My post "An Asset Search In Geneva" describes different ways one might search for or recover assets even when they are hidden in an offshore jurisdiction such as Switzerland. Just as in the case of assets hidden in a Swiss bank, a letter rogatory / legal assistance request could be used to elicit evidence about assets in a bank in the Netherlands. The attached copy of a legal assistance request, (changed for privacy reasons and filed in the District Court of Amsterdam), is one example.
Along with using letters rogatory / legal assistance requests, an individual might also try to freeze assets concealed in the Netherlands. Given the worldwide focus on Bernard Madoff’s Ponzi scheme, I asked local counsel in the Netherlands, the following hypothetical: How would a defrauded Madoff investor try to freeze Madoff assets, if any were hidden in the Netherlands? Local counsel then explained that pursuant to Dutch civil law, an investor might freeze Madoff assets on the ground that there had been a contract with Mr. Madoff.
If a defrauded investor had executed a New York contract to invest with Mr. Madoff, that investor could file the "main" legal action against Mr. Madoff, in New York. Said investor might next bring a related legal action in the Netherlands to freeze any Madoff assets secreted there. If an investor had however, made a contract with Mr. Madoff in the Netherlands, (or contracted with a resident of the Netherlands), then the "main" legal action to freeze assets, might be filed in the Netherlands.
Reproduced below are comments about the foregoing issues from various e-mails written by local counsel in the Netherlands:
"[I]t is in this case also possible to block / freeze assets in Holland according to Dutch (civil) law. Theoretically an individual victim could start a procedure stating that he/she has a claim on the basis of the committed fraud by [Bernard Madoff]. A defrauded investor could also block / freeze assets found in Amsterdam; according to Dutch law.
[O]n the main procedure American/English [law] will be applicable such depending on the place where the contract was signed or the other party lives. To start the main procedure in Holland (according to Dutch law) is only possible if the contract sees to a Dutch situation or if one of the parties lives in Holland.
It’s also possible that other parties intervene in this procedure; If other ‘interested parties’ intervene in a Dutch procedure it can affect the position of the [original] parties, because if the claim of the intervening parties is accepted by the Court, the value of the blocked assets has to be divided between all the parties."
Copyright 2009 Fred L. Abrams