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Nigeria V. Santolina Investment Corp., Diepreye Alamieyeseigha Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Disclosure Authorized Public Wrongs, Private Actions Public Wrongs, Private Actions Civil Lawsuits to Recover Stolen Assets Jean-Pierre Brun Pascale Helene Dubois Emile van der Does de Willebois Jeanne Hauch Sarah Jaïs Yannis Mekki Anastasia Sotiropoulou Katherine Rose Sylvester Mahesh Uttamchandani © 2015 International Bank for Reconstruction and Development / The World Bank 1818 H Street NW, Washington DC 20433 Telephone: 202-473-1000; Internet: www.worldbank.org Some rights reserved 1 2 3 4 17 16 15 14 This work is a product of the staff of The World Bank with external contributions. The findings, interpreta- tions, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any territory or the endorsement or acceptance of such boundaries. Nothing herein shall constitute or be considered to be a limitation upon or waiver of the privileges and immunities of The World Bank, all of which are specifically reserved. Rights and Permissions This work is available under the Creative Commons Attribution 3.0 IGO license (CC BY 3.0 IGO) http:// creativecommons.org/licenses/by/3.0/igo. Under the Creative Commons Attribution license, you are free to copy, distribute, transmit, and adapt this work, including for commercial purposes, under the following conditions: Attribution—Please cite the work as follows: Jean-Pierre Brun; Dubois, Pascale Helene; van der Does de Willebois, Emile; Hauch, Jeanne; Jaïs, Sarah; Mekki, Yannis; Sotiropoulou, Anastasia; Sylvester, Katherine Rose; and Uttamchandani, Mahesh. 2015. Public Wrongs, Private Actions: Civil Lawsuits to Recover Stolen Assets. Washington, DC: World Bank. doi:10.1596/978-1-4648-0370-3. License: Creative Commons Attribution CC BY 3.0 IGO Translations—If you create a translation of this work, please add the following disclaimer along with the attribution: This translation was not created by The World Bank and should not be considered an official World Bank translation. The World Bank shall not be liable for any content or error in this translation. 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All queries on rights and licenses should be addressed to the Publishing and Knowledge Division, The World Bank, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2625; e-mail: [email protected]. ISBN (paper): 978-1-4648-0370-3 ISBN (electronic): 978-1-4648-0373-4 DOI: 10.1596/978-1-4648-0370-3 Cover photos: shutterstock.com. Reuse requires permission. Cover design: Debra Naylor, Naylor Design, Inc. Library of Congress Cataloging-in-Publication Data has been applied for. Contents Preface xi Acknowledgments xv Introduction 1 Objective 2 Context: Civil Remedies as One of Several Avenues to Asset Recovery 3 Scope of the Book 6 Audience 7 Overview of Chapters 7 1. Civil Asset Recovery Litigation: Who May Sue and Be Sued—States as Plaintiffs and Possible Defendants 11 A. States as Plaintiffs in Corruption Cases 12 B. Defendants: Who Can Be Sued? 19 2. Hiring an Attorney: Steps, Considerations, and Fee Arrangements 25 A. Identifying a Suitable Attorney 25 B. Structuring a Fee Arrangement 32 C. Litigation and Asset Recovery Funds 36 D. Assistance from International Organizations 37 3. Choice of Forum: Where to Sue? 39 A. Where Are the Assets, and Where Do the Defendants Have Contacts? 39 B. Further Considerations 45 4. Types of Actions 49 A. Proprietary Actions—State Asserts Claim to a Particular Asset 49 B. Personal Claims—Claim against a Person 56 5. Civil Provisional Measures and Investigative Tools: How to Investigate and Freeze Assets 71 A. Investigative Measures in Civil Asset Recovery Cases 71 B. Securing the Assets: Provisional Measures in Civil Proceedings 77 v 6. Legal Tools for International Cooperation: How to Obtain the Supporting Evidence 81 A. International Conventions Promoting International Cooperation 81 B. Regional Instruments to Facilitate Mutual Legal Assistance 85 C. Factors to Consider When Collecting Evidence in Foreign Jurisdictions 86 7. Damages and Compensation: How Much to Sue For? 89 A. Methods Used to Quantify Compensation, Restitution, or Illicit Proceeds 89 B. Beyond the Present—Emerging