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Fraud, Asset Tracing & Recovery

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Fraud, Asset Tracing & Recovery INSOLVENCY AS A TOOL How and when to use in asset recovery BITCOIN BATTLES Tracing and seizing cryptoassets Commercial Dispute Resolution COVID-19 FRAUD CDR Recovering assets lost in the pandemic www.cdr-news.com Spring 2021 ESSENTIAL INTELLIGENCE: Fraud, Asset Tracing & Recovery Contributing Editor: Keith Oliver Peters & Peters Solicitors LLP 4 WELCOME TABLE OF CONTENTS EXPERT ANALYSIS New threats for 2021 and beyond 06 France Andrew Mizner Commercial Dispute Resolution 90 Thomas Rouhette, Nicolas Brooke, Ela Barda & Jennifer Melo Signature Litigation Insolvency used as a tool in asset recovery 10 Andrew Stafford QC & James Chapman-Booth Guernsey Kobre & Kim 100 Simon Florance, John Greenfield & David Jones Carey Olsen Cryptocurrency fraud and asset recovery 17 Syedur Rahman Rahman Ravelli Hong Kong 110 Dorothy Siron Zhong Lun Law Firm Corruption in the pandemic and the importance of 22 asset recovery India Angela Barkhouse Quantuma Advisory Limited 124 Shreyas Jayasimha & Aakash Sherwal Aarna Law Fraud and asset tracing investigations: the role of 28 Ireland corporate intelligence - part II 132 Karyn Harty & Audrey Byrne McCann FitzGerald Alexander Davies & Peter Woglom BDO Japan International civil or criminal law tools that can be 144 42 Hiroyuki Kanae, Hidetaka Miyake & Atsushi Nishitani used to aid in asset recovery Anderson Mōri & Tomotsune Olga Bischof & Theodore Elton Brown Rudnick Confiscation proceedings and civil recovery: 152 Jersey 48 proportionality and abuse of process Marcus Pallot, Richard Holden & Daniel Johnstone Colin Wells 25 Bedford Row Carey Olsen Luxembourg 160 Max Mailliet E2M – Etude Max Mailliet COUNTRY CHAPTERS Singapore 168 Lee Bik Wei & Lee May Ling Allen & Gledhill Bermuda 56 Keith Robinson & Kyle Masters Carey Olsen Spain 178 Héctor Sbert & Maria de Mulder Lawants British Virgin Islands 63 Alex Hall Taylor QC, Richard Brown, Tim Wright & Switzerland Simon Hall Carey Olsen 188 Dr. Claudia Götz Staehelin, Dr. Florian Baumann & Dr. Omar Abo Youssef Kellerhals Carrard Cayman Islands 72 Jan Golaszewski, Denis Olarou, Sam Dawson & Peter United States Sherwood Carey Olsen 198 Joe Wielebinski, Toby Galloway & England & Wales Matthias Kleinsasser Winstead PC 79 Keith Oliver & Amalia Neenan Peters & Peters Solicitors LLP COMMERCIAL DISPUTE RESOLUTION CCommercialD DisputeR Resolution 152 JERSEY Jersey Marcus Pallot Richard Holden Carey Olsen Carey Olsen Daniel Johnstone Carey Olsen I Executive Summary II Important Legal Framework and Statutory Underpinnings to Fraud, Jersey is a well-developed offshore financial Asset Tracing and Recovery Schemes services centre, jealously proud of its interna- tional white-listing and scrupulous to avoid Jersey’s legal system is a hybrid, characterised by becoming a treasure island into which fraudulent little statutory provision but with a receptive and proceeds may be buried. Its historic indepen- adaptive approach to rules and remedies fash- dence from the UK and English law, but recep- ioned elsewhere in England and other offshore tiveness to its influence, allows it judiciously to centres. adopt, adapt and advance appropriate remedies Jersey is not part of the UK, but was part despite a lack of historical domestic precedent of the French Duchy of Normandy which for them, including to freeze assets and yield began its close association with the English up information from its well-regulated financial crown when William of Normandy crossed services sector. the Channel to take it. As a result, English law was never formally transplanted into Jersey. Instead, Jersey law’s roots lay historically in the law of the Duchy of Normandy, which was itself heavily influenced by the customary law of northern France. Jersey formally split from COMMERCIAL DISPUTE RESOLUTION CCommercialD DisputeR Resolution 153 Normandy in 1204 and as an island proceeded Nor are the RCR a comprehensive procedural to develop its own insular law and institutions, code. Instead, the RCR reorganise the Jersey including its own courts (now the Royal Court) procedural approach by engrafting certain and legislature (the States). It continued to look English procedural approaches on to (now closely to Norman law as its principal influence, largely forgotten) traditional Jersey approaches, including Norman law writers of the 16th and 17th together with Jersey-specific provisions. Subject Centuries. Such writers remain authoritative, not to 2017 amendments, and judicial receptiveness least given the dearth of local written sources, as to modern English CPR case law (even where reasoned judgments were not given until the late there is no corresponding RCR), the RCR remain 20th Century and the only truly local sources are an amalgam of