. These amount tonew Queen’s Bench lists in the dis-trict registries concerned and havethe capacity to deal with a wide vari-ety of commercial cases. Cases followthe rules of court relating to commer-cial practice before the CommercialCourt.

3. Why justice is swift and pre-dictable in England, includinglimited discovery, trials withoutjury, limitations on damages, theEnglish rule on costs and fees,and constraints on trial public-ity.

This section discusses long armjurisdiction and service outside theU.K., limited discovery, summons fordirections, trials without jury, limita-tions on damages and permissibleclaims, the English rule on costs andfees, and constraints on trial public-ity.

Long arm jurisdiction and serviceoutside the U.K.

No leave of court is required inrespect of claims to which the CivilJurisdiction and Judgments Act 1982applies. This Act applies to proceed-ings against persons domiciled in theEuropean Union under the BrusselsConvention which requires that suchactions be commenced in the courtsof the defendant’s domicile.To thisgeneral rule, there are exceptions,among which are two important onesrelating to proceedings in contract.Suits in contract may be brought ina jurisdiction other than that of thedefendant’s domicile when (a) theparties have agreed in a contract inwriting that the contract shall besubject to the jurisdiction of a specificcourt, such as the English Court, or(b) the performance of the contract isto occur in a different jurisdiction,such as in England. In other cases,leave of the court is required for ser-vice outside the jurisdiction. Leave isdiscretionary and requires a showingof “a good arguable case”, which con-notes actionability under English lawand a good chance of succeeding, that

is, more than a mere prima facie case.With respect to contracts, the

plaintiff seeking leave for service out-side the jurisdiction must show astrong probability that at least one ofthe heads under Order 11, Rule 1(1)is satisfied. These include (a) a con-tract made within the U.K., (b) a con-tract made by an agent trading orresiding within the U.K., (c) a con-tract which “is by its terms or impli-cation to be governed by English law,”(d) a contract which “contains a termto the effect that the High Court shallhave jurisdiction to hear and deter-mine any action in respect of the con-tract,” and (e) where the claim isbrought in respect of a breach com-mitted within the jurisdiction — ir-respective of where the contract wasmade and irrespective of whether thebreach within England was precededor accompanied by a breach commit-ted elsewhere.

Conveniently, it is for English lawto determine whether English law isthe agreed or proper law of the con-tract, whether the parties agreed tojurisdiction of the English Court, orthe whereabouts of any allegedbreach. Express choice of English lawmay itself be deemed sufficient toground the jurisdiction of the EnglishCourt.

Forum shopping is highly unpopu-lar with English judges, particularlywhere the parties have previouslyagreed to English jurisdiction, andparties who initiate or threaten pro-ceedings elsewhere will very likely beenjoined.

Limited DiscoveryThere are enormous differences

between American and English prac-tices in relation to discovery. There isno counterpart to the U.S. depositionin England, certainly not the ‘fishing-expedition’ type of deposing which isaimed at developing further causesof action or turning up anything re-motely relevant. In fact, in the late1970’s the British Parliament en-acted the Protection of Trading Inter-ests Act to block American litigatorsfrom deposing company officials inBritain, a practice sharply con-demned as another form of UnitedStates extra-territoriality.

In England, discovery relates es-sentially to documents and to con-trolled use of interrogatories.

Another major difference is that in

conducting discovery in England,each party impliedly undertakes notto use the documents which are dis-closed for any ulterior or improperpurpose. The use of such documentsin breach of that implied undertak-ing will amount to a contempt ofcourt. Thus in one case a solicitor whopassed documents to a journalist toassist in the preparation of an articlewas held to be in contempt, eventhough the documents had been readin open court. Nor can a party gener-ally rely upon such documents inother proceedings — only if suchdocument has previously been reador referred to in open court. If thereis a real risk of the plaintiff usingdocuments for an improper collateralpurpose, the court may restrict in-spection, for example, to a party’scounsel.

Under the Rules, discovery maytake place in two ways, without or-der and by order. Since 1962, with theintroduction of “automatic” discovery,parties must make discovery by ex-changing lists within 14 days of theclose of pleadings. The lists includerelevant documents which the partyhas in his possession, custody orpower and which he does not objectto produce; relevant documents asabove which he objects to produce;and relevant documents which pre-viously were in the party’s posses-sion, custody or power. A party mustalso serve a notice of a place and timewithin seven days for inspection ofthe documents in the list, other thanthose which he objects to produce.The chief ground for objecting isprivilege, which is very narrowly con-strued.

There are two important circum-stances when discovery by order isrequired. The first is where the actionis one to which the rule requiringautomatic discovery is not applicableor where a party has failed to com-ply with that rule. In such a casethere must be an application for anorder for discovery of all relevantdocuments, if discovery is required.The second case arises where a partyis dissatisfied with his opponent’slist. He may then apply for discoveryof particular documents.

A party who is served with a listof documents may believe that rel-evant documents which the maker ofthe list has, or has had, in his posses-

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sion are not included in his list. Thismay be due to a bona fide belief onthe maker’s part, that the documentin question is not relevant to the ac-tion or to an omission, accidental ordeliberate. In either case applicationmay be made for an order for discov-ery of the documents in question.This application must be accompa-nied by an affidavit setting out thegrounds for the deponent’s belief andidentifying the documents of whichdiscovery is required. If the otherparty admits the existence of thedocuments in question but deniestheir relevance, the master assignedto the case may inspect them in or-der to decide whether they are in factrelevant. In addition, that party maybe required to make an affidavit stat-ing whether or not any particulardocument is, or has at any time been,in his possession, custody or powerand, if it no longer is, what has be-come of it.

Another major difference betweenU.S. and English practice is that dis-covery and inspection against thirdparties is almost non-existent. Thereis, as a rule, no procedure for obtain-ing discovery against persons whoare not parties to an action. They can,of course, be compelled to attend thetrial and to produce at that stagedocuments in their possession bymeans of subpoena duces tecum. Butthere is a rule, sometimes known asthe “mere witness” rule, whereby dis-covery cannot be obtained against aperson against whom no relief issought but who might be a witnessin an action.

InterrogatoriesInterrogatories are questions put

to an opposing party for answer onoath in writing. They may relate toany matter relevant to the action.Broadly speaking, any questionwhich could be asked of a witness atthe trial may be asked of the oppos-ing party in the form of an interroga-tory, with the notable exception ofquestions as to the witness’s credit orcredibility. Interrogatories are usu-ally aimed at discovering the factsand they cannot extend to asking aparty to disclose his means of proofor to name his witnesses.

A party has an automatic right toserve interrogatories. Rules intro-duced in 1990 provide for service ofinterrogatories without order, and

the party on whom they are servedis obliged either to answer them orapply to the court for them to be var-ied or disallowed. “Fishing” to dis-cover a fresh cause of action or de-fense is not permitted, nor are theinterrogatories allowed if they are inany way oppressive or put an undueburden on the person being interro-gated. Questions put, not for pur-poses of the present action, but witha view to future litigation, will alsobe disallowed.

If a party’s answers are evasive orambiguous, he may be ordered tomake a further answer either on af-fidavit or by oral examination.

Summons for DirectionsThe intent of the Summons for

Directions, which occurs after theclose of pleadings and before the ac-tion is set down for trial, is to providea thorough stocktaking of the action,with the court reviewing trial prepa-rations, giving directions for any fur-ther preparations and directions onevidential matters and on the time,place and mode of trial. Other poten-tial subjects include directions limit-ing the areas of dispute or number ofexpert witnesses, admission of evi-dence by affidavit, whether or not theparties have made all reasonableagreements and admissions and therecording of additional agreementsso made — or recordal of refusal witha view toward subsequent award ofcosts and fees. Also, the court mayconsider consolidation of actions ortrying certain issues before others,possibly resulting in a split trial, anincreasingly frequent occurrence be-cause of the enormous savings incosts which often results.

Trials without JuryA huge contrast with American,

including New York jurisprudence, isthat, in trial of commercial mattersin England, there are no juries. Dur-ing the past century, jury trial in civilcases has virtually been supersededby trial by judge alone, the principalnotable exception being trials fordefamation. As a result, legal argu-ment is far more refined and there isno pressure on the parties or thecourt to reduce complex cases downto a few simple issues or themes.

Limitations on Damages and Permis-sible Claims

A further consequence of non-jurytrial of commercial, and indeed vir-tually all civil matters in England, isfar greater predictability of awardand level of damages, and a generalnon-predisposition to “deep pocket li-ability.” This, within an overall cul-ture of constrained litigiousness com-bined with the small size andfamiliarity of the commercial bar, re-sults in an altogether different legalatmosphere which puts all parties ata greater advantage in evaluatingthe actual prospects of any proposedor pending action.

In England, there is usually norecovery for loss arising from adversemarket movement and, quite differ-ent from U.S. practice, punitive dam-ages have no place in English com-mercial law. Assessment of damagesby judges acting alone without a jurymakes for far more reliable, predict-able and proportionate remedies —altogether a stark contrast to therelatively free-wheeling atmosphereand results which are obtained onthis side of the Atlantic. Further-more, there is no counterpart in theU.K. to the U.S. practices of tripledamages or class actions.

The English Rule on Costs and FeesIn England, under the well-known

“English rule,” costs follow the event.The loser pays not only the victor’scourt costs but attorney fees as well.There are limits to this, of course, aswhere a party has conducted the liti-gation dishonestly or recovered onlya small part of the claim. In an ex-treme case, a successful plaintiff mayhave to pay the costs of the defen-dant, and there is jurisdiction to or-der a successful defendant to pay theplaintiff ’s attorney fees but thiswould occur in only the most excep-tional of circumstances. Ultimately,the award of “costs,” which is definedin England to include attorney fees,is within the discretion of the court.The discretion is not absolute, butsubject to certain statutory and prac-tical limitations, including “reasonand justice”, especially in the case ofmulti-party litigation.

In like manner, costs may beawarded as to various stages in in-terlocutory proceedings, and bothparties have the option during thecourse of litigation to make paymentinto court with the result that if thesuccessful plaintiff recovers no more

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than the amount paid in, he will beordered to pay the defendant’s costsof those causes of action from thedate of the payment in.

Costs are assessed or “taxed” bythe court and in the usual course ofevents, even a litigant who is com-pletely successful will often have topay some costs himself.

Contingency fees remain pro-scribed in England as unlawful onthe grounds of public policy, it beingconsidered inappropriate that an ad-vocate should have a stake in theoutcome of the case. Nevertheless,“conditional fees” are in the processof being approved. A White Paperpublished by the government in 1989suggested concession in relation tocases where difficulties in financinglitigation did exist, and a 1990amendment to the Solicitors Act 1974authorized the introduction of condi-tional fee agreements in circum-stances prescribed by the Lord Chan-cellor. The effect of the Act is that afee may be increased by a specifiedpercentage, in accordance with regu-lations to be made by the Lord Chan-cellor, provided that is specified inthe fee agreement. The percentageincrease cannot be recovered underan order of costs against an unsuc-cessful party. The use of such agree-ments has yet to be authorized by theLord Chancellor, but it is likely toinvolve some personal injury casesand, possibly, actions in defamationfor which legal aid is not available.Such agreements will not be avail-able for criminal cases and there ap-pears to be no prospect for their ap-plication in commercial litigation.

Constraints on Trial PublicityAnother element of predictability

in trials in England is absence of law-yer press-baiting. A barrister mustnot comment to or in any news orcurrent affairs media concerning thefacts or issues arising in a particularcase.

4. Special Prejudgment Tac-tics and Relief under EnglishLaw: Mareva Injunctions andAnton Pillar Orders.

The English court is empoweredwith an array of interlocutory injunc-tive remedies to preserve endan-gered assets and evidence, includingMareva injunctions and Anton Pillarorders. The court may grant an in-

junction to restrain a party frommoving assets overseas, or otherwisedealing with assets located in En-gland, whether or not that party isdomiciled or present there. The in-junction can restrain a defendantfrom improperly disposing of assets,or concealing or moving them abroad,thereby making himself “judgmentproof ” and stultifying an actionbrought against him.

In many cases the grant or refusalor discharge of a Mareva injunctionis determinative of the action. If theinjunction is refused, or granted butlater discharged, a plaintiff may per-ceive little point in continuing withthe litigation. If the injunction isgranted, and survives an inter parteshearing, the defendant may well con-cede defeat. The paralyzing effect theinjunction has on business and theinjury to its reputation may renderfutile any further opposition to theplaintiff ’s claim.

A Mareva injunction can begranted: (a) pre-trial or post-trial; (b)against any defendant whether for-eign-based or English-based; and (c)in respect of assets in this country or,if English assets are insufficient tocover the claim, in other countries.

The application must be made toa judge and is usually made ex parte,possibly even before the action hascommenced. If the defendant is domi-ciled in the U.K., or in another mem-ber state of the European Union, ser-vice overseas can be effected withoutleave of court. Otherwise, leave isnecessary under Order 11, rule 1(2)of the Rules of the Supreme Court.In applying, there are in essence onlythree issues:

(a) whether the plaintiff has a goodarguable case; (b) whether the plain-

tiff can adduce sufficient evidence asto the existence and location of assetswhich the injunction would affect;and (c) whether there is a real riskthat the defendant may deal withthose assets so as to render nugatoryany judgment which the plaintiffmay obtain.

The injunction can be extended tocover bank accounts standing in thename of another person, such as thedefendant’s spouse, if there is evi-dence that the money in the accountbelongs to the defendant. If the de-fendant is the majority shareholderof a company which has substantialassets, the injunction can also bemade against that company, whichshould be added as a co-defendant inthe action.

