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In the context of economic and trade globalization, Vietnamese enterprises are increasingly engaged in cross-border transactions. However, the rapid advancement of digital technology, coupled with the borderless nature of modern commerce, has made international fraud more sophisticated, organized, and difficult to control.
As a result, the number of civil lawsuits involving cross-border fraud has been steadily rising, creating an urgent need for legal systems to timely and effectively apply measures to gather evidence, trace and freeze assets, and protect the legitimate rights and interests of affected parties.
Against this backdrop, understanding and effectively utilizing legal tools for litigation support is critical to ensuring the legitimate rights of the injured party and other relevant stakeholders, particularly in the recovery of misappropriated assets.
Vietnam law firms play a pivotal role in guiding domestic businesses through these tools, especially when engaging in cross-border dispute resolution.
This article introduces Vietnamese businesses to several legal mechanisms widely recognized and applied in common law jurisdictions, such as the United Kingdom, the United States, Singapore, and Hong Kong. These tools include:
- Bankers Trust Orders,
- Freezing Orders (Mareva Injunctions), and
- Passport/Travel Orders.
Each has been developed through litigation practice to combat cross-border financial fraud and can be studied and potentially applied within Vietnam’s existing legal framework.
Third-Party Disclosure Orders
Norwich Pharmacal Order
A Norwich Pharmacal Order is a court order requiring a third party to disclose information when it is demonstrated that the third party holds information necessary to identify a wrongdoer, trace assets, or support legal claims related to ownership rights.
The aim of the order is to compel the third party to provide relevant documents or information to enable the applicant to bring a legal claim or initiate proceedings against individuals who have violated their legal rights or interests. The applicant does not need to have a firm intention to initiate proceedings at the time of applying for the order. However, the court will not permit the use of this equitable relief as a “fishing expedition,” nor allow the disclosed information to be used for improper purposes.
Norwich Pharmacal Orders are widely used in the UK, Ireland, Australia, and Canada.
To be granted a Norwich Pharmacal Order, the applicant must satisfy the following criteria (as articulated by Justice Saini in Collier v Bennett [2020] EWHC 1884 (QB)):
- The applicant must show a “reasonable basis” for alleging that a legal wrong has been committed against them by an identifiable person;
- The respondent must have been involved—knowingly or unknowingly—in facilitating or assisting in the wrongdoing;
- The respondent must be in possession, or likely possession, of documents or information necessary to establish the identity or liability of the wrongdoer;
- Disclosure must be proportionate and appropriate in the overall context of the case.
Bankers Trust Order
A Bankers Trust Order is a civil court order compelling banks or financial institutions to disclose account information of a defendant or other related parties in civil proceedings, typically involving fraud, embezzlement, money laundering, or other financial misconduct.
The term originates from the landmark case Bankers Trust Co v Shapira (1980) in which an English court for the first time allowed a party to obtain banking information of another to trace misappropriated assets.
The purpose of a Bankers Trust Order is to assist the plaintiff in identifying and tracing lost or misappropriated assets, while also preventing asset dissipation by allowing swift access to banking information.
Bankers Trust Orders are widely used in the UK and Hong Kong, whereas the United States relies on subpoenas for a similar function.
To obtain a Bankers Trust Order, the applicant must present clear and specific evidence of fraudulent conduct by a bank’s customer. The court must be reasonably satisfied that:
- The assets in question rightfully belong to the claimant;
- The claimant has been fraudulently deprived of these assets;
- Delay may result in dissipation of the assets before adjudication.
Additionally, the court will consider whether the requested information would help the claimant identify, locate, or preserve the assets they claim ownership over.
Freezing Orders / Mareva Injunctions
Mareva Order
A Mareva Injunction (also known as a Freezing Order) is an interim emergency measure issued by a court to freeze a defendant’s assets during civil proceedings.
Its primary purpose is to preserve the integrity of judicial proceedings by preventing the defendant from dissipating assets, thereby ensuring the enforceability of a judgment should the claimant prevail.
This order is not a form of compensation nor does it transfer ownership of the defendant’s property to the claimant. It is a procedural safeguard preventing the defendant—whether innocent or with prima facie evidence of fraud—from removing or transferring assets beyond the court’s jurisdiction.
A key feature of the Mareva Injunction is that it may apply to a defendant’s assets regardless of their direct connection to the dispute at hand.
However, if such an order is granted, the claimant must undertake to compensate the defendant for any damage caused should the claim ultimately fail. This is known as a “cross-undertaking in damages.”
Mareva Orders are widely and effectively applied in jurisdictions such as the UK, Hong Kong, and Singapore.
When considering whether to grant a Freezing Order, courts will evaluate the following conditions:
- Whether there is a genuine and substantial dispute requiring adjudication;
- Whether monetary damages would suffice if the injunction is denied but the claimant later prevails;
- Whether the issuance of the order strikes a fair and proportionate balance in the circumstances.
Chabra Order
A Chabra Order is a specific type of Freezing Order, named after the case TSB Private Bank International SA v Chabra [1992]. It allows a court to freeze assets held by a third party who is not a named defendant in the proceedings—provided there is evidence that the assets effectively belong to the defendant.
Its purpose is to prevent defendants from evading enforcement by transferring assets to third parties such as relatives, shell companies, or offshore accounts.
To obtain a Chabra Order, the applicant must demonstrate:
- A reasonable belief that the assets held in a third party’s name are, in fact, owned or controlled by the defendant;
- A real risk that the assets may be dissipated to frustrate future enforcement;
- That freezing the third party’s assets is necessary, proportionate, and fair in the circumstances.
Passport / Travel Orders
A Passport or Travel Order is a temporary court measure aimed at preventing a party from leaving the country, particularly in cases involving attempts to evade legal obligations, hide assets, or obstruct investigation and judicial proceedings.
This measure is often paired with other protective actions such as Freezing Orders or Restraining Orders, with the goal of ensuring effective enforcement of future judgments.
Given that the right to freedom of movement is a fundamental civil liberty, travel restrictions are a sensitive legal tool and are only granted when there is clear and specific evidence of a real and present risk of flight that could materially impair litigation. Excessive or improper use of such orders could constitute a violation of human rights and undermine the fairness of the judicial process.
Conclusion
In today’s era of rapid globalization and digitalization, cross-border fraud has become not only widespread but also a significant legal challenge for individuals, businesses, and judicial institutions alike.
As illustrated above, common law jurisdictions have developed a range of innovative and effective litigation tools to address this evolving threat. Equipping Vietnamese businesses with a foundational understanding of these instruments enhances their ability to manage risks in international transactions and respond promptly when their rights are infringed abroad.
Furthermore, these practices offer valuable insights for Vietnam’s ongoing civil procedure reform—toward a system that embraces universal principles of justice, effectiveness, and asset protection.
ASL Law is a leading full-service and independent Vietnamese law firm made up of experienced and talented lawyers. ASL Law is ranked as the top tier Law Firm in Vietnam by Legal500, Asia Law, WTR, and Asia Business Law Journal. Based in both Hanoi and Ho Chi Minh City in Vietnam, the firm’s main purpose is to provide the most practical, efficient and lawful advice to its domestic and international clients. If we can be of assistance, please email to [email protected].
ASL LAW is the top-tier Vietnam law firm for litigation and dispute resolution. If you need any advice, please contact us for further information or collaboration.
