Lawyer Monthly Magazine - January 2019 Edition

DEC 2018 110 Thought Leader www. lawyer-monthly .com we may use insolvency tools if there is debt owed, and in some fraud causes it may be possible to obtain a winding-up or receivership of a legal entity which could provide additional discovery powers regarding its assets, and possibly additional causes of action to be pursued. When undertaking cross- border investigations and asset recovery, how can processes differ across jurisdictions? What misconceptions and assumptions are often made about the ability to recover on shore and offshore? One of the main challenges in complex financial investigations and asset recovery cases is their multi-jurisdictional nature. In cases where it is discovered that the perpetrators have used offshore corporate vehicles to conceal their proceeds of fraud, a common belief is that ASSET RECOVERY Angela Barkhouse, Managing Director at Krys Global III.Are these in jurisdictions where there are robust legal remedies in place? Complex frauds are often multi- jurisdictional, understanding international legal remedies is key in determining a successful strategy. We have heard many times from litigants pursuing claims (and maybe even having successful judgements) that they made no recoveries of assets. Too often we hear stories of wasted money and time spent pursuing a remedy that was not viable, or worse obtaining a judgement but failing to bring in a recovery. It is critical, therefore, that you do some research upfront to ensure those advising you, particularly offshore, have the relevant knowledge and experience to get you the best result. We use a range of remedies depending on the most efficient route to recovery. For example, What critical strategic considerations are essential for success in a complex fraud investigation or asset recovery? I. Where is the documentation/ information I need? Understanding where documentation is held, what form it is in, the ability to acquire it (whether provided at source, for example, in internal investigations, or if it has to be obtained through legal discovery tools) and being cognizant of the data protection laws of certain jurisdictions, are initial key considerations. II. Where are the assets? Getting reliable and usable information about where the assets are, is key if the investigation is likely to result in successful asset recovery. Whilst an entity (corporation or trust) that is the focus of a fraud investigation may be incorporated in the Cayman Islands, it is unlikely that any assets derived from fraud will actually exist here. There is no use pursuing causes of action and incurring the time and expense of those proceedings (including the risk of adverse costs being order against you) if you are not ultimately pursuing a recovery, particularly in complex multi-jurisdictional cases. Angela Barkhouse is Managing Director at Krys Global, an international asset recovery firm with an expertise in offshore focused fraud investigations, cross-border insolvency and restructurings, and dispute resolution and litigation support. The firm has grown to over 50 outstanding professionals working from eight offices worldwide, predominantly situated in offshore financial centres; she leads the Cayman Island office. Angela has over 15 years of professional experience consulting with governments, law firms, banks, corporations and NGO’s in investigating financial fraud, bribery, corruption, conflicts of interest, embezzlement, stolen sovereign wealth, and making cross-border asset recoveries, having assisted in a broad range of investigations using criminal, civil and insolvency mechanisms to provide practical solutions in ascertaining the facts and repatriating stolen assets. ANGELA BARKHOUSE INVESTIGATING FRAUD: THE CONSIDERATIONS AND PROCESS With 15 years’ experience in the field of fraud investigations and corruption, Angela Barkhouse discusses strategic considerations which are essential to success in a complex fraud investigation and misconceptions which are often made about the ability to recover on shore and offshore assets. Email: Angela.barkhouse@krys-global.com | Tel: +1 (345) 947 4700