As to (c), a risk of dissipation maybe shown in a variety of differentways, such as evidence of dishonestbehavior by the defendant, unreli-ability in the past, evasiveness in thesubject proceedings, such as a will-ingness to retract admissions and/orrely upon implausible defenses,statements of intent by the defen-dant, a lack of any established busi-ness reputation or possession of apoor reputation, a propensity tochange domicile or move assets regu-larly or at short notice, having onlyweak or non-existent links with theU.K. except for assets invested there,or being based in a country in whichit is difficult to enforce English judg-ments.

The plaintiff ’s undertakings willinclude, among others, undertakingas to damages and indemnification ofany person upon whom notice of theorder is served in respect of any ex-penses and liabilities incurred in

The International Law Quarterly is prepared and published by the International Law Sec-tion. The opinions presented in the articles are solely those of the individual contributors.

Edward M. Joffe, Miami ...............................................................................................ChairL. Jana' Sigars, Miami ....................................................................................... Chair-electThomas L. Raleigh, III, Orlando .......................................................................... SecretaryTodd G. Kocourek, Talahassee ............................................................................ TreasurerJeremy R. Page, Miami .......................................................................... Newsletter EditorKim B. Tomlin, Tallahassee ............................................................ Section AdministratorLynn Brady, Tallahassee ........................................................................................... Layout

Articles between 10 and 20 pages involving the various disciplines affecting internationaltrade and commerce may be submitted on computer disk with accompanying hard copy, oron typewritten, double-spaced 8 1/2x11" paper (with the use of endnotes, rather than foot-notes.) Please contact Jeremy Page if you have questions concerning the newsletter.

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complying with the order.The provisos and limitations of the

injunction will allow the defendant todraw reasonable living expenses andto pay debts in the ordinary courseof business. They will give the defen-dant, and anyone else affected by theorder, liberty to apply to set aside orvary the order, or to seek further di-rections.

A worldwide Mareva injunction instandard form expressly states theextent to which the order operatesunless and until it is recognized bythe courts of the overseas country inquestion. The worldwide Mareva in-junction is now available in aid ofsubstantive proceedings of all typesin other states, in accordance withthe Civil Jurisdiction and JudgmentsAct (Interim Relief) Order 1997.

The Mareva injunction may alsoinclude various orders for discovery,as described under Anton Pillar or-ders below.

Anton Piller ordersThese are orders compelling de-

fendants to permit the plaintiff ’sagents to enter the defendant’s pre-mises, search for and, in most cases,seize certain documents or property.The order is a special form of man-datory injunction. It does not amountto a search warrant and therefore noforcible entry of premises can bemade. However, a defendant whofails to comply with the order can becommitted for contempt.

Orders in this form are uniquelyBritish; they are unknown in the restof Europe and in the U.S. The CivilProcedure Act 1997 places the courts’jurisdiction to make these orders ona statutory footing.

In practice, Anton Piller orders aremost commonly sought against in-fringers of copyright, patents, trademarks and the like. An Anton Pillerorder in standard form requires thedefendant to disclose immediately,and later verity by affidavit, thewhereabouts of any infringing ar-ticles and the names and addressesof any persons known to be involvedin the alleged wrongdoing.

Mareva injunctions and Anton Pillerorders in aid of discovery

Mareva injunctions and AntonPiller orders often include a varietyof discovery orders, such as to nature,location and value of assets wherever

situated, details of bank and otheraccounts, nature and extent ofshareholdings in specified compa-nies, names and addresses of otheralleged wrongdoers, the precisewhereabouts of any document relat-ing to transactions in respect ofwhich the plaintiff claims, and ordersto deliver up any documents such asshare certificates, books of account,bank statements, etc. In several casesinjunctions were granted restraininga defendant from leaving the coun-try and requiring him to deliver uphis passports, the modern equivalentof the ancient writ of ne exeat regno.

5. Enforcement of EnglishCourt Judgments in England.

The judgment creditor’s rights inrespect of which he brought the ac-tion are extinguished by the judg-ment. In their place he has a judg-ment debt which may consist of anaward of damages and taxed costs, inaddition to which may be includedinterest at a statutory rate from thedate of judgment. The judgmentcreditor may proceed to enforce thejudgment by any of the followingmethods prescribed by Order 45, rule1:

(a) writ of fieri facias(b) garnishee proceedings(c) a charging order(d) the appointment of a receiver(e) writ of sequestration.Writ of fieri facias (fi-fa) — This is

directed to the sheriff of the countywhere property to be seized is lo-cated. Where the debtor has propertyin more than one county, concurrentwrits may be issued. The writ com-mands the sheriff to cause to be made(fieri facias) a sum sufficient to sat-isfy the judgment debt and interesttogether with the costs of execution.The sheriff may enter the judgmentdebtor’s land or the land of a thirdparty if the debtor’s goods are there.He may seize and sell property of alltypes, except that which is exemptfrom execution. Exempt propertycomprises freehold interests in land,equitable interests in land, fixturesattached to land, chattels, wearingapparel, bedding and “tools andimplements of trade.”

A writ of execution may be issuedwithin the six years following thejudgment or order, or later withleave, and may be executed withintwelve months of issue. The sheriff

arranges for sale of the propertyseized in execution, normally by pub-lic auction.

Garnishee proceedings — Theseproceedings enable the creditor tohave assigned the benefit of any debtowed by a third party. The most com-mon object of garnishee proceedingsis the judgment debtor’s bank ac-count. Future earnings cannot begarnished.

Charging order — The judgmentcreditor may apply ex parte for anorder imposing a charge or lien oncertain property, including any inter-est held by the debtor in land, secu-rities of various kinds, funds on de-posit in court, and any interest undera trust. If the charge is registered, apurchaser takes the land subject tothe charge. Registration amounts tonotice and priority is obtained oversubsequent chargees. A land chargemay be enforced by an order for salein the Chancery Division of the HighCourt.

Appointment of a receiver — Thisis a method of enforcement directedat the interception of certain incomeand profits, such as rents, before theyreach the debtor to preclude his dis-posing of them to the detriment of thejudgment creditor.

Enforcement of English Court Judg-ments throughout the EuropeanUnion

The Civil Jurisdiction and Judg-ments Act 1982 incorporates intoEnglish law the provisions of the E.C.Convention on Jurisdiction andJudgments in Civil and CommercialMatters, 1968 (the Brussels Conven-tion). The Lugano Convention, con-cluded in 1989 by the EuropeanUnion member states and those ofthe European Free Trade Area (Aus-tria, Finland, Iceland, Norway, Swe-den and Switzerland) operates par-allel to the Brussels Convention andwas enacted into English law by theCivil Jurisdiction and Judgments Act1991. Title III of the Brussels Con-vention deals with recognition andenforcement of judgments renderedby the courts of other states.

Under the Conventions, recogni-tion is automatic. The Conventionscovers all types of judgments and notmerely those for sums of money.Thus, any decree, order, writ of execu-tion, determination of costs and soforth is included. The judgment need

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not be final or conclusive or res judi-cata. The judgment must be renderedin a case within the scope of the Con-ventions, that is, in a civil or commer-cial matter, and not within those mat-ters specifically excluded fromjurisdiction.

There are six possible defenses torecognition, and these apply also toenforcement of a judgment, as fol-lows:

(a) Where recognition is contraryto public policy, including a judgmentobtained by fraud.

(b) If the judgment was a defaultjudgment given against a defendantwho did not appear and the defen-dant was not duly served with noticeof the proceedings in time for him toprepare his defense. The EuropeanCourt has insisted repeatedly thatthe right of defense must be ob-served. The question whether thedefendant was duly served is one tobe answered by the court which isasked to recognize and enforce thejudgment, even though the courtwhich rendered it concluded that theright of defense had been observed.

(c) If the judgment is not reconcil-able with a judgment given by theother European court in a disputebetween the same parties.

(d) If, in order to arrive at its judg-ment, the foreign court had decideda preliminary question as to status,legal capacity, matrimonial property,wills or succession (which are mat-ters not within the Conventions) in away which conflicts with a rule ofEnglish private international law,unless the same result would followfrom application of that rule.

(e) If the judgment is irreconcil-able with an earlier judgment in anon-contracting state on the samecause of action and between the sameparties, provided that the earlierjudgment is entitled to recognition orenforcement in England by Englishlaw.

(f) If the jurisdiction on which theforeign court acted conflicted withany of the provisions of the Conven-tions on insurance or consumer con-tracts or with Article 16, which con-fers exclusive jurisdiction.

If none of the above defenses ex-

ist, Article 28 of the Brussels Conven-tion states that the basis on whichthe foreign court took jurisdictionmay not be reviewed even on theground of public policy. Article 29states that in no circumstances maya judgment be reviewed as to its sub-stance or merits, and Article 34 re-peats this as regards enforcement.

If an ordinary appeal is pending inthe courts of the state where thejudgment was given, or the time forsuch appeal has not expired, the En-glish court may stay enforcementproceedings until determination ofthe appeal or expiry of that time. Orenforcement may be made condi-tional on the provision of security.

A judgment which is entitled torecognition can be enforced. In theEuropean Union, judgments are en-forced by registration in the enforc-ing state with the court of generaljurisdiction.

International Tax Briefsby Richard A. Jacobson

This column addresses selected in-ternational tax and business issues ofinterest to practitioners in the area ofinternational business.

1. New “Check-the-Box”Regulations ExplainConversion Consequences

On October 28, 1997, the Treasuryand the IRS published proposed regu-lations to explain the transactions thatare deemed to occur when an entity’sclassification is changed under theCheck-the-Box regime. Reg. 105162-97, 62 Fed. Reg. 55768. The Regula-tions are generally favorable and pro-vide guidance on the treatment ofconversions by election from partner-ship to corporation and from corpora-tion to partnership status. Affectedprovisions include the list of entitiesthat are not eligible to elect partner-ship or branch treatment (so-called“per se corporations”), and the proce-dural rules for making Check-the-Box

elections in certain special timing ofthe transactions that are deemed tooccur as a result of a Check-the-Boxelection. One of these rules providesthat the deemed transactions are con-sidered to occur on the day before theeffective date of the Check-the-Boxelection.1

2. Exchange of InformationUnder the New U.S.-SwissIncome Tax Treaty

Article 26 of the U.S.-SwitzerlandIncome Tax Treaty of 1996 governs ex-change of information between thecompetent authorities of the contract-ing states. Unlike any other income taxtreaty entered into by Switzerland andin defiance of Switzerland’s constanttreaty policy, under which the Article26 provides for an extended exchangeof information clause. The treaty lan-guage could lead to the erroneous un-derstanding that the reservation of pro-fessional secrecy, including bank se-

crecy, prevents the exchange of infor-mation also in cases of tax fraud. TheSwiss Supreme Court has made it clearthat the reservation does not preventthe exchange of information in cases oftax fraud. The Court has stated, thatthe mentioning of professional secrecyin a tax treaty does not mean that therecan be no exchange of information as aresult of Swiss bank secrecy rules inthe case of tax fraud. BGE 101 lb 212,96 I 737. It is furthermore evident thataccording to the intention of the con-tracting states, tax fraud may notmerely be committed through the useof forged or falsified documents but canalso be committed in situations wherethe taxpayer uses a scheme of lies inorder to deceive the tax authorities.2

Endnotes:1 Tax Management International Journal,

Vol. 26, No. 12, December 12, 1997, “Interna-tional Tax Planning Under “Check-the-Box” re-mains Viable as New Regulations Explain Con-version Consequences” by Bruce Davis, Esq.

2 Tax Management International Journal,Vol. 26, No. 12, December 12, 1997, by WalterH. Boss, Esq.

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American Bar Association, Section of International Law and Practice —Fall Meeting — April 29 - May 2, 1998, New York

The Mareva Injunction and Anton Piller Order:The Nuclear Weapons of English Commercial Litigationby Kern Alexander

The Mareva injunction and AntonPiller Order are interlocutory orderswhich are generally made ex parteand before proceedings have beencommenced, but may also be issuedat any stage of the proceedings andin aid of execution. The Mareva In-junction basically imposes a tempo-rary ‘freezing’ order against the as-sets of a defendant or potentialdefendant which may later be re-quired to satisfy a judgment in theplaintiff ’s favor. The purpose of theMareva order is to prevent the defen-dant from dissipating or disposing ofassets by removing them from orwithin the jurisdiction in a mannerwhich would frustrate a potentialjudgment. The Anton Piller Order isan extraordinary form of presuit orprejudgment discovery which allowsthe plaintiff to search the defendant’spremises and seize items or docu-ments which might become evidencein any later action brought by theplaintiff against the defendant. Sucha search may only be made by solici-tors appointed by the court, and typi-cally the judge will permit the plain-tiffs solicitors to engage the search,supervised in some instances by anindependent solicitor experienced inthe application of Anton Piller or-ders.1 The purpose behind the Anton

Piller order is to prevent the defen-dant from destroying evidence ordocuments before a writ is issued orbefore trial.

