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International Asset Tracing and Insolvency

International Asset Tracing and Insolvency

Author: Felicity Toube
Publisher: Oxford University Press
ISBN: 9780199576234
Published In: December 2009
Format: Hardback
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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The only detailed work which focuses on asset tracing in insolvency
Addresses the law of insolvency and asset tracing in six jurisdictions (England, USA, Jersey, Guernsey, BVI and Cayman Islands)
Provides an asset tracing toolkit answering primary legal questions and considering various forensic approaches
Includes a section analysing actual cases to provide practical guidance and illustration of points made

In the light of the market downturn and the inevitable discoveries of frauds and misfeasance, tracing assets has become important in all significant insolvencies. This is the first book to provide comprehensive coverage of the legal and practical forensic issues involved in asset tracing in insolvencies. Both corporate and personal insolvencies are covered in domestic and international cases.

The book considers domestic laws on insolvency and asset tracing from six jurisdictions (including England, USA, Guernsey, Jersey, BVI and Cayman) and provides a toolkit of key information for domestic and international tracing from these sources. In particular the information includes: definition of company property; what court orders are available; what questions can be asked; what information can be obtained; and how expenses are dealt with. In addition to consideration of domestic law, the work includes a discussion of revelant EC Regulation and UNCITRAL model laws.

There is a substantial section on forensic approaches which provides information on the practical aspects of asset tracing such as tools for obtaining information (corporate intelligence and forensic technology), developments adding to insolvency powers (quality and availability of open source information and internet footprint), and possible hindrances to the process (data protection legislation and the loss of records in electronic banking). The final section of the work includes examples of asset tracing from a number of actual cases covering both corporate and personal insolvency such as UK Aid (Gibb Duarf) and Diandor.

The team of authors includes forensic accountants, solicitors and barristers who are excellently qualified to provide the necessary mix of legal and practical content to cover all of the specialist elements of work in this field.

This book will be welcomed by a readership including international and domestic practitioners specialising in insolvency, fraud and financial law generally as it offers them a 'one stop' reference point for all issues relating to asset tracing in international insolvencies.

Readership: Solicitors and barristers working in insolvency, fraud and financial law, plus forensic accountants.

1: Felicity Toube, Jonathan Wheeler, Kevin Roberts: England and Wales

I. Insolvency Law in England and Wales

II. Asset Tracing in England and Wales

III. Criminal Powers

IV. International Enforcement and Assistance

2: Gary Lee, Erica Richards, Stacy Molison: USA

I. Asset Recovery Powers of Participants in the U.S. Bankruptcy Process

II. Other Discovery Mechanisms

III. Applicability of the Uniform Commercial Code in Bankruptcy to Tracing Proceeds

IV. Tracing Rules

3: Matthew Swan, Edward Mackereth, Oliver Passmore: Jersey

I. Introduction

II. Overview of Jersey Insolvency Regimes

III. Powers and Duties of Insolvency Office Holders

IV. Basic Tools for Domestic and International Asset Tracing in Insolvency

V. Court Orders Generally Available for Asset Tracing

VI. Jersey Law of Asset Tracing

4: Simon Davies, Nick Gamble, Matthew Newman: Guernsey

I. Introduction

II. Guernsey Insolvency Law

III. Guernsey Law of Asset Tracing

5: Robert Foote, Rachael McDonald: British Virgin Islands

I. Chapter Overview

II. Sources of BVI Law, the Legislative Framework and the Definition of Assets

III. BVI Insolvency Act Processes

IV. Orders in Aid of Foreign Proceedings under the Insolvency Act 2003

V. Processes and Procedures Under the BVI Business Companies Act 2004

VI. Disclosure of Documents, Evidence by Deposition and Letters of Request

VII. Interim Remedies and Piercing the Corporate Veil

VIII. Asset Tracing and the Proceeds of Crime

IX. The BVI law on asset tracing outside specific insolvency provisions

X. Enforcement of Foreign Judgments and Arbitration Awards

XI. Complaints to the BVI Financial Services Commission

XII. Conclusion

6: Christopher Russell, Rachael Reynolds, Shaun Folpp, William Jones: Cayman

I. Introduction

II. Cayman Island Legal System; Sources and Precedent

III. Cayman Islands Procedure

IV. Cayman Islands Company Law

V. Cayman Islands Corporate Insolvency Regime

VI. Actions in Insolvency Proceedings

VII. Foreign companies

VIII. Financial Restructuring/Schemes of Arrangement

IX. Recognition and enforcement of foreign judgments in the Cayman Courts

X. Personal Bankruptcy : Recognition of Foreign Trustee in Bankruptcy

XI. Cross Border Insolvencies

XII. Asset Tracing: Locating Assets: Identifying Ownership

XIII. Practicalities of Asset Tracing in the Cayman Islands

XIV. Recalculation of published Net Asset Values and Clawback

XV. Interlocutory Injunctions: Asset Freezing: Disclosure Orders

XVI. Conclusion

8: Jeremy Outen, Penny Cassell: Practical Approaches

I. Introduction

II. Tools of Investigation - Intelligence Gathering

III. Illustrative Case Studies

IV. Conclusion

Edited by Felicity Toube, Barrister, 3-4 South Square, London

Contributors:

Felicity Toube, Barrister, 3-4 South Square
Jonathan Wheeler, Partner, Morrison & Foerster
Kevin Roberts, Partner, Morrison & Foerster
Gary Lee, Partner, Morrison & Foerster
Erica Richards, Morrison & Foerster
Stacy Molison, Morrison & Foerster
Edward MacKereth, Solicitor, Ogier
Matthew Swan, Ogier
Oliver Passmore, Ogier
Simon Davies, Partner, Ogier
Nick Gamble, Partner, Ogier
Matthew Newman, Ogier
Robert Foote, Barrister
Rachael McDonald, Ogier
Christopher Russell, Senior Counsel, Ogier
Rachael Reynolds, Ogier
Shaun Folpp, Solicitor, Ogier
William Jones, Ogier
Jeremy Outen, Partner, KPMG
Penny Cassell, Senior Manager, KPMG
Steven Haynes, Director, KPMG

"This well-produced and authoritative book fills an important gap in the working library of the modern insolvency practitioner.. Each chapter is written by experts who have substantial first-hand experience of the system they describe, and the editorial coordination has been skilfully executed to ensure that the work is balanced and coherent. Strongly recommended." - Professor Ian Fletcher, Professor of International Commercial Law, University College London

"The sheer detail of the material and its accessibilty through a most useful index will make it a boon for all practitioners who find themselves faced with the byzantine structures, corporate verils, disappearing assets and people inherent in asset tracing" - Nick Hood, INSOL World