1. International Jurisdiction and Worldwide Pre-emptive Orders

2. Introduction
This paper submits that a common law court has jurisdiction under public
international law to issue a pre-emptive order when it has (1) personal jurisdiction
over the person against whom the order is sought and (2) subject matter jurisdiction.
Accordingly, it should have jurisdiction to issue a worldwide pre-emptive order even
though it is not seised of a cause of action, as long as the two requirements above are
met.
International jurisdiction to issue worldwide pre-emptive orders
Pre-emptive orders are those which ‘occur before the actual substantive hearing of the
claim’1. Their purpose is to ‘ensure that, as far as possible, the rights of parties are not
irreparably harmed pending final judgment or award’2. These pre-emptive orders may
be granted in relation to legal persons, acts, or things abroad. They may also be
granted in aid of legal proceedings taking outside of the jurisdiction. Such pre-
emptive orders with a foreign element may be called worldwide pre-emptive orders.
Whenever a court makes a worldwide pre-emptive order, it purports to affect assets,
legal persons or legal processes abroad. For example, a pre-trial order of attachment
of the defendant’s assets sited abroad is essentially an ‘attempt to seize assets situated
within the jurisdiction of the foreign state or compel its citizens to do acts within its
boundaries’3. Even a Mareva injunction, which operates in personam against the
defendant, may ‘impose obligations on person not before the court in respect of acts
to be done by them abroad regarding property outside the jurisdiction’4. Hence, the
question of whether a common law court has jurisdiction to issue worldwide pre-
emptive orders is essentially an international problem of whether it has the
jurisdiction to do so under public international law5. This is because we are
determining ‘the extent of each State’s right to regulate conduct or the consequences
of events’6.
It is an established custom under public international law that the State’s right to
exercise international jurisdiction ‘depends on there being between the subject matter
and the state exercising jurisdiction a sufficiently close connection to justify that state
in regulating the matter’7. In his seminal Hague lecture, Professor Mann surveyed the
history of the doctrine of international jurisdiction and came to the conclusion that ‘a
State has jurisdiction, if its contact with a given set of facts is so close, so substantial,
so direct, so weighty, that the exercise of jurisdiction in respect of them is in harmony
with international law.’8. Since then, Professor Brownlie9 and the authors of
Oppenheim10 have also recognized this principle in public international law. Further,
1 Roy Goode, Commercial Law, 3rd ed. (UK: LexisNexis, 2004)
2 Jonathan Hill, International Commercial Disputes in English Courts, (Oxford and Portland, Oregon:
Hart Publishing, 2005)
3 Societe Eram Shipping Co Ltd v. Cie International de Navigation and Others [2003] UKHL 3 [Eram]
4 Babanaft International Co.v. Bassatne [1990] Ch 13 at 44
5 FA Mann, Studiesin International Law (Oxford: Clarendon Press, 1973) [Mann] at page 7
6 Sir Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law,vol. 1, 9th ed. (Longman,
1993) at page 456 [Oppenheim]
7 Oppenheim at page 457
8 Mann at page 39
9 Ian Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press, 2008)
[Brownlie] at page 299
10 Oppenheim at page 457

3. in the Nottebohm case, the International Court of Justice [ICJ] held that in order for a
State to exercise diplomatic protection over its nationals abroad, the ‘legal bond of
nationality’ must ‘accord with the individual’s genuine connection with the State’11.
This was reaffirmed in the Barcelona case12.
However, the precise connections needed to establish international jurisdiction is not
clear. As mentioned, Professor Mann requires a connection ‘so close, substantial,
direct and weighty’13. Professor Brownlie requires a ‘substantial and genuine
connection between the subject-matter of jurisdiction, and the territorial base’14. The
authors of Oppenheim demand ‘a sufficiently close connection perhaps to override
competing rights of other states’. In the Barcelona case, the ICJ noted that ‘no
absolute test of genuine connection has found general acceptance. Such tests as have
been applied are of a relative nature, and sometimes links with one State have had to
be weighed against those with another’ 15.. Two points can be made concerning this
problem. Firstly, the precise connections needed to establish jurisdiction must be
sensitive to the context in which jurisdiction is to be exercised. For example, the
connections needed to establish jurisdiction to issue a worldwide Mareva Injunction
(which operates in personam against the defendant) may be different from the
connections needed to establish jurisdiction to issue an attachment order (which is
ultimately ‘an attempt to seize assets situated within the jurisdiction of the foreign
state’16). Secondly, more precise formulations of the connections needed to establish
jurisdiction would develop naturally over time. In this regard, the Mareva injunction
and Anton Piller order are modern developments in the common law17. There have
been many recent legislative amendments and court decisions all around the world in
response to these pre-emptive orders. By surveying these legislative amendments and
court decisions, we should be able to gradually ascertain a general consensus on when
a common law court would have jurisdiction under public international law to issue
worldwide pre-emptive orders. This general consensus may consequently be binding
as customary international law.