Although the Mareva Injunctionand Anton Piller Order are ancillaryto the main action, they are extraor-dinary remedies which often have adecisive effect on a case. Indeed, thetitle of this paper borrows a phrasefrom Judge John Donaldson MR whostated in Bank Mellat v. Nikpour thatthe Mareva Injunction “is in effect,together with the Anton Piller Order,one of the law’s two nuclear weap-ons.”2 For the plaintiff seeking swiftjustice or security in anticipation ofobtaining a future judgment, theMareva Injunction and Anton PillerOrder offer effective preliminaryremedies against defendants basedin the United Kingdom or abroadwhich have assets located in the UKor in foreign jurisdictions. The swiftnature in which these remedies maybe obtained accounts for their fre-quent use amongst commercial liti-gation practitioners in England andWales, especially in cases involvingdefendants with transnational busi-ness operations and property locatedin several jurisdictions. This papercomprises three parts: Part I de-scribes the background and need forMareva and Anton Piller orders. PartII discusses the considerations and

procedural requirements for obtain-ing a Mareva Injunction. Part IIIanalyzes the use of Anton Piller or-ders and discusses some of the tacti-cal, procedural and legal issues in-volved in their execution. Part IVanalyzes both orders together andexplains how they have becomepopular tactics for pre-writ and pre-judgment relief for plaintiffs seekingto enforce various remedies in En-glish civil litigation.

I. The Necessity forMareva

The globalization of the worldeconomy has not only brought in-creased wealth and economic oppor-tunity to many but has also resultedin more complexity and anonymity ininternational business transactionswhich, coupled with increased com-petitive pressures, has increased thewillingness of many parties to breachcontracts and leave debts unpaid.The growing potential for profits tobe made in carefully constructed in-ternational deals has presented moreopportunities for contracts to be bro-ken. Further, the increasing sophis-tication of technology in the globaleconomy has made it possible for fi-nancial assets and other resources tobe transferred between jurisdictionsin a very short time. As the forces ofliberalization and deregulationsweep the global economy, there willbe an increasing number of judgmentdebtors who try to evade their debtsfor the basic reason that a judgmentper se will have little effect against adebtor in one country who can easilytransfer assets and operations toother jurisdictions. Moreover, the re-covery of damages and debts hasbeen made more difficult by im-proved technology and deregulationof financial services which has madeit easier for unscrupulous litigants totransfer funds illicitly from countryto country in an effort to frustratepotential judgments. At the interna-tional level, there is little protection

International Law SectionBuilding Internet E-Mail Directory The International Law Section is developing a directory of Internet e-mailaddresses of its members. Information of interest to members of the Sec-tion (including the Quarterly) will soon be available on the Internet or deliv-ered via e-mail to those members who have registered their addresses.Addresses provided for the directory will be used only for International LawSection business. To register your address (Section members only, please) send an Internete-mail message to: todd@shadow.net. Your address will be automaticallyincluded in the directory.

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for a party seeking to protect itself ona claim against a debtor who hasbreached its obligations and poses aserious risk of transfer or dissipationof assets. The English courts haveresponded to the increased risksposed by globalization and improvedtechnology by crafting judicial rem-edies that allow parties to act withspeed and secrecy in protecting theirinterests in assets which would oth-erwise be disposed of or dissipated.

The single most effective reasonfor granting a Mareva injunction isto prevent a defendant from escapingits obligations by disposing or trans-ferring assets from the jurisdictionwith the intent of preventing plain-tiff from executing an eventual judg-ment against assets. As will be dis-cussed later, the applicant for aMareva, whether a plaintiff or coun-terclaiming defendant, has to show agood arguable case that it will suc-ceed at trial, and that the refusal ofan injunction would involve a realrisk that an eventual judgment orarbitral award in its favor would re-main unsatisfied.3 Similarly, theAnton Piller order allows the plain-tiff, or a counterclaiming defendant,to serve an order on a party autho-rizing entry onto premises controlledby the party to search and seize cer-tain documents and other evidencewhich may be used later in a lawsuitor trial. To maintain the element ofsurprise, speed and secrecy are re-quired in applying for both Marevaand Anton Piller orders. An ex parteorder is therefore necessary other-wise the defendant will have noticeof the action and have the opportu-nity to dissipate assets if not re-strained. After the ex parte order hasbeen issued, subsequent applicationsby either party generally will bemade inter partes if at all possible.However, it should be emphasizedthat an application to discharge aMareva or Anton Piller order is rela-tively rare, which suggests that theseorders are successful tools in convinc-ing defendants to settle.

Although English courts have onlyallowed Mareva and Anton Piller or-ders to be used since the 1970s, theireffectiveness has led to their increas-ing use and popularity among com-mercial litigators, thereby strength-ening the appeal of English courts asforums to resolve international com-mercial disputes. The use of these

orders provides effective pre-judg-ment relief for plaintiffs seeking topreserve financial assets and otherproperty to which they can later at-tach judgments. Accordingly, manyglobal companies and traders preferEnglish law as the choice of law andespecially English courts as the pre-ferred forum for resolving interna-tional commercial disputes. The ef-fectiveness of Mareva and AntonPiller orders in obtaining pre-judg-ment relief against disreputable de-fendants has made the use of theEnglish courts a popular forum forplaintiffs to pursue their claims ininternational commercial disputes.

Donaldson J denied the shipowner’sapplication. No previous plaintiff hadappealed against such a denial, mostprobably because many practitionersconsidered a reversal of the rigid ruleto be unlikely in the absence of statu-tory intervention. However, plaintiffsfiled an immediate appeal, whichcame before the Court of Appeal forjudgment on 22 May 1975.5 The ap-peal was granted, and an injunctionwas ordered restraining the defen-dant charterers from disposing oftheir assets in England or outside thejurisdiction. As authority, the Courtof Appeal relied on section 45(1) ofthe Supreme Court of Judicature(Consolidation) Act 1925, which pro-vided:

The High Court may grant a man-damus or an injunction or appointa receiver, by an interlocutory or-der, in all cases in which it appearsto the court to be just and conve-nient to do so.6

Lord Denning expressed the viewthat if no restraint were imposed thefunds would be sent overseas andwould be difficult to recover and that“there was a strong prima facie casethat the hire is owing and unpaid”and without an injunction “thesemonies may be removed out of thejurisdiction and the shipowners willhave the greatest difficulty in recov-ering anything.”7

Nearly a month later, before com-mercial practitioners had sufficienttime to digest the impact of this rul-ing, the same issue was consideredagain by the Court of Appeal in thecase which gave its name to this par-ticular type of order. MarevaCompania Naviera SA v. Interna-tional Bulkcarriers SA8 also involvedshippers and charterers wherein theshipowners had leased the vesselMareva on a time charter-party for atrip to India in which the charterershad contracted with the Indian gov-ernment to deliver phosphate to In-dia in return for payment which wasscheduled to be made in London. Af-ter making two installment pay-ments, the charterers defaulted onthe third payment to the shipowners,even though they had received fullpayment by the Indian High Com-mission. The proceeds of the Indiangovernment’s payment was in a Lon-don account and plaintiffs made anex parte application on 20 June 1975

Early CasesThe Mareva Injunction and Anton

Piller Orders are relatively recentphenomenon in English civil litiga-tion. Before 1975, it had not been thepractice of the English courts to grantan injunction in circumstances wherethe order was sought to restrain adefendant from disposing of its prop-erty on the grounds of a likely recov-ery by plaintiff in a civil action. Thischanged in 1975 when the EnglishCourt of Appeal overruled a HighCourt judge and issued an interlocu-tory order in favor of the appellants,Japanese shipowners, who hadleased their ships to Greek charter-ers who had failed to pay certainsums for use of the ships. In this case,Nippon Yusen Kaisha v.Karageorgis,4 plaintiffs issued a writagainst the charterers for theamount past due and, when they be-came convinced that the chartererswould take steps to remove theirfunds from the jurisdiction of Englishcourts, they applied ex parte to theHigh Court for an interim injunctionrestraining the defendants fromtransferring their assets outside ofEnglish jurisdiction. The circum-stances of the case were such that themoney was clearly owing, and therewas little question of an arguabledefense, so that summary judgmentwas likely. The purpose behind thisapplication therefore was to ensurethat some finds would remain avail-able, against which execution couldbe made of the judgment the plain-tiffs were almost certain to obtain.

At the time, there was no case lawsupporting plaintiff ’s application forsuch an emergency injunction, and inkeeping with established practice, continued...

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to freeze the proceeds as part of theirclaim for the amount due of $30,800plus damages.

As in the Nippon Yusen Kaishacase, the shipowners feared that thecharterers would dispose of theirfunds before execution of the judg-ment, and an application was madeex parte for an injunction restrainingdefendants. Again, Donaldson J re-viewed the application and grantedit temporarily only until 23 June1975 in deference to the Court ofAppeal’s recent decision and to givethe plaintiffs time to appeal, but hedenied the order beyond that timebased on the grounds that he had nojurisdiction to make such an order.Plaintiffs made an ex parte appeal,and Lord Denning again stated hisview unequivocally and relied forauthority on section 45 of the Su-preme Judicature Act of 1925.9

If it appears that [a] debt is dueand owing — and there is a dangerthat the debtor may dispose of hisassets so as to defeat it before judg-ment — the court has jurisdictionin a proper case to grant an inter-locutory judgment so as to preventhim disposing of those assets.10

These two cases provided a radi-cal change in the direction of Englishcivil litigation, the principles of whichwould be applied in a wide range ofactions11 with the intent of prevent-ing defendants from making them-selves judgment-proof. Accordingly, anew practice has developed in En-glish commercial litigation which hasbecome undoubtedly one of the mostuseful to a party faced with an oppo-nent who is likely to arrange its af-fairs in a manner that would frus-trate a court judgment or arbitralaward.

Following Nippon Yusen Kaishaand Mareva and other cases, the Brit-ish Parliament codified the MarevaInjunction in section 37 of the Su-preme Court Act 1981 and extendedits scope to be used in respect of anydispute which is to be referred to oris in the course of domestic arbitra-tion. Later, in 1990, the EnglishCourt of Appeal upheld the use of theMareva injunction and Anton Pillerorder on a worldwide basis so that adefendant’s assets may be attachedin a foreign jurisdiction and possibleevidence examined with permissionof the foreign government.12

Since the late 1970s, the grant ofMareva Injunctions and Anton PillerOrders have become relatively com-mon. Both remedies are popular pre-trial tactics for plaintiffs seeking topreserve financial assets and otherproperty to satisfy an eventual judg-ment and to preserve evidence thatwould buttress plaintiff ’s claim attrial. Indeed, by 1986, as Bingham Jacknowledged in Siporex Trade SA v.Comdel Commodities Ltd.,13 the useof the Mareva Injunction and otherex parte orders had become quitecommon, as hundreds were beingmade each year with few applicationsbeing rejected. In recent years, therehave been an increasing number ofcases reported concerning MarevaInjunctions and Anton Piller orders.

II. The Mareva Injunction:

rounding its operation with the issueof whether there is a legal right,within the jurisdiction of the Englishcourts, that can be assisted by theMareva or other interlocutory injunc-tion.

ProcedureA Mareva injunction is sought be-

Basic ConsiderationsThe English courts power to issue

a Mareva order derives from its in-herent power to grant an injunctionin support of only a legal or equitableright, within the jurisdiction of theEnglish courts. This essential twintest means that a Mareva is com-pletely ancillary to a claim, regard-less of the fact that in practice it isthe Mareva order, and not the writ,which often ends the dispute betweenthe parties because of its effect, andbecause no appearance is entered bythe defendant to oppose either thewrit or the injunction, and judgmentis enforced against the injunctedproperty to satisfy the judgmentdebt. This was confirmed in theVeracruz case14 when the Court ofAppeal held that the law is as statedby Lord Diplock in The Siskina case:

A right to obtain an interlocutoryinjunction is not a cause of action.It cannot stand on its own. It isdependent on there being a pre-exisitng cause of action against thedefendant arising out of an inva-sion, actual or threatened, by himof a legal or equitable right of theplaintiff for the enforcement ofwhich the defendant is amenableto the jurisdiction of the court. Theright to obtain an interlocutory in-junction is merely ancillary andincidental to the pre-existing causeof action.15

The party seeking a Mareva there-fore must not confuse the issues sur-

cause the plaintiff fears the conse-quences of not restraining a roguedefendant from disposing of or dissi-pating assets. The application may bemade in the Chancery, Queen’sBench, or Commercial Divisions ofthe High Court. It is suggested thatapplicant make an ex parte applica-tion because if notice is provided foran inter partes hearing, the defen-dant will have sufficient notice to re-move assets or to destroy evidence.In the Queen’s Bench Division, theapplicant should prepare a writwhich contains the following docu-ments: (1) a statement of claim, (2)an affidavit in support, and (3) twocopies of the draft of the order whichthe plaintiff requests the court to is-sue.16 This draft order is known as a“draft minute of order.” These papersshould ordinarily be filed in cham-bers with the clerk to the Judge atthe Royal Courts of Justice in Lon-don at 3 p.m. on the day before theapplication is to be heard. The exparte application is made in cham-bers. In the case of a “worldwideMareva,” it is strongly suggested thatthe applicant submit the filing fourto five days before the scheduled pre-sentation in chambers to allow thejudge sufficient time to consider theimpact, if any, of the order on the lawof the foreign jurisdiction.17

In the Chancery Division, a simi-lar process is followed with the cru-cial exception that the arguments insupport of the order are not made inchambers but in a public motionshearing. Although most Mareva ap-plications used to be in the Commer-cial Court, they are now made in alldivisions and sub-divisions of theHigh Court.18 In the CommercialCourt, an applicant must submit thewrit or draft before the court, to-gether with an affidavit (in draftform in an emergency) setting out theclaim, the amount, and the points, ifany, made against it by the actual orproposed defendant. The addition ofa statement or points of claim is help-ful because it outlines in proper

15

pleadings the plaintiff ’s case, even ifit is in draft.19 If necessary, counselshould remind his solicitor to ensurethat the undertakings that, in prac-tical terms, are for the solicitor tocarry out are completed. Unlessstated otherwise, all undertakingsgiven to the court by plaintiff are hispersonally, even if it is anticipatedthat the solicitor will carry them outon plaintiff ’s behalf. If there is abreach, liability and/or costs and le-gal fees will be imposed on plaintiff;however, in some instances where thesolicitor’s actions have been espe-cially egregious, the solicitor may in-cur liability.

