THE CHANCELLOR’S REACH: A SUBSTANTIVE EQUITY APPROACH TO EXPANDING PROVISIONAL ASSET FREEZES IN TRANSNATIONAL CASES

The principle that federal courts exist to provide remedies rather than to vindicate abstract interests is firmly rooted in American jurisprudence and continues to animate doctrines of federal court jurisdiction. But remedies are elusive. Even executing on a money judgment, which is simple enough in principle, has been complicated by technologies that allow judgment debtors to conceal their assets quickly and effectively.

This Note argues that federal courts are falling behind developments in capital mobility because they have been constrained by an irrational and unnecessarily narrow view of equity. Since 1999, federal courts have been unable to enjoin litigants from transferring their assets pending the outcome of litigation, subject to narrow exceptions and work-arounds. By examining provisional relief in transnational litigation, this Note exposes the consequences of the Supreme Court’s limited view of equity and proposes an avenue for developing effective provisional relief under the Court’s precedents. By doing so, it contributes to the growth of academic engagement with substantive equity and its potential to reshape domestic law.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. 2026, Columbia Law School. University of Oxford, M.Sc.; University of Cambridge, MPhil. Managing Editor, Columbia Law Review. Thanks very much to Professor George Bermann for advising this Note and for his invaluable guidance. I am also incredibly grateful to Daniel Listwa, whose insight and suggestions improved this piece immensely. This Note, like all of my other work, is dedicated to my family. I owe everything to their sacrifices. See Gregory A. Prince, “There Is Always a Struggle”: An Interview With Chieko N. Okazaki, Dialogue, Spring 2012, at 112, 139 (“My mother taught me another principle: on. It meant that you felt gratitude and recognized your obligation to someone who had helped you.”); see also Chieko N. Okazaki, Being Enough 29, 32 (2002) (“[A]n old family proverb comes from my mother, who used to tell us . . .‘Begin well and do not fear the end.’ . . . Think about planting trees and sowing seeds, even though the world, or your personal world, seems to be ending.”).

Introduction

In 1999, the Solicitor General attempted to persuade the Supreme Court that the ability to provisionally freeze assets was essential “in an age of easy global mobility of capital.” 1 Brief for the United States as Amicus Curiae Supporting Respondents at *16, Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308 (1999) (No. 98-231), 1999 WL 86498. At that time, capital’s ability to permeate national borders had been so revolutionary that it marked a rupture in the concept of territorial sovereignty. 2 See Michael Hardt & Antonio Negri, Empire 310 (2000) (“The world market both homogenizes and differentiates territories, rewriting the geography of the globe. Still . . . on a level that is often subordinated to the power of the transnational corporations, reside the general set of sovereign nation-states . . . .”); Steffen Murau & Jens van’t Klooster, Rethinking Monetary Sovereignty: The Global Credit Money System and the State, 21 Persps. on Pol. 1319, 1326 (2022) (“The concept of sovereignty that today informs international law is a conception of state sovereignty that focuses on the right of states to exercise power over a territory without interference from other states.”). Those trends have only accelerated since 1999. Today, capital is more mobile and intangible than ever. In 2024, an estimated $194.6 trillion flowed across national borders—a figure expected to rise to $320 trillion by 2032. 3 2025: Navigating the Cross-Border Payments Evolution, J.P. Morgan (Sep. 9, 2025), https://www.jpmorgan.com/insights/ payments/fx-cross-border/2025-trends-for-financial-institutions [https://perma.cc/Y9KL-UHEX]. Crimes such as money laundering and drug trafficking have profited from this mobility, 4 See U.S. Dep’t of Treasury, 2024 National Money Laundering Risk Assessment 96 (2024), https://home.treasury.gov/system/ files/136/2024-National-Money-Laundering-Risk-Assessment.pdf [https://perma.cc/9TVZ-SYTW] (“A number of recent money laundering threats and vulnerabilities have become more significant and pernicious over the past two years. For example, criminals, scammers, and illicit actors are increasingly using virtual assets and digital peer-to-peer payment systems to