The ability to trace assets across the world is becoming increasingly relevant to the business sphere as businesses continue to become progressively more global. As individuals and companies continue to move assets away from countries in which they are subject to dispute it is important that parties are able to trace assets across jurisdictions.
This Guide draws together contributions from tracing experts across a number of territories.
We hope you will find the Guide a useful resource for getting to grips with the framework in asset tracing law in each of these territories, safe in the knowledge that if further specialist advice is needed, it’s only a call or email away.
How to Use: You can use the tools below to create bespoke reports for the jurisdiction(s) and topic(s) covered. Click into single jurisdiction for one location or use the compare tool to compare multiple jurisdictions. Select the jurisdictions and topics of interest to create your unique report. You also have the option to print or download using the ellipsis button in the top right corner.
The English courts have powerful and effective tools to identify and preserve assets. The "freezing injunction" which can have worldwide reach is the “nuclear option” of remedies available to English courts and can, in the right circumstances, be extremely fruitful for claimants that have been victims of complex international fraud or other wrongdoing.
Public limited companies (PLC) will publish accounts and file information with the relevant share exchange. Larger private limited companies (Ltd) or limited liability partnerships (LLP) must file annual accounts at Companies House which are publicly available.
The Land Registry holds a central record of property ownership in England and Wales. It is possible to search for properties owned by a corporate entity. It is not generally possible to search for property owned by private individuals. There are exceptions e.g. for a trustee in bankruptcy or if there is an applicable court order.
As against third parties “Norwich Pharmacal Orders” – a form of court disclosure order made where the applicant does not know who to proceed against without the information from the third party respondent. The applicant needs to show that the respondent has become mixed up in or otherwise facilitated the wrongdoing (whether knowingly or innocently). Often used against banks in fraud situations.
Non-party Disclosure Orders – If substantive court proceedings have been commenced, it is possible to apply for a non-party disclosure order. An applicant needs to show that the documents are likely to support its case and are necessary to resolve the proceedings.
As against the wrongdoer
When making application to the English court for a freezing injunction (see below) the applicant can ask the court to include an order that the respondent discloses all the assets owned by it anywhere in the world. Any failure to comply with these disclosure requirements can be considered contempt of court and result in a prison sentence for individuals.
Yes. A freezing injunction can be obtained which prevents a party from disposing of or dealing with its assets pending the outcome of a final judgment of a claim.
It is usual for such an injunction to require the respondent party to disclose information about its assets. The party seeking the injunction will be required to provide an undertaking to the court that it will not use information obtained as a result of the injunction for the purpose of any civil or criminal proceedings (either in England and Wales or in any other jurisdiction) other than the claim in which the order is granted, except with the permission of the court.
The applicant needs to show: - the English court has jurisdiction to hear the substantive claim and there are assets in the jurisdiction.
there is a substantive cause of action for which the applicant has a good arguable case. The applicant must progress the substantive claim.
it is just and convenient to grant the injunction: this is the main consideration and means the injunction would not be granted if it would cause some injustice to the respondent that outweighs the benefit to the applicant.
there is a real risk the respondent would dissipate the assets.
The applicant will also need to provide certain undertakings to the court which would include an agreement to pay damages to the respondent if the injunction was improperly obtained or if it is decided at final trial that the injunction should not have been granted.
A freezing order can apply to all asset classes (ie not just property, but bank accounts, shares etc), whether within or outside the jurisdiction. A party subject to a freezing order can be compelled to disclose information relating to any interest in any trusts whether as a beneficiary or otherwise. In general, the court has the power to make whatever ancillary orders are necessary to make the freezing order effective.
The court will only exercise its discretion to grant a freezing injunction extending to foreign assets in exceptional circumstances if the respondent is resident within the jurisdiction or is someone over whom the court has or would have in personam jurisdiction.
The court will only grant worldwide relief if it is just and expedient to do so. The court is mindful of disharmony or confusion or the risk of conflicting, inconsistent or overlapping orders in other jurisdictions.
The injunction will not automatically be enforced worldwide; the applicant will still need to enforce the injunction in those jurisdictions where assets are located.
In certain circumstances, for example where the responding party has limited assets in the jurisdiction, the court might make an order that further assets (or assets of a certain value) be brought into the jurisdiction.
The procedure for obtaining a search order is similar to that which applies in relation to obtaining a freezing order. However, the search order will only apply to premises within the English jurisdiction and they are granted by the court only in extreme situations (for example, where there is a real risk that the defendant will destroy documents).
Yes. The English courts have jurisdiction to grant a freezing injunction or search order in support of substantive proceedings that have been (or will be) served outside the jurisdiction.
Yes, dependent on various regimes. The applicable regime depends on where the freezing injunction was obtained.
There are statutory regimes for freezing injunctions from certain jurisdictions. These require that in order for a freezing injunction to be enforceable, the original court must have had jurisdiction over the substantive dispute. The original court must certify the judgment, and the certificate is served (along with a copy of the judgment, which may be required to be translated) in the UK. If the country (or type of injunction) falls outside of one of the statutory regimes, common law is applied. Common law covers amongst other countries, the USA,.
The common law position is similar to the statutory regimes and requires that a foreign freezing injunction is only enforceable if the original court had jurisdiction according to the rules which English law applies in such cases, which means broadly on a territorial or consensual basis. It is insufficient that the original court had jurisdiction according to its own rules
Disclaimer: This guide contains summaries of general principles of law. It is not a substitute for specific legal advice and should not be relied upon in relation to the application of the law or subject matter covered.