For all divisions, the affidavit insupport must also show that it is rea-sonable to believe that there are as-sets of the defendant within the ju-risdiction, and that there is a realrisk that the defendant will insulateitself from judgment by deliberatelydealing such assets unless re-strained. Moreover, full and frankdisclosure of all material mattersmust be made; for instance, plaintiffshould put more information in thanis necessary to avoid omissions whichcould lead to the judge rejecting theapplication.20 The affidavit can besworn by an individual plaintiff asenior officer or director of a plain-tiff corporation, or the plaintiff ’s so-licitor in control of the action.

A draft order, usually drafted bycounsel, and based on the standardforms, must include all the terms ofthe injunction applied for, togetherwith the undertakings, and should beattached to the writ and affidavit,which are generally delivered to thecourt before the hearing.21 Oral argu-ments based on the submitted docu-ments can then take place, and if thejudge approves the application, hewill initial the draft order, with anyamendments, and it will become im-mediately operative.22 Plaintiff canthen provide notice to defendant andto third parties in control of assets,by telephone if necessary, and thewritten order will be sent on. Thenotice should also contain a penalnotice warning of the consequencesof a breach of the injunction. Theaward of costs on a ex parte applica-tion are usually reserved for a laterhearing.

The Mareva order must contain aprovision authorizing a defendantwithin the jurisdiction to draw a cer-

tain amount of money as reasonableliving expenses to avoid both unduehardship with permission to makesubsequent applications to the courtto vary the order only to allow theamount for living expenses to be ad-justed. Moreover, the Mareva maystate a specific amount which is to befrozen, or may simply be a generalorder covering all the defendant’sassets. Either party may apply laterto have this amount altered or dis-charged. The purpose of a specificmaximum amount is to permit thedefendant to have use of the balanceof the assets; but the application of amaximum amount to third partieswho have no knowledge of what otherassets are held by or for the defen-dant can cause problems, because ofthe danger that any release of fundsor assets in the belief that other as-sets are frozen will possibly be inbreach of the order. The solution is foran order for discovery to be made, aspart of the Mareva application, toidentify and determine exactly all thedefendant’s assets, so that thoseabove the claim can be released.Plaintiff ’s counsel should calculatethat the maximum amount to be fro-zen should not only cover the amountclaimed, but costs, legal fees, and in-terest, and the likely damages andcosts incurred for third parties, suchas banks or custodians of property.

The order should freeze the assetsuntil a fixed date, but variations tothe practice occur regularly as thecircumstances of a case may demand.Most judges will rarely accept an or-der freezing assets “until judgment orlater execution.” The usual course isto apply to extend the Mareva afterjudgment, even in cases involvingdefault judgment if the writ includesa claim for an injunction.23 The mostrecent amendment to the proceduresgoverning Mareva and other inter-locutory applications became effec-tive in 1995 and is found in Order 29of the Rules of the Supreme Court(“RSC”). It provides:

(1) an application for the grant ofan injunction may be made by anyparty to a cause or matter beforeor after the trial of the cause ormatter, whether or not a claim forthe injunction was included in thatparty’s writ, originating summons,counterclaim or third party notice,as the case may be.(2) Where the case is one of urgency

such application may be made exparte on affidavit but, except asaforesaid, such application must bemade by motion or summons.(3) The plaintiff may not makesuch an application before the is-sue of the writ or originating sum-mons by which the cause or mat-ter is to be begun except where thecase is one of urgency, and in thatcase the injunction applied for maybe granted on terms providing forthe issue of the writ or summonsand such other terms, if any, theCourt thinks fit.

The amended Order 29 codifies, in aprocedural sense, the court’s author-ity to issue such emergency ex parteorders based on both section 37 of theSupreme Court Act 1981 and Marevacase law.

Legal CostsA party which obtains a Mareva or

Anton Piller order is entitled to re-cover legal fees and costs by filing amotion with the court with attachedaffidavit of attorneys’ fees and costs.The hearing to determine legal costsalmost invariably occurs at a laterdate, or after trial if there is no settle-ment. A successful party may be de-prived of its legal fees and costs if itcan be shown, for example, that itknew the defendants were likely tobe prepared to remedy the matters ofwhich the complaint was made.24

Moreover, there are situations whenthe court, even though it initiallyapproved plaintiff ’s ex parte applica-tion, will later decide that plaintiffmust pay not only its own legal costs,but also, in rare cases, the legal costsor damages of defendant if it laterturns out that the Mareva was with-out foundation. The usual conse-quence where a plaintiff is justifiedin law in applying but arguablyshould not have done so on the factsof the case is that the plaintiff whoso acted precipitatively loses its ownlegal costs. Moreover, a solicitor canbe ordered to pay his client forwasted costs so as to indemnify theclient against a costs order in favorof the other side, if the solicitor in-curred the costs as a result of seek-ing a hasty injunction when otheralternatives would have been moreappropriate.25 In awarding costs, thecourts are increasingly looking to thetime immediately before the applica-

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tion for the injunction to see whetheror not there was scope for a reason-able compromise, or whether one sideacted too quickly.

Scope of the InjunctionThe assets to which the injunction

attaches may be tangible or intan-gible, realty or personalty. In additionto bank accounts and choses in ac-tion, they include chattels such asmotor vehicles, jewelry, objets d’artand other valuables.26 Where moneyis held in a bank account in foreigncurrency, the bank may convert suf-ficient sums into the currency statedin the order to meet the requirementsof the order.27 Unless the plaintiffseeks a worldwide Mareva, theremust be some grounds for showingthat the defendant has assets withinthe jurisdiction.28 The Mareva willapply to assets which are acquiredafter it has been granted, but beforethe eventual execution of any judg-ment obtained in the action.29

Worldwide MarevaIn most cases involving Mareva

orders, the assets which are the sub-ject of the order are not those whichare the subject matter of the under-lying cause of action, but are assetsout of which the plaintiffs will seek,if they obtain judgment, to recoup thejudgment debt. It was therefore con-sidered for a long time that theMareva injunction, originally basedon a blend of judicial discretion, in-herent jurisdiction, and statute,could not affect property abroad ex-cept in limited instances, even if theform of the order was to bind the de-fendant, rather than the property.30

Until 1988, the English courts gen-erally refused to make orders con-cerning assets outside of the jurisdic-tion except in those limited caseswhere, on the basis of statute or theRules of the Supreme Court, they feltauthorized to do so.31 This allchanged in the summer of 1988 whenthe English Court of Appeal decidedthree cases within weeks of eachother in which it extended theMareva jurisdiction to include ordersregulating the behavior of parties inforeign jurisdictions. This so-called“Worldwide Mareva” was establishedin Babanaft International Co. SA v.Bassatne,32 Republic of Haiti v.Duvalier,33 and Derby & Co. Ltd. v.

Weldon (No. 1).34 In these cases, theEnglish courts were authorized, incertain circumstances, to grant anorder against a defendant otherwisewithin its jurisdiction relating to as-sets held by the defendant overseas.

In deciding whether to apply for aworldwide Mareva, however, counselshould consider the substantial costsinvolved in obtaining it. In each of thethree cases above, the claims wereworth more than £10 million each. Ineach case, the court emphasized that,although it had jurisdiction to grantthe requested order, the granting ofsuch orders should only occur in ex-traordinary circumstances. The ap-plication for the order in England,and the steps necessary to attemptenforcement abroad, will be expen-sive, and should be considered onlyin exceptional cases where largesums are at stake and the risk of in-curring substantial costs is justified.

In all three cases, it was acknowl-edged that English courts may notgrant a Mareva injunction over for-eign assets in precisely the samemanner as they would over assetswithin England and Wales.35 Whereforeign assets are involved, the courtwill insert a proviso within the order,known as the ‘Babanaft proviso.’Since the actual Babanaft case, theproviso has been modified by subse-quent rulings. Today, courts acceptthe version of it that was stated byLord Donaldson in Derby & Co. Ltd.v. Weldon (Nos. 3 & 4):

“Provided that, in so far as this or-der purports to have any extrater-ritorial effect, no person shall beaffected thereby or concerned withthe terms thereof until it shall bedeclared enforceable or be enforcedby a foreign court and then it shallonly affect them to the extent ofsuch declaration or enforcementunless they are: (a) a person towhom this order is addressed or anofficer of or an agent appointed bya power of attorney of such a per-son or (b) persons who are subjectto the jurisdiction of this court and(i) have been given written noticeof this order at their residence orplace of business within the juris-diction, and (ii) are able to preventacts or omissions outside the juris-diction of this court which assist inthe breach of the terms of the or-der.”

The parties affected by the proviso

are generally classified in threegroups. (1) the defendant, or otherparty to proceedings in which the or-der is granted and who have propertywithin England and Wales; (2) per-sons who are subject to the jurisdic-tion of the English court, have beengiven notice of the order, and are ableto prevent breaches of the order out-side of England and Wales; and (3)other persons, for instance, foreignnationals or institutions not subjectto the jurisdiction of ’ the Englishcourt, or persons who are subject tothe jurisdiction of the English courtbut have not been notified. In thefirst group, the Mareva would applyto all activities and property belong-ing to the defendant within Englandand Wales. In the second group, thecourts have ruled that, so long as thedefendant is a proper party to theproceedings brought in England andWales, the English court has jurisdic-tion to order the defendant to do any-thing outside England and Waleswhich it would be able to order himto do inside England and Wales. Thejurisdiction is essentially in per-sonam and not in rem.36 The Englishcourts therefore have jurisdiction toissue a worldwide Mareva to order adefendant who has been properlyjoined as a defendant to transfer as-sets from one foreign jurisdiction toanother, if this will prevent him fromtaking action to render any futurejudgment or award of the court un-satisfied.37 This discretion, however,should be exercised with great care.Accordingly, the first issue will bewhether a party is properly joined toproceedings in England. This de-pends on the Rules of Court andwhether the court can obtain per-sonal jurisdiction over someone whois outside of the territorial jurisdic-tion.

In the third group, defendants whoare foreign nationals and not subjectto the jurisdiction of the Englishcourts are not bound to obey the or-der unless or until there is an orderof the foreign court which has juris-diction over them. Even then, theyare bound only to the extent of theorder of the foreign court. Essentially,once the plaintiff obtains the EnglishMareva, it must then apply to the for-eign court to have the Mareva recog-nized and enforced against the for-eign defendant. The proviso makesclear that the English court does not

17

claim jurisdiction over such persons.So the plaintiff will need to make afurther application in the foreign ju-risdiction where he believes thedefendant’s assets are located. Plain-tiff will need to consider whethersuch country has a procedure equiva-lent to the Mareva jurisdiction, andwhether it is likely to exercise it insupport of the order of the Englishcourt. But before application can bemade in the foreign court, leave mustbe granted by the English court.

Requirements forWorldwide Mareva

The court has jurisdiction to granta worldwide Mareva in support ofproceedings brought in England,both before and after judgment. Allsuch orders must contain a ‘Babanaftprovisio.’ In addition, the followingrequirements are common to pre andpost judgment applications. Theplaintiff must have a good arguablecase on the merits. He must showthat there are insufficient assets inEngland to meet his judgment, thatthe defendant has foreign assets, andthat there is a real risk of disposal ofassets so as to frustrate enforcementof the plaintiff”s judgment if one isobtained.38 Even then, the court willrarely issue a worldwide Mareva,but, as Kerr LJ said in famous pas-sage which has been cited in othercases:

. . . some situations . . . cry out —as a matter of justice to the plain-tiffs — for disclosure orders andMareva type injunctions coveringforeign assets of defendants evenbefore judgment.39

The type of case which “cry out” forjustice are large claim cases in whichthe defendant’s conduct has beenmost egregious and underhanded intrying to frustrate the legitimateclaims of plaintiffs in English courts.A case in point was Republic of Haitiv. Duvalier,40 in which the Govern-ment of Haiti had a claim againstformer President Duvalier and hisfamily for $120 million for embezzle-ment. This was a good case becausethe defendants had admitted thatthey had been moving their assetsaround the world in an attempt toevade the efforts of the plaintiff tofreeze them. Staughton LJ stated: “ifever there was a case for the exerciseof the court’s powers, this must be

it.41 Moreover, in Derby & Co. Ltd. v.Weldon, the claim was for £25 million.The defendants included a Panama-nian and a Luxembourg company.The trial judge had found that theplaintiffs had a “highly arguable”case, and that there was a high riskthat the defendants would dissipatetheir assets, as they were “well usedto moving funds worldwide.” In sum-mary, the worldwide Mareva appearsto be appropriate only where largesums are involved and there is evi-dence that the defendants are usedto moving assets around the worldthrough sophisticated means so thatenforcement of the judgment or or-ders would cause considerable diffi-culty.

