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Insolvency As An Asset Recovery Tool in Switzerland09/15/2023

The concerns about finding and recovering assets in Switzerland are legion. There is a strict blocking statute and bank secrecy, but all is not lost. In the context of insolvency proceedings, Swiss criminal proceedings offer an effective tool to enable disclosure of banking information and the freezing of assets. The blocking statute provides that any person who carries out activities…

Subsequent Transferee Liability in Cryptocurrency Bankruptcies01/05/2023

In the new year, cryptocurrency bankruptcies will be breaking new ground over the ability to recover customer deposits. An understanding of the ruling in the Bernie Madoff SIPC liquidation could provide guidance for such recoveries. Bankruptcy Code sections 548 (a) and 550 (a) give chapter 11 debtors, appointed trustees and post-confirmation liquidating trustees the power to sue and recover money…

Why Offshore Trusts in Nevis Are Used For Asset Protection07/28/2022

Trusts are popular for various reasons to hold assets, and the Nevis International Exempt Trust is indicative of the reason for such popularity as an asset protection device. A settlor looks for a safe and stable jurisdiction to hold assets and to be able to access and control such wealth. Nevis provides such security. As important, settlors consider protection from…

The Current State of Cryptocurrency Recovery by Creditors01/26/2022

While cryptocurrencies have increasingly become more mainstream, they are still relegated to the edges of financial systems because they are still not widely accepted as legal tender and are limited to private transactions between individuals online. Cryptocurrencies are global, and bad actors that use them to perpetrate fraud may be located in various jurisdictions around the globe. Not all countries…

Clarifying the Use of Pre-Litigation Discovery in Chapter 15 Bankruptcy Cases to Investigate Potential Causes of Action01/07/2022

As cross-border restructurings grow, especially in the wake of the global COVID-19 pandemic, global companies filing for insolvency relief in foreign countries may utilize chapter 15 of the Bankruptcy Code to facilitate the protection of assets located in the U.S. In Chapter 15 proceeding, assistance is available upon recognition of the foreign proceeding under Section 1521 (a) (4) of the…

A Physical Presence in Canada is Needed to Enforce Foreign Judgement Against a Party11/22/2021

The Supreme Court of Canada in H.M.B. Holdings Ltd. v. Antigua and Barbuda, recently considered whether foreign judgment creditors can seize assets in Canada when the party does not have an actual presence in Canada. There, the connection in British Columbia (B.C.) contracted with businesses in B.C. that were to pay a finder’s fee to the judgment debtor. The judgment…

The Complexity of Asset Recovery Is Shown By Different Approaches Needed In Common And Civil Law Jurisdictions10/27/2021

This overview is offered to provide a structured analysis of how enforcement measures can be implemented in civil law jurisdictions such as France and common law jurisdictions such as the UK and Germany. Creditors need to adapt their approach given the options provided by local law for recovering a debt and assets. The conditions for application of interim collection measures…

Foreign Discovery Through Letters of Request Are Not An Absolute Right09/05/2021

The Letter of Request Procedure is the main means of evidence gathering under the Hague Convention. This process begins with a request made to the U.S. court where the action is pending to issue a letter of request seeking the production of specified documents or the taking of testimony from a particular witness. The court transmits the letter of request…

Delaware Bankruptcy Court Confirms Bankruptcy Court Has Authority to Issue Preliminary Injunctions To Freeze Assets09/02/2021

In 1998, The U.S. Supreme Court in Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, 527 U.S. 308, held that the District Court had no authority to issue a preliminary injunction preventing petitioners from disposing of assets pending adjudication of the respondents’ contract claim for money damages. Subsequently, courts have interpreted Grupo to carve out exceptions for equitable actions…

Inquiry Notice Applies to A Transferee’s Good Faith Defense to a Trustee’s Fraudulent Avoidance Action09/02/2021

On August 30, 2021, the Second Circuit decided in Irving Picard, trustee for the Liquidation of Bernard L. Madoff Investment Securities, LLC v. Citibank N.A., 20-1334, on “appeals of the latest installment in the long-running litigation arising from Bernard Madoff’s Ponzi scheme” whether the District Court properly dismissed actions brought against initial and subsequent transferees, to avoid and recover transfers,…

Prejudgment Freezing Orders in the US To Combat Evasive Debtors in the Current Pandemic Environment01/14/2021

The 2021 pandemic environment is showing trends toward evasive debtors trying to protect their wealth by moving assets fluidly around the world as creditors evaluate the value of assets and the ability to recover claims and debts.

