How To Start An Asset Recovery Business – Depending on the type of case and the jurisdiction, asset recovery practitioners have different remedies. The choice of a particular route depends on the relevant legal framework and the practical or operational circumstances of the case.
Legal actions for asset recovery vary. Depending on whether they are purely domestic or international, they may involve one of the following mechanisms:
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The availability of these channels in domestic or foreign jurisdictions will depend on national and foreign laws and regulations, as well as international or bilateral instruments such as conventions and treaties. The legal bases of asset recovery are scattered in different sources and cannot be included in a uniform asset recovery law, especially in international cases. Various relevant laws and international instruments are listed in the box below for practitioners seeking these avenues. As there are many domestic laws and treaties that cannot be mentioned here, this list is not exhaustive.
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Commonwealth of Independent States (CIS) Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Matters (1993/1994, “Minsk Convention”), as amended (1997).
In addition to the legal framework, the choice of a particular path may also depend on various legal, practical or operational realities. Decisions about the venue and type of action must be made at a strategic level, taking into account the advantages and disadvantages of each type and any jurisdictional characteristics that may affect the case.
Below is an excerpt from the second edition of the Asset Recovery Guide, updated in 2020. More information on the various legal mechanisms can be found in the Handbook.
Criminal forfeiture is a possible means of compensation when government agencies seeking to recover stolen property decide to prosecute. Practitioners must gather evidence, track and protect assets; initiation of a legal case against a natural and (or) legal person; And be sure. Confiscation may be ordered by the court after conviction.
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In some jurisdictions, the standard of proof for forfeiture is lower than that required for conviction. For example, in the UK, confiscation may require proof on a “balance of probabilities”, while presumptive guilt requires proof “beyond reasonable doubt”. Other jurisdictions apply the same high standard of proof (“beyond a reasonable doubt”) to both conviction and forfeiture. In general, the relevant laws may provide for the confiscation of property, income and other interests that can be directly or indirectly traced to the commission of a crime, unless the provisions of extended or extended confiscation apply.
International cooperation, including informal cooperation and formal mutual legal assistance, will be necessary throughout the process to identify, locate and protect assets in foreign jurisdictions, as well as to enforce final confiscation orders. In most jurisdictions, formal mutual legal assistance is only available in connection with a criminal investigation.
The benefits of prosecution and confiscation include social recognition of the criminal nature of corruption and accountability of the perpetrator. In addition, penalties such as imprisonment, fines and confiscation can act as a deterrent to potential offenders. In addition, criminal investigators typically have more intrusive information and intelligence gathering tools, including access to information from law enforcement and FIU sources; the use of temporary measures and coercive methods of investigation, such as search, electronic surveillance, inspection of financial documents or access to third-party documents; and to a grand jury, subpoena or compelled appearance, testimony, or other means of evidence.
However, serious obstacles such as insufficient evidence, lack of capacity or political will, and time constraints (statute periods) can prevent prosecution and confiscation. Also, punishments may be impossible in cases where the perpetrator is dead, fugitive or untouchable. Additionally, the requested jurisdiction may not recognize the alleged crime sought as a felony (two felonies).
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Another form of confiscation common throughout the world is non-conviction-based confiscation, which is called non-conviction-based confiscation (NCB). The general purposes of NCB confiscation are criminal confiscation, i.e. recovery and recovery and instrumentalities of crimes. Similarly, NCB confiscation recognizes the objectives of deterrence, equity and restitution.
However, forfeiture based on a criminal conviction and NCB forfeiture are quite different. Seizure based on a criminal conviction requires a conviction and then the forfeiture process begins. In contrast, NCB forfeiture only requires a forfeiture process, not criminal penalties. In many jurisdictions, confiscation of NCBs can be decided based on lower standards such as “balance of probabilities” or “preponderance of the evidence”, which helps reduce the burden of proof on the authorities. Other jurisdictions, primarily civil law, require the same high standard of proof used in criminal convictions: “close certainty of truth.
NCB custody is not available in all jurisdictions. As a result, practitioners may face difficulties in obtaining official mutual legal assistance to investigate and enforce confiscation orders of NCBs in jurisdictions that do not have laws relating to this type of confiscation. However, some of these jurisdictions, such as the European Union, may recognize and enforce confiscation orders from foreign NCBs. In addition, requesting jurisdictions may benefit from cooperation with NCB confiscation proceedings in countries where the law is frequently used in money laundering cases, including the United Kingdom and the United States.
States seeking to recover stolen property have the option of suing in domestic or foreign civil courts to secure and recover the property and for damages based on misappropriation, tort, breach of contract, or unjust enrichment. Courts of foreign jurisdiction may have jurisdiction if (a) the defendant is a person, natural or legal person, who is a citizen of that country or resident in that country (personal jurisdiction); (b) the assets are or have been transferred to the jurisdiction (jurisdiction of the economic entity); or (c) corruption or money laundering is committed in the jurisdiction. As a party to a private lawsuit, a state seeking legal protection may hire an attorney to explore potential claims and remedies (such as malpractice, torts, wrongful taking, and breach of contract). Filing a civil lawsuit is expensive and requires gathering evidence to prove contractual misappropriation of property or liability. In certain cases, evidence collected in criminal proceedings can be used in civil proceedings. It is also possible to obtain evidence with the help of the court before proceeding.
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In common law jurisdictions, the claimant has the option of applying to court for various types of orders, while in civil law countries the options may be limited. Possible order types may include:
In civil law countries, the ability to find all types of orders except the first axis may be limited.
The main disadvantages of litigating as a civil party, particularly in foreign jurisdictions, are the costs of locating assets and the legal fees required to obtain the appropriate court orders. However, in civil cases and third-party acquisitions, the plaintiff has more control over the case and less influence than is typically required under criminal law.
It is worth noting that the arbitration of international contracts for illegal benefits received in exchange for bribes or for corrupt officials can open promising avenues, including possible claims for annulment of the agreement and damages or damages.
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More information on private civil litigation can be found in Going for Broke: Insolvency Tools to Support Cross-Border Asset Recovery in Corruption Cases.
Unlike criminal forfeiture or NCB, both of which require a criminal court case, administrative forfeiture is usually a non-criminal, sometimes non-judicial, seizure of property used or involved in the commission of a crime or felony. includes a mechanism that does not meet the conditions of the criminal offense. . Expropriation can be done by law or in accordance with specific laws or regulations, and is usually used to see cases of uncontested expropriation or to see administrative violations.
An administrative seizure is usually made by a competent authority (such as a police department or a designated law enforcement agency) – similar to the process commonly used in customs smuggling cases – or a non-criminal administrative case. will be carried out by the court.
The process usually requires notice to those who have a legal interest in the property and publication to the general public. Alternatively, there may be a full criminal trial, which requires the participation of representatives of the state and the defendant.
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In general, administrative confiscation is limited to certain types of crimes, low-value assets, or certain categories of assets. However, some jurisdictions have innovatively used administrative procedures in high-profile cases. Some jurisdictions have adopted a variant of administrative forfeiture called “abandonment” using a similar process.
In addition to the methods described above, some alternative methods are used in certain jurisdictions and in certain circumstances. Although they do not represent a common or universal model, they have specific characteristics that distinguish them from the previously described pathways and therefore deserve mention. They are useful – if not of practical use – as inspiration for finding innovative solutions and methods of asset recovery.
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