Kawaley J
```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO.FS1 lain(KJ) FINANCIAL SERVICES DIVISION 02 OF 20 NTIFF IN THE MATTER OF AN APPLICATION FOR A DISCLOSURE ORDER BETWEEN ARCELORMITTAL USA LLC AND (1) ESSAR GLOBAL FUND LIMITED PL (2) ESSAR CAPITAL LIMITED ANTS IN CHAMBERS Appearances： Mr Tom Weisel berg QC of counsel， Mr Paul Pearson and Ms Anya Park， Hamleys， on behalf Mr Vernon Flynn QC and Mr Tom Lowe QC， M Ulrich Payne and Mr Shaun Maloney， Ogier Defendants 1 beha Smith Before： The Hon.Justice Kawaley Heard： 13 February 2019 Draft Ruling Circulated： 19 March 2019 Ruling delivered： 29 March 2019 Norwich Pharmacal Order-application to set aside-whether jurisdiction exists to grant relief in aid of foreign arbitral award absent local enforcement-whether equitable jurisdiction ousted because of availability of statutory remedy-relevance of failure to seek local enforcement of foreign arbitral 1 Mr Lowe QC was in attendance for only half of the hearing. ```
```html RT 78 RULING ON APPLICATION TO SET ASIDE OR VARY ORDER Introductory On January 15, 2019, I granted the Plaintiff ("AMUSA") an e EX PA whichPharmaceutical Order which was amended on January 16, 2019 ("NPO").Plaintiff's Ex Parte Originating Summons dated January 10, 2019("EGFL" and "ECU" respectively) applied orally on January 31, 2019. The De-plaints toenable them to apply to set aside or vary the NPO. On January 31, 20he De-ants toenable them to apply to set aside or vary the NPO. On January 31, 20he De-ants toenable them to apply to set aside or vary the NPO. On January 31, 20he De-ants toenable them to apply to set aside or vary the NPO. On January 31, 20he De-ants toenable them to apply to set aside or vary the NPO. On January 31, 20he De-ants toenable them to apply to set aside or vary the NPO. On January 31, 20he De-ants toenable them to apply to set aside or vary the NPO. On January 31, 20he De-ants toenable them to apply to set aside or vary the NPO. 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```html 1R 190329 in the Matter of Arcelor mittal US LLC v Essar Global Fund Limited-FSD 2 of 2019 (HC) Ruling to set aside or vary Ex Parte Order Smellie CJ should be reconsidered; (b) the alleged wrongdoing, deliberate evasion by the ju ittle,le, or, is not an actionable wrong, particularly in circumstances support Norwich Pharmacal relief. UVW-XYZ, BV of 2016, Judgment dated October 27, 2016 (unreported) was wrongly decided. Further the NPO was impermissibly to police (or support) a Worldwide Freezing Order (“Witd another court. (c) the NPO went beyond the permissible limits of information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff to be the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam requisite literal sense. 4. Before considering the merits of these complaints, I will summarize the principal strands of the evidence relied upon by the Plaintiff and set out the short oral decision which I gave for granting seeking, ply con HC (Centr information and sought broad discovery. It was not 'allbargam
```html 7. Accordingly the crucial evidence for the purposes of the present a is 8. The Plaintiffs Ex Parte Originating Summons for a Disclosure Oceedings 9. Nouroozi 2 updated the evidential position by exhibiting the de 10. The Plaintiffs Skeleton Argument was filed on Friday January The underlying commercial relationship 11. On December 17, 2012, AMUSA entered into an agreement with two Essar Group companies, ESML and Essar Resources Inc. ("ER"), for the supply and purchase of iron ore pellets to be produced by ESML in Minnesota with an initial delivery date of July 1, 2014 (the "Pellet Sale Agreement"). This delivery date was extended on January 10, 2014 with Essar Steel replacing ER as a party (the "Amended and Restated Agreement"). Further extensions and modifications were made on June 18, 2015 (the 190329 in the Matter of Arcelor Mittal US LLC v Essar Global Fund Limited - FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order ```
The document appears to be a legal document discussing the ICC Award and related proceedings. Below is a faithful transcription of the visible text, formatted according to the specified guidelines: --- ### The ICC Award
On August 9, 2016, AMUSA commenced arbitration proceedings against Essar Steel in Minnesota. The ICC Award having been obtained on December 1, 2016, was then enforced in Minnesota in proceedings in which Essar Steel did not participate. On April 2, 2018, the US District Court entered judgment in favor of AMUSA recognizing and enforcing the ICC Award.
The Mauritian Supreme Court entertained a contested application to set aside the ICC Award on September 20, 2018. Essar Steel contended that it was unable to participate in the case and that consequently enforcement would be contrary to public policy. A judgment was still awaited when the present application to discharge AMUSA by Essar Steel was heard. ### The English Proceedings
From Mr. Nouroozi's First English Affidavit, it is apparent that the relief sought is permission to enforce the ICC Award. The WFO was sought in aid of enforcement. The real risk of dissipation was demonstrated by reference to historic asset dissipation at Essar Steel, historic actual or alleged unlawful conduct within the Essar Group, and Essar Steel's default in complying with the ICC Award.
From the Plaintiff's Skeleton in the English Proceedings filed in support of the ex parte application for a Search Order, it is apparent that this limb of relief was legally founded on a statutory provision broadly corresponding to the common law Anton Pillar jurisdiction. The Search Order was sought in aid of execution of ICC Award. --- This transcription is based on the visible text in the image and does not include any invented content.
```html 17. The Norwich Pharmacal information and document preservation application has also implicitly made in support of enforcement of the ICC Award. In his English Affidavit, Mr Nouroozi deposed: 193. As set out above, AMUSA's position is that steps have been taken to evacuate Essar Steel's assets to AMUSA's prejudice. In order to enable AMUSA effectively to take action in respect of additional information so as to understand these various steps, it needs additional information so as to understand these various steps, who was involved in them, and what has become of Essar Steel's assets. Wrongdoing 18. The First English Affidavit identifies various asset transfers disclosed of this, Essar India 2015 Financial Statements in support of AMUSA's belief that these steps, which has occurred. The 2012 and 2013 transfers are not at first blush evidence wrong to evade the ICC Award. Essar Steel was not yet party to the Agreement at the time it had been consummated in its original form. However, it is fairly asserted, of some number of the substantial liabilities that it had assumed by its terms". On Seosed in ts... 2015 Essar Steel's shareholding in Essar Steel UAE once valued at over UI have been was purportedly transferred to another Essar entity for US$ 200 million in September 2015 unclear which entity received that consideration. What was clear, Mmijnt, although it is pointed out in oral argument in the course of the ex parte hearing that by Set this consideration did not appear in the asset column of Essar Steel's account dir Weis sel 19. Reliance was also placed on judicial findings made in Canada that S$ 41 million was suggested that EGFL had been used to control the Essar Group in a way which was prejudicial to creditors. 20. Against this background, the specific wrongdoing relied upon in our the Norwich Pharmacal relief was unsurprisingly described somewhat concisely in the First English Affidavit: 193. As set out above, AMUSA's position is that steps have wrongfully been taken to evacuate Essar Steel's assets to AMUSA's prejudice as a creditor. In order to enable AMUSA effectively to take action in respect of this, it needs additional information so as to understand these various steps, who was involved in them, and what has become of Essar Steel's assets... 21. In Nouroozi 1, filed in these proceedings, it was crucially deposed that: 17. As explained in detail in the English Affidavit... the Essar Group and the individuals behind it have taken various steps, the effect of which has been to dissipate and/or to obscure the location of assets so as to impede enforcement. 190329 in the Matter of Accelormittal US LLC v Essar Global Fund Limited - FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order ```
```html 22. In the English Proceedings， the Plaintiffs Skeleton Argument sum on wrongdoing as follows： ce 170... there is a good arguable case that a wrong has been a role As of its assets with the object of and/or effect of preventing enforce 1 in Steel Award and that the Cayman Defendants have played a ce hile is C's ae ICC exercise." in tert to AM that In summary， it is AMUSA's belief that steps have been taken to ha strip Essar Steel of its assets with the object of and/or effect of preventing enforce 1 o strip Essar to it AM believes that there is a good arguable case that frustrate the ICC Award.... wrongfully taken to unjustifiably...dissipate Essar Steel's ana arised ther to 171... the disclosure sought is necessary to enable AM effect carried ICC Award and take action in response to the dissipation of Es the entity assets. AM requires the information sought in the Information to eni steps Preservation Orders (together with that sought by the Search sets in order to ascertain exactly what steps have been taken to dissipate Es and and L assets， who was involved in that dissipation and where those assets h Order) may thereby prevent Essar Steel further evading enforcement." see Sy.11ely 23. In the Plaintiffs Skeleton for the January 15， 2018 ex parte hearing 1 and D the case on wrongdoing was put in the following way. Firstly， it is note that the purpose of the present proceedings was described as follows ore th 21. The Summons that is now before this Court is thus madent of： portian are no 1 to the proceedings that are being commenced in the Engling the Court. It is made alongside those proceedings but is indeple in par beem； its purpose is to assist AMUSA with the process of enfish Comm im ICC Award and to identify assets that are either held by Essar Steel or then anc been dissipated by it. AMUSA believes that unless the relief sought rchis application is granted， there is a real risk that information and documents will be withheld and/or destroyed." 24. AMUSA's case was described most broadly as follows： 16. In the light of such information as is presently available to it， AMUSA believes that steps have been taken and/or will be taken to dissipate and/or obscure the location of Essar Steel's assets and so impede enforcement of the ICC Award. The basis for this belief is set out in the Nouroozi English Aff. in particular at Sections E and F. In summary， however， they include the following： ```