such traditional Jersey provisions, two Island legal writers of the 17th Century and some of the RSC, and some of the CPR, with one of the early 20th Century (1940s) – all three many gaps to be filled by practice and judicial still writing in French. The gaps between these development. writers, insular and peninsular, were filled (like The Court of Appeal (Jersey) Law 1961 estab- Manx “breast law”) by the know-how carried in lished a Court of Appeal, in place of appeal the heads of the Island’s advocates – limited to within the Royal Court to a larger bench. The six in number – as to the practice of the Royal Court of Appeal is modelled on the English Court, giving the Island a truly customary as Court of Appeal and sits in benches of three. It opposed to written law. has no permanent judges but draws on a panel Jersey’s modern legal framework underpin- of judges from the Courts of Jersey, Guernsey ning fraud, asset tracing and recovery cases has and the Isle of Man, in addition to English and evolved from this background under the partic- Scottish QCs. An appeal to the Court of Appeal ular impetus of two important phases. First, in is a review, generally on a point of law, and the aftermath of the Second World War, French generally as of right from final judgments and ceased to be the language of legal practice and with leave from interlocutories. Appeal from the Royal Court reorganised into its modern the Court of Appeal lies to the Privy Council, shape by the Royal Court (Jersey) Law 1947. with leave: it is from Jersey’s right of appeal to Secondly, in the 1980s, Jersey began its modern the Monarch in Council that the wider Judicial development as an international finance centre: Committee of the Privy Council evolved. by the 1980s, the last vestiges of French training As a result of the above, Jersey’s procedure of any advocates and thus judiciary had all but overall resembles the modern English proce- disappeared. As a result, the Royal Court and dure moving through key stages of pleading, Jersey law began to resemble and adopt English discovery, exchange of written witness evidence approaches to issues, but retaining some charac- and trial by the adversarial presentation of cases. teristic procedures, the most important of which It does not have as detailed a code of procedural in fraud and asset tracing cases relate to the or substantive law, not as developed a history method of commencing proceedings and proce- of particular remedies and practices. However, dure for ex parte injunctions, described further it more than makes up for this by being unbur- below. dened with certain procedural histories or hide- The Royal Court (Jersey) Law 1947 provides bound orthodoxies (such as the availability of for the constitution of the Royal Court. It is equitable versus legal remedies, or jurisdictional presided over by a judge – the Bailiff, Deputy limitations on injunctive relief), and has shown Bailiff or a Commissioner. Also sitting with the itself to be not only receptive but flexible in judge are (typically) two jurats, a characteristi- developing (principally) English remedies to cally Channel Island office. The jurats are perma- ensure remedies are available for frauds, thus nent lay appointees to the court who rotate as do minimising the need for statutory intervention. the judges between different matters. In addition Apart from the Court itself, the principal stat- to presiding over proceedings, the judge is the utes of importance to fraud and asset tracing judge of law, including procedure and costs. The cases are the Financial Services (Jersey) Law jurats are the judges of fact, damages and (in 1998 and Proceeds of Crime (Jersey) Law 1999, criminal matters) decide the sentence: if they are and regulations and orders enacted under them. split, the presiding judge has a casting vote. The Financial Services Law is the foundational The Royal Court Rules 2004 (“RCR”) are the law for Jersey’s regulated financial sector. It is the current rules of civil procedure governing civil presence and size of this sector – managing over court processes. Unlike other English speaking £1 trillion of assets, with over £600 billion of offshore centres, Jersey has not adopted the assets in Jersey trusts, £365.5 billion in Jersey CPR or rules based on them wholesale, although funds, and £137.8 billion on deposit in Jersey an overriding objective and revised summary banks – which makes Jersey of particular interest judgment procedure were introduced in 2017. as a jurisdiction in fraud and asset tracing cases. FRAUD, ASSET TRACING & RECOVERY 2021 154 JERSEY The Financial Services Law requires financial the modern evolution is that proceedings may services businesses to register with the Jersey be commenced by a pleading, called an “Order of Financial Services Commission, and the regu-
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