Post-Brexit, Choosing a Venue for Cross-Border Asset Recovery Disputes Takes on Renewed Importance

For decades, creditors looking to enforce large cross-border judgments would frequently seek to establish jurisdiction in UK courts.  Since the 1975 decision in Mareva Compania Naviera SA v. International Bulkcarriers SA, 2 Lloyd's Rep 509 (C.A. 23 June 1975), the ability to obtain strong asset freeze orders coupled with widespread global recognition of such orders made the UK courts an attractive asset to any complex recovery effort.  But the withdrawal of the UK from the EU and corresponding inapplicability of the Recast Brussels Regulation and the 2007 Lugano Convention cast a pall of uncertainty on international enforcement of UK orders.  Without the recognition of EU member status, will UK freeze orders open the same pathways of enforceability?

The challenges of developing a robust international framework for enforcement in the wake of a no-deal Brexit coincide with an accelerating trend toward the US as an asset haven for the world's well-heeled.  (See https://www.theguardian.com/world/2019/nov/14/the-great-american-tax-haven-why-the-super-rich-love-south-dakota-trust-laws).  Indeed, in 2020, according to the Tax Justice Network Financial Secrecy Index, the U.S. overtook Switzerland and now ranks second only to the Cayman Islands among asset havens.  

Between the sheer asset value harbored in the US, the availability of freeze orders from US District Courts (See Freeze Orders in United States District Courts: A Strategic Analysis of Asset Recovery in Multinational Disputes), and the unparalleled investigative value of federal court discovery, creditors initiating high-value asset recovery investigations and disputes will need to reassess recent assumptions about the value of UK freeze orders and weigh the uncertainty of such orders against the significant reach of a US District Court.