Theories 95 8. Enforcement and Collection of Judgments 99 A. The Recognition and Enforcement of Civil Judgments in an International Context 99 B. The Challenges of Collecting Civil Judgments 105 9. Using Insolvency, Receivership, or Similar Proceedings to Trace or Recover Assets 111 A. Purpose of Insolvency or Similar Proceedings 111 B. Using Insolvency Proceedings in Asset Recovery Cases 112 10. Conclusion 115 Appendix A. Glossary 117 Appendix B. Case Studies 121 1. Case of Mr. Diepreye Solomon Peter Alamieyeseigha (United Kingdom) 121 2. Zambian Government v. the former Zambian President, Frederick Chiluba (United Kingdom) 122 3. Kartika Ratna Thahir v. Pertamina (Singapore) 124 4. Federal Republic of Nigeria v. Joshua Dariye & Another (United Kingdom) 125 5. JSC BTA Bank v. Ablyazov & Others (United Kingdom) 125 6. Attorney General of Turks and Caicos Islands v. Star Platinum Island Ltd. et al. 126 Appendix C. Table of Cases Mentioned 129 1. Core of text 129 2. Cases mentioned in footnotes 131 Appendix D. Resources 135 1. Website Resources 135 2. Publications and Studies 136 Boxes 1.1 States Are Legal Persons Entitled to Bring Claims: The Ferdinand Marcos Case (United States) 15 vi I Contents 1.2 Standing in Courts of Foreign States: The Republic of Iraq v. ABB AG et al. (United States) 15 1.3 Nigeria’s Successful Civil Suit in U.K. Courts: The Case of Diepreye Solomon Peter Alamieyeseigha (United Kingdom) 16 1.4 A Proprietary Claim by the Federal Republic of Brazil and the Municipality of São Paulo: Maluf Case in Jersey (Isle of Jersey) 17 1.5 A State-Owned Entity Obtains Bribe Money Held in a Foreign Bank Account through a Civil Claim in a Foreign Court: Kartika Ratna Thahir v. Pertamina (Singapore) 18 1.6 State as Civil Party: Tunisia Granted Status as Partie Civile in Switzerland and Other Countries in Criminal Cases Involving Stolen Assets 18 1.7 Claims under Property Law to Compensate Victims of Corruption: An Example from Bosnia and Herzegovina 19 1.8 An Example of the Principal/Agent Relationship: Continental Management v. United States (United States) 21 1.9 Liability of Law Firms Used to Allegedly Conceal Monies: Attorney General of Zambia v. Meer Care & Desai (a firm) & Ors. (United Kingdom) 22 2.1 Qualities of a Successful Asset Recovery Attorney 26 2.2 Identifying a Suitable Attorney 30 2.3 Considerations in Structuring a Fee Arrangement 33 2.4 Overview of Types of Fee Arrangements 35 3.1 Case with Assets Located in the United Kingdom and Rejection of the Argument That the Home Country of the Official Is More Appropriate: Federal Republic of Nigeria v. Joshua Dariye & Another (United Kingdom) 40 3.2 Successful Civil Suits in the U.K. Where the Money Was Located and Laundered: The Case of Frederick Chiluba (Zambia) 43 3.3 A Win by Default against One Defendant and a Loss for Lack of Personal Jurisdiction against Another in the U.S. Courts: Ukrvaktsina (Ukrainian State-owned entity) v. Olden Group, LLC and Interfarm, LLC 44 3.4 Winning a Substantial Amount through Settlement in the United States: Alba v. Alcoa Company (United States) 45 3.5 Court Applies Less-Favorable Foreign Law: Fiona Trust v. Dmitri Skarga and Others (United Kingdom) 46 4.1 State Recovers Property Bought with State Funds: State of Libya v. Capitana Seas Ltd. (United Kingdom) 51 4.2 State Recovers Real Estate and Bank Accounts: More on the Case of Nigeria v. Santolina Investment Corporation, Diepreye Alamieyeseigha & Others (United Kingdom) 52 4.3 Using “Constructive Trust” to Recover Bribes Paid to a Corrupt Official: AG of Hong Kong v. Reid (Hong Kong SAR, China) 53 4.4 Successful Proprietary Claim to Recover Bribes: More on Kartika Ratna Thahir v. Pertamina (Singapore) 54 Contents I vii 4.5 Discussion on the Reasoning of Hong Kong v. Reid: Sinclair Investments v. Versailles 54 4.6 Claiming Back Funds in Quebec: Saroglou v. Canada 55 4.7 Public Contract Void Based on Breach of International Public Policy: World Duty Free Company Limited v. The Republic of Kenya (2006) (ICSID) 57 4.8 Successful Claim to Void a Public Contract: Attorney General of Turks and Caicos Islands v. Star Platinum Island Ltd. et al. 58 4.9 Disgorgement of Profits for Breach of Contract: Attorney General v.
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