The victims of a securities fraud, divorcing spouses, post-judgment creditors, etc. can have several remedies available to them if they need to recover assets hidden offshore. One might even pursue an asset search or recovery in the various offshore tax havens. This is particularly true when a bank is used as a laundering “link” to hide funds in a money laundering circuit or assets have otherwise been hidden during a financial fraud.
To cite just one example, I have previously filed letters rogatory / legal assistance requests with the Court in Geneva, (“the “Parquet du Procureuer général), because of suspected money laundering at two Swiss banks. As mentioned at “An Asset Search With Letters Rogatory“, these kinds of legal remedies can sometimes be used to elicit financial information from bank witnesses.
Other forms of relief for those seeking to recover funds hidden offshore, can range from attaching a bank account to alerting a financial intelligence unit. Local counsel in Geneva has analyzed these legal remedies which are available in Switzerland and in many other jurisdictions across the globe:
“As you probably know, Switzerland does not follow the common law doctrine. We do not adhere to the institution of discovery. The usual tools available to a claimant are therefore the filing of a criminal complaint, which is actually the most efficient way to get past the banking secrecy. Access to the information will be granted only if someone can be indicted. In exceptional circumstances a broader access to the information collected within the frame of the criminal investigation can be granted on a discretionary basis.
If the claimant does not wish to resort to the criminal law tools, he has the option to file an attachment. In order to obtain an attachment, the claimant must show that his case presents a close enough connection to Switzerland. He must establish that the assets are located in Switzerland and he must make a summary statement of his claim.
It is usually required that a guarantee equivalent to 10% of the claim be filed; in certain circumstances, the payment of a guarantee requirement may be avoided especially where the claimant initially filed a criminal complaint under which the same assets have been attached by the criminal judge. The combination of a criminal and civil attachment is recommended in some instances.
The administrative tools relate to money laundering regulations. A financial intermediary knowing or having reason to suspect that any assets entrusted to his custody or management are of criminal origin has a duty to report his suspicion to MROS, which is the competent authority that launches investigations in matters of money laundering. If MROS finds that there is enough evidence of criminal activity, it usually refers the matter to the competent criminal authorities who will investigate the case.
If your client already holds judgements against the defendants, he may seek to enforce the judgement on assets located in Switzerland. Furthermore, if criminal investigations have been conducted in a foreign jurisdiction, the foreign investigating magistrate can seek judicial assistance from Switzerland. This is granted very liberally.
Finally, I wish to draw your attention to the possibility of obtaining evidence [via legal assistance requests / letters rogatory] from the Hague Convention of 1970 on the obtaining of evidence in civil and commercial matters abroad, which enables to a limited extent the enforcement of pre-trial discovery requests in Switzerland. All these remedies briefly outlined may be combined depending on each particular case.”
(Edited October 21, 2011)
Copyright 2008-2012 Fred L. Abrams