Imagine a country where several government officials have skimmed hundreds of millions of dollars from public contracts over the course of a decade. If we can directly link those dollars – today comprising cash in bank accounts, seafront villas, superyachts and supercars – to specific contracts awarded by a state-owned mining company, do they qualify as an asset of the state and therefore an enforcement target?
There are a range of issues to consider including jurisdiction, ownership structure and whether it is possible to demonstrate commercial purpose. Some see only hurdles, arguing that claimants would struggle to prove their right to the assets and that any effort by a foreign court to allocate them to a third party would be a breach of the country’s sovereignty.
On the other hand, perhaps some states would accept such a seizure given that the embezzled funds are ostensibly already written off and they offer a mechanism for mitigating creditor pressure without having to further drain the treasury.
Another option might be to sidestep the complex legal question and put pressure on the corrupt officials – who are keen to avoid publicity, criminal prosecution and money laundering investigations – in an effort to compel them to wield their influence towards a negotiated settlement.
'Looted asset' scenarios are playing out in several states today. A successful seizure against one could have far larger ramifications.
Joana Rego, a co-founder of Raedas, specialises in global asset investigations to support enforcement of arbitral awards.