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Published online by Cambridge University Press: 17 January 2008
If a defendazCnt to legal proceedings conceals or dissipates his assets before a judgment is given, the execution of the ensuing judgment may become impossible. To preserve the possibility that a future judgment will be executed, both English and Japanese courts have power to grant interim relief freezing a defendant's assets. As is well known, this is achieved in England by the Mareva injunction, which is now called simply “freezing injunction” with the implementation of the new Civil Procedure Rules. In Japan, it is the kari-sashiosae order available under the Civil Interim Relief Law (Minji Hozen Ho)1 which serves this purpose.
1. Law No.91, 1989.Google Scholar
2. Annex to Practice Direction 25A.
3. Art.21 of the Civil Interim Relief Law. There is an exception where the property subject to a kari-sashiosae order is a movable.
4. Third parties with knowledge of an injunction who may find themselves in the position of assisting or permitting the defendant in breaching the injunction.
5. Art.49(1) of the Civil Interim Relief Law.
6. idem, Art.48(1). The two methods may be combined.
7. Idem, Art.47(1).
8. E.g., an interim freezing order is not recognised at common law in England, as it is not a final and conclusive judgment for a fixed sum of money.
9. Derby & Co. Ltd v. Weldon (Nos.3 & 4) [1989] 2 W.L.R. 412, 423 (CA).Google Scholar
10. E.g. where the defendant is present in, or likely to visit, England, he may be susceptible to the threat of imprisonment.
11. Internal jurisdiction of Japanese courts is laid down in Art.12 of the Civil Interim Relief Law.
12. Kantou-chou High Court Appellate Division (the court which existed in the pre-war period) 27 Dec. 1926 (2687 Houritsu-Shimbun 4); Yokahama District Court, 29 09. 1966 (vol.17, issue 9–10 Kaminsnyu 874).Google Scholar
13. Some commentators read these cases as implicitly requiring the presence of the defendant's attachable assets in Japan as a prerequisite for granting a kari-sashiosae order.
14. The Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (S.I. 1997 No.302); r.8A inserted in Ord.11 by the Rules of the Supreme Court (Amendment) 1997 (S.I. 1997 No.415).
15. Asahikawa District Court, 9 02 1996 (1690 (1997) Hanrei Jiho 106).Google Scholar
16. [1997] 3 W.L.R. 871, 878 (CA).Google Scholar
17. “Orders in rem” in the terminology used in this article.
18. Under s.25(2) of the Civil Jurisdiction and Judgments Act 1982.
19. This para, is generally understood to mean that the foreign court must have jurisdiction in the given case in the light of the jurisdictionsl grounds of Japanese courts: Tokyo District Court, 2 May 1972 (23 Kaminshyu 224) (supported by a majority of academic writers).
20. This para, requires that the foreign State recognise a comparable judgment from a Japanese court under conditions not materially different from those prescribed in Art.118: the Supreme Court, 7 June 1983 (vol.37 issue 5 Minshyu 611). The case law suggests that this requirement is likely to be met unless the foreign court imposes excessively strict conditions on the enforcement of a Japanese judgment, e.g. by requiring the review of the substance of the judgment.
21. At the time of ruling, the provisions of Art.118 were placed in Art.120. Although some amendments were made to them when they were moved to Art.118, it is thought that Asahikawa District Court would not have ruled otherwise if it had ruled on the basis of the amended provisions.
22. It is arguable that the requirement in para.ii can, and therefore should, also be examined.
23. For cases in which the foreign judgment was apparently assumed to be enforceable, see e.g. X v. Y [1990] 1 Q.B. 220, 232Google Scholar; Crédit Suisse Fides Trust SA v. Cuoghi [1997] 3 W.L.R. 871, 880 (CA).Google Scholar
24. The cases falling within the Brussels Convention were X v. Y, ibid; Republic of Haiti v. Duvalier [1990] 1 Q.B. 202 (CA)Google Scholar; S&T Bautrading v. Nordling [1997] 3 All E.R. 718 (CA)Google Scholar. A case falling within the Lugano Convention was Crédit Suisse, ibid.
25. [1996] A.C. 284 (PC).Google Scholar
26. In his dissenting judgment, Idem, p.305. The issue of enforceability did not arise for the majority because a Mareva injunction was denied on other grounds.