Edited by Barry Rider
Chapter 58: The practical issues in tracing and freezing in the context of civil recovery proceedings
Many of those unfamiliar with asset recovery assume that civil actions have little relevance in the world of financial crime. They assume that the recovery of assets is only carried out through cooperation of interested prosecutors bringing anti-money laundering actions in support of some foreign nation’s claim over assets in their jurisdiction. While international cooperation continues to improve, it remains the case that some jurisdictions are slow or unwilling to act on mutual legal assistance requests. The speed and diligence in pursuing any criminal claim is also out of the victim’s hands, unless of course the victim is a state. Civil actions can be the most effective, and sometimes the only, way to recover stolen assets. The most powerful weapons in the litigator’s armoury are freezing and search orders. Such orders are only known in the common law (excluding the United States), although in civil law countries, there may often be equally effective remedies. Many fraudsters rely upon international financial centres to dissipate and hold their ill-acquired wealth. Many of those, particularly Cayman Islands, British Virgin Islands (BVI), Channel Islands, Isle of Man, Hong Kong, Singapore and Dubai International Finance Centre (DIFC), are common law jurisdictions, broadly adopting and adapting the law of England and Wales. As such, this chapter focuses on English law. As civil law jurisdictions also play a significant role, French, German and Dutch law are also referred to.
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