III. The Anton Piller Order:Basic Considerations

In some cases it is vital for a plain-tiff to ensure that the defendant doesnot destroy or dispose of evidence inits possession so as to make it diffi-cult, if not impossible, to prove hiscase. In this situation, the AntonPiller order permits plaintiff to de-mand entry to defendant’s premises,business or residential, to inspect andphotograph documents and chattelson the premises, and to remove docu-ments or other items for a short timeif such items might form evidence inits action, or proposed action, againstdefendants. Generally, the order willprovide that it must be served by anindependent solicitor in the presenceof plaintiff ’s solicitor. The plaintiff ’ssolicitor then executes the order, su-pervised by the independent solicitor.In some situations, the order mayprovide for service and execution bythe plaintiff ’s own solicitor without

supervision. The order must be clearand concise, and based on fill disclo-sure to the court. The court’s powerto issue the order derives from itsinherent jurisdiction to prevent adefendant from frustrating judg-ment, for instance by destroying ordisposing of either the evidence orthe subject matter of the dispute be-fore the proceedings have begun. Theinjunction often includes an order togive details on affidavit of assets andother premises, or to deliver upgoods, and is often considered acomplementary tool to be used ancil-lary to a Mareva.

The order’s name is derived fromthe case, Anton Piller KG v. Manufac-turing Processes Ltd.,42 in which LordDenning stated:

Let me say at once that no court inthis land has any power to issue asearch warrant to enter a man’shouse so as to see if there are pa-pers or documents there which areof an incriminating nature,whether libels or infringements ofcopyright or anything else of thekind. No constable or bailiff canknock at the door and demand en-try so as to inspect papers or docu-ments. The householder can shutthe door in his face and say “Getout.”43

But later stated:

It seems to me that such an ordercan be made by a judge ex parte,but it should only be made whereit is essential that the plaintiffshould have inspection so that jus-tice can be done between the par-ties: and when, if the defendantwere forewarned, there is a gravedanger that vital evidence will bedestroyed, that papers will be

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burnt or lost or hidden, or takenbeyond the jurisdiction, and so theends of justice be defeated: andwhen the inspection would do noreal harm to the defendant or hiscase.44

There are three essential pre-condi-tions for this order: First, plaintiffmust show a strong prima facie case.Second, the damage, potential or ac-tual, must be very serious for theapplicant. Third, there must be clearevidence that the defendants have intheir possession incriminating docu-ments or things and that there is areal possibility that they may destroysuch material before any applicationinter partes can be made. The over-riding consideration in issuing thisorder is that it is to be resorted toonly in circumstances where the nor-mal processes of the law would berendered nugatory if some effectiveand immediate measure was notavailable.

The scope of an Anton Piller orderis as broad as a Mareva injunctionand involves many potential difficul-ties, not only because of consequentinterference with the rights of indi-viduals and companies, but also be-cause of its effect on third parties.The Anton Piller order is a powerfultool to preserve evidence and preventempty judgments. There are threeprincipal areas of law where the or-der is used. First, cases involving in-tellectual property rights, such astrade marks, copyrights patents, andtrade secrets. Second, cases involvingindustrial espionage or anticompeti-tion claims brought by ex-employersagainst ex-employees. Third, matri-monial proceedings where it isthought that a spouse has failed tomake truthful statements of his/herassets. There is a distinctive differ-ence between the practice in the firsttwo types of cases and the third,namely, that in intellectual propertyand anti-competition cases, there islikely to be a preemptive strike by theplaintiff in which the application ismade before or at the time the writis issued and before it is served. Inmatrimonial cases, the order is likelyto be made as a last resort, whenother measures are considered not tohave resulted in truthful disclosure.Anton Piller orders may also be usedin other types of cases as well, butrecent cases have cast doubt on the

use of Anton Piller orders in casesinvolving criminal conduct because ofthe privilege against self-incrimina-tion.45

ProcedureThe Anton Piller order may be

granted at any stage of litigationfrom the period before the writ wasissued until after judgment while inaid of execution. It may be grantedin all divisions of the High Court andin the Court of Appeal. It may alsobe granted in the Patents CountyCourt, but not in any other countycourt. Cases within the jurisdiction ofthe county court should be trans-ferred to the High Court for such ap-plication. The order is most oftenheard in the Chancery Divisionwhere requests for injunctions areheard in open court; therefore, a re-quest for the court to review the ap-plication in camera is essential tominimize publicity and maintaincomplete surprise.46

The order is not a “civil” searchwarrant. The only recourse a plain-tiff has if the defendant denies theSupervising Solicitor entry to thepremises is to apply to the court for acontempt order. Force cannot be usedand, though the defendant risks be-ing penalized for contempt, his desireto take legal advice before permittingentry has been recognized as reason-able, and must be stated in the stan-dard order form.47 The order cannotbe used to discover evidence on whichto base a later claim,48 but it can prob-ably extend to overseas premises solong as the defendant is within thejurisdiction of the English courts.49

However, this will not extend to Scot-land based on internal comity withinthe United Kingdom.50

The application for an Anton Pillerorder must include an undertaking tothe court by the Solicitors that theywill not use documents and goodsseized on the execution of the orderfor any purpose other than in the ac-tion in which they were seized, with-out leave of court or consent of theparty from whom they were taken.51

If a solicitor negligently fails to pro-vide accurate information to thecourt based on its undertakings, thecourt may issue a contempt orderagainst the solicitor.52

TacticsThe successful execution of an

Anton Piller order depends on goodplanning and logistical tactics. Manyfirms of solicitors employ extra staffor consultants to handle the logisticsof enforcement, which include havingadequate numbers on or near the siteover and above those permitted toenter the premises. It is especiallynecessary to watch all exits andcheck if observation can be kept onrooms where shredding machines orother disposal units are kept. Staffmay want to have hand-held tape-recorders, video cameras and lightcameras.

If more than one address is withinthe order, it is important that staffand consultants coordinate their ex-ecution of the order. For example, ifdefendants work from or have controlof other addresses, a watch must bekept on those other premises to seeif service of the order at the mainaddress causes any reaction else-where. If the defendants do havesomething to conceal, they will likelyhave efficient means of alerting theircolleagues; therefore, plaintiff canprevent the loss of much importantevidence by keeping a close watch onappropriate locations. Moreover, thecourts disapprove of the police beingasked to stand by unless there is areal risk of a breach of the peace. Insuch a case, the use of the policeshould only be made with leave ofcourt.

Plaintiffs must ensure that whenserving Anton Piller orders, they ob-serve the procedural requirements inthe order. Before 1986, Anton Pillerorders were regularly being grantedin all divisions of the High Court, andtheir popularity was due primarily totheir effectiveness in forcing defen-dants to settle plaintiff ’s claims oncethey were served with these orders.Needless to say the broad scope ofthese orders was prone to abuse. Abu-sive execution of an Anton Piller or-der was the subject of a trial in Co-lumbia Picture Industries Inc. &others v. Robinson & others.53 Be-cause the hundreds of previousAnton Piller cases had settled, thiscase gave Scott J the opportunity toconsider the development and opera-tion of these orders. He delivered adevastating critique. He observedthat one of the immediate effects ofan Anton Piller order was to closedown defendant’s business. He alsostated:

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What is to be said of the AntonPiller procedure which, on a regu-lar and institutionalized basis, isdepriving citizens of their propertyand closing down their businessesby orders made ex parte, on appli-cations of which they know noth-ing and at which they cannot beheard, by orders which they areforced, on pain of committal, toobey, even if wrongly made?54

Moreover, Scott J in lock Interna-tional plc in Beswick stated:

the practice of the court has al-lowed the balance to swing muchtoo far in favour of plaintiffs andthat Anton Piller orders have beentoo readily granted and with insuf-ficient safeguards for respon-dents.55

Anton Piller orders had beengranted in a wide variety of circum-stances, but their use has dramati-cally declined since UniversalThermosensors Ltd. v. Hibben & oth-ers.56 Universal Thermosensors was avery important case because it wasthe first step by the courts in adopt-ing an agreed uniform approach toAnton Piller orders; this made iteasier also to adopt a uniform ap-proach to Mareva injunctions and,eventually, to standard form injunc-tions. The Vice Chancellor’s ruling inUniversal Thermosensors is now thebasis for the standard form AntonPiller order. The standard formshows a clear emphasis on the rightsof the defendant by underlining theoriginal safeguards required whenAnton Piller orders were first devel-oped, and, second, by providing addi-tional safeguards such as: strict scru-tiny of the evidence produced byplaintiff; emphasis upon less draco-nian orders which the court maygrant; further developments of theundertakings which the plaintiffmust give before the order is granted;new safeguards for the defendant inexecution of the order; and specificstandards of when and to what ex-tent the plaintiff or its solicitors maybe liable to the defendant for non-dis-closure at the ex parte application orerrors in execution of the order. Inparticular, it appears that courts willapprove of exemplary damagesagainst plaintiff or its solicitors forwrongful or oppressive execution ofthe order.57

IV. StrategicConsiderations

Because Mareva Injunctions andAnton Piller Orders are ordinarily

conducted. One of the likely effects ofthe Anton Piller Order is to closedown the business of the defendantwhich, based on the applicant’s evi-dence, operates in violation of theplaintiff ’s rights. The use of theAnton Piller Order may effectivelydeprive citizens of their property andterminate their business operationsby orders obtained ex parte based onapplications against which the defen-dants were not permitted to be heardand which they must obey.

In recent cases involving AntonPiller Orders, Courts have been morevigilant in ensuring that proceduralsafeguards are maintained for defen-dants by enforcing a strict interpre-tation of the requirements placed onthe plaintiff.58 For example, in Uni-versal Thermosensors Ltd. v. Hibben,the court addressed serious irregu-larities in the execution of orders byplaintiff ’s solicitors by requiring ad-herence to a new set of guidelineswhen serving Anton Piller Orders.Before Hibben, English courts werereluctant to impose damages againstplaintiffs or their solicitors when fail-ing to observe procedural safeguardsto protect the defendant. In Hibben,the plaintiff ’s solicitors obtained exparte orders against defendant’sbusiness property without revealingto the court certain material evidencewhich, if known to the court, mayhave dissuaded it from issuing theorder. The solicitors were held to haveacted so egregiously that the courtordered them to pay £34,000 in dam-ages as compensation to the defen-dants. The Hibben case reflects thetendency of courts to scrutinize morethoroughly applications for AntonPiller orders.

Unlike Anton Piller orders, therecent cases on Mareva Injunctionshave not been so concerned with pro-tecting the defendant’s rights. In-stead, these cases emphasize a broad-ened scope of application of freezeorders, such as the worldwideMareva, against assets not only lo-cated within the United Kingdom butalso in foreign jurisdictions. Thecourts will also, in some circum-stances, permit plaintiffs to piercethe corporate veil in order to preventindividuals from escaping the effectof Mareva Injunctions by the use ofcompanies which they wholly control.Notwithstanding the broadened

granted ex parte, the defendant hasno opportunity to address the courtand object to applicant’s request forthe order. To the American lawyer,this is striking because such an or-der issued by a U.S. court would vio-late the basic principles of due pro-cess requiring notice and a hearingbefore a defendant may be deprivedof its property. An English court’s re-view of a party’s ex parte request tofreeze a potential defendant’s assetsand to invade its property to searchfor evidence creates a substantialrisk that such an order will be issuedwithout knowledge of argumentswhich might be properly made onbehalf of the defendant. To protectagainst this, the plaintiff must pro-vide certain information and guaran-tees as part of making an ex parteapplication including the following:(1) full and frank disclosure of anypoints which the defendant mightraise if he were present to oppose theapplication; (2) indemnify the defen-dant in compensation for damages ifthe order later proves to be withoutmerit; and (3) to serve the evidenceon the defendant as soon as practi-cable and to notify the defendant ofhis right to apply to have the orderdischarged. As will be shown, MarevaInjunctions must contain provisionswhich protect the security interestsof banks and their right to setoff.Similar undertakings must be madeby plaintiff ’s solicitors in executingan Anton Piller order including re-turning originals of all documentsobtained as a result of the orderwithin two days of seizure.

Today, both orders remain ex-tremely useful weapons in aclaimant’s legal arsenal. A company,for instance, which suspects that acompetitor has misappropriated con-fidential trade secrets may obtainand execute an Anton Piller Order tosearch the premises of the competi-tor and obtain any documents rel-evant to the demand in the order.While the Anton Piller Order is be-ing executed, the plaintiff may alsoobtain a Mareva Injunction whichtemporarily freezes the assets of thedefendant while the search of thedefendant’s premises and the copyingof all relevant documents are being continued...

20

scope and power of Mareva Injunc-tions in recent case law, courts havedeveloped certain protections for de-fendants, namely, imposing damagesagainst plaintiffs for failing to dis-close all material information relatedto the strength of their claim and fornot disclosing evidence that wouldshow the defendant to be no threatto the dissipation or transfer of assetssought by plaintiffs.

The Civil Jurisdiction andJudgment Act 1982

The harmonization of the proce-dures of the European EconomicCommunity, the Convention on thejurisdiction of courts, and the recog-nition and enforcement of judgmentsin civil and commercial cases wereagreed to by the States of the Euro-pean Community in 1968 and wentinto force in 1973. The United King-dom, Denmark and Ireland signed anaccession agreement to cover theirnew membership in 1978. The CivilJurisdiction and Judgments Act 1982provided the law necessary to makesense of the Conventions, and forpurposes of this discussion the broad-est and most far-reaching provisionsallow protective measures to betaken by any contracting countryeven if proceedings have already be-gun in another Contracting State.Article 24 sets out the basis of thispower:

Application may be made to theCourts of a Contracting State forsuch provisional, including protec-tive, measures as may be availableunder the law of that State, even ifunder this Convention, the courtsof another Contracting State havejurisdiction as to the substance ofthe matter.

