Technology and globalisation have proved extremely effective at improving cross-border investment during the last decade. Trade barriers between countries and continents have been lowered everywhere, allowing money to flow freely across borders in search of profitable investments.
The result is that most companies with an international outlook, even those of relatively small size, have assets located in multiple jurisdictions. On the face of it, this seems a positive development, but it does throw up interesting complications, particularly where insolvency or bankruptcy is concerned.
Enforcing a judgment against a debtor can be difficult enough in a home country, but when it encompasses assets in foreign jurisdictions the situation can become complicated. Having the judgment accepted by a foreign court is crucial, and there are a number of initiatives designed to make that acceptance easier.
The UNCITRAL Model Law on Cross Border Insolvency seeks to streamline acceptance of foreign judgments between the countries who have signed up to its framework. In practice, few jurisdictions around the world have signed up to it, but it is recognised as a global standard.
Elsewhere, the European Union has the EC Regulation on Insolvency Proceedings, which requires each member state to recognise insolvency proceedings commenced in another member state. This, coupled with the Judgment Regulation facilitating the collection of debts, makes it much easier to initiate successful cross-border asset recovery.
In the absence of these overarching frameworks, recovery can be more difficult, however, most jurisdictions will accept judgments from recognised foreign courts as long as a number of criteria are met. Many common law jurisdictions have reciprocal legislation allowing acceptance of foreign judgments.
Once a judgment is acknowledged by a foreign court, creditors and their appointed representatives will have full access to the recovery tools available in the jurisdiction in question. Failure to have a judgment recognised will always make asset recovery more difficult and could, in countries which follow a strict principle of territoriality, make it impossible to recover funds.
In the following discussion, we will hear from insolvency and bankruptcy lawyers in six different jurisdictions around the world. Each is expert in helping foreign creditors trace and recover assets in their country, and will highlight the full range of tools available to achieve this. We will discuss remedies and strategies used to secure and realise assets, assess what a typical asset recovery investigation looks like, and ask whether it is possible to keep the process secret from targeted debtors. We will look at the application of various legal structures such as Norwich Pharmacal orders, Mareva injunctions and Anton Piller orders.
Finally, we will review the key trends in cross-border asset recovery observed by our experts during the last 12 months.