engage in fraud and other crimes.”). For materials examining the increasingly transnational nature of such crimes, see Yury Fedotov, Remarks at the OSCE Mediterranean Conference Event on “Links Between Drug Trafficking, Organized Crime and Terrorism in the Mediterranean Region”, UN Off. on Drugs & Crime (Oct. 24, 2017), https://www.unodc.org/unodc/en/speeches/2017/osce-links-241017.html [https://perma.cc/N7EP-ELY2] (“The cross-border nature of organized crime provides potential avenues for these groups to cooperate where they share interests, and crime presents a number of potential revenue streams for terrorist groups.”); see also Yashasvi Chandra, Illicit Drug Trafficking and Financing of Terrorism: The Case of Islamic State, Al Qaeda and Their Affiliate Groups, 14 J. Def. Stud. 69, 69 (2020) (“Over the years, major transnational terrorist groups have emerged as big actors in controlling the network of the illicit drug trade.”). while the proliferation of cryptocurrency, an explicitly anational means of holding and transferring assets, 5 See Duncan Smith, Money Laundering, Terrorist Financing and Virtual Assets 57–58 (2024) (defining cryptocurrency and exploring its relationship with national regulation and law enforcement); see also Jason Scharfman, The Cryptocurrency and Digital Asset Fraud Casebook 1–2 (2023) (defining cryptocurrency and citing estimates that, “[a]s of April 2021 . . . the value of the crypto markets is over $2 trillion”). threatens traditional means of policing. 6 Christina Parajon Skinner, Coins, Cross-Border Payments, and Anti-Money Laundering Law, 60 Harv. J. on Legis. 285, 301–11 (2023) (describing the role of banks in preventing terrorist financing and money laundering); see also Chandra, supra note 4, at 72 (“Following the guidelines issued by a majority of countries, banks and other financial institutes adopted comprehensive regulatory measures to curtail money laundering.”). In 2024, “pig butchering” schemes involving cryptocurrency provoked international alarm 7 See, e.g., Lars Daniel, The Alarming ‘Pig Butchering’ Cyber Scam Costing Victims Billions—Are You at Risk?, Forbes (Oct. 30, 2024), https://www.forbes.com/sites/larsdaniel/2024/10/30/this-halloween-beware-the-pig-butcher/ [https://perma.cc/4MQM-AH3L] (last updated Dec. 18, 2024) (explaining that “[p]ig butchering is a social engineering scam that combines elements of trust-building and fake investment opportunities” which often involves crypto); ‘Pig Butchering’ Scam: How China’s ‘Broken Tooth’ Stole Over $75bn From Global Investors Using Crypto Currencies, Econ. Times, https://economictimes.indiatimes.com/news/international/global-trends/pig-butchering-scam-how-chinas-broken-tooth-stole-over-75-bn-from-global-investors-through-crypto-currencies/articleshow/116791522.cms?from=mdr [https://perma.cc/87XM-E3EB] (last updated Dec. 29, 2024) (describing the scam and its relationship to human trafficking); Last Week Tonight, Pig Butchering Scams: Last Week Tonight with John Oliver (HBO), at 3:27–3:34 (YouTube, Feb. 29, 2024), https://www.youtube.com/watch?v=pLPpl2ISKTg (on file with the Columbia Law Review) (“[I]f you are thinking, ‘this seems like the kind of scam that’s been around for decades,’ that is partially true, but the way this one works is fairly new . . . .”). and produced a great deal of litigation. 8 See, e.g., Cohn v. Popescu, No. 1:24-CV-00337, 2024 WL 4525500, at *1 (E.D. Tex. Sep. 13, 2024) (“[Plaintiff] alleges that he has been the victim of what is known as a ‘pig-butchering scam.’”); Harris v. Upwintrade.com, No. 1:24-CV-00313, 2024 WL 4920599, at *4 (E.D. Tex. Sep. 5, 2024) (“[T]he Harrises have provided evidence that the Defendants intentionally deceived them and misappropriated their assets in what appears to have been an intentional pig-butchering scam.”); Song v. Doe, No: 6:24-cv-809-JSS-EJK, 2024 WL 4632242, at *1 n.1 (M.D. Fla. Aug. 19, 2024) (“Plaintiff asserts that she is the victim of what is colloquially known as a ‘pig butchering’ scam.”); Richter v. KRG Trading, Inc., No. CV 24-03622-MWF (SKx), 2024 WL 3050812, at *2 (C.D. Cal. May 28, 2024) (“Plaintiff alleges that Defendants participated in a romance and investment scheme known as ‘pig butchering.’”). In the face of such developments, the law has lagged behind. Unpersuaded by the Solicitor General’s argument, a slim majority of the Supreme Court hamstrung federal courts’ ability to fashion provisional remedies capable of keeping apace with accelerating asset mobility. 9 See infra Part II.

