Asset Preservation

Is is possible to get a Court to prevent the disposition of assets whilst an arbitration is pending?

Yes, see

• Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 2) [2012] FCA 276
• ENRC Marketing AG v OJSC “Magnitogorsk Metallurgical Kombinat”
  • ex parte application for freezing orders under Art 17J of UNCITRAL Model Law on Commercial Arbitration
  • Model Law given force of law by s 16 of International Arbitration Act 1974 (Cth)
  • international arbitration on foot
  • applicant seeking to prevent respondent transferring its shares in an Australian company which would put that asset beyond applicant’s reach
  • undertaking as to damages proffered in support of application
  • undertaking as to damages unsupported
  • applicant with no assets or presence in the jurisdiction
  • whether undertaking as to damages sufficiently substantial proffer of protection in circumstances
  • Court’s inherent or implied power to require security for undertaking as to damages
  • market volatility relevant consideration
  • possible effect of order on third parties relevant