In addition, section 25 of the CivilJurisdiction and Judgment Act 1982clarifies the position as to interimrelief pending the trial or appeal, andallows English court jurisdiction togrant relief even if the subject mat-ter of the continuing proceedings isa question of jurisdiction, or a refer-ence to the European Court underthe 1971 Protocol to the 1968 Con-vention. Section 25 reverses the ef-fect of the Siskina case where thePrivy Council had decided that aplaintiff could not obtain a Marevafrom an English court against

Defendant’s property in Englandwhen the plaintiff had brought theaction in a foreign jurisdiction andthe legal or equitable right on whichthe Mareva was based arose underforeign law. At present, with the stan-dard provisions of the Act now inforce, a plaintiff suing, for example,in France, can apply to the Englishcourts to freeze the defendant’s as-sets in England, provided the Con-vention applies to the originalclaim.59 Once a foreign judgment hasbeen given in France, the party canenforce the judgment debt againstdefendant’s assets in England, underthe recognition and enforcement pro-cedures of the Convention.60 There-fore, there is now complete interac-tion between the member States onthe principle of that a party’s assetsmay be frozen in one way or anotherpending the outcome of a trial. Asthese extended powers only apply tomatters listed in Articles 1-3 of theConvention, however, interim reliefin other cases will still depend, fornow on those parallel provisions ofEnglish law as are unaffected by theConventions themselves.

ConclusionAlthough English courts have only

allowed Mareva and Anton Piller or-ders to be used since the 1970s, theireffectiveness has led to their increas-ing use and popularity among com-mercial litigators, thereby strength-ening the attractiveness of Englishcourts as forums to resolve interna-tional commercial disputes. The useof these orders provides in manycases swift justice and effective pre-judgment relief for plaintiffs seekingto preserve financial assets and otherproperty to which they can later at-tach judgments. Accordingly, manyglobal companies and traders preferEnglish law as the choice of law andespecially English courts as the pre-ferred forum for resolving interna-tional commercial disputes. Althoughthe liability risks of using AntonPiller orders has increased signifi-cantly in recent years, many litigantsare finding the use of both orders intandem to be a particularly effectiveway of minimizing risk when pursu-ing a claim against a questionabledebtor. The Mareva and Anton Pillerorders are valuable pre-trial tacticsto the litigant, and will continue to

be utilized in all divisions of the HighCourt. Moreover, the internationalscope of such orders will becomemore pronounced in the future asmore and more international trans-actions persons and property in theUnited Kingdom.

Endnotes:1 Universal Thermosensors Ltd. v.

Hibben [1992] 1 WLR 840 per J. Nicholls at861.

2 Bank Mellat v. Nikpour [1985] FSR 87at 92.

3 Ninemia Maritime Corporation v.Trave Schiffahrtsgesellschaft mbh und Co. KG(The Niedersachsen) [1983] 1 WLR 1412, CA(29 July 1983), Eveleigh, Kerr and Dillon LJJ.

4 [1975] 1 WLR 1093, CA (22 May 1975).5 Nippon Yusen v. Karageoris and an-

other [1975] 1 WLR 1093, CA (22 May 1975);Lord Denning MR, Browne, and GeoffreyLane LJJ.

6 Supreme Court of Judicature (Consoli-dation) Act of 1925, section 45.

7 Nippon Yusen, at 1095.8 [1975] 2 Lloyd’s Rep. 509, CA (23 June

1975); Lord Denning MR, Roskill and OmrodLJJ.

9 [1975] 2 Lloyd’s rep. 509, at p. 510.10 Ibid.11 Ibid.12 See discussion at pp. 16-18.13 Siporex Trade SA v. Comdel Commodi-

ties Ltd., [1986] 2 Lloyd’s Rep. 428.14 Veracruz v. Transportation Inc. v. V C

Shipping Co. Inc. and Den Norske Bank A/S,(The Veracruz I), [1992] 1 Lloyd’s Rep 353, CA.See also Zucker v. Tyndall Holdings plc [1992]1 WLR 1127, CA.

15 Siskina (owners of cargo lately laden onboard) and others v. Distos Compania NavieraSA (The Siskina) [1979] AC 210, HL (Kerr LJ,20 December 1976; CA 1 June 1977 — LordDenning MR, Lawton and Bridge LJJ; HL 26October 1977 — Lord Diplock, LordHailsham, Lord Simon of Glaisdale, LordRussell of Killowen, Lord Keith of Kinkel); thedecision will now be different because of the1968 Brussels Convention, but the principlesremain valid.

16 See The Practice Direction (Judge inChambers: Procedure) [1983] 1 WLR 433 asamended, in Appendix G.

17 ALG Inc. v. Uganda Airlines Corp.,(1992) Times, 31 July, per Richard SouthwellQC, sitting as Deputy High Court Judge.

18 See Colman, The Practice and Proce-dure of the Commercial Court (London:Lloyd’s of London Press, Ltd., 4th ed., 1995).

19 See Practice Direction (InterlocutoryInjunction: Forms), [1996] 1 WLR 1551.

20 The Assios [1979] 1 Lloyd’s Rep. 337.21 See Practice Direction (Mareva Injunc-

tions and Anton Piller Orders) [1994] 1 WLR1233.

22 Note the requirements to produce adisk with the order: see paragraph 4 of Prac-tice Direction (Interlocutory Injunctions:Forms) [1996] 1 WLR 1551.

23 Stewart v. Chartering Ltd. v. C & OManagements SA and another [1980] 1 WLR460; RSC Order 13.

24 See Bluebell Inc. v. Falmer Interna-

21

tional Ltd. (1980) 130 NLJ 5948, CA.25 See generally Rules of the Supreme

Court Order 62, r.11. Because this rule hasbeen cited for different orders in differentcases, reference should be made to the Su-preme Court Practice and Supplements.

26 CBS UK Ltd. v. Lambert, [1983].27 The conversion may be made at the

bank’s current rate of exchange. The con-verted sum should then be held subject to theorder. Z. Ltd. v. AZ and AA-LL [1982] 2 WLR288 at 314 per Kerr LJ.

28 Third Chandris Shipping Corp. v.Unimarine SA [1979] QB 645 per Lord Den-ning MR at 668.

29 TDK Tape Distributor (UK) Ltd. v.Videochoice Ltd. [1986] 1 WLR 141 at 145.

30 Ashtiani and another v. Kashi [1986] 2All ER 970, CA (25 June 1986), Dillon, Neilland Nicholls LJJ.

31 Interpool v. Galani [1988] QB 738, CA(23 June 1987), Lloyd and Balcombe LJJ; seealso, Maclaine Watson & Co. Ltd. v. ITC [1988]1 Ch. 1. These cases involve judgment credi-tors relying on Order 48 1(1) using post-judg-ment discovery orders to make inquiries con-cerning a judgment debtor’s assets outside ofthe jurisdiction.

32 [1990] see chap 13 of Ough33 [1990] 1 QB 202.34 [1990] ch 48.35 Derby & Co. Ltd. v. Weldon (Nos. 3 & 4)

[1990] Ch 65 at 84D-84E.36 Derby & Co. Ltd. v Weldon (No. 6)

[1990] 1 WLR 1139, CA, per Dillon LJ at 1149. 37 Ibid.38 Derby & Co. Ltd. v. Weldon (No. 1)

[1990] Ch. 48.39 Babanaft, at 33D-33E. Cited also by

Staughton LJ in Republic of Haiti v Duvalier[1990] 1 QB 202 at 217.

40 [1990] 1 QB 202.41 ibid at 217A.42 [1976] 1 Ch 55, CA (8 December 1975),

Lord Denning MR, Ormrod and Shaw LJJ.43 Ibid at p. 60C.44 Ibid at 6B, 62A.45 See “Anton Piller Orders — A Consul-

tation Paper,” published by the LordChancellor’s Department, November 1992,and authored by Scott and Staughton LJJ andHollings, Hirst and Simon and Brown.

46 See Vapormatic Co. Ltd. v. Sporex Ltd.[1976] 1 WLR 939. Orders may also begranted in the Family Division. See Emanuelv. Emanuel [1982] 1 WLR 669, Wood J.

47 Hallmark Card Inc. in. Image Arts Ltd.[1977] FSR 150.

48 Hytrac Conveyors Ltd. v. Conveyors In-ternational Ltd. [1983] FSR 63, CA.

49 Cook Industries v. Galliher [1979] Ch439, Templeman J.

50 Altertext Inc. v. Advanced Data Commu-nications Ltd. [1985] 1 WLR 457, Ch D, ScottJ.

51 See EMI Records Ltd. v. Spillane andothers [1986] 2 Ch. 1, Ch D Sir NicholasBrowne-Wilkinson V-C.

52 VDU Installations Ltd. v. IntegratedComputer Systems and Cybernetics Ltd. andothers [1989] FSR 378, Ch D, Knox J.

53 [1987] 1 Ch 38.54 Ibid at 73-74.55 [1989] 1 WLR 1268 at 1279.56 [1992] 1 WLR 840, Ch. D, Sir David

Nicholls, V-C.57 See Scott J. in Columbia Picture Indus-

60 Section 4, Civil Jurisdiction and CivilJudgment Act 1982; see Article 31 (2) of theConvention.

tries Inc. v. Robinson [1987] Ch 38 at 87.58 Lock International plc v. Beswick.59 See art(s) 1,2, & 3 of the Convention.

International Law Section

RetreatAugust 14 - 15, 1998Four Seasons Resort, Palm Beach

Friday, August 146:30 p.m. - 8:00 p.m.6:30 p.m. - 8:00 p.m.6:30 p.m. - 8:00 p.m.6:30 p.m. - 8:00 p.m.6:30 p.m. - 8:00 p.m.Welcome Reception withThe Florida Bar Board of Governors

Saturday, August 158:30 a.m. - 10:45 a.m.8:30 a.m. - 10:45 a.m.8:30 a.m. - 10:45 a.m.8:30 a.m. - 10:45 a.m.8:30 a.m. - 10:45 a.m.Continental Breakfast and ExecutiveCouncil Meeting

111111:00 a.m. - 12:00 noon1:00 a.m. - 12:00 noon1:00 a.m. - 12:00 noon1:00 a.m. - 12:00 noon1:00 a.m. - 12:00 noonMorning Session—Introductions/Networking Program

Bring yourBring yourBring yourBring yourBring yourbusinessbusinessbusinessbusinessbusinesscard!card!card!card!card!

HOTEL RESERVATIONS: A limited number of rooms have been reserved at theFour Seasons Resort, Palm Beach for the special group rate of $135/night singleor double occupancy. To make reservations, call the Four Seasons direct at (561)582-2800 or (800) 432-2335 and reference The Florida Bar International Law Sec-tion Retreat to receive the group rate. Reservations must be made by July 14,1998 to assure the group rate and availability. After that date, the group rate will begranted on a “space available” basis.

12:00 noon - 1:30 p.m.12:00 noon - 1:30 p.m.12:00 noon - 1:30 p.m.12:00 noon - 1:30 p.m.12:00 noon - 1:30 p.m.Buffet Luncheon with featured speaker:The Honorable Charlene BarshefskyThe Honorable Charlene BarshefskyThe Honorable Charlene BarshefskyThe Honorable Charlene BarshefskyThe Honorable Charlene Barshefsky(invited) on"Current International Trade Issues"

1:30 p.m. - 3:30 p.m.1:30 p.m. - 3:30 p.m.1:30 p.m. - 3:30 p.m.1:30 p.m. - 3:30 p.m.1:30 p.m. - 3:30 p.m."Practitioner’s Guide to the Conventionon the International Sale of Goods (CISG)"Panel: Michael W. Gordon,

Samuel R. Mandelbaum,Jose A. Santos, Jr.

For more information or aregistration form,call 850/561-5621.

CLER Program Certification Program(3.5 hours Maximum) (3.5 hours Maximum)

General 3.5 hours International Law: 3.5 hoursEthics: 0 hours

Make your reservation TODAY!

Hotel reservation cutoff:July 14, 1998

Retreat ProgramSection members and guests are welcome.

22

6-21. Standards for Certification of aBoard Certified International LawyerRULE 6-21.1 GENERALLY

A lawyer who is a member in goodstanding of The Florida Bar and whomeets the standards prescribed belowmay be issued an appropriate certifi-cate identifying the lawyer as a “BoardCertified International Lawyer.” Thepurpose of the standards is to identifythose lawyers who practice in the areaof international law and have the spe-cial knowledge, skills, and proficiencyto be properly identified to the publicas certified international lawyers.

RULE 6-21.2 DEFINITIONS(a) International Law. “Inter-

national law” is the practice of law deal-ing with issues, problems, or disputesarising from any and all aspects of therelations between or among states andinternational organizations as well asthe relations between or among nation-als of different countries, or between astate and a national of another state,including transnational business trans-actions, multinational taxation, cus-toms, and trade. The term “interna-tional law” includes foreign andcomparative law.

(b) Practice of Law. The “prac-tice of law” for this area is defined asset out in rule 6-3.5(c)(1). Practice oflaw that otherwise satisfies these re-quirements but that is on a part-timebasis will satisfy the requirement if thebalance of the applicant’s activity isspent as a teacher of international lawsubjects in an accredited law school.

RULE 6-21.3 MINIMUMSTANDARDS

(a) Minimum Period of Prac-tice. The applicant shall have been en-gaged in the practice of law, either inthe United States or abroad, and shallhave been a member in good standingof the bar of any state of the UnitedStates or the District of Columbia, fora period of not less than 5 years as ofthe date of application. The years oflaw practice need not be consecutive.Receipt of an LL.M. degree in interna-tional law, as defined in rule 6-21.2(a),or in such other field as may be ap-proved by the international law certifi-cation committee, shall be deemed toconstitute 1 year of the practice of lawrequirement, but not the 5-year barmembership requirement, specified in

this subdivision.(b) Substantial Involvement.

