International Asset Recovery and Enforcement

The 2021 pandemic environment is showing trends toward evasive debtors trying to protect their wealth by moving assets fluidly around the world as creditors evaluate the value of assets and the ability to recover claims and debts.

With the economy on troubling grounds, there is a greater desire to protect assets. But, there is a difference between hiding and protecting assets. Hiding assets is a form of protection, but done for illicit purposes to keep away from current creditors.

The economic upheaval caused by the pandemic has forced persons to focus on asset preservation. The desire to protect wealth and business assets in a well-run, regulated and safe jurisdiction has led to a marked increase in business for the financial sector in places such as the Cayman islands.

A Mareva injunction freezes a defendant’s assets to avoid their dissipation and to enable a judgment to be later satisfied. 

In the last several years to assist tracing of assets and discovery of perpetrators, courts in English common law countries have shown a willingness to assist victims by ordering third parties to disclose information through discovery about wrongdoings under Norwich Pharmacal relief.

A federal district court may order discovery under 28 U.S.C. Section 1782 “for use in a proceeding in a foreign or international tribunal” upon application by any “interested person”.

In 2009 in Black Swan Investment ISA v. Harvest View Limited BHVC (Com) 2009/399, the court established the principle that a court can act in aid of foreign proceedings where it can be shown that there is property situated in BVI which belongs to the defendant in the foreign proceedings and which may be enforced against in the event the foreign proceedings are successful.

On February 25, 2019, the Second Circuit in the Madoff liquidation decided that Sections 548 and 550 of the Bankruptcy Code can be applied extraterritorially to recover fraudulent transfers. There, offshore feeder funds were recipients of investors' fraudulent transfers and contended that U.S. fraudulent transfer law did not apply abroad. Read more here.

Singapore has become a financial and business center in Asia, which means that a number of foreign companies and individuals have assets there. Until now, the question of whether a Singapore court has the power when a dispute is being litigated in a foreign court to grant a Mareva injunction, a pre-action seizure of assets, had not been clearly answered. The court in China Medical Technologies v. Wu Xiaodong (2018) SHGC 178 has now clarified the question. The answer is a resounding "yes".

Pursuant to 28 U.S.C. Section 1782, a party may apply to conduct discovery in the U.S. for use in foreign proceedings. In a recent decision from the U.S. District Court for the Southern District of New York, In re Ruiz, 2018 U.S. Dist. Lexis 180262, the court considered whether former investors in Banco Popular could conduct discovery against Banco Santander in New York for use in foreign proceedings before the General Court of Justice of the European Union. Banco Santander is incorporated and has its principal place of business outside of New York.

Ontario's Divisional Court in 2092280 Ontario Inc. v. Voralto Group Inc., 2018 ONSC 2305, confirmed the requirements in obtaining an injunction on the dissipation of assets without notice.

The Second Circuit is the first court of appeals to consider the holding in the United States Supreme Court?s decision in RJR Nabisco Inc. v. European Community, 136 S. Ct. 2090 (2016), which said that Section 1964 (c) of RICO does not apply extraterritorially for injury to business or property and requires a domestic injury, not merely recovery for foreign injuries. The Supreme Court did not explain how to determine a domestic injury.

Your client has a judgment or arbitral award and becomes aware of an unrelated contract where the judgment debtor is to be paid through letters of credit issued by a bank branch in the UK. Can you use that as a source of recovery? Judgment creditors need to be aware of another avenue of collection.

Cryptocurrency itself is a string of computer-generated code. For asset protection purposes, a cryptocurrency account currently functions similarly to offshore banking prior to the IRS?s crackdown of anonymous personal foreign accounts. At the moment, creditors face obstacles of identifying potential defendants and the international nature of the transaction.

English courts are developing ways to ensure that creditors are not thwarted by sophisticated and devious debtors using offshore structures that do not appear to be fictitious.

The Second Circuit is the first court of appeals to consider the holding in the United States Supreme Court?s decision in RJR Nabisco Inc. v. European Community, 136 S. Ct. 2090 (2016), which said that Section 1964 (c) of RICO does not apply extraterritorially for injury to business or property and requires a domestic injury, not merely recovery for foreign injuries. The Supreme Court did not explain how to determine a domestic injury.

