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Fraud and Asset Recovery in 2016 and Beyond
As part of the Who’s Who Legal: Asset Recovery 2016 guidebook, I was invited to participate in a roundtable discussion and give my insights about trends and issues facing asset-recovery lawyers and our clients today.
A couple of topics that I have been vocal about recently emerged from the roundtable that I know have deeply affected my practice and that I know my colleagues, especially those in the FraudNet network to which I belong, contend with on a regular basis.
Widening the Civil Route
I feel strongly that in France, we need to widen the path to try fraud cases following a civil route. France is still too restrictive in allowing victims to use civil proceedings to recover their assets. I’ve seen this in other jurisdictions as well.
There are too many hurdles facing victims. Of course, they can pursue the criminal route as French law allows them to be parties to criminal proceedings. But prosecutors often are too overwhelmed with cases and are not in a position to effectively deal with fraud cases, unless a major fraud case is at stake.
To be certain, we are seeing some progress in the frame of civil proceedings, but it is still a difficult battle. The partners in my firm and I will continue raising the awareness of the French judiciary on this topic through articles and conferences.
I also have been an outspoken advocate for a bill currently being discussed in France’s Parliament that will introduce a deferred prosecution agreement mechanism. Unfortunately, the government has introduced in this bill, Loi Sapin 2, a controversial provision to protect foreign states’ assets.
Likely born out of the recent Yukos ruling against Russia and the French Ministry of Foreign Affairs’ desire to safeguard diplomatic relationships with foreign states, it is doubtful that this provision complies with either the UN Convention on the immunity of states that France has ratified or Article 6 of the European Human Rights Convention and the resulting case law, which says that creditors have a right to the enforcement of court decisions. For asset- and judgment-recovery lawyers, we have to keep a close watch on developments with this bill to ensure the victims we represent don’t fall victims to politics as well as fraud.
Regarding case law developments, we are faced with contradicting tendencies in France. On one hand, French bank secrecy – even in the case of fraud, or simply to enforce judgment – is construed very strictly by courts in civil proceedings. Yet, applications to obtain disclosure orders before initiating proceedings are now obtained on a regular basis as long as banks are not the target of such disclosure orders.
While these issues admittedly affect French attorneys and their practices in France, in the world of fraud and asset recovery, jurisdictional borders often are blurred. History has shown us how the actions of lawmakers, law interpreters and law practitioners attract the attention of other worldwide jurisdictions trying to improve their laws, judicial interpretations and practices. When it comes to the disappearing borders of fraud and asset recovery, I’m grateful to have among my FraudNet colleagues, the caliber of knowledge that garnered the recognition of 22 of them by Who’s Who Legal as “most highly regarded individuals” and the many others listed and lauded throughout the guidebook.
Stéphane Bonifassi, Executive Director of FraudNet, specializes in white-collar crime litigation and complex commercial litigation involving criminal or quasi-criminal conduct. In recent years, he has regularly represented individuals as well as corporations, victims of fraud. His practice is international and often involves mutual legal assistance issues. He has also developed a strong practice in the field of confiscation and forfeiture, freezing orders, attachments and similar measures mostly involving international parties and raising issues such as transnational enforcement of judgments and orders, lifting the corporate veil or state immunities.
ICC Fraudnet is an international network of independent lawyers who are leading civil asset recovery specialists in each country. Recognized by Chambers Global as the world’s leading asset recovery legal network, our membership extends to every continent and the world’s major economies, as well as leading offshore wealth havens that have complex bank secrecy laws and institutions where the proceeds of fraud often are hidden. Founded in 2004 by the Paris-based International Chamber of Commerce (ICC), the world’s business organization, FraudNet operates under the auspices of the ICC’s London-based Commercial Crime Services unit.