In Bouvier v Accent Delight International [2015] SGCA 45, the Singapore Court of Appeal set aside Mareva injunctions (otherwise known as freezing injunctions) over the assets of Swiss art dealer Mr. Yves Charles Edgar Bouvier. The Court held that, to prove a real risk of dissipation of assets, it would not be enough to establish a good arguable case of dishonesty; the nature of the dishonesty that is alleged must be of such a nature that it has a real and material bearing on the risk of dissipation. In this case, this requirement had not been satisfied resulting in the setting aside of an injunction which had been ordered by the High Court.

Background

The dispute concerned Mr Bouvier and Accent Delight and Xitrans Finance, both BVI companies wholly owned by the family trusts of Russian billionaire, Dmitry Rybolovlev.

Between 2003 and 2014, Mr Rybolovlev acquired 38 highly-prized masterpieces, which included the works of Picasso, Rothko, van Gogh and da Vinci. The acquisitions were arranged by Mr Bouvier through MEI Invest, a company incorporated in Hong Kong.

In 2014, the parties fell out. Mr Bouvier contended the reason for the falling out was that Mr Rybolovlev had run into financial difficulty following a recent divorce and, as a consequence, was unable to finance the purchase of Rothko’s No 6 (Violet, vert et rouge). Accent Delight never paid MEI Invest the full purchase price for this artwork.

Mr Rybolovlev, on the other hand, contended that, unbeknownst to him, Mr Bouvier had been fraudulently inflating the price of the artworks he purchased on behalf of Mr Rybolovlev and pocketing the difference.

In March 2015, Accent Delight successfully applied to the Singapore High Court for worldwide freezing orders against the assets of Mr Bouvier, MEI Invest and other related parties (Appellants), which prevented them from disposing of any assets up to the sum of US $500 million for Mr Bouvier and MEI Invest. The matter then went to the Court of Appeal.

The Appeal

The Court of Appeal considered that the central issue for determination was whether there was a “real risk” that the Appellants would dissipate their assets to frustrate the enforcement of any eventual judgment. The Court observed that to meet the threshold of a real risk of dissipation, there must be some “solid evidence” to demonstrate the risk and not mere assertions to that effect. As the Respondents had failed to satisfy the requisite evidentiary threshold, the Appellants’ assets were unfrozen.

In so doing, the Court cited Lord Justice Donaldson’s famous quip that Mareva injunctions are “nuclear weapons” of civil litigation, and observed that a worldwide Mareva injunction is even more severe “…stretching far beyond the geographical confines of the jurisdiction of the court making the order, is such that it can have a crippling effect on those against whom it is directed…” (in the words of Chief Justice Menon). The Court emphasised the need to scrutinise the basis for such an injunction with utmost care, to ensure that no greater damage was done than was necessary to uphold the efficacy of the injunction. The Court departed from the previous position of the Singapore High Court, outlined in Spectramed Pte v Lek Puay Puay [2011] SGHC 43 (Spectramed), which had held a worldwide freezing order would be imposed if there was a “good arguable case” in support of an allegation that the defendant had acted fraudulently, dishonestly or unconscionably. Most importantly, if these elements were present, the High Court had held it was unnecessary for there to be any further specific evidence on a risk of dissipation.

The Court of Appeal found that Spectramed had gone “too far” in that an allegation of dishonesty cannot preclude the need to establish a “real risk” of dissipation and, if there is any adequate rationalisation for it, an allegation of dishonesty must be of such a nature that it has a real and material bearing on the risk of dissipation. Although an argument that a defendant has acted dishonestly can and often will be relevant to whether there is a real risk that the defendant may dissipate its assets, the Court reiterated that, in each case, it is fundamental for the court to examine the precise nature of the dishonesty that is alleged.

Comment

The Court of Appeal’s judgment usefully clarifies the requirements for applying for a Mareva injunction before the Singapore courts, including in support of international arbitration.