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Creative International Cooperation Can Help Developing Countries Recover Stolen Assets
2011年11月16日
世界银行
Preface xi
Acknowledgments xiii
Acronyms and Abbreviations xv
Introduction 1
Methodology 2
How the Handbook Can Be Used 3
1. Overview of the Asset Recovery Process and
Avenues for Recovering Assets 5
1.1 General Process for Asset Recovery 5
1.2 Legal Avenues for Achieving Asset Recovery 9
1.3 Use of Asset Recovery Avenues in Practice: Three Case Examples 14
2. Strategic Considerations for Developing and Managing a Case 19
2.1 Gathering Facts: Initial Sources of Information 19
2.2 Assembling a Team or Unit, Task Forces, and Joint Investigations with
Foreign Authorities 22
2.3 Establishing Contact with Foreign Counterparts and Assessing
Ability to Obtain International Cooperation 25
2.4 Securing Support and Adequate Resources 27
2.5 Assessing Legislation and Considering Legal Reforms 28
2.6 Addressing Legal Issues and Obstacles 29
2.7 Identifying All Liable Parties 34
2.8 Specific Considerations in Criminal Cases 34
2.9 Implementing a Case Management System 38
3. Securing Evidence and Tracing Assets 41
3.1 Introducing a Plan and Important Considerations 41
3.2 Creating a Subject Profile 43
3.3 Obtaining Financial Data and Other Evidence 43
3.4 Identifying Relevant Data: Examples from Commonly
Sourced Documents 61
3.5 Organizing Data: Creating a Financial Profile 71
3.6 Analyzing Data: Comparing the Flows with the Financial Profile 72
3.7 Garnering International Cooperation 74
vi I Contents
4. Securing the Assets 75
4.1 Terminology: Seizure and Restraint 75
4.2 Provisional Order Requirements 76
4.3 Pre-restraint or Pre-seizure Planning 79
4.4 Timing of Provisional Measures 85
4.5 Exceptions to Restraint Orders for Payment of Expenses 86
4.6 Ancillary Orders 87
4.7 Third-Party Interests 87
4.8 Alternatives to Provisional Measures 89
5. Managing Assets Subject to Confiscation 91
5.1 Key Players in Asset Management 92
5.2 Powers of the Asset Manager 93
5.3 Recording Inventory and Reporting 94
5.4 Common Types of Assets and Associated Problems 95
5.5 Ongoing Management Issues 99
5.6 Consultations 101
5.7 Liquidation (Sale) of Assets 101
5.8 Fees Payable to Asset Managers 101
5.9 Funding Asset Management 102
6. Mechanisms for Confiscation 103
6.1 Confiscation Systems 105
6.2 How Confiscation Works 107
6.3 Confiscation Enhancements 114
6.4 Third-Party Interests 118
6.5 Confiscation of Assets Located in Foreign Jurisdictions 119
6.6 Recovery through Confiscation for the Victims of Crime 119
6.7 Disposal of Confiscated Assets 120
7. International Cooperation in Asset Recovery 121
7.1 Key Principles 122
7.2 Comparative Overview of Informal Assistance
and MLA Requests 127
7.3 Informal Assistance 131
7.4 MLA Requests 138
7.5 Cooperation in Cases of Confiscation without a Conviction 156
7.6 Cooperation in Civil Recovery (Private Law) Cases 157
7.7 Asset Return 158
8. Civil Proceedings 159
8.1 Potential Claims and Remedies 160
8.2 Bringing a Civil Action to Recover Assets 169
8.3 Final Dispositions 173
8.4 Formal Insolvency Processes 174
Contents I vii
9. Domestic Confiscation Proceedings Undertaken
in Foreign Jurisdictions 177
9.1 Jurisdiction 177
9.2 Procedure for Beginning an Action 178
9.3 Role of the Jurisdiction Harmed by Corruption Offenses in
Foreign Investigation and Prosecution 179
9.4 Ensuring Recovery of Assets from the Foreign Jurisdiction 183
Appendix A. Offenses to Consider in Criminal Prosecution 187
Appendix B. Explanation of Selected Corporate Vehicles
and Business Terms 193
Appendix C. Sample Financial Intelligence Unit Report 199
Appendix D. Planning the Execution of a Search and
Seizure Warrant 201
Appendix E. Sample Document Production Order for
Financial Institutions 203
Appendix F. Serial and Cover Payment Methods in Electronic
Funds Transfers 209
Appendix G. Sample Financial Profile Form 213
Appendix H. Possible Discussion Points with
Contacts—Informal Assistance Stage 235
Appendix I. Mutual Legal Assistance Template and
Drafting Tips 237
Appendix J. Web Site Resources 241
Glossary 249
Boxes
1.1 Legal Framework for Asset Recovery 10
1.2 Alternative Means of Recovering Assets 15
2.1 Role and Contribution of FIUs in Asset Recovery Cases 21
2.2 Obstacles to International Cooperation 26
2.3 Strategic Decisions in Peru—Legislation Allowing
Plea Agreements 28