As the mobility and intangibility of capital increases, 10 See S. Nathan Park, Equity Extraterritoriality, 28 Duke J. Comp. & Int’l L. 99, 140 (2017) [hereinafter Park, Equity Extraterritoriality] (“Modern capitalism continuously generates more types of intangible properties of ever-greater dollar amount and ever-greater level of abstraction. The days when intangible properties were mostly debts, shares in a corporation, and simple forms of intellectual property, are firmly behind us . . . .”). so too the exigency of reexamining provisional relief. The temptation of frustrating final judgments directly correlates with the ease with which litigants can transfer assets beyond a court’s reach, 11 See Janis Sarra, Stephan Madaus & Irit Mevorach, Chasing Assets Abroad: Ideas for More Effective Asset Tracing and Recovery in Cross-Border Insolvency, 32 Int’l Insolvency Rev. 253, 256 (2023) (“At the touch of computer keys, assets can be shifted through multiple jurisdictions within minutes, creating significant challenges for insolvency professionals and creditors to trace and recover the value for creditors of the insolvent debtor.”); cf. Grateful Dead, Friend of the Devil, on American Beauty (Warner Records Inc. 1970) (“I ran down to the levee[,] but the devil caught me there[.] [H]e took my 20-dollar bill and vanished in the air.”). and it is patently impossible to imagine an effective system of litigation that allows a defendant to freely dissipate their assets or otherwise render themselves judgment-proof. 12 See David Capper, The Need for Mareva Injunctions Reconsidered, 73 Fordham L. Rev. 2161, 2179 (2005) (“[A] lawyer is hired not merely to go to court and win the case. [They] must also collect the debt. Enforcement is everything.”). Effective provisional relief is accordingly vital. Asset-freeze injunctions are a particularly attractive provisional measure because “claimants can protect their potential judgments . . . when the location of assets against which judgment may be enforced is not a game of hide and seek.” 13 Id. at 2161. In other common law jurisdictions, these injunctions are known as Mareva injunctions, interlocutory orders freezing a defendant’s assets to prevent their dissipation, 14 See Kern Alexander, The Mareva Injunction and Anton Piller Order: The Nuclear Weapons of English Commercial Litigation, 11 Fla. J. Int’l L. 487, 488 (1997) (“The purpose of the Mareva injunction is to prevent the defendant from dissipating or disposing of assets by removing them from or within the jurisdiction in a manner that would frustrate a potential judgment.”). This instrument draws its name from the case which created it. See Mareva Compania Naviera S.A. v. Int’l Bulkcarriers S.A., [1980] 1 All E.R. 213 (C.A. 1975); George A. Bermann, Provisional Relief in Transnational Litigation, 35 Colum. J. Transnat’l L. 553, 560 (1997) (describing the injunction’s history). For a further discussion of Mareva injunctions, see Rhonda Wasserman, Equity Renewed: Preliminary Injunctions to Secure Potential Money Judgments, 67 Wash. L. Rev. 257, 336–48 (1992). For a discussion of the injunction’s history, see generally James R. Theuer, Pre-Judgment Restraint of Assets for Claims of Damages: Should the United States Follow England’s Lead, 25 N.C. J. Int’l L. 419 (2000) (exploring the development of the Mareva injunction in England). and are an “increasingly common feature of modern international-commercial litigation.” 15 James E. Pfander & Wade Formo, The Past and Future of Equitable Remedies: An Essay for Frank Johnson, 71 Ala. L. Rev. 723, 726 (2020). Before the Grupo Mexicano decision, asset-freezing injunctions also played an important role in ensuring that assets were available to compensate survivors of human rights abuses. Consider, for example, the human rights litigation surrounding the estate of Ferdinand Marcos, the former president of the Philippines. In re Estate of Ferdinand Marcos, Human Rts. Litig., 25 F.3d 1467 (9th Cir. 1994). There, survivors of Marcos and his regime brought suit against his estate for torture, summary execution, and forced disappearance. Id. at 1469. In order to ensure that a final judgment could be satisfied in a related matter, the district court entered a preliminary injunction which was later affirmed by the Ninth Circuit. Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363–64 (9th Cir. 1988) (en banc), cert. denied, 490 U.S. 1035 (1989). The injunction enjoined the estate from transferring assets, and the plaintiffs in the human rights litigation successfully obtained continuation of that injunction. Marcos, 25 F.3d at 1480. Eventually, a jury awarded the plaintiffs $1.2 billion in exemplary damages and $766 million in compensatory damages, which the Ninth Circuit affirmed. Hilao v. Estate of Marcos, 103 F.3d 767, 772, 787 (9th Cir. 1996). In the U.S. legal system, provisional asset freezes take the form of preliminary injunctions that operate in personam, which only require jurisdiction over the defendant to command the use of property located beyond the jurisdiction of the court. 16 See Marcos, 862 F.2d at 1363–64 (“Because the injunction operates in personam, not in rem, there is no reason to be concerned about its territorial reach.”); see also Wasserman, supra note 14, at 304 (“Both state and federal courts have held that they have authority to enjoin a person from taking . . . action outside the state or district so long as they have personal jurisdiction over the person.” (footnotes omitted)). Note, however, that freezing assets held by third parties, including banks, requires personal jurisdiction over the third parties, rather than the real target of the freeze. This issue is taken up in section II.C. Asset-freeze injunctions have a distinct advantage over attachment, which requires property to be located within the court’s jurisdiction. 17 6 Am. Jur. 2d Attachments and Garnishments § 23 (2024) (“It is a fundamental rule that in attachment or garnishment proceedings the res must be within the jurisdiction of the court issuing the process.”); see also Wasserman, supra note 14, at 301 (1992) (“The preliminary injunction acts in personam and bars the defendant from disposing of assets, but it does not bind the defendant’s property in any way.”). Asset-freeze injunctions and attachment are otherwise functionally similar. See FTC v. H.N. Singer, Inc., 668 F.2d 1107, 1112 (9th Cir. 1982) (“[T]he asset freeze has an effect comparable to that of an attachment . . . .”); see also Bermann, supra note 14, at 562–65 (explaining that an injunction operating in personam and preventing the disposal of assets can have the same practical effect as attachment). This advantage is particularly pronounced in transnational disputes involving assets located abroad. Such cases may become increasingly common as U.S. residents hold more wealth overseas. 18 See Greg Falkof, Introduction: The Growth of International Arbitration for Private Wealth Disputes, Glob. Arb. Rev. (Apr. 30, 2025), https://globalarbitrationreview.com/guide/the-guide-high-net-worth-clients-and-arbitration/first-edition/article/introduction-the-growth-of-international-arbitration-private-wealth-disputes [https://perma.cc/ALM6-GRTW] (“The recent growth and internationalisation of private wealth gives rise to a greater demand for legal services tailored to multi-jurisdictional wealth-related disputes . . . .”). Notably, assets may be held abroad through crypto, requiring developments in other areas of the law. Cf. Williams v. Binance, 96 F.4th 129, 139 (2d Cir. 2024) (discussing the possibility that U.S. securities laws may not apply to cryptocurrency transactions that happened to be processed through servers physically located in the United States); Basic v. BProtocol Foundation, No. A-23-CV-533-RP, 2024 WL 4113751, at *9 (W.D. Tex. July 31, 2024) (distinguishing Binanceand dismissing a claim for forum non conveniens because the electronic exchange was subject to Israeli regulation). As of October 2024, an estimated 17% of U.S. adults hold assets in crypto. Michelle Faverio, Wyatt Dawson & Olivia Sidoti, Majority of Americans Aren’t Confident in the Safety and Reliability of Cryptocurrency (Oct. 24, 2024), https://www.pewresearch.org/short-reads/2024/10/24/majority-of-americans-arent-confident-in-the-safety-and-reliability-of-cryptocurrency/ [https://perma.cc/9YJ5-9HD8].