The Internet has become the common form of commerce. As such, illegal activity has migrated there. The Internet is frequently used to engage in illegal activity cloaked in anonymity. Claimants have few if any direct means of enforcing their rights and court orders against the offenders. The power to make orders against Internet companies is essential to preserving the effectiveness of law online. Obtaining a remedy is often the practical solution to enforcing rights. Moreover, illegal online conduct crosses multiple jurisdictions often time simultaneously. As courts with personal jurisdiction have the power to adjudicate claims, it is essential that remedies have extraterritorial effect so to make it easier and less expensive for proceedings having to be brought in every country where the illegality occurs and the internet company operates.

On May 22, 2017, in Water Splash Inc. v. Menon, The United States Supreme Court addressed the issue whether under the Hague Service Convention service by mail was prohibited. At issue was Article 10 of the Convention that provided if the country of destination does not object, the Convention shall not interfere with ?(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.? Article 10 does not expressly refer to ?service.? The question before the Court was whether the Article 10(a) phrase ?send judicial documents? encompasses sending documents for purposes of service.

A Norwich Pharmacal order enables an applicant to obtain discovery about a wrong that has been committed from a respondent who is not ?mixed-up? in it.

In a ruling recently decided by the U.S. Bankruptcy Court for the Southern District of New York, Spizz v. Goldfarb Seligman & Co. (In re Ampal-Am Israel Corp.), 562 B.R. 601 (Bankr. S.D.N.Y. 2017), that court disagreed with other courts both within and outside its own district to rule that the avoidance provisions of the Bankruptcy Code do not apply outside the U.S. because, based on the language in the provisions, Congress did not intend for them to apply extraterritorially.

On 12/12/16, the U.S. Supreme Court held that the bank fraud statute does not require proof that the bank suffered a financial loss nor that there was intent for the bank to suffer a loss.

Substantial Activity Through Correspondent Bank in New York Creates Personal Jurisdiction Over Foreign Bank Defendant

A freezing order tying up a defendant?s assets is a powerful tool for claimants in English common law jurisdictions. But, they must be obtained with full and frank disclosure and come with serious ramifications when that does not occur. Typically, an applicant for freezing order must undertake to pay the defendant compensation if it is subsequently determined that he freezing order was improperly granted. When a defendant claims the order was improperly granted, the court has the discretion to conduct an inquiry into what loss the defendant suffered because of the order.

One of the major offshore financial centers, Jersey, has been a jurisdiction of choice for those seeking to conceal their ill-gotten assets. But, developing case law offers solace for creditors to recover those illegitimately acquired assets.

The enforcement of foreign judgments is a challenge, especially if they emanate from the US because there is no automatic recognition. How Ireland treats enforcement efforts of foreign judgments is an excellent example of the challenges faced by plaintiff?s counsel.

The U.S. Supreme Court on June 20, 2016, inRJR Nabisco Inc. v. European Community, 579 U.S. ___, addressed the application of the RICO statute 18 U.S.C. Section 1961 et seq., to activities outside the U.S. and the injury that must be suffered by private litigants in order to recover. This case involved a global money-laundering scheme, wherein drug traffickers smuggled narcotics into Europe and sold the drugs for Euros that through a series of transactions involving black-market money brokers, cigarette importers and wholesalers were used to pay for large shipments of RJR cigarettes into Europe.

The purpose of the appointment of a protector is to monitor the actions of a trustee and to ensure that appropriate action is taken to preserve the trust fund. Protectors are commonly given "positive" powers such as the power to appoint and remove trustees and "negative" powers such as the right to withhold consent to distributions to beneficiaries. The role…

There are approximately 800,000 companies registered in the British Virgin Islands ("BVI"). BVI entities are used as vehicles for investing in Hong Kong, Singapore and mainland China where anywhere from 40-50% of BVI entities are used. There are three types of funds that can be organized under BVI law-private, professional and public. High net worth individuals are most interested in…

The Eleventh Circuit recently addressed an issue of first impression as to whether discovery obtained under 28 U.S.C. Section 1782 could later be used in civil litigation in the United States. InGlock v. Glock, Inc, 797 F. 3d 1002, plaintiff filed a proceeding under 28 U.S.C. Section 1782 seeking to discover evidence for use in her Austrian divorce proceedings. About one and one half years later, she filed a separate RICO lawsuit in the U.S. Plaintiff returned to the Section 1782 court to seek authorization to allow her to disclose the documents she obtained in that litigation to her RICO attorney for potential use in the RICO action.

A substantial portion of the world's hard and soft commodities are sold and shipped from Australia. Many of the companies involved are based in foreign jurisdictions, but hold substantial assets in Australia in the form of mining licenses or commodity stockpiles. The ability to freeze these Australian assets can be a valuable weapon in claims recoveries.

