A judgment of the Nürnberg Court of Appeals (Oberlandesgericht) of December 2010 deals with the recognition and enforcement of a Worldwide Asset Freezing Order, or WAFO, issued by the High Court in London. The judgment was recently published in legal journals such as ZIP 2011, 1840, but apparently is not available on a free database.
The High Court issued its WAFO on April 16, 2010 against the respondent, who was a German national domiciled in Germany. The WAFO froze all assets of respondent up to an amount of USD 8,000,000, irrespective of the location of the assets within or out of its jurisdiction. The English order listed German bank accounts amongst the assets to be frozen and expressly authorized the applicant to approach the German courts to enforce the English WAFO. On that basis the applicant approached the Nürnberg court and requested, that the English order be declared enforceable pursuant to Article 38 et seq. of Council Regulation (EC) No 44/2001 and the respective German provisions implementing the Regulation (AVAG). On June 17, 2010, the Nürnberg District Court (Landgericht) granted the order accordingly with respect to the assets located in Germany. Upon appeal, the Court of Appeals (Oberlandesgericht) confirmed that order on December 22, 2010. In my opinion, the first step was reasonably quick, considering that a fair amount of translations were no doubt required. The time the appeal court took was perhaps somewhat on the longer side for interlocutory proceedings, but since the first order remained in place pending the appeal, the position of the applicant was probably not jeopardized in the interim period.
The judgment of the Nürnberg Court of Appeals provides useful guidance, if one is seeking to enforce freezing orders from other European Union member states in Germany. It extensively discusses the various defence argument raised by the respondent, which ranged from service issues to public policy arguments. At the end of the day, all of these arguments were thoroughly reviewed, but rejected by the Nürnberg court.
In an earlier post, I have already shared my frustration about the high threshold that needs to be overcome in order to obtain a freezing order in Germany. If the amount at stake and the factual situation support such an approach, it is advisable to evaluate whether an application for a freezing order can first be made in another jurisdiction within the European Union, and then recognized and enforced in Germany.
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