Though the importance of provisional remedies in transnational disputes is increasingly acute, the subject has been neglected. 19 Issues that are more or less well addressed in domestic litigation are often undertheorized and must therefore be reevaluated in the “more turbulent waters of transnational litigation.” Bermann, supra note 14, at 556. With few exceptions, the study of transnational litigation does not address provisional relief at all, 20 See King Fung Tsang & Pierce Lai, To Catch the Cheshire Cat: Freezing Injunction Jurisdiction at the Click of a Mouse, 33 Wash. Int’l L.J. 115, 146 (2024) (“Pre-judgment provisional measures in U.S. courts have attracted relatively few discussions. That was status quo prior to the seminal case of Grupo Mexicano. Even though that seminal case received sharp criticisms, the lack of discussion continued.” (footnotes omitted)). Previous articles on the topic have used its conspicuous absence in relevant textbooks to emphasize the paucity of academic attention paid to this issue. See S. Nathan Park, Recognition and Enforcement of Foreign Provisional Orders in the United States: Toward a Practical Solution, 38 U. Pa. J. Int’l L. 999, 1003–04 (2017) [hereinafter Park, Recognition and Enforcement] (“Provisional orders are such a scholarly afterthought that the leading textbook in transnational litigation in the United States does not even have a chapter on provisional orders.” (citing Samuel P. Baumgartner, Transnational Litigation in the United States, 55 Am. J. Comp. L. 793, 797–98 (2007) (reviewing Gary Born & Peter B. Rutledge, International Civil Litigation in United States Courts (4th ed. 2007)))). and the most recent satisfactory consideration of the subject is now nearly thirty years old. 21 See Bermann, supra note 14, at 557. Professor Bermann concluded that provisional relief in transnational litigation “is far less well defined than the more conventional sorts of judicial interventions.” Id. at 556. This neglect is alarming. All of the considerations that emphasize provisional relief’s role in protecting judgments in general apply a fortiori to transnational litigation because “it is much easier to frustrate the enforcement of the court’s final judgment when the case crosses the national border.” 22 Park, Recognition and Enforcement, supra note 20, at 1001. See also Jimi Hendrix, All Along the Watchtower, on Electric Ladyland (Sony Music Entertainment 1968) (“There’s too much confusion[,] I can’t get no relief.”). The unique costs, uncertainties, and burdens of transnational litigation compel renewed emphasis on measures to deter “actions that will make ultimate victory pyrrhic.” 23 David Westin & Peter Chrocziel, Interim Relief Awarded by U.S. and German Courts in Support of Foreign Proceedings, 28 Colum. J. Transnat’l L. 723, 723 (1990); cf. Asahi Metal Industry Co. v. Superior Ct. of Cal., 480 U.S. 102, 114 (1987) (“The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.”). Reassessing provisional relief in transnational litigation is especially timely as academic and practical interest in the field intensifies. 24 See Christopher A. Whytock, Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment, 19 J. Empirical Legal Stud. 4, 5 (2022) (“Transnational litigation is an increasingly active field of scholarship . . . and legal practice.” (citations omitted)); see also Pamela K. Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1083–84 (2015) (“Transnational suits—cases involving foreign parties, foreign conduct, foreign law, or foreign effects—and the law the governs them have growing significance in the United States and around the world.”). Transnational cases themselves are also on the rise; “there has been an absolute increase in the number of disputes with discernible connections or relations to more than one country—or no clear connection to any country at all.” Paul Herrup, Transnational Litigation: Trends and Challenges, 56 N.Y.U. J. Int’l L. & Pol. 231, 232 (2024); see also Andrew S. Bell, Forum Shopping and Venue in Transnational Litigation 4 (2003) (“[M]ore international trade means more transnational disputes, contractual, quasi-contractual, and arising from the negligent provision of goods and services.”). Exact empirical information on this issue is, however, in dispute. See Whytock, supra, at 48 (“[T]ransnational diversity filings constitute a significant but small portion of overall diversity filings . . . they have decreased overall since at least the mid-1980s and then stabilized, with occasional fluctuations . . . .”).

