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British Virgin Islands 21 Nigeria 88 Tim Prudhoe and Tim De Swardt Babajide O Ogundipe and Cyprian Nonso Egbuna Kobre & Kim Sofunde, Osakwe, Ogundipe & Belgore GETTING THROUGH THE DEAL Asset Recovery Asset Recovery Asset Contributing editors Jonathan Tickner, Sarah Gabriel and Hannah Laming 2016 2016 © Law Business Research Ltd 2015 Asset Recovery 2016 Contributing editors Jonathan Tickner, Sarah Gabriel and Hannah Laming Peters & Peters Solicitors LLP Publisher Law The information provided in this publication is Gideon Roberton general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking Research any legal action based on the information provided. Subscriptions This information is not intended to create, nor does Sophie Pallier Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. Business development managers London, W11 1QQ, UK Although the information provided is accurate as of Alan Lee Tel: +44 20 3708 4199 September 2015, be advised that this is a developing [email protected] Fax: +44 20 7229 6910 area. Adam Sargent © Law Business Research Ltd 2015 [email protected] No photocopying without a CLA licence. Printed and distributed by First published 2012 Encompass Print Solutions Dan White Fourth edition Tel: 0844 2480 112 [email protected] ISSN 2051-0489 © Law Business Research Ltd 2015 CONTENTS Global overview 5 Liechtenstein 70 Jonathan Tickner, Sarah Gabriel and Hannah Laming Matthias Niedermüller Peters & Peters Solicitors LLP Schwärzler Attorneys at Law Argentina 8 Monaco 76 María Belén Gracia and Fernando Basch Donald Manasse Governance Latam – Guillermo Jorge, Fernando Basch & Asociados Donald Manasse Law Offices Australia 14 Netherlands 82 Tobin Meagher, Andrew Moore and Alice Zheng Daan Folgering and Niels van der Laan Clayton Utz Legal Experience Advocaten and De Roos & Pen British Virgin Islands 21 Nigeria 88 Tim Prudhoe and Tim de Swardt Babajide O Ogundipe and Cyprian Nonso Egbuna Kobre & Kim Sofunde, Osakwe, Ogundipe & Belgore Canada 28 Portugal 93 Douglas F Best and Nafisah Chowdhury Rogério Alves and Rodrigo Varela Martins Miller Thomson LLP Rogério Alves & Associados – Sociedade de Advogados, RL Cayman Islands 34 Qatar 100 James Corbett QC, Jalil Asif QC and Pamella Mitchell Fouad El Haddad Kobre & Kim Lalive in Qatar Greece 39 Serbia 104 Ilias G Anagnostopoulos and Alexandros D Tsagkalidis Tomislav Šunjka Anagnostopoulos Law Office of Tomislav Šunjka Hong Kong 44 Switzerland 111 Nick Gall and Anjelica Tang Marc Henzelin, Sandrine Giroud and Héloïse Rordorf Gall Lalive Italy 50 United Arab Emirates 119 Roberto Pisano, Valeria Acca and Chiara Cimino Ibtissem Lassoued Studio Legale Pisano Al Tamimi & Company Jersey 59 United Kingdom 123 Simon Thomas and William Redgrave Jonathan Tickner, Sarah Gabriel and Hannah Laming Baker & Partners Peters & Peters Solicitors LLP Kazakhstan 64 United States 132 Yerzhan Manasov and Alida Tuyebekova Michael S Kim, Carrie A Tendler and Joshua L Ray Linkage & Mind LLP Kobre & Kim 2 Getting the Deal Through – Asset Recovery 2016 © Law Business Research Ltd 2015 PREFACE Preface Asset Recovery 2016 Fourth edition Getting the Deal Through is delighted to publish the fourth edition of Asset Recovery, which is available in print, as an e-book, via the GTDT iPad app, and online at www.gettingthedealthrough.com. Getting the Deal Through provides international expert analysis in key areas of law, practice and regulation for corporate counsel, cross-border legal practitioners, and company directors and officers. Throughout this edition, and following the unique Getting the Deal Through format, the same key questions are answered by leading practitioners in each of the jurisdictions featured. Our coverage this year includes Kazakhstan and Serbia. Getting the Deal Through titles are published annually in print. Please ensure you are referring to the latest edition or to the online version at www.gettingthedealthrough.com. Every effort has been made to cover all matters of concern to readers. However, specific legal advice should always be sought from experienced local advisers. Getting the Deal Through gratefully acknowledges the efforts of all the contributors to this volume, who were chosen for their recognised expertise. We also extend special thanks to the contributing editors, Jonathan Tickner, Sarah Gabriel and Hannah Laming of Peters & Peters Solicitors LLP, for their continued assistance with this volume. London September 2015 www.gettingthedealthrough.com 3 © Law Business Research Ltd 2015 Peters & Peters Solicitors LLP GLOBAL OVERVIEW Global overview Jonathan Tickner, Sarah Gabriel and Hannah Laming Peters & Peters Solicitors LLP In last year’s Global overview we referred to the Stolen Asset