The new Civil Procedure Code (CPC) entitles a party to apply to the court to secure evidence that could later be lost, where a statutory rule provides for the taking of such evidence or where an applicant can demonstrate a legitimate interest. The intent of the provision is to enable potential litigants to assess their trial chances ahead of having to lodge a court action.

New York branches of foreign banks are not insulated from producing information and documents pertaining to assets of judgment debtors held by the bank outside the US even where the New York branch conducts ?narrow and limited? operations in New York.

Many problems occur after a trust has been established for many years and poorly managed. As years pass, parties get careless in how they handle the affairs of their trust and then mishandle the operations of the trust for immediate personal needs.

Cyprus can be a creditor-friendly jurisdiction to enforce or support recovery efforts.

Enforcement in the UAE is dependent upon a treaty with the foreign country. Even if the parties agreed that the foreign court has jurisdiction, that may not allow for enforcement if the UAE court would originally have had jurisdiction.

Cyprus Trusts have become a popular locale for asset protection.

Recently, the District Court in Vera v. Republic of Cuba, 2015 U.S. Dist. Lexis 32846 (S.D. N.Y. 2015), was confronted with a situation where a judgment creditor sought post-judgment discovery pertaining to the defendant's foreign accounts "in order to decide whether to seek recognition of his judgment abroad and, if so, in which countries and against which banks."

The Carey and Lloyds decisions point out that third parties subject to a freezing order must not unilaterally implement what is believed to be a practical application of the order without approval by the party obtaining the order and the court.

Norwich Pharmacal relief is an effective pre-judgment tool for victims in Hong Kong to gather the information necessary to identify the wrongdoers and to eventually freeze their assets.

Despite the lack of reciprocal arrangements between the US and England, it is possible to enforce a US judgment in the English courts. The procedure to do so is quick and cost-effective. And, the reason to do so is primarily to recover assets to satisfy the judgment.

Enforcement against foreign assets in a US court has been difficult. However, the Middle District of Florida in Wells Fargo Bank v. Barber, 2015 WL 470589 (M.D. Fla Feb 4, 2015), showed how it is possible.

A foreign bank must have more continuous and systematic contacts with the US and have purposely demonstrated an intent to do business in the US to be subject to a US court?s jurisdiction.

If a non-English creditor wants to enforce its foreign court judgment consideration needs to be given to the tests the English court will apply before it will recognize and enforce that judgment.

Applicable as of January 18, 2017, a recently adopted European regulation facilitates cross-border debt recovery by enabling creditors to obtain a ?European Account Preservation Order? (the ?EAPO?) given by one judge in a member state and attach a debtor?s bank accounts in another EU member state without further court proceeding...

The focus was clarified recently as to when documents can be obtained from a foreign subsidiary of a US parent company involved in federal litigation.

A recent judgment of the Royal Court of Jersey shows how offshore fiduciaries and corporate service providers unquestioned loyalty can be very costly...

If a foreign bank is located in the United Kingdom, it may be subject to providing discovery information of its account holders whose accounts may be located outside the United Kingdom.

Today, litigants are confronted with defendants who have sought to put assets beyond reach by moving them overseas, often into trusts or corporate structures in International Financial Centers. In response to the increasing internationalization of commercial fraud and a concern that their jurisdiction would gain a reputation for being a place where fraudsters could safely hide assets, the Cayman Islands enacted the Grand Court (Amendment) Law...

A recent decision provides creditors a framework for determining when a court may exercise authority over assets located offshore or when a freeze of non-US assets can occur in New York...

PURPOSE: POTENTIAL LIMITATIONS TO PRE-SUIT DISCOVERY IN THE US Texas, like five other states, allows for pre-action discovery to discover the potential wrongdoers in an articulated claim. Rule 202 of the Texas Rules of Civil Procedure authorizes a pre-suit deposition to investigate a potential claim. In In re John Doe a/k/a "Trooper", No. 13-0073 (2014), the Texas Supreme Court considered a situation where an anonymous blogger launched an on-line attack of a company that develops and markets software for use by auto dealerships and its CEO...

In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the US Supreme Court in January 2014 held that a corporation is not subject to personal jurisdiction merely because it ?engages in a substantial, continuous, and systematic course of business? in a forum. A corporation is subject to general jurisdiction only where it is considered ?at home? and absent exceptional circumstances, a company is only ?at home? where it is incorporated or has its principal place of business...

