Global Enforcement and Asset Recovery Series: Asset Disclosure
In the context of asset recovery, a successful outcome largely depends on the ability of a claimant to garner sufficient disclosure of assets that are amenable to enforcement. This, in turn, explains why the powerful injunctive relief available in common law jurisdictions, and particularly in England & Wales, is often the focal point of successful recovery strategies. In these jurisdictions, freezing injunctions are typically accompanied by ancillary disclosure orders that seek to provide applicants with sufficient asset information to "hold the ring" pending determination of a dispute, and the information gleaned through these disclosure orders will often be the key ingredient to successful enforcement. It also explains why disclosure applications—either against defendants or third parties that may hold valuable information as to defendants' assets—are a key focus at the outset of disputes, and why they can be so hard-fought. These types of orders can also be used to flush out all prospective defendants to a claim, which can be invaluable to claimants in cases where it is not entirely clear who the ultimate wrongdoers are.
Fraud or enforcement matters on a global scale can present particular problems for lawyers, particularly in circumstances where assets are held in, or have been transferred through, common law and civil law jurisdictions, which can have considerably different rules relating to disclosure. These issues are further complicated by the divergences between common law and civil law jurisdictions on various legal principles, including collateral use of information, privilege, and comity. In such cases, practitioners must be able to navigate the procedural idiosyncrasies of relevant jurisdictions and their disclosure regimes.
This paper aims to clarify these issues and provide an overview of the main asset disclosure strategies available in several major jurisdictions and the key considerations for applicants in the context of global asset recovery exercises.
