3 - Theoretical Foundations of Freezing Injunctions

Summary

This chapter lays down the foundations for the central argument of the book, that the principle of equipage equality is the primary function of freezing injunctions. This is in contrast to the prevailing, traditional view that freezing injunctions are simply a weapon against unscrupulous defendants and concerned with the enforcement of judgments. In fact, the rules on freezing injunctions, by balancing the rights of the parties, also protect defendants from unnecessary interference with their assets. The principle of equipage equality has important implications for the scope of freezing injunctions. This chapter deals with the implications on their substantive scope. These include issues relating to the basic requirements such as real risk of dissipation of the assets. It is argued that some aspects of the current substantive preconditions of freezing injunctions are inconsistent with equipage equality and that the overall balance created by the substantive preconditions is excessively favourable to the claimant