Bench in Iraqi Minister of Defence v. Arcepey Shipping Co. S.A., [1980]
2 W.L.R 480 at 485-486:
. . . the point of the Mareva jurisdiction is to proceed by stealth, to
pre-empt any action by the defendant to remove his assets from the
jurisdiction. To achieve that result the injunction must be in a wide
form because, for example, a transfer by the defendant to a collabo-
rator in the jurisdiction could lead to a transfer of assets abroad
by that collaborator. But it does not follow that, having established
the injunction, the court should not thereafter permit a qualifica-
tion to it to allow a transfer of assets by the defendant if the
defendant satisfies the court that he requires the money for a pur-
pose which does not conflict with the policy underlying the Mareva
jurisdiction.
. . . For my part, I do not believe that the Mareva jurisdiction was
intended to rewrite the English law of insolvency in this way. Indeed
it is clear from the authorities that the purpose of the Mareva was
not to improve the position of the claimants in an insolvency but to
prevent the injustice of a foreign defendant removing his assets from
the jurisdiction which might otherwise have been available to satisfy
a judgment.
[42] The Mareva injunction is not a remedy that operates as
a charge or an instrument granting security against the assets
of the defendant. It is an order inhibiting the defendant and
any other party bound by the order from disposing of the assets
by the transfer or removal of those assets from the jurisdiction.
The injunction is not something that prefers the rights of
the plaintiff as an otherwise unsecured creditor over the rights
of all other creditors in the debt collection process: See Silver
Standard Resources Inc. v. Joint Stock Co. Geolog, [1998]
B.C.J. No. 2887, 1998 CanLII 6468 (C.A.) and Hans v. Volvo
Trucks North America Inc., [2014] B.C.J. No. 1270, 2014 BCSC
1123.
[43] Certain principles emerge from the authorities and as a
matter of common sense to enable a creditor to enforce a judgment against assets otherwise subject to a Mareva order. In my
view, those principles would include the following
(1) the creditor and related claim must be legitimate;
(2) the assets would be available for seizure and sale by an
unsecured creditor but for the Mareva order;
(3) the Mareva order must not contain any term that gives it a
proprietary character, or that recognizes the creditor has
a legal claim to a specific fund otherwise covered by its
language and purpose;
(4) the assets of the defendant are not subject to the protection
of any federal or provincial statute that make seizure of