The applicant shall demonstrate sub-stantial involvement in the practice ofinternational law during each of the 3years immediately preceding the dateof application. Except for the 2 yearsimmediately preceding application, re-ceipt of an LL.M. degree, as defined inrule 6-21.2(a), may substitute for 1 yearof substantial involvement. Substan-tial involvement shall mean that theapplicant has devoted 50 percent ormore of the applicant’s practice to mat-ters in which issues of internationallaw played a significant role and inwhich the applicant had substantialand direct participation. For purposesof this subdivision, time devoted to lec-turing on or writing about interna-tional law may be included. Althoughdemonstration of compliance with thisrequirement shall be made initiallythrough a form approved by the inter-national law certification committee,the international law certification com-mittee may at its option require writ-ten or oral supplementation.

(c) Education. The applicantshall demonstrate that during the 3-year period immediately preceding thedate of application, the applicant hascompleted at least 75 hours of continu-ing legal education in the field of inter-national law. This requirement can bemet through: attendance at continuinglegal education seminars on interna-tional law; satisfactory completion ofgraduate level law school courses whileenrolled in an LL.M. program in inter-national law or comparative law; satis-factory completion of graduate levellaw school courses involving interna-tional law aspects while enrolled in agraduate law program; lecturing at con-tinuing legal education seminars on in-ternational law; authoring articles orbooks on international law; or teachingcourses on international law at an ac-credited law school. The internationallaw certification committee shall pro-mulgate uniform regulations for the op-eration of the subdivision.

(d) Peer Review. The applicantshall submit the names and addressesof 5 other attorneys or judges who arefamiliar with the applicant’s practice,excluding individuals who currentlyare employed by the same employer as

the applicant, and who can attest to theapplicant’s special competence and sub-stantial involvement in internationallaw. The international law certificationcommittee may at its option send ref-erence forms to other attorneys andjudges.

(e) Examination. The applicantshall take and pass an examination de-signed to demonstrate sufficient knowl-edge, skills, and proficiency in interna-tional law to justify the representationof special competence to the legal pro-fession and the public.

RULE 6-21.4 RECERTIFICATIONRecertification shall be pursuant to

the following standards:(a) Substantial Involvement.

The applicant shall demonstrate con-tinuous and substantial involvement inthe practice of international lawthroughout the period since the lastdate of certification. The demonstra-tion of substantial involvement shall bemade in accordance with the standardsset forth in rule 6-21.3(b).

(b) Education. The applicantshall show completion of at least 75hours of continuing legal education ininternational law since the filing of thelast application for certification. In de-termining whether an applicant hassatisfied this requirement, the stan-dards set forth in rule 6-21.3(c) shall befollowed.

(c) Peer Review. The applicantshall submit the names and addressesof 5 other attorneys or judges who arefamiliar with the applicant’s practice,excluding individuals who currentlyare employed by the same employer asthe applicant, and who can attest to theapplicant’s special competence and sub-stantial involvement in internationallaw. The international law certificationcommittee may at its option send ref-erence forms to other attorneys andjudges.

(d) Examination. If, after re-viewing the material submitted for re-certification, the international law cer-tification committee determines thatthe applicant may not meet the stan-dards established by this chapter, itmay require, as a condition of recertifi-cation, that the applicant take and passthe examination specified in rule 6-21.3(e).

23

Become a Board CertifiedInternational Law AttorneyThe 1998 certification application filing period for International Law Certificationis July 1 through August 31, 1998. The requirements for international law certifi-cation are summarized below.

If you would like to receive this year’s application, please complete the form be-low and mail it to The Florida Bar. Applications will be available in July and mustbe returned no later than August 31, 1998. All requirements for certification mustbe met by the August 31 filing deadline, with the exception of the CLE require-ment which must completed by March 1, 1999. You may request a complete copy

of the Standards from, or direct any questions regarding the certification process to TaressaLangford at (850)561-5600, ext. 6795.

To become board certified in international law, Bar members must:

• Have actively practiced law during the five years preceding application and been substantiallyinvolved in international law (at least 50% of your practice) in the three years immediately preced-ing application.

• Earned at least 75 hours of international law certification credits in the three years precedingapplication; the time period for this year is July 1, 1995 through August 31, 1998 (extended for thefirst year to March 1, 1999).

• Submit the names of five lawyers or judges as references to attest to the applicant’s involve-ment and competence in international law practice.

• Pass a written examination prepared by the International Law Certification Committee (afterapproval of the application).

• Pay a non-refundable application fee of $200; and additional $150 examination fee will be re-quired of those eligible to take the exam.

INTERNATIONAL LAW CERTIFICATION APPLICATION REQUEST

Name_________________________________________ Attorney Number ______________

Address ____________________________________________________________________

City/State/Zip _______________________________________________________________

Return to: The Florida BarDepartment of Legal Specialization and Education650 Apalachee ParkwayTallahassee, Florida 32399-2300

24

implementing only portions of thenew law. The State Department(which has authority over U.S. Em-bassies and Consulates) has issuedmore than twenty policy memorandaand the INS General Counsel haspublished several opinions interpret-ing various provisions of the 1996Act. As new regulations are issuedand judicial challenges to the law aredecided, the implementation of the1996 Act and its applicability willcontinue to evolve.

Prior to the 1996 Act, foreign na-tionals who came to the UnitedStates and remained longer than per-mitted by the INS (sometimes re-maining for years) but who werenever detected by the INS, really suf-fered no consequence. Likewise,those individuals who entered with-out INS inspection (crossing the bor-der or entering from shore undetec-ted) were not really subjected toserious penalty if they were neverapprehended by the INS. This newlegislation contains changes whichseverely punish anyone who violatesthese new immigration provisions.More than ever before, it is extremelyimportant that foreign nationals payvery careful attention to maintainingtheir immigration status in theUnited States, in particular neverremaining beyond the expirationdate of their entry card (form I-94)unless they have filed an extensionapplication with the INS.

Inadmissibility to theUnited States

Several new grounds for inadmis-sibility have been added by the 1996Act.2 They will be discussed in moredetail later in this supplement. Thesenew grounds provide that you may beexcluded from entering the U.S. if,after April 1, 1997 you:• were unlawfully present in the

U.S. for more than 180 days butless than one year and you left theU.S. voluntarily before removalproceedings (deportation) beganand it has been less than three (3)years since you departed the U.S.3

• were unlawfully present in theU.S. for one year or more and youleft the U.S. voluntarily before re-

moval proceedings (deportation)began and it has been less than ten(10) years since you departed theU. S.4

• are an F-1 student who has aban-doned a course of study at a pri-vate elementary or secondaryschool or in a language trainingprogram that is not publiclyfunded, and you are undertakinga new course of study at a publicelementary or secondary school, orin an adult language training pro-gram. This ground of inadmissibil-ity does not apply if the public sec-ondary school is reimbursed forthe cost of your education and youremain there for no more than oneyear. If you are deemed a studentvisa abuser, you must remain out-side the U.S. for a five year period.5

• incited terrorist activity with anintention to cause serious bodilyharm or death6

• are an immigrant who cannotdocument that you have been vac-cinated against vaccine-prevent-able diseases.7 (This may bewaived if an authorized civil sur-geon certifies that such vaccina-tion would not be medically appro-priate or if such vaccination isagainst your religious beliefs.)8

• are a family-sponsored immigrantwhose relative has not executed alegally-binding affidavit of sup-port. The relative that sponsoredyou is bound to provide supportuntil you become a U.S. citizen oruntil you (or your spouse) haveworked in the U.S. for 40 qualify-ing quarters of employment [ten(10) years]9

• are coming to the U.S. to work as ahealth care worker (other than aphysician), unless you hold certi-fication from the Commission onGraduates of Foreign NursingSchools (CGFNS) or an INS ap-proved credentialing service10

• unlawfully voted in any U.S. elec-tion11

• are a former U.S. citizen who re-nounced U.S. citizenship to avoidU.S. taxation12

Additionally, you are inadmissiblefor a period of five (5) years if you:• were summarily removed at a port

of entry (excluded and deported)• ordered removed upon your ar-

rival in the U.S.This bar expands to twenty yearsafter a second removal and be-

comes permanent if you are con-victed of an aggravated felony.13

You are inadmissible for a periodof ten (10) years if you:• are ordered removed after your

admission to the U.S.• departed the U.S. while an order

of removal was outstandingThis bar also expands to twentyyears after a second removal andbecomes permanent if you are con-victed of an aggravated felony.14

Further, under the 1996 Act, youare permanently inadmissible if you:• were unlawfully present in the

U.S. for an aggregate period ofmore than one year and reenteredor attempted to reenter the U.S.without inspection15

• were ordered removed and reen-tered or attempted to reenter theU.S. without inspection16

This permanent bar may be waivedif you are immigrating to the UnitedStates but such waiver cannot begranted until ten (10) years afteryour last departure from the U.S.17

Expedited Removal(Deportation)

The 1996 Act included a stream-lined removal procedure for certainclasses of aliens. Under expeditedremoval there is no hearing nor anyadministrative review of the immi-gration officer’s determination at theport of entry.18 You are subject to ex-pedited removal if you:• fail to possess valid travel and/or

visa documents19

• possessing false travel and/or visadocuments20

• illegally entered into the U.S. with-out inspection and have resided inthe U.S. for a period of less thantwo years21

There are two exemptions to expe-dited removal proceedings:• Cuban citizens arriving at a port

of entry by aircraft only,22 and• aliens claiming fear of persecution

and/or an intention to apply forasylum.23

Overstays & Cancellationof Visas

Immigration officers at ports ofentry are authorized to cancel yournonimmigrant visa where they makea determination that you previouslyentered the United States using thesame nonimmigrant visa and re-

Reform Actfrom page 1

25

mained in the United States beyondthe period of stay allowed by the INSas indicated on your form I-94.24

If you are refused admission butare allowed to withdraw your appli-cation for admission to the U.S. be-cause in the past you “overstayed,”and your nonimmigrant visa is can-celed, you must apply for and obtaina new nonimmigrant visa at theAmerican Embassy or Consulate inyour country of nationality.25 You mayapply at an American Embassy orConsulate located in a country otherthan your home country (known as“third country processing”) only un-der extraordinary circumstances. Acancellation of your visa will not nec-essarily result in the denial of anysubsequent visa application, but itwill alert the consular officer that aproblem occurred and, if you are ap-plying in a third country, that youmust show extraordinary circum-stances.26 Examples of extraordinarycircumstances include:• aliens with a residence in a third

country• aliens considered homeless, state-

less or dual nationals• aliens who overstayed in the past

who were issued a new visa afterthe overstay but prior to Septem-ber 30, 1996

StudentsYou can no longer be issued a stu-

dent visa (F-1) to:• study at a public elementary

school27

• study at an adult education pro-gram that has been publiclyfunded28

• study at a public secondary schoolunless the school is reimbursed forthe cost of your education and youremain for no more than one year29

Note: If you were studying in theUnited States in F-1 status prior toNovember 30, 1996, you may con-tinue attendance, however the newprovisions of the law will apply if you:• file for an extension of F-1 status• leave the U.S. and apply for a new

F-l visa• apply for reinstatement to F-1 sta-

tus30

The new rules governing F- 1 stu-dents do not apply to you if you arestudying in the U.S. as the spouse or

child of someone authorized to workin the U.S. on an H, L or E nonimmi-grant visa.

Unlawful presence in theUnited States

Only unlawful presence in the U.S.on or after April 1, 1997 may becounted to determine inadmissibility.Unlawful presence encompassesoverstaying an authorized period ofadmission (as indicated on your formI-94); or being present in the U.S.without being admitted or paroled(entering without inspection).31 TheINS interpretation of violations thatmay constitute unlawful presence isevolving. For example, under currentINS policy, if you engage in unautho-rized employment while in the U.S.as a tourist (B-2), unlawful presencemay begin to accrue prior to the ex-piration date of your form I-94 if: (1)the INS makes a determination thatyou violated your status during theadjudication of an application forbenefits, such as an extension of stayor change of status; or (2) an immi-gration judge makes a determinationthat you violated your status.32

The 1996 Act does, however, pro-vide that unlawful presence does notaccrue if:• you are a minor (under the age of

18 years)33

• you have a bona fide applicationfor asylum pending and you havenot engaged in unauthorized em-ployment34

• you are a “family unity” benefi-ciary35

• you meet the definition of certainbattered women or children36

The 120-day RuleIf you are lawfully in the United

States and you apply timely tochange or extend your nonimmigrantstatus before your authorized periodof stay expires, you will not be con-sidered unlawfully present in theU.S. while the application is pendingfor a period not to exceed 120 days.37

If the 120 day period ends and yourapplication for change or extension ofstatus is still pending, you will beginto accrue days in unlawful presence.

Three and ten year barsfor unlawful presence

The 1996 Act also aims to improverecords of entry and departure, with

an automated entry and exit controlsystem to be in place by September30, 1998. This data will then assistthe INS and American Embassies/Consulates to enforce the three andten year bars for readmission to theUnited States.

