A Cross Border Study of Freezing Orders and Provisional Measures by Tibor Tajti & Peter Iglikowski

Author:Tibor Tajti & Peter Iglikowski
Language: eng
Format: epub
ISBN: 9783319943497
Publisher: Springer International Publishing

3.1 A Brief History of US Law on Provisional Measures

In the history of US law on provisional measures, three landmark signs should be commented upon: partition with English law, the impact of the 1938 Federal Rules of Civil Procedure and the 1999 Grupo Mexicano decision of the US Supreme Court. These seem to have generated changes of such intensity in this specific domain of law that allows us to differentiate and talk of the resulting four phases. Unlike English law, however, US law of provisional measures was much more stable throughout this long period. Although some of the remedies have disappeared from use, no such revolutionary invention surfaced as of yet that could not be dwarfed by the Mareva Injunction in England.

As far as the beginnings are concerned, English and US civil procedure law had become significantly different already in the 19th century,7 though some resemblances have survived up until today. For example, as it has already been mentioned, while English law does not know an interim measure with in rem effects, the American prejudgment attachments create such inchoate liens that are at the same time of priorities that apply both within and outside bankruptcy law. Today, however, one could safely presume that the two laws are radically different. In fact, certain aspects of US law on provisional measures are closer to French or some other civil laws.

From the surviving similarities, in the context of US law one ought to comment primarily on the continued relevance of the division between ‘law and equity,’8 not only in the legal system generally but specifically in the domain of provisional measures as well. This in particular because understanding the watershed decision of Grupo Mexicano case presumes this. Furthermore, this is needed also because for civil laws such dualism is foreign.

Actually, this is what brings us to the next historic miles stone, the adoption of the Federal Rules of Civil Procedure in 19389 and the impact that it had on American civil procedure, including our central subject matter—provisional measures. One of the leading US authorities epitomized the process as the period of ‘struggle between law and equity and the subsequent coexistence of the systems,’10 the 1938 Rules being the line of demarcation. The integration, however, did not mean complete discarding of the division. What was achieved was rather only the merger of law and equity “under a single set of simple and effective rules.”11 Vestiges have survived up until today as illustrated, among others, by the area of law in the center of our observations to be shown below. In particular, the rule according to which, put simply, equitable provisional remedies (i.e., preliminary injunctions) could normally be awarded only if no adequate provisional remedy at common law is available, is the key rule of both, federal and State law on provisional measures.

In fact, one of the key reasons12 why the majority of the US Supreme Court refused to recognize and introduce into US legal system the novel but related concept of the English Mareva

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.