Fraudsters cannot hide behind a corporate shield in Canada when they use a company for an ?illegal, fraudulent or improper purpose.? The Ontario Court of Appeals in Shoppers Drug Mart Inc. v. 6470360 Canada, Inc., 2014 ONCA 85, addressed the situation where Shoppers Drug Mart (?Shoppers?) contracted with the defendant Energyshop Consulting to manage and pay utility bills for Shoppers? stores nationwide...

It is important to know and understand the laws for asset holding when trying to recover claims. New legislation in Bermuda seeks to stimulate the trust industry and to attract international customers who wish to retain a certain level of control over their trusts. The Trusts (Special Provisions) Amendment Act 2014 enhanced the reserved power trusts where a settlor may retain fairly extensive powers over the trust.

Proof of money laundering in the United Kingdom made easier! In a recent decision, Relfo v. Vasani (2014) EWCA Civ 360, the Court of Appeal was confronted with the Liquidator being unable to show evidence of each transaction transferring monies through various bank accounts and ultimately being received by the recipient....

Section 550 of the US Bankruptcy Code allows for the bankruptcy trustee to recover for the benefit of the estate property transferred to an immediate transferee that can be avoided under other Code provisions. In a recent matter in the Madoff bankruptcy proceeding, Sec. Investor Prot. Corp v. Bernard L. Madoff Inv. Secs. LLC, 2014 U.S. Dist. Lexis 91508 (S.D. N.Y. July 6, 2014), the bankruptcy trustee sought to recover funds that had been transferred from Madoff Securities to certain foreign customers (feeder funds), who then in turn transferred funds to certain foreign persons and entities. The trustee sought to recover these subsequent transfers?transfers made abroad between a foreign transferor and a foreign transferee.

Parties cannot obtain jurisdiction in New York merely by the small passing of funds through New York banks. Rather, there will need to be a specific connection with New York and more than a tertiary role in the international banking system.

Cayman Islands discovery was adopted from Canadian rules of civil procedure and consequently, have many similar characteristics of US discovery. Foreign litigants should try to take advantage of these discovery rules when more oppressive rules arise in other Caribbean countries.

When a fraud has occurred, a private investigator is often engaged by counsel to gather evidence about the fraud and the fraudsters. If events take you to Canada, one must understand the law surrounding privilege and privacy and be cautious to avoid prejudicing the case.

In the past, courts had decided that RICO?s reach depended upon the location of the enterprise. European Community v. RJR Nabisco, Inc., 2014 U.S. App. LEXIS 7593 (2d Cir. April 23, 2014) redirected the focus to predicate acts.

A recent decision in the Southern District of New York, Wultz v. Bank of China, 2014 U.S. Dist. Lexis 1841 (S.D.N.Y. February 13, 2014), required a non-party bank to prepare a Rule 30(b)(6) witness with information that was only available overseas. There, the Bank of China subpoenaed Bank Hapoalim, a non-party Israeli bank, requesting documents pertaining to transactions and wire transfers involving an alleged Islamic Jihad leader.

On April 3, 2014, in Matter of Kapon v. Koch, 2014 N.Y. Slip Op 02327, the New York Court of Appeals clarified the standard for enforcing subpoenas to nonparties in civil litigation...

Provisional remedies are a powerful tool for creditors. In New York, two recent cases have limited a creditor?s ability to attach funds of a defendant at a foreign bank with a correspondent banking relationship with a New York bank.

In Italy, Article 671 of the Italian Civil Code permits a precautionary seizure of property if a creditor has a ?valid fear of losing the security for his claim.? The order will prohibit the debtor from disposing of all of his assets and not just specifically identified ones.

The U.S. Court of Appeal for the Eleventh Circuit recently emboldened a litigant's ability to obtain discovery under 28 U.S.C. Section 1782 for a foreign proceeding that was only ?within reasonable contemplation.?

9/2/20 1:00PM-2:30PM ET Join Rick, with a panel of experts, for this CLE webinar that will discuss how to locate and seize offshore assets with which to satisfy a US obligation or judgment. The panel will also address tools to prevent the removal of assets to other countries. The panelists will address issues such as: What countries are the hardest…

John Guzzardo and Rick Rein wrote an article for NABT American Bankruptcy Trustee Journal regarding the use of Consent Directives to locate offshore assets. A consent directive is a "rare bird" investigatory tool that litigants in the US may use to discover assets and information from debtors or third parties located anywhere in the world. Recently, the Ninth Circuit Bankruptcy…