```html (1) Historic dissipation of Essar Steel's assets. The ibersrdcial Statements reveal transactions during the currency oth Project by which Essar Steel transferred apparentl shareholdings in Essar Steel India Limited ("Essar India") to another corp Steel UAE Limited ("Essar UAE") to another corp under EGFL's control, in which Essar Steel had no in disclosure and further information, AMUSA reasons Essar Steel received no or no valuable consideration for the NAS ers. (2) Wrongdoing at the Essar Group. Relevant Essar Grst 2015 Finies (including EGFL) and individuals (including 1 interest Puia ("Prashant") and Joseph Seifert) have been implicated in serious or allegations of wrongdoing made in foreigne tradu")s, including in the context of insolvency proceedings in r porate sar Steel's subsidiaries. These suggest the involvement of proce and those behind it in a wider pattern of wrongdoing check ofoup c by: (i) dealing in bad faith, (ii) disregard for prevailing Prashant ins of corporate governance; and (iii) the transfer of assets w in find Group to the prejudice of creditors. (3) The nature of the corporate arrangements at Essar Gr Group comprises a complex chain [of] companies and ass AMUSA reasonably infers that such structures hay oup. The by EGFL and the Ruia family to obscure the manner in whs held at the Group, to the prejudice of creditors. (4) Essar Steel's conduct in the arbitral proceedings. Essa conduct the arbitral proceedings in good faith. It misl regarding the documents available to it; refused to comply for the Tribunal's orders, including for the production of doced ons regarding its financial position; and at a late stage elected no longer to participate. AMUSA reasonably infers that that election was made in recognition of the fact that Essar Steel's position on the issues in the arbitration lacked merit and/or as part of a strategy to manufacture grounds by which to resist enforcement of any award in AMUSA's favour. (5) Essar Steel's default in complying with the ICC Award and its conduct in subsequent recognition and enforcement proceedings. Although Essar Steel participated in the arbitral proceedings, it has declined voluntarily to comply with the ICC Award. While it had the opportunity to challenge the ICC Award in the place where it was made, Essar 90329 in the Matter of Accelormittal US LLC v Essar Global Fund Limited - FSD 2 of 2019 (HK) Ruling to set aside or vary Ex Parte Order 8 ```
```html 25. The following concise submission was then made: 26. The crucial factual assertion relied upon is that "AMUSA believes 27. The Defendants' application does not engage with this case on the factual plane. The AMUSA s u b m i s t s t a d e d r e a s e r o n g o u t h e g o o d a u g u b e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g o u t h e g o o d a u g e l a s i s a t l a b l y i n g</
```html 28. Is there a necessary conceptual link between the question of whether I the CoCC Award is or is not being enforced in the Cayman Islands as regard vs： eby the wrongdoing case， but not as regards limb (1)? There might at first bl to be clearer jurisdictional link with this Court's domestic jurisdiction as But as regards (1) as well， there would be a similar domestic law p in affording relief to a party complaining of attempts to evade enforce sign award eligible for local recognition and enforcement before it is locr or not t zed. The real question appears to be whether Norwich Pharmacal relis limb (2) able where the wrongdoing complained of relates to evading the enforcepe sign awards or judgments， in circumstances where the relevant enforcem ings are exclusively taking place abroad. This question did not arise of olicy into the ings parallel English Proceedings， because the ICC Award was likely t~onent of a. g and enforced by the English Court. ly recog lush arized 29. It also important to note one further strand of the evidence whicht project ment relevant to any jurisdictional analysis. AMUSA's case was that n relationally for incorporated Defendants， subject to the personal territorial jurisdiction is port'd burt， ed to l directed the activities of the Group. The Defendants were not alleghe the Caym ex innocently mixed up in wrongdoing perpetrated abroad by partie his parte jurisdictional ties. local The Mauritian Proceedings ment 30. The position in Mauritius explained in the Plaintiff's Skeleton Arg ed to l parte hearing which was not in controversy may be briefly described cour ex (a) on February 19， 2018， AMUSA applied to the Mauri as follow or a provisional order granting recognition and enforcement on the CC Award； (b) on February 22， 2018， the Mauritian Court granted a Provisional Order； (c) on March 8， 2018， Essar Steel applied to set aside the Provisional Order and stay enforcement on public policy grounds that it had been denied a fair opportunity to present its case to the ICC Arbitration Tribunal； (d) the application to challenge enforcement of the ICC Award was heard by the Mauritian Court on September 20， 2018 when judgment was reserved. ```
The January 15, 2019 Ruling The oral reasons I gave for granting the NPO were subsequently transcribed as follows:
In this case the Plaintiff, Pursuant to an ex parte originat dated 10 January 2019 seeks a Norwich Pharmacal order against the applicant made against different defendants in London where Christopher Butcher, J granted various orders, including a w ezing injunction against the defendants in those proceeding, recognition of the arbitration award which is central to the prade's summation, also granted a search order and finally granted Norwich to e defendant relief against the defendants in that action.
The applicant is a company incorporated in Delaware and of law in the steel and mining businesses. The applicant seeks relief again in the Essar Group of companies which group is described in esent appme chart, described in the plaintiff's skeleton as an organogram which Pharmac ye at the two defendants known by way of acronym as, "EGFL", and, very cle both Caymanian companies that sit at the very top of the group st indicates that structure one sees that the first defendant is 100 per cer", is involver of amongst other companies, Essar Steel Ltd, a Mauritian comp. ist two cos the defendant against whom a substantial arbitration award at shared in Minnesota.
The award was obtained on 19 December 2017, and el has tructur was awarded just over US$1.38 billion in damages, costs and infef is a somewhat wryly in the Plaintiffs skeleton, that to date Essar ine r dar-n, paid a cent -- paragraph 10. The claim for Norwich Pharmacal herest. It wanced on the basis of two main strands, as I view the material. Firstly, Stere is evidence of what has been referred to as propensity evidence indicatingelirious forms of the historic wrongdoing which were set out and summarised in paragraph 16 of the Skeleton Argument. That evidence, in my judgement, does nothing more than to set the scene for looking at the wrongdoing which is complained of in a substantive way in a more cynical light than might otherwise be justified had the Defendants been companies with an unblemished record.
The proposition that the Defendants at the top of the corporate chain are likely to have information which is of relevance to the wrongdoing is supported by reference to the fact that there has been a judicial finding in the Ontario Court of Justice that the two Defendants have, in the past, exercised high levels of
```html 190329 in the Matter of Accelormitall US LLC v Essar Global Fund Limited-FSD 2 of 2019 (HK) Ruling to set aside or vary Ex Parte Order 12 ``` ```latex \begin{table} \begin{tabular}{|c|} \hline 190329 in the Matter of Accelormitall US LLC v Essar Global Fund Limited-FSD 2 of 2019 (HK) Ruling to set aside or vary Ex Parte Order \\ \hline 12 \\ \hline \end{tabular} \end{table} ```
```html 10.I was also assisted by being referred to the judgment o n srg. who viewed largely the same evidence as was placed before me. I conde a number of findings which are helpful in fortifying the view that,... likely have reached on my own of the material placed before me. A 28 of his ruling. Butcher, J said this: 11.At paragraph 40 Butcher, J said this: 12.Finally in addressing the specific question which is pivotal is been prwch Pharmacal relief, paragraph 55, Butcher, J said this: The threshold conditions were summarised in Ramii gagged Ltd v Buyanovsky [2016] England and Wales High Court 3 argua mati olos Tr "Firstly, the applicant must demonstrate a goal/2 as for the case of wrongdoing. Secondly, the disclosure of in ught must be necessary to enable the applicant to bring proof, things or seek other legitimate address for the wrongdoing and, thirdly, the person against whom the order is sought must be involved in the wrongdoing in a way which distinguishes him from a mere witness". 13.Reliance was placed before me on my own recent decision in the case of Discover where I considered these legal tests. 14.I was then taken to a draft order which sought to build on the order granted in London in a somewhat more streamlined fashion, and having taken into account the form of relief that is sought, I am satisfied that the Plaintiff in this case has demonstrated, firstly, a good, arguable case of wrongdoing; secondly, ```
```html 15.As far as that aspect is concerned， it is very properly that the Plaintiff has demonstrated that the disclosure is neces olagratv 16.One matter I should mention which I didn't in the course the Plaintiff does not believe that the Defendants' involvement wholly 17.Clearly， I did not expressly consider the controversial jurisdictional that N innocent， but， nevertheless， it is rightly contended， in my vie， that way in which it appears the defendants have become involved ongoing 18.for years as the orthodox Cayman Islands legal position. I assum points ra for the Defendants， which admittedly requires reconsideration of what ng of 19.Pharmacal relief was available (a) more broadly， in aid of claims of wro opposed information which is relevant to the enforcement of the arbit 20.which may be pursued abroad， and (b) more narrowly， in aid of overseas enforced ssary to els into ssary to els into 21.proceedings in relation to foreign judgments or arbitral awards without the need for the ambit of the concept of being involved in a way which dis the ambit of the concept of being involved in a way which dis 22.formal enforcement proceedings being commenced here. discloses the discloses the 23. defendants from being mere witnesses， and so for those read， disclosure at the defendants from being mere witnesses， and so for those read， disclosure at the 24.order sought. order sought. order sought. 25. that th that th 26. that th that th 27. that th that th 28. that th that th 29. that th that th 30. that th that th 31. that th that th 32. that th that th ```
Findings: Can Norwich Pharmacal Relief Be Granted in Aid of Foreign Proceedings? ## The Respective Submissions
Mr Flynn QC invited the Court to find that there was no jurisdiction to grant Norwich Pharmacal relief in aid of foreign proceedings to enforce the ICC Award on two alterntive grounds: (a) The Award could not in law be relied upon without leave being obtained under the Foreign Arbitral Awards Law (1997 Revision) ("FAAEL") or Grand Court Order 73; and/or (b) Norwich Pharmacal relief could not in any event be obtained in aid of foreign proceedings.
GCR Order 73 un-controversially governs the procedure for enfiles ("to grant") an award such as the ICC Award. The disputed issue was whether the FAAEL meant that without seeking leave to enforce the Award, it could not be relied upon at all. Section 5 provides:
A Convention award shall, subject to this Law, be enforceable in the same manner as an award under section 5 of the Arbitration Law (1996 Revision) and shall be treated as binding on all persons between whom it was made and may be enforced by any of those persons by way of defence, set off, or binding in any legal proceedings in the Islands and any reference in this Act or any other law to an award shall be construed as including reference to the Award. At first blush, this response seemed to reflect a straightforward view of the correct legal position.
Mr Weisselberg QC countered that this submission misunderstood section 5 which was designed to confer a right to rely on an award for the purposes on the persons between whom it was made. There was no reason in principle why the Court could not take notice of the fact that AMUSA had obtained the ICC Award as the context of the present application; no reliance was placed on the truth of the contents of the Award. At first blush, this response seemed to reflect a straightforward view of the correct legal position.
The second point advanced by the Defendants had more sinuosities in it. The central thesis was that because a specific statutory regime existed for obtaining evidence for use in foreign proceedings (the Evidence Order as read with GCR Order 73), the common law jurisdiction to obtain information for use in foreign proceedings through granting Norwich Pharmacal relief was not available. Reliance was mainly placed on R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] 1 All ER 190329 in the Matter of Accelormitall US LLC v Essar Global Fund Limited – FSD 2 of 2019 (KCI) Ruling to set aside or vary Ex Parte Order.
