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The IMB aware of the escalating level of this criminal activity, wanted to provide a free service to the seafarer and established the 24 hour IMB Piracy Reporting Centre (PRC) in Kuala Lumpur, Malaysia.
A newsletter about fraud and global asset recovery from the office of International Chamber of Commerce's FraudNet. To read about key asset recovery cases and global compliance with anti-fraud and money-laundering laws, please click in the link above for the Newsletter PDF.
CCS offers a flexible membership arrangement based on the selection of predetermined membership packages. A prospective member can elect to join one or more Bureaux according to their requirements.
Losses due to official misconduct account for a great many maritime trade incidents. Each incident can be complex and wide-ranging in nature. It is therefore unlikely that any one company will have the knowledge and resources to be able to investigate it thoroughly.
Counterfeiting and piracy are a drain on our businesses and on the global economy. It has resulted in the widespread loss of lawful employment and a massive reduction of tax revenues.
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In the recent case of FHR European Ventures LLP and others v Cedar Capital Partners LLC [2014] UKSC 45 , the Supreme Court settled a long-running debate as to whether a principal has a proprietary claim against its agent for bribes or secret commissions it receives, or a merely personal claim.
Overruling its 152 year old decision in Tyrell v Bank of London (1862) 10 HL Cas, the Supreme Court held that a bribe or secret profit obtained by an agent is held on constructive trust for the principal. As such, the principal will have a proprietary claim to the bribe or its proceeds as against the agent, and also against third parties to whom the proceeds may be traced.
The decision is of great significance to fraud claims as it enables a principal’s claim to precede those of the unsecured creditors of the agent. It will also enable the principal to trace into the hands of recipients of funds, which is likely to be of great assistance to claimants in bribery cases where the defendant itself has no assets. (from FraudNet member for United Kingdom ||Steven Philippsohn|| of ||PCB Litigation LLP, London||)
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In the case of United States v Abacha [2014] EWHC 993 (Comm), Mr Justice Field delivered an important judgment in continuing a Freezing Injunction in aid of foreign proceedings. That injunction was granted under s.25 of the Civil Jurisdiction and Judgments Act (“the CJJA”) on behalf of the US, so as to “hold the ring” until a judgment could be obtained in the US against the defendants and enforced in the UK under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (“the Order”).
The Defendants are alleged to have been involved in a fraud committed in Nigeria during the presidency of General Sani Abacha. Proceedings were brought in the US by the US Government against the Defendants, seeking forfeiture of assets representing the proceeds of crime. Under the Order, the US could seek enforcement of a civil forfeiture order, once obtained in the US, in the UK. However, it was not able to obtain an interim freezing order under that instrument due to expiry of the relevant limitation period. As such the US obtained a Freezing Injunction under the CJJA instead. It was argued by the Defendants that the Freezing Injunction should not be continued as a) the foreign proceedings to which it related were not civil but in fact criminal proceedings, and b) that it would be inexpedient to continue the Order for various reasons
Dismissing the first point, Field J drew the distinction between criminal proceedings involving the prosecution and sentencing of an individual in a criminal court, and the present foreign proceedings which concerned a claim seeking the vesting of property in the US Government which were the proceeds of crime. Field J considered the latter were properly construed as civil proceedings within the meaning of s.25(1) CJJA. On the second issue Field J stated “it is unquestionably expedient for this court to render the assistance sought… Corruption, like other types of fraud, is a global problem and it and its consequences are only going to be dealt with effectively if there is co-operation… between the courts of different national jurisdictions.” (from FraudNet member for United Kingdom ||Steven Philippsohn|| of ||PCB Litigation LLP, London||)
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Former President of the Regional Labour Court of Sao Paulo Nicolau dos Santos Neto had been convicted in Brazil in 2002 for fraud, embezzlement, corruption, unfaithful management and money laundering in the context of the works of the new court building he supervised between 1992 and 1998, for a total cost of US$165 million, of which at least US$86 million was embezzled and US$6.8 million was paid to a Geneva bank account owned by dos Santos between 1991 and 1994. In parallel with the Brazilian criminal proceedings, the Attorney General of Geneva initiated criminal proceedings for money laundering in 2000, to which the Federative Republic of Brazil participated as party suing for damages (represented by FraudNet member for ||Switzerland||, ||Monfrini Crettol & Associés, Geneva||). Upon the conclusion of the investigation, the Attorney General of Geneva issued in 2009 a non-conviction based forfeiture order against the bank account and allocated the forfeited assets to Brazil as the victim of the crimes. The order was opposed and appealed against by dos Santos, who notably claimed that the forfeiture was statute-barred. In a decision 6B_688/2011 of 21 August 2012 (in French), the Federal Court, Switzerland’s supreme court, ruled that when assets in Switzerland which are the proceeds of crimes committed abroad are forfeited, the applicable statute of limitation is that of the predicate offence under the law of the jurisdiction where that predicate offence took place. Visit our Resources and Publications pages for material on the same topics: ||Corruption||, Forfeiture, Money Laundering, (from FraudNet member for ||Switzerland||, ||Yves Klein||, of ||Monfrini Crettol & Associés, Geneva||).
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The Stolen Asset Recovery Initiative of the World Bank and United Nations Office on Drugs and Crime (StAR Initiative ) has launched the Grand Corruption Database project, which compiles large-scale corruption cases that were filed between 1980 and 2011. The database is part of the StAR study, The Puppet Masters: How the Corrupt Use Legal Structures to Hide Stolen Assets and What to Do About It and covers cases that involve the misuse of at least one legal entity or legal arrangement to obscure beneficial owners, and conceal the origin and/or destination of stolen assets worth at least US$ 1 million. It mentions several asset recovery case on which FraudNet members are currently working: ||Abacha Case||, ||Ben Ali Case||, ||Mubarak Case||, ||Duvalier Case||, ||Maluf Case||, ||Trinidad and Tobago Piarco Airport Case||, etc. Visit our Resources and Publications pages for material on the same topics: ||Corruption||, Money Laundering, Companies, Trusts (from FraudNet member for ||Switzerland||, ||Yves Klein||, of ||Monfrini Crettol & Associés, Geneva||).
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