2.4 Prosecution of Accounting, Records, and Internal Control
Provisions in the United Kingdom and the United States 36
2.5 Examples of Challenges in Establishing the Elements of the Offense 37
3.1 Checklist for Collection of Basic Information 44
3.2 Tracing and Recovering Assets—Efforts in the United Kingdom 46
3.3 Elaborating Sufficient Grounds for a Search Warrant 55
3.4 Important Items to Seize 56
3.5 Documentation to Be Requested from Financial Institutions 58
3.6 Retention Orders 59
3.7 Forms and Documents Related to the Wire Transfer Process 65
viii I Contents
3.8 Red Flags in Contracts, Payment Documentation, Payment Records,
and Payment Mechanisms 69
4.1 Drafting Affidavits 78
4.2 An Example of Pre-restraint Planning Decisions in Practice 83
6.1 Historical Background and Recent Developments in Confiscation 104
6.2 Issues Encountered in Determining the Proceeds of
Crime—A Case Example 110
6.3 Using “Related Activities” to Capture the Full Benefit 118
7.1 Connecting With People—A Case Example from Peru 124
7.2 Contact Points for International Cooperation 125
7.3 Disclosure Obligations—A Barrier to MLA Requests 127
7.4 Investigative Jurisdiction in France, Switzerland, the
United Kingdom, and the United States 133
7.5 Facilitating Informal Assistance 134
7.6 Spontaneous Disclosures from Switzerland 137
7.7 Selecting a Legal Basis to Include in an MLA Request 139
7.8 Overcoming Dual Criminality—Illicit Enrichment and Corruption
of Foreign Public Officials 142
7.9 Bank Secrecy and Fiscal Offenses—A Ground for Refusing MLA? 146
7.10 Avoiding Rejections of MLA Requests That Are Overly Broad 149
7.11 Worldwide Orders in the United Kingdom 153
7.12 Requirements for Direct Enforcement of MLA Requests for
Confiscation in the United Kingdom and the United States 154
7.13 Asset Recovery Pursuant to an MLA Request in France 158
8.1 Case Examples of Proprietary (Ownership) Claims 160
8.2 The U.S. Racketeer Influenced and Corrupt Organizations
(RICO) Statute 163
8.3 Compensation for Damages Where Assets Are Misappropriated 164
8.4 Fyffes v. Templeman and Others (2000) 166
8.5 World Duty Free Company Limited v. The Republic of Kenya (2006) 167
8.6 Disgorgement of Profits—Practice in the United States 168
8.7 Circumstantial Evidence Considered in Federal Republic
of Nigeria v. Santolina Investment Corp., Solomon & Peters,
and Diepreye Alamieyeseigha (2007) 170
8.8 Requirements for Restraint Orders in France, Panama, and the
United Kingdom 171
8.9 The Ao Man Long Case 173
8.10 Enforcement of Judgments When the Defendant Is
Absent from the Proceeding 174
9.1 Establishing Jurisdiction Where Limited Acts Have Occurred
in the Territory 179
9.2 Establishing Jurisdiction over Nationals in the United Kingdom
and the United States 180
9.3 Jurisdiction to Prosecute Money Laundering Offenses in France,
the United Kingdom, and the United States 181
9.4 Confiscation Proceedings Initiated by Foreign Authorities 182
Contents I ix
9.5 Important Role of the Jurisdiction Harmed by Corruption—
A Case Example from Haiti 183
9.6 Direct Recovery in Practice 185
9.7 Asset Return Options Available in Switzerland 186
A.1 Illicit Enrichment Provisions in France 190
F.1 Hiding Originating Customer Information 211
F.2 Monitoring Records from Financial Institutions 211
I.1 MLA Drafting and Execution Tips 240
Figures
1.1 Process for Recovery of Stolen Assets 6
2.1 Standards of Proof 33
2.2 Criminal Charges to Consider 35
3.1 Five Effective Questions to Use in an Investigation 48
3.2 Preliminary Information Available from Other Government Agencies 49
3.3 Basic Cross-Border Wire Transfer Process 63
3.4 Sample SWIFT Message Format and Code Interpretation 68
3.5 Sample Flow Chart 72
3.6 Sample Chart of Relationships and Assets 73
5.1 Seized Motor Vehicles Left Outdoors 97
6.1 Confiscation of an Asset in a Foreign Jurisdiction 120
7.1 Phases of Asset Recovery and Integrating International Cooperation 122
7.2 Flow Chart of International Cooperation 130
7.3 Informal Assistance and Formal MLA Requests—
What Can Be Requested? 131
7.4 Flow of an MLA Request in the Presence of a Treaty or
Domestic Legislation 155
A.1 Criminal Charges to Consider 187
F.1 Serial/Sequential and Cover Payment Methods 210
Tables
4.1 Considerations in Partial Control or Limited Restraint 84
7.1 Differences between Informal Assistance and MLA Requests 129
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