The Hong Kong High Court has recently ruled that the English Court of Appeal's eight Dadourian guidelines should apply in such cases.
The guidelines now applicable in Hong Kong may be summarised as:
- The grant of leave to enforce worldwide Mareva injunctions outside Hong Kong should be just and convenient for the purpose of ensuring the effectiveness of the injunction, and not oppressive to the parties to the Hong Kong proceedings or to third parties who may be joined to the foreign proceedings.
- All the relevant circumstances and options need to be considered. In particular, consideration should be given to granting relief on terms, for example, terms as to the extension to third parties with the undertaking to compensate for costs incurred as a result of the injunction and as to the type of proceedings that may be commenced abroad. Consideration should also be given to the proportionality of the steps proposed to be taken abroad and in addition to the form of any order.
- The interests of the applicant should be balanced against the interests of the other parties to the proceedings and any new party likely to be joined to the foreign proceedings.
- Permission should not normally be given in terms that would enable the applicant to obtain relief in the foreign proceedings which is superior to the relief given by the Hong Kong injunction.
- The evidence in support of the application for leave should contain all the information so far as it can reasonably be obtained in the time available necessary to enable the judge to reach an informed decision including evidence as to the applicable law and practice in the foreign court, evidence as to the nature of the proposed proceedings to be commenced and evidence as to the assets believed to be located in the jurisdiction of the foreign court and the names of the parties by whom such assets are held.
- The standard of proof as to the existence of assets that are both within the scope of the injunction and within the jurisdiction of the foreign court is a real prospect, that is, the applicant must show that there is a real prospect that such assets are located within the jurisdiction of the foreign court in question.
- There must be evidence of a risk of dissipation of the assets in question.
- Normally the application should be made on notice to the respondent but in cases of urgency where it is just to do so, leave may be given without notice to the party against whom relief will be sought in the foreign proceedings but that party should have the earliest practicable opportunity of having the matter reconsidered by the court at a hearing at which he is given notice.