Recovery chamber, after which its entry into force will be determined by the Federal Initiative (StAR), a partnership between the World Bank Group and the Council. In the event that the legislation is enacted, other states will no United Nations Office on Drugs and Crime, which supports international doubt monitor its progress with interest. efforts to prevent the laundering of corruption and to facilitate the return of stolen assets. Surveys carried out by StAR and the Organisation for Crack-down on corruption Economic Co-operation and Development (OECD) showed that, between It is clear that, since surveyed by the OECD and StAR, the three coun- 2006 and 2009, only four OECD countries (Australia, Switzerland, the tries that had returned assets to foreign jurisdictions in the period 2010 United Kingdom and the United States) had a proactive policy of giving to June 2012, namely Switzerland, the United Kingdom and the United assistance to foreign sovereign nations and ensuring the repatriation of States, have commenced further high-profile investigations. Perhaps the assets totalling US$276 million to foreign jurisdictions. These countries, most notable, or at least the most publicised, of these investigations has together with France and Luxembourg, had frozen a total of US$1.225 bil- been the charges levelled against current and former members of the lion during the same period. Between 2010 and June 2012 approximately Fédération Internationale de Football Association (FIFA), world football’s US$1.4 billion of corruption-related assets had been frozen, but only governing body. On 27 May 2015, the United States Attorney General’s US$147 million returned. These figures are hugely discouraging, particu- Office, the Federal Bureau of Investigation and the Internal Revenue larly given that, in its report on the same published on 16 December 2014, Service announced that charges of, among other things, racketeering, wire Global Financial Integrity put the amount of illicit financial flows from fraud and money laundering had been brought against nine FIFA officials developing countries in 2012 at US$991.2 billion.1 involved in accepting bribes and kickbacks in connection with World Cup In a report published on 10 September 2014 StAR reiterated the TV rights and sponsorship deals. In addition, guilty pleas of an additional enormous gap between the results achieved in the repatriation of misap- four individuals and two corporate defendants were unsealed. One of the propriated assets and the billions of dollars estimated to have been stolen defendants who pleaded guilty under seal is Charles Blazer, the former from developing countries.2 One of the problems identified by StAR is the general secretary of the Confederation of North, Central America and disconnect between high-level international commitments made by the Caribbean Association Football (CONCACAF) and a former FIFA executive majority of OECD members and the practice at country level. StAR cited committee member. Following his admissions of racketeering conspiracy, experience demonstrating that where a lack of interest in recovering assets wire fraud conspiracy, money laundering conspiracy, income tax evasion deriving from corrupt conduct extends to ineffective laws or institutions, and failure to file a report of foreign bank and financial accounts, Blazer criminals will exploit those vulnerabilities to launder corrupt proceeds. forfeited over US$1.9 million with further amounts payable on sentencing. These comments notwithstanding, StAR reported that many OECD At the same time as arresting six FIFA officials pursuant to extradi- countries had expanded the range of legal tools and powers available to tion requests made by the US Attorney’s Office for the Eastern District of facilitate asset recovery. Perhaps most interestingly, StAR noted that non- New York, the Office of the Attorney General of Switzerland seized data conviction-based confiscation, court-ordered reparations and restitution and documents stored at FIFA’s headquarters following the opening of and settlement agreements were used to return more assets between 2010 proceedings alleging criminal mismanagement in the allocation of the and June 2012 than was criminal confiscation, which had been thought to 2018 and 2022 World Cups. be the main legal avenue for asset recovery. Further, in the same period In addition to its investigations into FIFA officials, under the Foreign administrative actions freezing assets, particularly assets held by individu- Corrupt Practices Act 1977, the US Department of Justice has this year als suspected of misappropriating them from the Arab Republic of Egypt, alone entered into non-prosecution or deferred
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