The urgency of a renewed focus on developing effective provisional measures in transnational litigation coincides with current pioneering scholarship on equitable remedies. 25 See infra section III.A. When applied to assets held abroad, asset-freeze injunctions are an exercise of equity extraterritoriality, that is, “the court’s authority, originating from the court’s equitable powers, to order a person to take certain actions outside of the court’s territorial jurisdiction.” 26 Park, Equity Extraterritoriality, supra note 10, at 102 (internal quotation marks omitted). This use of a court’s equitable powers is a potent and flexible means of replying to asset mobility, especially in transnational cases. Though the Supreme Court limited asset freezes by introducing and relying on a static conception of equity, 27 See Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 336 (1999) (Ginsburg, J., concurring in part and dissenting in part) (“[T]he Court relies on an unjustifiably static conception of equity jurisdiction.”); infra section I.A. the time is ripe for a reevaluation of that static approach. As Professor Asaf Raz has pointed out, “[A]ll the cards, from originalism and textualism, through the Constitution’s text, to relevant case law, are already on the table.” 28 Asaf Raz, The Original Meaning of Equity, 102 Wash. U. L. Rev. 541, 593 (2024). This Note argues that the U.S. approach to asset freezes is inadequate to protect the integrity of transnational disputes in a climate characterized by increasing asset mobility and narrowing approaches to personal jurisdiction. As Professor Nathan Park has suggested, “[T]he developing trends of modern capitalism, in particular its ever-increasing reliance on intangible property, indicate that Equity Extraterritoriality will become even more important in the coming decades.” 29 Park, Equity Extraterritoriality, supra note 10, at 183. The time has now come to revisit the use of asset-freeze injunctions and put them in productive conversation with current scholarship on equitable remedies.

This Note proceeds in three parts. Part I draws on recent case law to paint a comprehensive portrait of the current state of asset-freeze injunctions in the United States, a project that has not yet been undertaken comprehensively. It shows that asset-freeze injunctions remain available in cases seeking equitable remedies and, more broadly, under the laws of certain states. Part II establishes the urgency of reconsidering asset-freeze injunctions because contemporary asset mobility along with legal developments regarding cryptocurrency and nonparty jurisdiction have rendered the current approach described in Part I inconsistent with the purposes and aims of provisional relief. Part III draws on recent literature on federal equitable remedies to argue that a new federal common law approach to asset-freeze injunctions in transnational cases is now feasible and can equip federal courts to respond to the contextual transformations addressed in Part II. It argues that the transnational context is a particularly attractive one in which to enact changes to federal equity practices because it provides a limiting principle, is less susceptible to Erie-based objections, and because “international civil litigation has in the past proved fertile ground for domestic law reform.” 30 Stephen B. Burbank, Bitter With the Sweet: Tradition, History, and Limitations on Federal Judicial Power—A Case Study, 75 Notre Dame L. Rev. 1291, 1334 (2000). It then explores some limitations to the proposed approach and concludes that the proposal is nonetheless a worthwhile effort that remedies neglect of provisional relief in transnational litigation, provides a feasible solution that will equip courts to issue effective provisional relief, and advances the study of federal equitable remedies.