```html 161(Divisional Court);[2014]QB112(Court of Appeal) and leading Limited-v-Buyanovskv[2016]EWHC3175;[2016]2CLC896. 37.AMUSA invited the Court to simply follow the Chief Justice's contract* for on this point in Braga-v-Equity Trust Company[2011]1CILR402. Evidence Order covered different legal terrain. It was further argued that the Evidence Order did not preclude Norwich Pharmacal relief in Gianniev-Miller[2007]CILR 38.I accept the submission advanced on behalf of AMUSA that reliance on the Award has been obtained is permissible as against the Defendant. The Order poses the underlying dispute as against the award debtor. The Defendants' could not take the authority which directly supported the contrary proposition. 39.The starting point of the analysis must be to determine what the scope of the Evidence Order is. The key sections provide as follows: 1.Where an application is made to the Grand Court for an order to be obtained in the Cayman Islands, and the court is satisfied that the application is made in pursuance of a request by or on behalf of a court or tribunal ("the requesting court") exercising jurisdiction in a country or territory outside the Cayman Islands and (b)that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated, the Grand Court shall have the powers conferred on it by the following Power of Grand Court to give effect to application for assistance 2-(1) Subject to the provisions of this section, the Grand Court shall have power, on any such application as is mentioned in section 1 above, by order to make such provision for obtaining evidence in the Cayman Islands as may appear to the court to be appropriate for the purpose of giving effect to the provisions of this Act. ```
```html rd det 5;iect and out lar assangue request in pursuance of which the application is made; and a whi require a person specified therein to take such steps as the c ch) consider appropriate for that purpose. (2) Without prejudice to the generality of subsection (1) above to the provisions of this section, an order under this section may， i make provision- (a) for the examination of witnesses， either orally or in clu) consider appropriate for that purpose. (b) for the production of documents； (c) for the inspection， photographing， preservation， clu) consider appropriate for that purpose. of any property； (d) for the taking of samples of any property and the or experiments on or with any property； (e) for the medical examination of any person； in part (f) without prejudice to paragraph (e) above， for the custody testing of samples of blood from any person. (3) An order under this section shall not require any particular carrying( taken unless they are steps which can be required to be taken by aining evidence for the purposes of civil proceedings in the cour or order (whether or not proceedings of the same description as of taking ach the application for the order relates)； but this subsection shall mak de the making of an order requiring a person to give testimony ( hose to v or in writing) otherwise than on oath where this is asked for by that bre way court. (4) An order under this section shall not require a person his pie req (a) to state what documents relevant to the proceed ch the application for the order relates are or have been mission. (b) to produce any documents other than particular documents in specified in the order as being documents appearing to the court making order to be， or to be likely to be， in his possession， custody or power. (5) A person who， by virtue of an order under this section， is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time as on attendance as a witness in civil proceedings before the court making the order." [Emphasis added] ```
```html 41. This preliminary view assumes that the equitable jurisdiction is being obtain and/or preserve evidence of wrongdoing in circumstances where 1 ings in relation to that wrongdoing have yet been commenced. A potential ove of the nflict would clearly occur if the proceedings in which it is proposed to deploic/jurisdiction ation sought have already been commenced. In the present case， it is impo roceeding number that although it is obvious that various proceedings have already been ed by AMUSA to enforce the ICC Award， it is far from clear that the info re invok ed ght is intended to be deployed in those proceedings in a direct sense. 42. The Plaintiffs case is that the information sought to be preserved rtant ted is likely to assist it to pursue future remedies which are likely en conf resh freestanding proceedings， if not fresh interlocutory application/affirmation of erling st proceedings. Assuming foreign law to be the same as local law， the yon of proceedings for the recognition of arbitral awards is to permit judg ons in tered in terms of the award， opening the door to separate judgment enforce legal fur dures under the general civil law of the lex fori. Is the fact that no proceed be and pro on to the wrongdoing are yet afof a material consideration? 43. The proposition that the pendency of foreign proceedings is a rela arising in re deciding whether or not a conflict with the Evidence Order jurisdic ent to finds some general support in Gi amme-v-Miller [2006] CLR Note 24d notement J)， on fresh affirmed on appeal at [2007] CLR Note 10. Mr Flynn QC rightly saive in has at the erling st finding made in each Court to the effect that the Evidence Order (referred to the dures jurisdiction to grant equitable relief was strictly obiter. The oubmitted dings described in the note of the Court of Appeal decision was as follows： "1 di 44. Nonetheless， the strictly obiter finding of Henderson J to the effect that the Evidence per Order was no bar to Norwich Pharmacal relief which the Cayman Islands Court of pe Appeal upheld in the same case supports AMUSA's contention that it is always ecessary to analyse whether any real conflict between the two jurisdictions arises in the specific context of each particular case. According to the Note of the Court of Appeal's decision in Gi amme-v-Miller： ```
```html 45. The Note accurately summarises the full unreported judgment which started a 46. The Norwich Pharmacal order granted in Braga v Equity Trust [1991] 1 CLLR 402 was seemingly unambiguously sought for use in proceedings. But the respondents to the application did not themselves set the ex parte order aside and the order was (as in Gianner v Miller) ading pon art. The jurisdiction to grant equitable relief in aid of pending foreign pro amputation despite the existence of the Evidence Order regime， did not directly arise for Smel lte CI held： “40 When applicants seek to set aside an order already made by the vser t and executed by the party to whom it is directed， they need to establish an huse of the process of the court through bad faith or material non-disclosure of information that was necessary to be taken into account by the court when assessing whether or not to make the order in the first place. See Wea Records Lid v Vision Channel 4 Ltd. (30). As Purchas， L.J. said in that case in agreement with Donaldson， M.R. and Dunn， L.J. (1983) 1W.L.R. at 729)： For my part I doubt that on an application to set aside an ex parte order which has become entirely spent， even if made to the court which made that order let alone by way of appeal， the party against whom the order had been made can succeed save only in those very exceptional circumstances to which Sir John ```
```html 47. When the Chief Justice proceeded to discuss the scope of the No ree d[f.e.w 41 This is the test that the applicants must meet if they are Donaldson， M.R and Dunn， L.J have referred over yd here the order was obtained mala fide or by some cte non- disclosure，' 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 ```
```html 48. Because the jurisdiction to grant the relief was not directly in issue Sequ strictly obiter dicta have less persuasive weight than would otherwis Mr Flynn QC was also correct to point out that in Equatorial Guinea (Pmo Bank of Scotland Inl. [2006] UKPC 7， the foreign proceedings poin at the Privy Council level. However Lord Bingham described (with a the Guernsey Court of Appeal decision on that issue in terms which el of the point which was argued at the intermediate appellate level： “9.The interveners' primary submission of legal privresident) the Lieutenant Bailiff was that the court had no jurisdiction not Pharmacal relief where no substantive proceedings were beg in Guernsey. He rejected this argument in a carefully consistent ucidate t of 3 November 2004.... 11.The interveners gave notice of appeal against that replea two grounds only. The first， repeating their primary submission to grantant Bailiff， was that the court had no jurisdiction to grant Nc contemp nacal relief in aid of foreign proceedings. It is unnecessary to red judg of this argument since the Court of Appeal rejected it and it was rorwich Ph before the Board." 49. So the Guernsey Court of Appeal in Equatorial Guinea (President， 1 to the Link of Scotland Inl. did not decide or approve the proposition that Norwich relief could be granted in aid of pending proceedings notwithstanding the Rowe letters rogatory were available. It did confirm the more general propositionharmonot purit able remedy was available in aid of foreign proceedings. 50. Only obiter dicta in Braga address the impact of the availability of remedy for obtaining evidence for use in foreign proceedings. There are two ip nellie CJ's judicial observations on matters of legal principle (Braga， paragraph's 2-83) which in my judgment， properly understood， accurately reflected the com asp law position when they were made and (as I ultimately conclude below) still accurately reflect the current legal position： (a) the Evidence Order did not oust the equitable jurisdiction altogether， so"a Norwich Pharmacal order can be the appropriate remedy in a particular case"； and (b) "The jurisdiction to grant Norwich Pharmacal relief in aid of foreign proceedings must also be taken to be a settled proposition in light of the decision of the Privy Council in Equatorial Guinea (President) v. Royal Bank of Scotland Inl." 190339 in the Matter of Ace lo mittal US LLC v Esar Global Fund Limited-FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order 21 ```
```html 51. The Defendants' counsel relied primarily on the subsequent English Act decision in R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2014] QB 112 as support for the proposition that where the Evidence Act 1968 applies， the equitable jurisdiction to grant Norwich Pharmacal relief exists. This decision clearly supported this proposition in general terms. It is necessary to consider the crucial findings in greater detail. In n 52. The applicants in Omar firstly commenced judicial review proceedings to quash their criminal indictments. 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England to obtain evidence about Ugandan Governmental misconduct in the England to obtain evidence about Ugandan Governmental misconduct
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```html 54. Implicit in the reasoning at paragraph 25 is the assumption, ground that case, that the statutory remedy was in fact available so that the N jurisdiction would constitute a "parallel procedure". But the govery diser'thmacal deciding whether statute excludes the availability of the equitable merher/pk two remedies cover precisely the same ground and are inconsistent other". In my judgment the relevant legal question is not simply whether o Order mechanism is theoretically available to obtain the informati through the pre-existing equitable remedy. That is a threshold question w usually involve consideration of the law of the relevant foreign jurisdictioning leg as the local Evidence Order. 55. The complementary and more substantive question, assuming the bo Norwich P overlap of available remedies can be shown, is not simply whet on soughrences between the two regimes are "so substantial that they demonstra cn Wi ment could not have intended the common law remedy to survive the as mut with statutory scheme" (R (Child Poverty Action Group) v Secretary of that P and Pensions, per Lord Dyson, cited by Maurice Kay LI in Omar at paroducti That is logically the second stage of this part of the analysis. The first quest some twn did not arise for consideration in Omar) is whether the "two remedies cover ner the don ground". 56. Having regard to the breadth and flexibility of the Norwich Phar State for fiction, this question must in my judgment be a nuanced context-driven in s agrap 24 than a rigid and/or an abstract one. To my mind it makes no sense and it is ymacal junsible to imply that Parliament must have intended to eliminate the uy raf, "uitable jurisdiction in each and every case where the information sought wot fairl we used in foreign proceedings. Why should the inquiry as to whether the st 2" Courplaced the common law or equitable remedy be carried out without regard as like or not the statutory remedy was in real world terms available? 57. Omar was purportedly applied in Rami los Trading Limited-v-Bayanovs [2016] EWHC 3175; [2016] 2 CLC 896 (Flaux J, as he then was)， and the argur its and judgment in this case provide further general support for the view that factual and legal matrix of each case will usually shape the analysis as to whether the statutory remedy covers "precisely the same ground" as the equitable one. At first blush this decision seems to go beyond the limits of the actual decision in Omar by holding that the statutory foreign evidence regime is engaged even where no foreign proceedings are yet afoot. It clearly does undermine my preliminary view that the question of whether foreign proceedings are actually pending was a pivotal consideration. Flaux J held in this particular respect as follows: “118. In relation to all the potential claims identified in (807) of the claimant's skeleton argument other than those which might be brought against 190329 in the Matter of Arcelor Mittal US LLC v Essar Global Fund Limited-FSD 2 of 2013 (HK) Ruling to set aside or vary Ex Parte Order ```