Current Trends to Hide Assets01/07/2021

With the economy on troubling grounds, there is a greater desire to protect assets. But, there is a difference between hiding and protecting assets. Hiding assets is a form of protection, but done for illicit purposes to keep away from current creditors.

Consideration for Creditors During Current Economic Upheaval When Confronting Cayman Islands Trusts and Foundation Companies12/18/2020

The economic upheaval caused by the pandemic has forced persons to focus on asset preservation. The desire to protect wealth and business assets in a well-run, regulated and safe jurisdiction has led to a marked increase in business for the financial sector in places such …

Current Treatment of Mareva Injunctions in Canada01/29/2020

A Mareva injunction freezes a defendant’s assets to avoid their dissipation and to enable a judgment to be later satisfied. 

Developments Offshore In Third Party Disclosures in Wrongdoings (Norwich Pharmacal Relief)01/06/2020

In the last several years to assist tracing of assets and discovery of perpetrators, courts in English common law countries have shown a willingness to assist victims by ordering third parties to disclose information through discovery about wrongdoings under Norwich Pharmacal relief.

Recent Circuit Court Decisions Extend The Breadth of Section 1782 U.S. Discovery in Foreign Proceedings10/31/2019

A federal district court may order discovery under 28 U.S.C. Section 1782 “for use in a proceeding in a foreign or international tribunal” upon application by any “interested person”.

BVI Scales Back Stand-Alone Injunctions06/12/2019

In 2009 in Black Swan Investment ISA v. Harvest View Limited BHVC (Com) 2009/399, the court established the principle that a court can act in aid of foreign proceedings where it can be shown that there is property situated in BVI which belongs to the …

Second Circuit in Madoff Enables Trustee To Recover Under Bankruptcy Code For Fraudulent Transfers Initially Sent Offshore from the U.S.02/28/2019

On February 25, 2019, the Second Circuit in the Madoff liquidation decided that Sections 548 and 550 of the Bankruptcy Code can be applied extraterritorially to recover fraudulent transfers. There, offshore feeder funds were recipients of investors’ fraudulent transfers and contended that U.S. fraudulent transfer …

Mareva Injunctions in Aid of Foreign Proceedings in Singapore02/18/2019

Singapore has become a financial and business center in Asia, which means that a number of foreign companies and individuals have assets there. Until now, the question of whether a Singapore court has the power when a dispute is being litigated in a foreign court …

Obtaining Jurisdiction Over a Foreign Corporation for Section 1782 Discovery is Becoming Extremely Difficult01/07/2019

Pursuant to 28 U.S.C. Section 1782, a party may apply to conduct discovery in the U.S. for use in foreign proceedings. In a recent decision from the U.S. District Court for the Southern District of New York, In re Ruiz, 2018 U.S. Dist. Lexis 180262, …

Canada Provides Helpful Guidelines When Mareva Injunction Can Be Granted Without Notice10/08/2018

Ontario’s Divisional Court in 2092280 Ontario Inc. v. Voralto Group Inc., 2018 ONSC 2305, confirmed the requirements in obtaining an injunction on the dissipation of assets without notice.

Bankruptcy Courts Have Authority to Compel Debtor to Sign Consent Directives06/18/2018

The Second Circuit is the first court of appeals to consider the holding in the United States Supreme Court?s decision in RJR Nabisco Inc. v. European Community, 136 S. Ct. 2090 (2016), which said that Section 1964 (c) of RICO does not apply extraterritorially for …

Creditor’s Ability to Recover in the UK From Debt Owed Under Letters of Credit03/29/2018

Your client has a judgment or arbitral award and becomes aware of an unrelated contract where the judgment debtor is to be paid through letters of credit issued by a bank branch in the UK. Can you use that as a source of recovery? Judgment …

The Unique Quandaries Faced in Recovering International Cryptocurrency Frauds02/01/2018

Cryptocurrency itself is a string of computer-generated code. For asset protection purposes, a cryptocurrency account currently functions similarly to offshore banking prior to the IRS?s crackdown of anonymous personal foreign accounts. At the moment, creditors face obstacles of identifying potential defendants and the international nature …

Reaching Trust Assets in the UK- It Can Be Done01/16/2018

English courts are developing ways to ensure that creditors are not thwarted by sophisticated and devious debtors using offshore structures that do not appear to be fictitious.

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