Tag: Civil proceedings

Asset recovery

Backwards Tracing takes a step forward

The Privy Council recently extended the availability of ‘tracing’ in a novel way to increase the options available to states seeking to recover stolen property.

Before this decision a state could only trace property that had been altered, say by sale or transfer, into the proceeds of that alteration if those proceeds did not exist prior to the move. The process of tracing required the state to show what had happened to the property and to identify its proceeds and their recipient. This formed the basis of a claim against the recipient of the proceeds on the basis that those proceeds represented the original property. There was no tracing claim where the proceeds were already in the hands of the recipient.

The Privy Council’s extension of this principle means that where there is a ‘coordinated scheme’, property can be traced into proceeds that were in the hands of the defendant before the property was altered.

This is an extremely useful tool for states that are subject to sophisticated corruption or frauds designed to thwart recovery. We consider the claim in more detail here.

Anti-corruption

What states should know about unjust enrichment

We close out our series of tip-sheets on the causes of actions available to states who have been victims of bribery and corruption with a note on unjust enrichment. This is an interesting claim that sets the bar a little lower than some of the previous claims we have reviewed. There is no need to provide evidence of the underlying bribery or corruption – it is only necessary to prove that the defendant has been enriched at the expense of the state under one of four unjust factors. We also consider what does not need to be proved as well as the available defences and remedies. Our tip-sheet on unjust enrichment is available here.

Bribery

What states should know about the contractual consequences of bribery

This week’s tip-sheet concerns the remedies available to states where they are party to a contract procured through bribery. We discuss the pros and cons of rescission and termination as well as the reasons why a state may choose to re-negotiate contracts that have been affected by bribery. We also consider the risk of waiver that can occur when a decision to terminate or rescind is not taken quickly enough. Our tip-sheet is available here.

Asset recovery

What states should know about breach of fiduciary duty

This week’s tip-sheet covers claims for breach of fiduciary duty which can be brought against public officials who have been involved in conduct contrary to their duty to act in the state’s best interests. We detail potential defendants and explain the principles that need to be established at court (and those that do not). We also look at the alternative methods of calculating damages. The tip-sheet is available here.

Asset recovery

What states should know about unlawful means conspiracy

The latest entry in our tip-sheet series deals with unlawful means conspiracy. This claim is useful where multiple parties have been involved in a scheme to corruptly defraud a state. We set out the circumstances when it may arrive and explain what you need to establish when bringing the claim. We also touch on how recoveries are calculated. Our tip-sheet is available here.

While the tip-sheet is designed for states, the claim can also be used by companies seeking to sue competitors who corruptly beat them in a tender by paying bribes. Our post on suing bribing competitors can be found here.

Bribery

What states should know about the civil tort of bribery

Click through here for a quick summary of the key issues on the tort of bribery that states, and indeed any victim of bribery, should know. Our tip-sheet covers the basic legal principles, identifying available defendants, the circumstances when a claim can be brought and the facts that must be established to bring a successful claim. It also considers the available remedies and the impact on contractual relationships.