```html 119.I do not accept that submission or the related submissions e only claimant in this case is at the stage before the institution abroad of proceedings contemplated, within the meaning of section 1(b) of the rement or In my judgment, as is clear from [80] of the skeleton argument and complete contrast to the claimant in Shlainmoun， the claimant in th at it was has already identified and thus knows in which jurisdictions it， in could be brought and to that extent the institution of proceedings present that ran of section 1(b) is contemplated. Furthermore， as I have no proof， the vast majority of the 39 questions are directed at the pre 1975 A， after January 2012 and， therefore， cannot be intended to be us already met claim under the 2005 shareholders' agreement， but only a clarified of te P 2012 shareholders' agreement or some other claim in oversecondary claims. 120.Even if the argument that the claimant is at some stage head， us proceed of proceedings abroad is contemplated were correct， able to the illogicality I identified during the course of argument the tied to for this hypothesis， the claimant has Norwich Pharmacal relieves ruin unwhen it does not have enough to advance a claim at all， but what avant th have sufficient evidence to mount a claim but needs the addif as M availability sought to support the claim， Norwich Pharmacal relief here it do for ble. It seems to me that the answer to this illogicality point is that oral init， glk fouh submitted， the claimant is at some stage before proceedings are contemplated， that is because the claimant cannot actually estatish that there has been any wrongdoing， only that it suspects that there has been wrongdoing， in which case the claimant cannot show a sufficiently good arguable case to entile it to Norwich Pharmacal relief. 121.I agree with Mr Chapman QC that it is not permissible to bypass the statutory regime simply by asserting that the case is at some earlier stage before the institution of proceedings abroad is contemplated. The reality in this case is that one of two situations must pertain. First， on the basis of the allegations which the claimant already makes， it has sufficient to launch a claim whether here or abroad， which must be a fortiori the position in relation to the dividends issue， where the claimant no longer pursues ```
```html 122.Mr Akkouh also submitted that, since section 1(a) of the cition, the requires a request from the foreign court or tribunal, to that exting to J must be right in Shlainoun that proceedings must be up and r (evinst S at least sufficiently so to enable the claimant to seek from that couls clos um an order setting out such a request to the English court. It ring' must be a request from a foreign court, but in an esser aon law jurisdiction such as Cyprus, that might be achieved by 1975 Aceli of pre- action or pre-arbitration procedure, akin to section 44ially corient Act 1996, applicable even if court or arbitration proc some forum not yet instituted, but only contemplated. The claimant has no Aourt or traduce any evidence that relief of this kind would not be availas as correct courts in Cyprus or from other courts overseas." 58. This analysis reflected the culmination of a detailed analysis of the the letter of request remedy and the Norwich Pharmacal jurisdicti edingrefuly serunismed, clearly shaped by the following contextual frameworkformatinteract had identified various claims which were under contemplation, at least Emalon and could adequately be pleaded, the vast majority of the 39 categories of. The app sought (see paragraph 119) related to claims which could not be pursued one ofal... In this context, Flaux J found that the statutory regime for obtaining evidence inf use in foreign proceedings was engaged even though those proceedings had not been commenced. 59. Flaux J also found that the statutory regime was substantially inconsistent with the equitable regime and so the former excluded the latter, rejecting the suggestion that there was any material difference between the 1975 UK civil regime and the 2003 criminal regime under consideration in Omar. 131. Whilst it is true that the element of ministerial discretion is absent in the case of the 1975 Act. I do not regard that as a determinative factor suggesting that substantial differences do not exist, since in one sense, the ministerial discretion is an aspect of the overall point which I consider is 190329 In the Matter of Arcelor Mittal US LLC v Essar Global Fund Limited FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order 26 ```
```html 132. That requirement for a request from the foreign applicant with another important limit built in to the statutory regime viz As the section 2(4) of the Act, which ensures that, where whuregimes in the production of documents, any order the court makes under the general terms to the documents specified in the order. It is not for disclosure in general terms. As the Divisional Court said, "Omar: It is important also to note that under s. 2(4) there are significant restriction on the power of the court to order disclosure [38] [fn4] in other words, the English court trusts the foreign court to make a proper statutory and the question of what is sought is not left to the clarion Act". These are indeed important sovereignty limits on the possible co distance the court will provide in relation to the obtaining of evidence or its use in foreign proceedings. It is certainly not permissible to extent of to ass the constraints of the statute by making the sort of wide-rang in the present case. 133. So far as the common exceptions in the two statutes of national security and Crown servants are concerned, evidencing that Maurice Kay LJ may have identified a difference before resorting to regimes and the common law remedy as regards national exception more apparent than real, I would not regard that as a door suggesting that substantial differences do not exist. The national security respect of Crown servants is common to both statutes and water the Divisional Court and the Court of Appeal in Omar as a substantial difference between the statutory regime and the common law remedy. I do not regard it as a permissible exercise in statutory interpretation to suggest that the difference is only operative in excluding the Norwich Pharmaceutical jurisdiction when the exception might actually come into play. The question is one of principle not tied to the facts of any particular case: are there substantial differences between the structure of the statutory regime and the common law remedy such that Parliament could not have intended the common law remedy to survive the introduction of the statutory scheme. If there are, then the common law remedy cannot be relied upon in any case where the statutory regime is engaged. ```
```html 60. It requires careful reading of the cited passages but they fairly enable diction to act the following principles. If the statute is engaged in the circumstances chain evil r case and legal differences potentially exist between the statutory and (cory regim (or equitable) remedy， the Norwich Pharmacal jurisdiction is ousted such suf law without any further factual inquiry. Implicitly， however， whether the non at all depends on the factual and legal circumstances of each craft analysis provides strong support for the view that， where the Evidence te to ea) anq perly engaged， Norwich Pharmacal relief is jurisdictionally unavailable. partis 61. However， in terms of understanding how one forensically grapples as a m question of whether or not the statutory regime is engaged， it is important to statu eadings quoted above in the wider context of the other main findings in the with this 62. order is comm “135.In view of the conclusions I have reached as to the coros analysis. it will be apparent that I have concluded that the claimant must fail even before one looks at the detail of the allegations maca rect legal maim， essentially for three reasons. First for the reasons set out inside's application of the judgement， the court has no jurisdiction in so far as they the Ramil， seeks evidence for use in foreign proceedings. In so far as it is least， that the evidence sought is for use in LCA4 arbitration in England， that & applu does not have a good arguable case under the 2005 shareholder123， sue or， at best， only has a good arguable case in respect of any breach the claimde ement committed between December 2010 and the end of January 2012." 136.Second， this application is a wide-ranging application for disclo are and h，o) evidence to support the claims which the claimant says it wishes to bring. The width of the application is apparent not just from the 39 questions set out in the schedule to the draft order but from [11] of Mr Armstrong's witness statement. As Mr Chapman QC submitted， this seeks what is in effect a blank cheque... 137.Again， as set out above， this wide-ranging request goes way beyond anything which is permissible under the Norwich Pharmacal Jurisdiction. None of the cases relied upon by Mr Akkouh is in the same league in terms of the breathtaking width of the application. Although he sought to submit that， in some cases， such as Mohamed， the courts had made wide orders， for the reasons I have set out above， I consider that a close analysis of those cases does not ```
```html 62. In my judgment this unambiguous finding that there was no practic aim and for the Norwich Pharmacal jurisdiction to be invoked may be viewed to The gh in as the other side of the statutory regime must be deployed to obtain eohamms.fonuse in foreign proceedings' coin.Where it is possible for the informate exte JSC to be obtained (and effectively used) through a request from a foreign corne f with an application under the Evidence Order， it will ordinarily be impossi fold that the intervention of equity is required.An important strand of the galt necessito which runs through the Norwich Pharmacal jurisdiction was recognisable to corsonurt in Braga v-Equity Trust Company(Cayman) Limited[2011](1)CILR at melie CJ(at paragraph 50) cited with approval the following observationhistion sougolf in Ashworth Hospital v-MGN Ltd.[2002]1W.L.R.2033： 402， where one of Lord is “57.The Norwich Pharmacal jurisdiction is an excepti d by tid one which is only exercised by the courts when they are satisfied cessary that it should be exercised...” onal c Summary of findings on legal principles governing the determination of wher the FAAEL has ousted the Norwich Pharmacal jurisdiction 63. In my judgment the question of whether or not the Norwich Pharmacal jurisdiction has been displaced by the statutory regime under the Evidence Order is a mixed question of law and fact the answer to which is significantly shaped by the legal and factual matrix of each case.I accept Mr Flynn QC's submissions on the governing legal principles to this limited extent.I am guided by the highly persuasive reasoning of Maurice Kay LJ in R(Omar) v Secretary of State for Foreign and Commonwealth Affairs[2014]QB 112(Court of Appeal) and Flaux J(as he then was) in Ramilos Trading Limited-v-Buyanovsky[2016]2CLC 896. 64. I accept that where an applicant for Norwich Pharmacal relief can obtain adequate relief via the statutory route for obtaining evidence for use in foreign proceedings， this ```
```html 65. I reject the submission of Mr We ts sel berg QC that I am required to 66. In these circumstances no question of reconsidering Gi amme or Br ad is pl a 67. 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```html 68. I fully endorse and adopt Wallbank J's concisely lucid formula: "whether principle to be extracted from the Omar decision. When considering the Evidence Order, it is important to remember that it was extended of situations tends to give effect to international legal obligations arising under the Hague regime of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters, extended to the Cayman Islands on November 16, 1980. The main conven tion that and similar Conventions is to facilitate civil justice by creating a transmercia tion network for national courts to assist each other in civil proceedings. It is trug the sector ment must be deemed to have intended the Evidence Order to be applied to these jurisdictions in place of any common law or equitable remedies which might that PeC have applied. However, in my judgment Parliament may also be pren aid of cpno have intended the Evidence Order to be used as a fixed barrier to civil viopurpose cng this Court's equitable jurisdiction automatically whenever informati nati onal fence is sought for use in foreign proceedings, without regard to whether justice, statutory regime is accessible in practical terms. 69. The preliminary views I set out above, suggesting that the legal tenor served by the competing statutory and equitable jurisdictions was as matter of legislation. entirely different, reflected an overly simplistic analysis. The different framework covered by the competing jurisdictions is not in and of itself a material consular principle the key question is whether or not on the facts of a particular case the need for equitable relief is displaced by the availability of the statutory remedy. The same applies to the initial suggestion that the pendency of foreign proceedings in which the information might be deployed was a potentially crucial consideration. On a proper analysis, whether or not proceedings have been commenced abroad is not dispositive of the question of whether in a particular factual and legal matrix the statutory regime is engaged because it is available. Having regard to all the circumstances of the present case, Mr Weisselberg QC was correct to submit that the statutory and equitable jurisdiction did not straddle the same terrain. 70. Whether the statutory jurisdiction displaces the equitable jurisdiction cannot be properly determined in a simple formulaic fashion. There is no inflexible legal principle that debars litigants from seeking to obtain information invoking this Court's ```
Findings: Has the Norwich Pharmacal Jurisdiction Been Displaced by the Order? ## in the Factual and Legal Matrix of the Present Case?