Hence, the rest of this paper will look at when the common law courts in Singapore
and England have granted worldwide pre-emptive orders. It is submitted that there is
some international consensus on when a common law court will have jurisdiction to
issue a worldwide pre-emptive order. Due to the limited word constraints of this
paper, a truly global treatise will (thankfully) have to be attempted some other time.
England
Hoffmann J in MacKinnon18 was one of the first judges in England to acknowledge
the principle in public international law that ‘there must be between the subject matter
and the state exercising jurisdiction a sufficiently close connection to justify that state
in regulating the matter’19. He cited Professor Mann and formulated the twin
11 ICJ, Nottebohm(Leichtenstein v Guatamala) ICJ Rep 4 (1955)
12 ICJ, Barcelona Traction (Belgiumv Spain) ICJ Rep 42 (1970) at Para 70 [Barcelona]
13 Mann at page 39
14 Brownlie
15 Barcelona Traction at Para 70,
16 Eram
17 J J Spigelman AC, “Freezing Orders in International Commercial Litigation” (2010) 22 SAcLJ 490
at Para 10
18 MacKinnon v. Donaldson,Lufkin and Jenrette Securities Corporation [1982] Ch 482 [Mackinnon]
19 Oppenheim

4. requirements of personal and subject matter jurisdiction when granting worldwide
pre-emptive orders. The House of Lords [HL] in Eram reaffirmed these requirements.
Lord Millet noted that these requirements were ‘self-imposed’ but necessary ‘in order
to conform to the norms of international law’20. In Masri21, Lawrence Collins LJ
agreed that these requirements were ‘internationally recognized principle[s] on the
limits of the exercise of jurisdiction’22. Eram and Masri involved post-judgment
orders instead of pre-emptive orders.
In Mackinnon, Hoffman J discharged an order granted ex parte against Citibank, a
New York bank, under s. 7 the Bankers’ Book Evidence Act 187923 on the grounds
that it exceeded the international jurisdiction of the English courts. While the English
court had personal jurisdiction over Citibank which ‘carried on business in London’,
subject matter jurisdiction was not satisfied24. There was insufficient connection
between the subject matter of the order and the territorial jurisdiction of the state in
which order was sought, which was England. The ‘content of the order’ would
‘require the production by a non-party of documents outside of England concerning
business which has been transacted outside of England’25.
In Fourie26, the plaintiff obtained a freezing order against the defendants with regards
to their assets in England and Wales. However, the problem was that at the time of the
granting of the freezing order, the plaintiff’s counsel was ‘unclear whether there
would be substantive proceedings in South Africa or in England, and in either case,
what the cause or causes of action would be’27. Nevertheless, the HL concluded that
there was jurisdiction for the court to issue the freezing order28. There was personal
jurisdiction over the defendants because they were both ‘within the territorial
jurisdiction of the court at the time the freezing order was made’29. Presumably, there
was also subject matter jurisdiction. However, the HL did not give an explanation as
to why subject matter jurisdiction was fulfilled in this case. A few points must be
made regarding this. Firstly, the HL interpreted Siskina30 to stand for the narrow
proposition that the court has no jurisdiction to grant an interim injunction where
there is no in personam jurisdiction over the person against whom the injunction is
sought. The question of subject matter jurisdiction was not considered in that case.
