CYPRUS | The Chabra Jurisdiction in Cyprus Courts
The Case of TSB Private Bank International SA vs. Chabra
The landmark case TSB Private Bank International SA vs. Chabra  1 WLR 231, established what we now refer to as ‘Chabra jurisdiction’. This case involved TSB (the claimant bank) and Mr. Chabra (the defendant).
TSB, having a claim against Mr. Chabra, sought to secure their position by obtaining a worldwide freezing order (WFO) against him. Significantly, the WFO extended beyond the assets of Mr. Chabra to include those held by a company incorporated in the Cayman Islands. Although Mr. Chabra had no legal interest in this company, the court concluded that he could likely dissipate the company’s assets to escape the claim.
Main Aspects of the Chabra Judgement
The Chabra judgement fundamentally changed the application of WFOs by introducing the Chabra jurisdiction, which grants the court the power to freeze assets of a third party who isn’t the primary defendant but is suspected to hold or control the defendant’s assets.
For Chabra jurisdiction to apply, three main criteria must be satisfied:
- The existence of a good arguable case against the primary defendant;
- The third party seems to hold assets on behalf of or is controlled by the defendant;
- There’s a real risk that the third party will dissipate the assets.
This legal principle has drastically altered the way courts deal with complex asset protection strategies, expanding the reach of asset recovery litigation.
Application of Chabra Jurisdiction in Subsequent Cases
The Chabra jurisdiction has had significant influence in subsequent legal decisions. In the case of Ras Al Khaimah Investment Authority v Bestfort Development LLP  EWCA Civ 1014, the court confirmed that the Chabra jurisdiction could be invoked even if the substantive claim against the primary defendant is pursued in a foreign jurisdiction. This extension allows the English court to exercise control over the third party’s assets where the main proceedings are elsewhere, further widening the scope of the Chabra jurisdiction.
The case of JSC BTA Bank vs. Ablyazov  UKSC 64 is another critical instance where the Chabra jurisdiction was applied. The Supreme Court, in this case, demonstrated that Chabra orders can extend to third parties outside England and Wales. This assertion significantly empowers creditors in international litigation by giving them the ability to freeze assets across borders, providing a potent weapon against complex asset protection strategies.
Chabra Jurisdiction in Common Law Countries
In the common law realm, the Chabra jurisdiction has had a profound impact. Jurisdictions like Singapore, Hong Kong, and Australia have adopted it, using it as a significant asset recovery tool. It provides a strategic advantage for claimants facing defendants who attempt to avoid judgements by divesting themselves of assets or placing them out of reach.
In Australia, the case of Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 saw the High Court approving freezing orders to restrain a person from removing assets from Australia or disposing of, dealing with, or diminishing the value of their assets within or outside Australia. This decision was significantly influenced by the Chabra judgement, which enables Australian courts to freeze the assets of a party against whom no cause of action is pleaded if it appears that those assets are in danger of dissipation.
Chabra Jurisdiction in Cyprus
Cyprus is a common law jurisdiction, and its justice system is based on the adversarial model, heavily influenced by English common law principles due to its colonial history. As a result, English case law plays a significant role in Cypriot jurisprudence, particularly in areas of commercial litigation and asset recovery cases.
Cypriot courts routinely consider and apply English case law, especially where there is a legal vacuum. Hence, the principles of Chabra jurisdiction are applicable in Cyprus, especially in cases involving a risk of asset dissipation in a complex financial dispute involving a Cypriot company.
The Cypriot courts have been known to issue freezing orders, known as ‘Mareva’ injunctions, in combination with the principles laid out in the Chabra case. For example, in a case involving a claim against a company owned by a businessman, the court issued a worldwide freezing order, applying the Chabra principles. The court emphasized that it had jurisdiction to issue a Mareva injunction to preserve the status quo and prevent the unjustified dissipation of assets that could frustrate the enforcement of a future judgement (cases in Cyprus: DB TECHNOLOGIES B.V. vs LOIZOS IORDANOU CONSTRUCTIONS LTD E166/2019; HELINGTON COMMODITIES LTD and others (2009).
The Chabra jurisdiction is an innovative legal tool designed to deal with the increasingly sophisticated methods employed by defendants to evade creditors. It has significantly broadened the scope of freezing orders, allowing assets of a third party, who is not a defendant in the main proceedings, to be frozen if they are likely to be used to satisfy a potential judgment.
By embracing the principles of Chabra jurisdiction, jurisdictions such as Cyprus ensure that their legal systems are capable of dealing effectively with complex asset protection strategies. It’s a testament to the need for constant evolution and adaptation in the legal world to match the pace of financial and commercial innovation. The application of this jurisdiction, however, must be balanced against the potential infringement of third parties’ rights, highlighting the delicate balance between the pursuit of justice and the protection of individual rights.
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