The key contextual elements of the application for the NPO in the present case may be summarised as follows: (a) The suspected wrongdoing entails the taking of deliberate steps to dissipate assets belonging to Essar Steel, a Mauritian company. (b) The suspected wrongdoers are natural persons located in England but include the Defendants, which are both domiciled here. (c) The Plaintiff has not identified what proceedings might be commenced against the Defendants within this jurisdiction, and there is no or no credible suggestion that the Plaintiff already has sufficient information to commence proceedings (possibly in the form of an NPO) against Essar Steel abroad. (d) It is possible that proceedings to obtain relief from the arrears of Essar Steel might be commenced against the Defendants within this jurisdiction even though the most obvious forum for such proceedings would appear to be proceedings (possibly in the form of an NPO) against Essar Steel abroad. (e) A central rationale for the present application is the risk that information is not compulsorily preserved, it may be destroyed. In these circumstances, there is no basis for suggesting that the NPO is not actually necessary because the Plaintiff has available to it a more appropriate alternative remedy of commencing proceedings in an identifiable jurisdiction abroad and obtaining adequate redress through the statutory regime governing obtaining evidence for use in proceedings abroad.
Having regard to the particular circumstances of the present case, I accept Mr Weisselberg QC's central submission that the Evidence Order has not displaced the equitable jurisdiction to grant relief in the form of the NPO. The most critical considerations in the present case are that although it is true that the information sought appears likely to be deployed in proceedings abroad, I am satisfied that: 190329 in the Matter of ArcelorMittal US LLC v Essar Global Fund Limited – FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order.
```html 73. For these reasons I find that the jurisdiction to grant equitable r nt been displaced by the availability of the statutory regime under the En ed having regard to the risk of information being de ling 1 Abolying the statutory regime for obtaining the informatio 1 away from being an available effective alternative reme MUSA should be left to pursue. Findings：has the Plaintiff established an actionable wrong which qua Ch Pharmacal relief? ca 74. The Defendants submitted that the Plaintiffs reliance on UVW v-X elj(Com) 108 of 2016， Judgment dated October 27， 2016 (unreported， was misconceived. This decision provided the central legal plank of AYZ BVIF that evading enforcement of the ICC Award constituted actionable Wallban ng for Norwich Pharmacal purposes. I have previously followed UVW o's ， basis. This was a case where Norwich Pharmacal relief was granted of the enforcement of foreign judgments. Wallbank J， citing NML Capu in an ex papman ， basis. Freoborn Holdings Ltd & Ors[2013]1CLC968， held (at ppp sumo)： "A ， basis. deliberate effort to obstruct or frustrate enforcement is required.Lid v-MUS ably ， basis. constitutes wrongdoing." ， basis. 75. Mr. Flynn QC submitted that deliberate non-payment of a debt wa Pharm. That was available post-judgment at all. Norwich Pharmacal relief tal/relief was not first was not first instance on the grounds that the respondent was not mixed-up in the wrongdch J relied instance on the grounds that the respondent was not mixed-up in the wrongdch J relied upon， which was wilful evasion of a judgment debt. The initial refusal decision was upon， which was wilful evasion of a judgment debt. The initial refusal decision was upheld on appeal， so the observations of Tomlinson LJ on what constituted wrongdoing upheld on appeal， so the observations of Tomlinson LJ on what constituted wrongdoing were purely obiter and expressed in qualified terms as well. were purely obiter and expressed in qualified terms as well. Reliance was also placed on Law Debenture Trust Corporation v-Ural Caspian Oil Pharm. That Corporation Ltd[1995]Ch 152 at 166B-D where Bingham MR stated： tal/relief “...But the defendant violates no legal right of the plaintiff if he makes was not first himself judgment-proof by dissipating his assets before he is enjoined from instance on the grounds that the respondent was not mixed-up in the wrongdch J relied doing so...” upon， which was wilful evasion of a judgment debt. The initial refusal decision was upheld on appeal， so the observations of Tomlinson LJ on what constituted wrongdoing were purely obiter and expressed in qualified terms as well. 4 Savile LJ concurred at 172 D-F. Pharm. That 190329 In the Matter of Arcademitat US LLC v Essar Global Fund Limited-FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order tal/relief 33 was not first instance on the grounds that the respondent was not mixed-up in the wrongdch J relied upon， which was wilful evasion of a judgment debt. The initial refusal decision was upheld on appeal， so the observations of Tomlinson LJ on what constituted wrongdoing were purely obiter and expressed in qualified terms as well. ```
```html 77. Mr We is sel berg QC responded by inviting the Court to follow UVex wh and to find that it was correctly decided. However he was unable effectiv sc/anaifqalle that moroin Ohn support for the approach adopted by Wallbank J was very thin di Norwich Pharmacal relief had been sought in England in suppo glish judgment. As I intimated in the course of argument， it would see ter to establish the wrongfulness of interfering with domestic enforcement the 78. precisely what the wrongdoing was in relation to a purely foreign en fely to dis ercise in multiple other jurisdictions on the face of it seemed to be more difi. ss.In reply AMUSA's counsel indicated that if for any reason the Cou an was necessary for the Plaintiff to enforce the ICC Award in this jurisdictio to be t it was only directly raised in relation to the FAA EL) ， an opportunity shou the steps bec for such an enforcement application to be made. such an enforcement application to be made. Findings： do deliberate steps to avoid enforcement of a foreign arbitral mentort of 78. I was in short presented with a not unfamiliar choice between us fic ult law powers liberally in aid of a foreign arbitral award or adopting a rt felt rigorous and cautious approach. ion (the p fitically ld be affor Wrongdoing for the purposes of seeking Norwich Pharmacal relief? App lv as 79. Only one authority was placed before the Court in which the que as ic able together deliberate steps to avoid enforcement of a foreign arbitral awk J and as wrongdoing for the purposes of seeking Norwich Pharmacal re， sion of ectly considered. This was UPW-v-XYZ BVI HC(Com) 108 of 2016(WI qual award first instance decision which I have previously followed in the context of wh the uparte application. Whether I should do so again in the present case requires judg/ allbanalys of the persuasive value of this solitary decision. It is useful to start another of the actual and legal matrix of that case， which is helpfully summarised early in a careful [aqt and legal matrix of that case， which is helpfully summarised early in a careful [aqt “[1] This ruling concerns an application for a Norwich Pharmacal di. the sure list order against a corporate registered agency service provider in the TVI. The tw purpose of the disclosure sought is two-fold. First， it is in aid of enforcement of list a number of overseas judgments from superior courts in a civil law jurisdiction. list Secondly， it is in aid of on-going proceedings in another common law jurisdiction. [2] In respect of the pre-judgment disclosure sought， the judgment debtor's list assets were frozen by way of an interim injunction by the overseas court， with list ancillary disclosure orders made to police it， but the judgment debtor breached list those orders. That court's compulsive powers were engaged but to insufficient list effect. The judgment creditor has identified a corporate vehicle registered in the list TVI which appears to belong ultimately to the judgment debtor， containing at list 190329 in the Matter of Arcelormittal US LLC v Essar Global Fund Limited-FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order 34 ```
```html 80. It appears that no proceedings had been commenced in the British 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1
```html 14 The concluding remarks of Tomlinson LJ in NML supps w hantated ...Norwich Pharmacal type relief in aid of execution should available at all， be available only in respect of involvement in conduct assarily amounts to willful evasion of execution. Anything short of the tential to involve the English court in the paralysis or at the serious inhibition of international trade， I am not sure that the ， adds anything other than emphasis to 'evasion'. Tomlinson LJ wort this 1 non-payment of a judgment debt would not be enough to tri is all other t mere orwich Pharmacal jurisdiction (assuming it to exist in supporting" which non) A deliberate effort to obstruct or frustrate enforcement theat has the That undoubtedly constitutes wrongdoing. Inability to pay a judg teas， 1 unfortunate， can occur in good faith. Justice still demand， wild， if it non- judgment debtor satisfy the judgment debt. Tomlinson it debt， is saidi non- payment of a judgment debt as a wrong-and correctly so-oweveigger of non- payment alone is not sufficient to trigger the Norwich Phar of execver fiction. There has to be something sufficiently unconscionable requiror alleged wrongdoer's conduct to trigger what is ultimately a jurisdictional jun reks to do equity. Strategies to obstruct and delay enforcement， on e in the hud， are wrong because they frustrate justice. They work against the hicJ descri of the courts and legal system. Tomlinson LJ's observations oughter， but the taken to imply that the court should be slow to see in a judgment debt act very purp attempt to obstruct or evade settlement of the judgment debt. To the， itort to be court should be astute and robust to see through a judgment debt act s dion w r what they are. A reasonable suspicion of willful evasion suffices： actually the oth 82. Wallbank J then proceeded to consider in far greater detail the poi ， "raised in that case： "The Respondent queried whether this court has jurisdic or's grant Norwich Pharmacal relief post-judgment in aid of execution..." (paragraph it a). His decision was， in effect， that it was obvious that any inequitable conduct (such atiorfully seeking to evade foreign judgments) qualified for Norwich Pharmacal relief. This was a robust finding which assumes that it is not necessary to pigeon-hole complaints of wrongdoing into precise legal categories， consistent with the fundamental aim of the jurisdiction being to "do justice" in all the circumstances of the particular case. 83. His main finding on the post-judgment issue was that the jurisdiction to grant Norwich Pharmacal relief was closely aligned with the jurisdiction to grant other post-judgment injunctive relief， and it was clear that the latter jurisdiction existed. The judge accordingly accepted the following submission： ```