Hence, Siskina should not be read as laying down the requirement that there must be
existence of a justiciable cause in England before subject matter connection can be
found. Accordingly, it was open for the court to adopt the proposition that while ‘the
existence of justiciable cause in England might be proof of subject matter connection,
the latter is a wider notion which may be proved by connections other than the
20 Eram
21 Masri v. Consolidated ContractorsInternational (UK) Ltd (No. 2) [2009] 1 QB 450 [Masri]
22 Masri
23 42 & 43 Vic., c. 11
24 Mackinnon at page 493
25 Mckinnon page 493
26 Fourie v. Le Roux [2007] UKHL 1 [Fourie]
27 Fourie at Para 35
28 Fourie at Para 25, Para 30-32 and Para 36
29 Fourie at Para 25
30 Siskina (Ownersof Cargo Lately Laden On Board) and Others v. Distos Compania Naviera S.A.
[1979] 1 AC 210 [Siskina]

5. existence of justiciable cause’31. Secondly, Fourie can be explained as a case where in
the ‘absence of justiciable cause in England, there were still sufficient links between
the subject matter of the order (an injunction operating in personam against the
defendant to prevent him from dissipating his assets before a judgment), and the
territorial jurisdiction of the state in which the order is sought (England) to find
subject matter jurisdiction’32. This signifies movement away from outdated concept of
Mareva injunctions as merely being an ancillary to a substantive cause of action. In
this regard, Lord Scott seemed ready to assume that ‘once the court has in personam
jurisdiction over the person against whom an injunction is sought, the court has
jurisdiction’ to grant it33. It must be remembered that a Mareva injunction ultimately
operates in personam. Hence, if the defendant were already amenable to the
jurisdiction of the court, the connections required for subject matter jurisdiction may
be very low. In this case, the mere presence of the defendant’s assets within England
could be sufficient connection. Thirdly, the HL discharged the freezing order in the
end because it was not ‘just and convenient’ in the circumstances to do so. This was a
domestic matter of fulfilling the principles laid down by legislature under s. 37(1) of
the Supreme Court Act 198134 [SCA]. It was not a matter of conforming to public
international law norms.
There have been legislative reforms in England, which have directed the courts grant
freezing injunctions in aid of foreign court proceedings35.
Singapore
The Singapore courts have not expressed an opinion on when a common law court
would have jurisdiction under public international law to issue worldwide pre-
emptive orders. Instead, the cases so far have focused (somewhat parochially) on
when the Singapore courts would have jurisdiction under s. 4(10) of the Civil Law
Act36 [CLA] to grant Mareva injunctions. This is a domestic matter of statutory
interpretation and conforming to the requirements laid down by Parliament.
Generally, the Singapore courts have agreed that there are two prerequisites under s.
4(10) of the CLA. Firstly, the court must have ‘in personam jurisdiction over the
Singapore or foreign defendant’37. Secondly, there must be ‘a reasonable accrued
cause of action justiciable in a Singapore court’38. The meaning of ‘a reasonable
accrued cause of action justiciable in a Singapore court’ has caused much difficulty.
31 Tan Yock Lin and Yeo Tiong Min, “The Conflict of Laws”, SAL Conference 2011 – Singapore Law
Developments (2006-2010) [SAL]
32 SAL
33 Fourie at Para 25
34 c. 54
35 S. 25 of the Civil Jurisdiction and Judgments Act 1982; Civil Jurisdiction and Judgments Act 1982
(Interim Relief) Order 1997; r. 6.33 of the Civil Procedure Rules (UK); s. 44 of the Arbitration Act
1996
36 (Cap. 43, 1999 Rev. Ed. Sing.)
37 Karaha Bodas Co LLC v. Pertimina Energy Trading Ltd and another appeal [2005] SGCA 47 at
Para 43; Multi-Code ElectronicsIndustries (M) Bhd and another v. Toh Chun Toh Gordon and others
[2008] SGHC 193 [Multi-Code] at Para 116; Front Carriers Ltd v. Atlantic & Orient Shipping Corp
[2006] SGHC 127 [Front-Carriers] at Para 17; Petroval SA v. Stainby Overseas Ltd and others [2008]
SGHC 64 [Petroval] at Para 11
38 Swift-Fortune Ltd v. Magnifica Marine SA [2006] SGCA 42 [Swift-Fortune] at Para 96; Multi-Code
at Para 116

6. The High Court [HC] in Multi-Code took the view that ‘substantive proceedings must
be brought in Singapore against the Singapore defendants or foreign defendants,
although those substantive proceedings might be stayed by the court’39. In contrast,
the HC in Front-Carrier took the view that ‘the court has power to grant an interim
injunction when there is a recognizable justiciable right between the parties, even
though that right is to be determined not by the court but by the foreign tribunal’40.