Commencing on April 1, 1997, youwill be barred from reentering theUnited States for a period of threeyears if you were unlawfully presentin the U.S. for more than 180 days butless than one year and you left theU.S. voluntarily before removal pro-ceedings (deportation) began.38

Commencing on April 1, 1997, youwill be barred from reentering theUnited State for a period of ten yearsif you were unlawfully present in theU.S. for one year or more.39

The three or ten year period ismeasured from your date of depar-ture or removal from the UnitedStates to the date of your applicationfor admission. Although you mustdepart the United States for the barsto become effective, most aliens willbe unable to apply for lawful perma-nent residence (green card) withoutdeparting the U.S. to attend an inter-view at an American Embassy orConsulate in their home country.There are some exceptions, for in-stance if you are the spouse, parentor minor child of a U.S. citizen, youremain eligible to apply for adjust-ment of status to lawful permanentresidence in the U.S.40 or if you arealready in the U.S. and an applicationfor alien employment certification oran immigrant visa petition was filedon your behalf on or before January14, 1998, you may remain eligible toapply for adjustment of status in theU.S. under Section 245(i).41

Immigrant Visa Issuanceand Adjustment of Status

Normally, aliens wishing to immi-grate to the United States are inter-viewed at the American Embassy orConsulate in their home countrywhere they are interviewed and is-sued an immigrant visa to come tothe U.S.

Aliens who are already in theUnited States may apply to immi-grate by filing an application for “ad-justment of status” to lawful perma-nent residence with their local INSoffice if they meet certain require-ments for eligibility.42 Adjustment of

continued...

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status is considered a privilege andthose who are not eligible must goabroad for immigrant visa issuance.

Section 245 Adjustment ofStatus

The 1996 Act renders you ineli-gible for adjustment of status underSection 245(a) if you:• violated the terms of your nonim-migrant visa• engaged in unauthorized employ-ment at any time in the past• are an employment-based immi-grant in an unlawful status43

Section 245(i) Adjustmentof Status

A special adjustment provisionwas enacted in 1994 which allowedaliens who were ineligible to applyfor adjustment of status under Sec-tion 245(a) to pay a penalty of$1,000.00 in addition to the normalfiling fee and apply for adjustment ofstatus in the U.S.44 This provision,commonly referred to as 245(i), wasset to expire on September 30, 1997but was extended until, January 14,1998 with the following proviso:aliens in the U.S. who had an appli-cation for alien employment laborcertification filed on their behalf withthe Department of Labor on or priorto January 14, 1998 or aliens who hadan immigrant visa petition filed ontheir behalf on or prior to January 14,1998 may still apply for adjustment

of status under Section 245(i).As a result, if you want to immi-

grate to the United States and anapplication for alien employment la-bor certification or an immigrant visapetition was not filed on your behalfon or before January 14, 1998, youmust qualify for adjustment of statusunder the provisions of Section245(a). If you cannot meet the eligi-bility requirements for adjustment ofstatus under Section 245(a), youmust apply for your immigrant visaat an American Embassy or Consu-late in your home country. If you havebeen unlawfully present in the U.S.for more than 180 days, your depar-ture from the U.S., to go abroad forimmigrant visa issuance will triggerthe three or ten year bar to your re-admission to the U.S.

Immigrant visa issuanceFormerly, if you were physically

present in the U.S. and not in lawfulstatus on the date you departed theU.S. to go abroad for immigrant visaissuance, you had to wait ninety daysfrom the date of your departure fromthe U.S., before an immigrant visacould be issued to you.45 This provi-sion expired on September 30, 1997.

VaccinationUnder the 1996 Act, all immigrant

visa applicants and all applicants foradjustment of status must prove thatthey have been vaccinated againstvaccine-preventable diseases, whichinclude polio, rubella, mumps,measles, hepatitis B, influenza typeB, pertussis, diphtheria, and teta-nus.46. This may be waived if an au-thorized civil surgeon certifies thatsuch vaccination would not be medi-cally appropriate or if such vaccina-tion is against your religious beliefs.47

These provisions took effect on July1, 1997.

Affidavit of SupportThe 1996 Act significantly

changed the criteria for family spon-sored immigrants to demonstratethat they will not become a publiccharge. The relative that sponsoredyou must execute an affidavit bind-ing them to provide support until youbecome a U.S. citizen or until you (oryour spouse) have worked in the U.S.for ten (10) years [40 qualifying quar-ters of employment].48 The relative

executing the affidavit must demon-strate an annual income at a level ofat least 125% of the federal povertyguidelines.

Health care workersYou are inadmissible under the

1996 Act if you are coming to the U.S.to work as a health care worker(other than a physician), unless youhold certification from the Commis-sion on Graduates of Foreign Nurs-ing Schools (CGFNS) or an INS ap-proved credentialing service.49 Suchan organization must verify that youare competent in oral and writtenEnglish; that your education andtraining are comparable to that ofU.S. healthcare workers holding thesame type of position; and, that youhave passed a licensing exam recog-nized by your intended state of em-ployment, if such licensing require-ment/examination exists.

This provision which took effect onSeptember 30, 1996 applies to bothnonimmigrant and immigrant healthcare workers (other than physicians).This includes nurses, physician assis-tants, physical and occupationaltherapists and medical techniciansamong others.

Cancellation of Removal(Non-LPR)

The 1996 Act made many changesto the form of relief from deportationformally known as suspension of de-portation. Now called “cancellation ofremoval for non-lawful permanentresident”, it requires ten (10) yearsof continuous physical presence inthe U.S., demonstration of good moralcharacter and a showing that excep-tional and extremely unusual hard-ship would occur to the alien’s U.S.citizen or lawful permanent residentspouse, parent or child.50 Hardship tothe alien is no longer a consideration.These changes have resulted in re-placing the old standards with muchmore restrictive requirements as wellas the institution of an annual cap of4,000 visas per fiscal year for thegrant of cancellation of removal.

Criminal GroundsThe 1996 Act created new immi-

gration related crimes and increasedthe scope and penalty for existingimmigration related crimes. One ofthe most important of these changes

Major Meetings ofThe Florida Bar

Sept. 2-5, 1998General Meeting of Committees

and Sections, Tampa Airport,Marriott

Jan. 20-22, 1999Midyear Meeting of Sections and

Committees, Crowne Plaza, Miami

June 23-26, 1999Annual Meeting, Boca RatonResort and Club, Boca Raton

27

included revision to the definition ofaggravated felony as amended theAnti-Terrorism and Effective DeathPenalty Act of 1996 (AEDPA) asnoted below.51

Aggravated felony now includes aconviction for:• rape or sexual abuse of a minor

regardless of the sentence52

• fraud deceit and tax evasion inwhich the loss to the victim or gov-ernment exceeds $10,00053

• money laundering where theamount of funds exceeds $10,00054

• a crime of violence or theft if thesentence imposed is at least oneyear regardless of any suspensionof the imprisonment55

• owning, controlling, managing, orsupervising a prostitution busi-ness56

• alien smuggling where the sen-tence imposed was one year re-gardless of any suspension of theimprisonment57 (an exemption isprovided where the offense is com-mitted for the purpose of smug-gling your spouse, child or parent)

• illegal entry or illegal reentry af-ter deportation if previously de-ported on the basis of a convictionfor an aggravated felony58

• document fraud/false passportswhere the sentence imposed is oneyear or more regardless of any sus-pension of the imprisonment59 (anexemption is again provided for afirst offense committed for the pur-pose of assisting your spouse, childor parent and no other individual)

• commercial bribery, counterfeit-ing, forgery, trafficking in vehicleidentification numbers, obstruc-tion of justice, perjury or briberyof a witness60 and failure to appearwhere the sentence imposed is oneyear or more regardless of any sus-pension of the imprisonment61

• failure to appear where the sen-tence imposed is two years or moreregardless of any suspension of theimprisonment62

The 1996 Act also provides for re-moval of aliens convicted of a crimeinvolving moral turpitude committedwithin five years after admission if apossible sentence of one year or moremay be imposed.63 In addition, newcrimes including high speed flightfrom an INS check point,64 femalegenital mutilation on a person underthe age of 18 years old65 and the in-clusion of aliens who departed the

U.S. while under an order of exclu-sion or deportation was outstandingas subject to the penalties for reen-try ranging from two years to twentyyears depending upon the ground forthe order.66

Waivers of inadmissibility forcriminal immigration violations areavailable in some instances.67 It isimportant that you seek the adviseof competent immigration counsel inthese circumstances.

Endnotes:1 Illegal Immigration Reform and Immi-

grant Responsibility Act of 1996 [“IIRIRA”].Passed by the House on September 25, 1996;passed by the Senate on September 28, 1996;signed by the President on September 30,1996; contained in Division C of the 1007Omnibus Appropriations Bill, H.R. 3610,Pub.L.No. 104-208, 110 Stat. 3009, printed inthe Congressional Record September 28, 1996starting at H11787.

2 INA §212(a), 8 USC §1182(a).3 INA §212(a)(9)(b)(i)(I), 8 USC §1182(a)

(9)(b)(i)(I).4 INA §212(a)(9)(b)(i)(II), 8 USC §1182(a)

(9)(b)(i)(II).5 INA §212(a)(6)(G) as added by §346 of

IIRIRA.6 INA §212(a)(3)(B), 8 USC §1182(a)

(3)(B).7 INA §212(a)(1)(A)(ii), 8 USC §1182(a)

(1)(A)(ii).8 INA §212(g)(2)(B)&(C), 8 USC §1182(g)

(2)(B)&(C).9 INA §212(a)(4)(C)(ii), 8 USC §1182(a)

(4)(C)(ii).10 INA §212(a)(5)(C), 8 USC §1182(a)

(5)(C).11 INA §212(a)(10)(D), 8 USC §1182(a)

(10)(D).12 INA §212(a)(10)(E), 8 USC §1182(a)

(10)(E).13 INA §212(a)(9)(A)(i), 8 USC §1182(a)

(9)(A)(i).14 INA §212(a)(9)(A)(ii), 8 USC §1182(a)

(9)(A)(ii).15 INA §212(a)(9)(C), 8 USC §1182(a)

(9)(C).16 id.17 INA §212(a)(9)(C)(ii), 8 USC §1182(a)

(9)(C)(ii).18 INA §235(b)(1)(A)(i), 8 USC §1125(b)

(1)(A)(i).19 INA §212(a)(7), 8 USC §1182(a)(7).20 INA §212(a)(c)(C), 8 USC §1182(a)

(6)(c).21 INA §235(b)(1)(A)(iii)(II), 8 USC

§1225(b)(1)(A)(iii)(II).22 INA §235(b)(1)(F), 8 USC §1225(b)

(1)(F).23 INA §235(b)(1)(A)(ii), 8 USC §1225(b)

(1)(A)(ii).24 INA §222(g)(1), 8 USC §1203(g)(1).25 INA §222(g)(2)(A), 8 USC §1203(g)

(2)(A).26 INA §222(g)(2)(B), 8 USC §1203(g)

(2)(B).27 INA §214(l)(1)(A), 8 USC

§1184(l)(1)(A).28 id.29 INA §214(l)(1)(B)(i) and (ii), 8 USC

§1184(l)(1)(B)(i) and (ii).30 INA §214(l)(2), 8 USC §1184(l)(2).31 INA §212(a)(9)(B), 8 USC §1182(a)

(9)(B).32 Ins Memorandum HQIRT 50/5.12, 96

Act.058, September 19, 1997.33 INA §212(a)(9)(B)(iii)(I), 8 USC

§1182(a)(9)(B)(iii)(I).34 INA §212(a)(9)(B)(iii)(II), 8 USC

§1182(a)(9)(B)(iii)(II).35 INA §212(a)(9)(B)(iii)(III), 8 USC

§1182(a)(9)(B)(iii)(III).36 INA §212(a)(9)(B)(iii)(IV), 8 USC

§1182(a)(9)(B)(iii)(IV).37 INA §212(a)(9)(B)(iv), 8 USC §1182(a)

(9)(B)(iv).38 INA §212(a)(9)(b)(i)(I), supra.39 INA §212(a)(9)(b)(i)(II), supra.40 INA §245, 8 USC §1255.41 INA §245(i), 8 USC §1225(i).42 INA §245, supra.43 INA §245(c), 8 USC §1255(c).44 INA §245(i), as amended by §506

Pub.L.No. 103-317.45 INA §202(o), Pub.L.No., expired Sep-

tember 30, 1997.46 INA §212(a)(1)(A)(ii), supra.47 INA §212(g)(2)(B)&(C, 8 USC §1182(g)

(2)(B)&(C).48 INA §212(a)(4)(C)(ii), supra.49 INA §212(a)(5)(C), supra.50 INA §240(A)(b), 8 USC §1230(a)(B).51 Anti-Terrorism and Effective Death

Penalty Act of 1996, (AEDPA), Pub.L.No. 104-132,110 Stat. 1214.

52 AEDPA §440(e)(A).53 AEDPA §440(e)(M).54 AEDPA §440(e)(D).55 AEDPA §440(e)(F) and (G).56 AEDPA §440(e)(K).57 AEDPA §440(e)(N).58 AEDPA §440(e)(O).59 AEDPA §440(e)(P).60 AEDPA §440(e)(R).61 AEDPA §440(e)(S).62 AEDPA §440(e)(T).63 INA §212(a)(2)(i)(I), 8 USC §1182(a)

(2)(i)(I).64 IIRIRA §108, 18 USC §758.65 IIRIRA §645, 18 USC §116.66 IIRIRA §334 and §324.67 INA §212(a)(2)(F) and INA §212(h).

Larry S. Rifkin is the Managing Part-ner of Rifkin & Associates, P.A. withoffices in Miami and Orlando. The firmpractices exclusively in the area of U.S.

Immigration andNationality Law.Mr. Rifkin is Chairof The Florida BarImmigration andNationality LawCommittee and is aBoard CertifiedSpecialist in Immi-gration and Nation-ality Law.

28

The Florida Bar650 Apalachee ParkwayTallahassee, FL. 32399-2300

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