```html 190329 in the Matter of Acelormittal US LLCv Essar Global Fund Limited 37-FSD 2 of 2019 (HK) Ruling to set aside or vary Ex Parte Order ``` ```latex \begin{table} \begin{tabular}{|c|} \hline 190329 in the Matter of Acelormittal US LLCv Essar Global Fund Limited & 37-FSD 2 of 2019 (HK) Ruling to set aside or vary Ex Parte Order \\ \hline \end{tabular} \end{table} ``` ```markdown **[23] The Applicant submits that the leading case on post-judgment disclosure orders is the English Court of Appeal decision in? See disanka party (Europe) AG v Victor Ayela. The Court of Appeal held that veloquen Group which must be satisfied for making a disclosure order against a third party had become 'mixed up' in the transaction concerning which discovery is required and (2) the order for discovery is against the 'mere witness' rule. The Court continued:** In the case of discovery against a third party in and the two cgment Mareva, the mere witness rule can have no relevance to a third will already have taken place. It follows that all the judgment that found jurisdiction is that the third party should have tri Mercantile up in the transaction concerning which discovery isec course, that the court should consider it 'just and c make an order.' Another finding is significant to the question of whether or not it judgment enforcement proceedings have been commenced here become stated: In the present case, as in Ayiela, the Applicant seeks a th closure order to police freezing orders. We are not told in Ayiela wh orders were made at the same time as the freezing orders. IdV. is materi to me not to matter if the freezing orders were made separately further the closure orders. In A.J. Bekhor & Company Limited v Bilton the England, world's Appeal by Ackner. LJ considered that there must be a power inhen the court's statutory power to make all such ancillary orders as appearfire Aish part to be just and convenient to ensure the exercise of the Mareva jurisnme theent ineffective. The Court there traced the power back to section 25 of the Juds to the c of 1873. A.J. Bekhor was a decision made whilst section 37 of what bidiction isompreme Court Act 1981 was still in Bill form. It was also a decision at a relaticay early stage of development of the Mareva jurisdiction. Thus the juridical baeco for the newly articulated jurisdiction called for scrutiny. Ackner. LJ considered that the power to grant ancillary disclosure orders did not derive from the court's inherent jurisdiction, nor from the court's procedure rules, but from statute. Griffiths. LJ agreed, and postulated the position in wide terms. He stated: "If the court has power to make a Mareva injunction it must have power to make an effective Mareva injunction. If the injunction will not be effective it ought not be made. (..) It may be necessary to order discovery to make the injunction effective and I would hold that the court has the power to make such ancillary orders as are necessary to secure that the injunctive relief given to the plaintiff is effective. I therefore agree that a judge does have power to order discovery in aid of a Mareva injunction if it is necessary for the effective operation of the injunction." ```
```html 85. The availability of stand-alone post-judgment freezing injunction against a defendant not subject to the territorial jurisdiction of this Court， established by the Black Swan case in the British Virgin Islands， is (it is well-known) not recognised here： VTB Capital Pic v. Malofe， Universal Telecom Management and Universal Telecom Investment Strategies Fund SPC [2011(2) CILR 420]. However the availability of freestanding pre-judgment injunctive relief in aid of foreign proceedings without the need to commence domestic enforcement proceedings seems to be well recognised under Cayman Islands law： J. Felderhof， I. Felderhof， Spartacus Corporation and Bank of ```
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Further， as it seems to me， the real question is not wha action pleaded in the Ontario proceedings would be justiciass question is whether a judgment against Mr. Felderhof dcorporat real proceedings have been commenced against him in the Cayman Isr. ending in that proceedings could be enforced against him in the Cayman Isl. ending in that amenable to the jurisdiction of the courts of the Cayman Isl. submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was submi? was
```html 86. The existence of this authority, which provides strong indirect and alar Wallbank J's reasoning, may explain why the Defendants did not findings that the jurisdiction to grant injunctions and Norwich Pheral sigorge closely aligned. The critique focussed very narrowly on whether Wallband to mjudament to place as much reliance on N/MZ as he did. Assuming that the post-jubile fourmacdiction must at a minimum be as broad as the pre-judgment position (it shak J was? mind be more readily available)，it puts to bed the notion that it is impermidgment jugere NPO to be used in aid of the WFO granted in the English Proceedings. If a freezulg order may be granted pre-judgment to prevent third parties within the juridissin who control a foreign defendant's assets from disposing of them，it would logically seem to follow that a similar injunction can be granted post-judgment in similar circumstances. If a freezing injunction may be granted post-judgment against parties resident here to prevent them from disposing of a foreign judgment debtor's assets，it would seem to logically follow that Norwich Pharmacal relief can potentially granted to obtain information about past or future asset dissipation activities which the resident third parties have directed or may in the future direct.
However this authority does not entirely undermine the central thesis of Mr Flynn QC，which was，in effect，that seeking to defeat Court orders might well constitute wrongdoing；but seeking to make oneself judgment proof in the absence of any positive ```
```html 88. To some extent Felderhof supports the Defendants' case by demonstrating that it was 89. The real point is that no authority was cited by Mr Flynn QC which here obviously 90. Lord Bingham's observations in Law Debenture Trust Corporation v Urdaio Taspin Oil Corporation Ltd [1995] Ch 152 at 166B-D read in the abstract appear to support the Defendants' thesis that dissipating assets where no judicial restraint is being contravened is not wrongdoing in a legal sense. Mr Weisselberg QC rightly submitted that these remarks arose in an entirely different context. The question was whether the defendant, which had no contractual relationship with the plaintiff, had committed an actionable wrong (interference with contractual relations) by transferring certain shares at a time when the relevant defendant was not subject to a Mareva injunction. The focus of the analysis was the scope of tortious liability in that case. The Plaintiff's Skeleton, as it happens, identified in passing conspiracy as a possible claim. Be that as it may there is no basis for suggesting that the only form of wrongdoing which qualifies for equitable relief is tortious liability. ```
```html 91. The Law Debenture case cannot be read as a debtor's charter legallthe wisal for allpurposes any asset dissipations which do not entail a breach of a freje ithe stinction.Further and in any event， the wrongdoing relied upon here wou， nly o involve deliberate steps to avoid compliance with the ICC Award as enforce ill English Court and the English WFO. This would in my judgment quite clearlegal， not simply moral wrongdoing. 92. One can now turn to NML Capital Ltd v Chapman Freeborn Hold CLC 968 which was central to the UVW decision. An important preld clearly which informs how one should approach the question of what qualified doing appears in the following passage in Tomlinson LJ's judgment in Mustify validati freezing in 93. Other passages suggest that the limits which the English Court of aph 2 anched to place on the parameters of wrongdoing were more concerned with 'upreme' scope of the potential involvement of innocent third parties than in limiting qualifies as wrongdoing altogether： 24. Both Lord Judge in Omar and Lord Kerr in Rug Consolidated Information Services Limited [2013] 1 Union Pharmacal principle - see per Lord Judge at paragraph 12] tues as r Lord Kerr， with the concurrence of the rest of the So of the M. paragraph 15. The essential purpose of the Norwich remedy is of course to do justice - if authority is needed for tby Footblim see per Lord Kerr at paragraph 17." Pharmac 20. 26. It follows that it is important to analyse with what precisely lies the alleged wrongdoing. There is nothi ose rc wrong in chartering an aircraft， unless it be said that any trovor T some lgment debtor which involves using his assets for that pig inher erg thr than satisfying a judgment debt is in itself wrongdoing. How by a fact that proposition. It would lead to a jurisdiction of absurd widharp is no answer to that objection that the exercise of the jurisdiction would be subject to discretionary considerations. It would be absurd and exorbitant if parties were exposed to the risk of having to defend applications for discovery on the basis of no more than having traded with a person who turns out to have been at the relevant time a judgment debtor. It would encourage speculative litigation. 27. The present case is in my judgment completely different from one in which assets are removed from a jurisdiction for no purpose other than to insulate them from execution in satisfaction of a judgment debt. Such a transaction would arguably be in itself for relevant purposes wrongful. So too the transfer of assets between persons or companies ```
```html 94. These observations provide strong support for the proposition that a ence in t ategy of evading execution“would arguably be in itself for relevant purpu air". It is true that these remarks were strictly obiter. In later explaining wa money to Ma case before the English Court of Appeal were far removed from to making, the Tomlinson LJ admittedly expressed himself in non-committal ta ed] judgment Wallbank J was right in UVW to place the reliance on N/Capitoses w macal Chapman Freeborn Holdings Ltd[2013]1CLC968 which he did berate Ayield use in the quoted passage of the word"arguably"reflects the fact that N/Capitoses w applicants need only show that it is arguable that the conduct of whe reply the plain macal amounts to wrongdoing. It is only if a substantive claim for wrong rom wro macal made, be it a claim in equity or tort or indeed a statutory avoidan terms. Bid elu ally macal applicant(like the plaintiff in Law Debenure) will be required to estgdoing is M/ ability of a specific cause of action. As Flaux J held in Ramilos： ce, claim the rwich P 12. What needs to be satisfied in relation to the fiy. ich they a was usefully encapsulated by Poplewell J in the recent A.R.L.v Fiddler[2016]EWHC361(Comm) at[83]c rst condi 83. As the jurisdiction has developed there c[84]. Lo 84. The first condition is that there must ha be td been a wrong carried out. or arguably carried md out, by an ultimate wrongdoer. The wrong may ve be a crime, tort, breach of contract, equitable wrong or contempt of court. It is not necessary to establish conclusively that a wrong has been carried out. it will be sufficient if it is arguable that a wrong has been carried out. The strength of the argument will be a factor in the exercise of the discretion, but an arguable case is sufficient to meet the threshold condition. The wrongdoing must be identified by the applicant at least in general terms： see Ashworth Hospital Authority ```
```html 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants' counsel did not identify any authority which clea ue to the 95. I reject the submission (Defendants' Skeleton, paragraph 44) that it is ruhe ge on the Woolf CJ at paragraph [60]." art sig hati v MGN Limited [2002] 1 WLR 2033 per Lop ang scti vin alr 96. The Defendants