The Singapore Court of Appeal [SGCA] in Swift-Fortune41 briefly considered the
legislative genesis of s. 4(10) of the CLA. However, it left it open as to whether s.
4(10) of the CLA, purposively interpreted, requires the Singapore court to be seised of
a cause of action before a Mareva injunction can be granted42. Two points can be
made. Firstly, there are ‘differences in the legal framework in Singapore and in
England relating to the power of the court to grant interim measures to assist foreign
court and foreign arbitral proceedings’. In this regard, s. 4(10) of the CLA differs in
scope from s. 37(1) of the SCA. Consequently, the English authorities such as
Channel43 and Siskina interpreting s. 37(1) of the SCA are not very persuasive.
Secondly, there seems to be only theoretical justification for the continuation of
Mareva injunctions after a stay of proceedings. If jurisdiction is obtained as of right
but proceedings are stayed due to forum non conveniens, it is said that the court
retains ‘residual jurisdiction over the underlying cause of action’ and ‘that per se is
sufficient to ground the court’s jurisdiction to allow the continuation of the Mareva
injunction’44. However, realistically speaking, it should be noted that the case has
been practically sent abroad for trial.
In any case, it is submitted that the Singapore courts should realign their views of
when a Singapore court can grant a pre-emptive order under s. 4(10) of the CLA with
the ‘framework of enlightened international jurisdiction’ adopted by the English
courts, as mentioned above45. The rigid adherence to the requirement of ‘a reasonable
accrued cause of action justiciable in a Singapore court’ under s. 4(10) of the CLA is
based on an outmoded view that a Mareva injunction is merely ancillary to a
substantive cause of action. This view is outmoded because in the modern globalised
world liquid assets can be moved and hidden with a click of a mouse. Ultimately, a
Mareva injunction is aimed at protecting assets from being squirreled away.
Sometimes the most convenient forum to apply for a Mareva injunction may not be
the place where the substantive cause of action is. Notably, the Singapore Parliament
has since legislated to allow Singapore courts to grant Mareva injunctions to support
intentional arbitrations conducted outside Singapore46. However, the position remains
uncertain for foreign litigation, as can be seen from the discussion above.
Conclusion
There is some international consensus on when a common law court should have
jurisdiction to issue a worldwide pre-emptive order. Firstly, the common law court
must have personal jurisdiction over the person against whom the order is sought.
39 Multi-Code at Para 116
40 Front-Carriers at Para 52
41 Swift-Fortune Ltd v. Magnifica Marine SA [2006] SGCA 42 [Swift-Fortune]
42 Swift-Fortune at Para 94
43 Channel Tunnel Group Ltd. and Another Appellants v. Balfour Beatty Construction Ltd and Others
Respondents [1993] 2 WLR 262 [Channel]
44 Multi-Code at Para 79
45 SAL
46 S. 12A of the International Arbitration Act (Cap. 143A, 2002 Rev. Ed. Sing.)

7. Secondly, the common law court must have subject matter jurisdiction, i.e. some
connection between the subject matter of the order and the territorial jurisdiction of
the state in which the order is sought. Crucially, the English courts have recognized
that what subject matter jurisdiction entails change with ‘the circumstances of the
case’47. It depends on the order being sought and the connections that can be drawn
from the facts. In this regard, there is no need for a justiciable cause in England to
found jurisdiction to grant a Mareva injunction. A fortiori the English court also need
not be seised of the cause of action. While ‘the existence of justiciable cause in
England might be proof of subject matter connection, the latter is a wider notion
which may be proved by connections other than the existence of justiciable cause’48.
As mentioned above, the Singapore courts have not expressed any opinion on subject
matter jurisdiction in public international law. However, the rigid adherence to the
requirement of a ‘a reasonable accrued cause of action justiciable in a Singapore
court’ under s. 4(10) of the CLA could signify ‘a focus on dispute connections insofar
as the substantive issues must be determined in the Singapore court’49. Consequently,
the Singapore court’s notion of subject matter jurisdiction may very well be that the
dispute must be connected to the forum.
47 Masri
48 SAL
49 Lin Zixian, Cohesion in Fragmentation:Subject Matter Jurisdiction to Grant Injunctive Relief
(Bachelor of Laws, Thesis,Faculty of Law National University of Singapore, 2010/2011)