```html 97. In the course of Mr Flynn QC's argument， I made reference to this oan b'fancil's decision in Singularis Holdings Ltd v PricewaterhouseCoopers[ 675 as illustrating in an analogous legal context the need for care about de scope of common law powers. There is again indirect support in this or the proposition that Norwich Pharmacal relief may be sought even w ar that (assuming， of course， that the jurisdiction has not been ousted by the Privy edings the information sought is intended to de deployed only in ov ar that statutory regime for obtaining evidence for use in foreign proceedin is was a case where Caymanian official liquidators sought information frabnSaddle editors subject to the territorial jurisdiction of the Bermuda Court. The Privy's decisio ld(by a majority) that the Bermudian Court possessed a common law pce it isw inpel the production of information， although it was unanimously held it was pr 2015] lianer was unavailable in the circumstances of that case. Lord Sumption (debt to ce avail reading judgment for majority) drew the following parallel between the con the pigs) . Si assist foreign insolvency counts and the Norwich Pharmacal jurisd om formeher ty Councils 21. What is sought in this case， however， is not evidence iction：owe proceedings but information required for the performance rat rensic ordinary duty of identifying and taking possession of assets innmon lawany. In ivering that or R(Omar) v Secretary of State for Foreign and Commonwealth of the liu 20141 OB 112， para 12 the Court of Appeal doubted whether the m of the coe ween evidence and information was helpful， and their doubt was ph Affa ffed in that case， where information was being sought for use in functio for usings But the distinction is of broader legal significance. The council policy crohabr been as inhibited in their willingness to develop appropriate rem... prion the provision of information when a sufficiently compelling legers have raths for it. 22. The classic modern illustration is the jurisdiction recognised by ilp House of Lords in Norwich Pharmacal Co v Customs and Excise Comm... sioners [1974] AC 133. The House， drawing mainly on the earlier decisions in Orr v Diaper(1876) 4ChD 92-25 WR 23 and Upmann v Elkam(1871) LR 12 Eq 140， LR 7 Ch App 130， recognised a common law power to order the production of information about the identity of a wrongdoer where the defendant had been involved， even innocently， in the wrong. Such an order， as they recognised， would not have been available to compel the giving of evidence， because of the long-standing objection of courts of equity to a bill of discovery against a "mere witness"： see， in particular， pp 173-174(Lord Reid) . In Smith Kline and French Laboratories Ltd v Global Pharmaceuticals Ltd[1986] RPC 394， the Court of Appeal in England applied the same principle to information about the identity of a wrongdoer outside the jurisdiction. These decisions were founded not on ```
```html 98. Further indirect support for the proposition that, apart from the statutory remedies under the Evidence Order, there is no general of 1901 the principle to granting equitable relief in aid of foreign proceedings or in Flaux availaiaforeign wrongdoing may be found in Ramilos Trading Limited-v-Buyang 896. Reviewing the history of the Norwich Pharmacal jurisdiction relation follows: 68. Nevertheless, for some thirty five years after the Westinghouse case, it seems to have been accepted that Norwich Pharmacal relief would be available in aid of actual or anticipated foreign proceedings, in the same way as in relation to English proceedings, without the 1975 Act imposing any sort of impediment. Thus, in the Court of Appeal decision of Smith Kline & French Laboratories Ltd v Global Pharmaceutics [1986] RPC 34， the defendants were marketing the plaintiffs' drug manufactured by the plaintiffs' Spanish patentee which only had permission to market in Spain, not elsewhere. The appeal concerned that part of the judge's order which required the defendants to disclose， pursuant to the Norwich Pharmacal jurisdiction， the names and addresses of their suppliers and all documents relevant to the supply， to enable the plaintiffs to sue in a foreign court， in Spain or another E.U. country. The 190329 in the Matter of Arcelor Mittal US LLC v Essar Global Fund Limited-FSD 2 of 2019 (HK) Ruling to set aside or vary Ex Parte Order ```
```html Summary of governing legal principles 99. In my judgment it is ultimately clear that Norwich Pharmacal relief Massac respect of foreign wrongdoing including evading foreign enforcer! itself? circumstances where no local enforcement proceedings have been statutory machinery for obtaining evidence for use in foreign proc engaged to such an extent as to oust the equitable jurisdiction alten additional requirement for the Norwich Pharmacal applicant to wrongdoing complained of has occurred or will in the future likely can be than without the jurisdiction. It has never been doubted that in establishment Fns the equitable jurisdiction can in principle be invoked in support of wrour witcomm to which relief is being or may be sought abroad. 100. This conclusion might perhaps be supported in part on a far simple which was admittedly not canvassed in argument. Grand Court La section 11A provides as follows: “114.(1) The Court may by order appoint a receiver or & relief in relation to proceedings which- (a) have been or are to be commenced in a court out and (b) are capable of giving rise to a judgment which the Islands under any Law or at common law.” 101. A Norwich Pharmacal Order is very arguably a form of interim relief analogous to an interim injunction which Parliament has provided may be granted in aid of foreign proceedings, provided that the foreign proceedings“are capable of giving rise to a judgment which may be enforced in the Islands”. A foreign arbitral award can be enforced as a judgment in the Cayman Islands. I leave the effect of section 11A of the Law on the Norwich Pharmacal jurisdiction open for determination in future cases. ```
```html Findings：does wilful evasion of a foreign award or judgment qualify a for Norwich Pharmacal purposes? 102.The Plaintiff in the present case can accordingly seek and obtain r 103.In the present case AMUSA focussed on historic dissipation but i 104.Accordingly， seeking Norwich Pharmacal relief grounded upopos 105.Had I found that a requirement of wrongdoing within the jurisdict 106.In summary， I find that the deliberate steps to avoid enforcement of the ICC Award ```
```html Findings：was the NPO too broad in scope，seeking more than informat strictly necessary? The NPO and the Information and Documentation Requests 107.The NPO firstly provided as follows： 4.Each Defendant shall within 72 hours of service of this Or ile and serve on the Plaintiffs attorneys an affidavit providing of its knowledge，information，and belief the following information upon (a)Where information and/or documentation relat of the matters set out in paragraphs 4(a) to (d) of Schedule 4cated， whether that information and/or documentation are ing to adenstody or in the possession of someone else. (b)Where that information and/or documentati in the possession of someone else，the name，current ac are tile B at contact details of that person. (c)The information set out in paragraph 5 of Schedule file 5.Each Defendant shall within 21 days of service of this Cle B. on d serve on the Plaintiffs attorneys an affidavit providing idr of its knowledge，information，and belief，full information as to the matters set out in paragraphs 4(a) to (d) of Schedule B to this Order.Ins of to as any Defendant is unable to provide full particulars of those matters，that Defendant shall： a.Provide such particulars as it is able to provide to the best of its knowledge，information，and belief，and b.Identify and give the contact details of any other entity or individual who it believes may be able to provide information of such matters. 6.If the provision of the information required by paragraphs 4 or 5 above is likely to incriminate a Defendant it may be entitled to refuse to provide it ```
```html Disclosure of documentation 7. Each Defendant shall within 14 days of service of this C Plaintiff's attorneys copies of the documentation (whether electronic format) evidencing or relating to any of the to have paragraphs 4(a) to (d) of Schedule B to this Order. 8. The First Defendant shall within 14 days of service of th tion is co provide to the Plaintiffs attorneys a copy of the document(s) showi order prominent and/or resignation of any person who has been its director in har e 2008 to the date of the service of the Order on it. 9. The Second Defendant shall within 14 days of service of provide to the Plaintiffs attorneys a copy of the document(s) Order per the appointment and/or resignation of any person who hang the ap, mirector from 22 March 2013 to the date of the service of the Orni(s) short f is been it 108. The specific categories of information sought were set out in Sched it. provided as follows: “Information and documentation required to be provided ule B, wh der on 4. The matters in respect of which information and docum e to be provided. (a) Any direct or indirect disposal of Essar Steel refluor sets to related parties from 1 January 2012 to the date hereby, Lin (b) Any disposal of Essar Steel Limited's assets at an underlaye from 1 January 2012 to the date hereof; (c) What has become of such assets as described in 5(a) and (b) above; (d) The identity, location and extent of Essar Steel Limited's assets as at the time the Order is served; where the asset has or at the time of the disposal had a value of more than US$250，000； and 5. The identity, current address and contact details for each and every person who has been a director of. ```
```html 109. Schedule B set out non-exhaustive definitions for three key terms “related parties”，and(c)“transactions at an undervalue”. Apart ments made to the definition of“assets”on January 16， 2019 primarily to “Essar Steel”instead references to“the Defendant”，the NPO's defe time the followed the form of those contained in the corresponding Order n the Order Proceedings. 110. As regards the scope of the information requests contained in the NPo from amplants complained that they were far too broad and failed the proportion，ref cause they were oppressive. The categories of information were concis 1 and initially appeared to me on their face to be proportionate. It was oy test nade nseent inter parties hearing that detailed attention was focussed on the pr requests from a compliance perspective， and the necessity for the l covered by the requests. 111. It is also necessary to appreciate that paragraph 3 of the NPO y enuieion of Documents") prohibited the Defendants from destroying， deletin only at the required them to preserve“any document... relating to any of the mum("Preservified in paragraphs 4(a) to(d) of Schedule B to this Order". So the scope 5 or alteration the Defendants were required to produce mirrored the scope of thers it Defendants were required to preserve. The Defendants' evidence 112. The Defendants(in their Skeleton) relied primarily upon the Second St of'tl Affidavit sworn on February 4， 2019 and the Fourth Riish Door biz Affidavit orn on February 11， 2019 in support of their case that compliance with the NPO as presently formulated would be oppressive. From the Second Baid Affidavit(supported by the Second Door biz Affidavit)，prepared for the first return date of January 31， 2019， it was apparent that the Defendants had adopted the well-advised approach of： (a) agreeing in principle to comply with the preservation portion of the NPO and engaging Ernst and Young to image various servers and devices； and (b) seeking more time for compliance due to the extensive nature of the requests. ```
```html 113. On January 31， 2019， it was clear that the Defendants would be of son o a handing over most documents until the merits of the Order had directed that production of the main categories of documents would after the present application had been determined. The Second substance explained the logistical difficulties of identifying location documents through electronic searches and the overly broad times Third and Fourth Baid and Third and Fourth Doorbiz Affidavits also been cha on further document locations， prompting AMUSA to complain (es be nom of their costs application) that a deliberately obstructive approach. Af been adopted. 114. The Fourth Baid Affidavit (supported by the Fourth Doorbiz As invor following additional complaints： 115. The difficulty in identifying electronic documents because diffe mind 116. But， despite having initially approved the temporal scope of the NPO， the most serious complaint seemed to be the challenge to the necessity of reaching back for so many years. This spoke to both proportionality and the risk of oppression. AMUSA had not sought freezing orders at the commencement of the arbitration process and had not identified through expert evidence specific avoidance actions which might be available to it under Mauritian law. Instead， reliance was placed on the broad assertion that since asset dissipation appeared to have been going since the beginning of the parties' commercial relationship， historic information covering that entire period (and beyond) was reasonably required. ```
```html 117. The Third Affidavit of Anya Park did not respond to the timescale 118. In addition to generalised complaints about the timescales for 119. I indicated in the course of argument that I rejected one limb of the 120. Mr Weis sel berg QC responded with considerable force to his opponent's oral critique ```
```html 121. Neither the Affidavits， the respective Skeleton Arguments nor co the Fids， information” to enable the Plaintiff to determine whether wife p/oc to submissions， so far as I recall， addressed the need for separate ont so uncldevade proportionality of the time periods covered by the following discr of the NPO： (a) paragraph 3("Preservation of documents")； lire al in (b) paragraph 4("Provision of information") ly sul steps 122. This was a framing of the issues which did not suit the tactical inte te aspect and was one which I only adverted to having reserved judgment. It ari uus ei and context in which the Defendants appeared to me to focus their ef ea nant est difficult legal points6 which potentially delivered a knockout blo out of ever ly balancing a responsibly cooperative approach to document production. The Plaintiff focusses more NPO in its entirety， adroitly combining legal arguments on the rest of ei robust assertions that the Defendants' obstructive conduct should be penalid on uph ces robust 123. The First Nouroozi Affidavit explained the basis of the present proco， while the mer is wifor heading "Information and Disclosure Order"(paragraphs 38-48) at / ation wid ness mer is wifor the Information Preservation aspect of the Order at all. The First No ceedings avit in mer is wifor the English Proceedings appears to deal with the "Informatic aul nka ament mer is wifor Preservation Orders" together on the basis that the Preservation Orozi Aised in ght in mer is wifor order to prevent the purpose of the Information Orders "being frus ked in an graph mer is wifor 191). There was no convincing rationale advanced for the temporal the cler s we NPO mer is wifor (as regards directors， narrowly， and information more broadly) which trated"(nu mer is wifor in question with the legally applicable requirements of necessity scope of uro text of mer is wifor seeking to identify suspected wrongdoing (as opposed to proving a claim). mer is wifor Findings： is the temporal scope of the NPO impermissibly broad? in 124. I find that the temporal scope of the NPO can only be sensibly considered on the in assumption that the same purposes are served by paragraphs 3 and 4 of the NPO， in without prejudice to the Plaintiff's right to apply for a freestanding Preservation Order in in aid of any substantive avoidance actions it may decide to initiate. Without deciding in the point， the jurisdiction to grant such relief would seem to be closely aligned to the in Mareva injunction jurisdiction， in its pre-judgment and post-judgment forms. in 6 The complexity of the legal points which emerged in oral argument were somewhat masked by their concise in formulation in truly skeletal written submissions. in 190339 in the Matter of Arcelormittal US LLC v Esso r Global Fund Limited-FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order 54 ```
```html 125. Accordingly， I am bound to conclude that justice requires the ten NPO to be narrowed so as to commence on March 1， 2015， approx before the most significant suspect transfer made at a time when the very arguably have been aware that Essar Steel had substantial if a Agreement. The nature of the present application is that the Plaintiffs precisely what application might be brought in what jurisdiction is know what cause of action with what limitation period it may pursue is what wrong doing are vindicated. It has the right to enforce the Award and England and Wales， and may soon have a similar right in Mauritius imately si ed that it is not legally required for AMUSA， at this juncture， to adduce pre Defend of transactions which the information it seeks under the NPO may just not iporal sce such transactions which the information it seeks under the NPO may just not iporal sce such 126. Requiring the Defendants to produce information over a period of in Minny years preceding the date when the ICC Award (December 19， 2017) was um satiabili the Plaintiffs is in my judgment sufficiently proportionate to meet the fivev does tour of in the Norwich Pharmacal context. The longer period initially orderde in to seconally support an Information Preservation Order in aid of a substantived ofify. I claim， assuming it is legally possible to grant such relief. But where the I information to enable it to decide whether or not to bring a claim just under site be a fundamental distinction between information which is necessary to a plaintiff i ma limited purpose and information which would more broadly be relevant and e n in the context of future substantive asset recovery proceedings. Findings： are the terms and scope of the NPO otherwise too broad? 127. Paragraphs 4-5 of the Order deal with the Provision of Information' paragraphs 4(a)-(d) of Schedule B. The Defendants are required ( service of the Order) to： “...file and serve on the Plaintiffs attorneys an affidavit pro the best of its knowledge， information， and belief， full information as to the out in paragraphs 4(a) to (d) of Schedule B to this Order. Insofayvis any Defendant is unable to provide full particulars of those matters， that Defendant shall： (a) Provide such particulars as it is able to provide to the best of its knowledge， information， and belief； and (b) Identify and give the contact details of any other entity or individual who it believes may be able to provide information of such matters." 128. Doubt has admittedly been cast on the theoretical value of the distinction between the terms "information" and "evidence" in the Norwich Pharmacal context. see e.g. Omar at paragraph 12； Singularis at paragraph 142 (Lord Mance). That can have no bearing on the ability of the Defendants， with the benefit of legal advice， to understand what 190329 In the Matter of Arcelor Mittal US LLC v Essar Global Fund Limited-FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order 55 ```
```html 129. The complaint made in the Fourth Baid Affidavit at paragraph 13 al ad a valu 130. Another issue which was not addressed， as far as I could discern， in great detail was the ndirect 131. The bare argument that $250， 000 is too low a threshold for providing information and documents is rejected. The Defendants have adduced no evidential support for the 132. proposition that the number of transactions likely to be involved is oppressive. ```
```html 132. I also reject the complaint made in the Fourth Baid Affidavit(paragraph 23(2)) that there "may be many companies with no obvious connection to an indirect disposal would clearly include, as the Plaintiff argued, a disposal which need to be included" confirms rather than undermines the application of the third party which then transferred it to a related party. More precisely, the connection had to be considered, without suggesting any alternative ordering which could be used. The Defendants' submission (Skeleton Argument 2 of Schedule B to the NPO is sufficiently clear in all the circumstances of the present form of Order. In my judgment the definition of "related party" in the form of the case. 133. Complaint is also made that the Order will require analysis with Excel has even a substantive enforcement proceeding. Bearing in mind that transaction was not just gratuitous transactions or transactions at an undervalue which must unimpru 134. Subject to the Plaintiff having liberty to apply to seek extended discovery in aid of the WFO, if so advised, I would accept that the discovery should at this stage be limited to assets transfers to related parties which have resulted in or contributed to a net reduction in Essar Steel's assets over the period (as modified by this Ruling) covered by the NPO. Schedule B paragraph 4(a) should accordingly be amended by adding the following words (or language to like effect) at the end of the sub-paragraph: "which has resulted in or contributed to a net reduction in Essar Steel's assets". 135. If the NPO is amended in this respect, paragraph 4(b) will likely take on less significance although its ambit would not be precisely the same as the modified paragraph 4(a). I reject the complaint that the term is unclear in any event. Mr. Flynn ```
```html QC queried why the Plaintiff suggested the obvious source of a defin un/c/has lac “undervalue” was to be found in the English Insolvency Act, but di aint fo there was any material difference to the concept under Cayman Isla， to di none. Section 146(1) (e) of the Companies Law defines “undervalual obligat here is company's property as： (i) the provision of no consideration for the disposition of the property as (ii) a consideration for the disposition the value of whic monies worth is significantly less than the value of which is the subject of the disposition.” Summary of findings on application to set aside or vary the NPO 136. The Defendants' submission that the Court had no jurisdiction to grant the NPO because section 5 of the FAAEL required local enforcement to enable the Plaintiff to rely on the ICC Award is summarily rejected. 137. The Defendants' further and far more substantive submission that the Court had no jurisdiction to grant the NPO because the relevant equitable jurisdiction has been displaced by statutory regime applicable to obtaining evidence four the NPO reign proceedings is ultimately rejected. This was a point that had not seemed to be directly considered before under Cayman Islands law. The Evidence Order Plr use in ed in all the circumstances of the present case because， inter alia， the relief been included (a) the preservation of documents， and (b) information needed to enable the Court to determine whether the suspected wrongdoing has in fact occurred and to seek appropriate relief. Norwich Pharmacal relief was necessary to present a substantive claim and so the usual method of obtaining evand， if so， ngle on foreign proceedings was not in real world terms available. 138. The Defendants' alternative submission that wilfully evading a foreign arbitral award or judgment does not qualify as wrongdoing (so that that this Court had no jurisdiction to grant Norwich Pharmacal relief) is also rejected. Equitable relief may be given in aid of foreign claims and a sufficient jurisdictional connection with the Cayman Islands exists since the Defendants are domiciled here. 139. The Defendants' further alternative submission that the NPO should be set aside or varied because it is oppressive and overly broad is rejected in part and accepted in part. Subject to hearing counsel on the form of the Order， the NPO is varied to the following extent： (1) the date "March 1， 2015" is substituted for the date now set out in paragraph 4(a) and (b) of Schedule B； 190329 in the Matter of Arcelor Mittal US LLC v Essar Global Fund Limited-FSD 2 of 2019 (UK) Ruling to set aside or vary Ex Parte Order58 ```
```html Costs 140. The Plaintiff sought the costs of the January 31， 2019 hearing and hearing on the grounds of the Defendants' obstructive and unreasonable con lure to comply with the NPO. The usual costs rule is that the Norwich Pl follow he applicant he respondent and may only obtain costs from the innocent party who opposes the application unreasonably. In cal n Essar S nt the appropriate approach is to reserve the costs of the inter parties hearing ( costs after the NPO has been substantially complied with and/or it pl the rac al with costs should be allocated based on the hypothesis that the Defendant and it third parties. The Defendants' conduct to date has not been so unreasonably clear harmful justify making an adverse costs order at this stage taking into account， inre inn ncle wo) their irre cooperation with the preservation aspects of the Order and (b) the my judg ue core foundation of the application is that the Plaintiff is presently unabl gs and to due core wrongdoing against the Defendants. e fact that is able as particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular particular 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