With regard to all cases and projects that we undertake, defining particular strategy of work is essential. The objective should be set up, indicating the projected recovery, from a minimum scenario, to moderate, and to a maximum scenario of recovery of particular assets and enforcement of judgments.
Most judgments are not enforced and they are not enforceable for a variety of reasons. Individual judgment debtors may easily become bankrupt, corporations may be suspended or dissolved, assets withdrawn from the jurisdiction elsewhere, and the title to assets may have changed hands several times before a judgment is even obtained. Securing the satisfaction of judgments by attachments and injunctions is applicable primarily for contract claims and is difficult to obtain in most of the relevant jurisdictions.
Without a possibility to enforce a claim against particular assets, a claim, either reduced to judgment or not, may be worth very little. The ability to satisfy a claim is of prime and sometimes of ultimate importance.
For defining strategy for assets’ recovery, one needs to fully realize that there are several phases in that work.
First, usually it is the location of assets in the event those were transferred. Most states in the U.S. have enforced Uniform Fraudulent Transfers Acts; similar laws exist in most common-law countries and in the jurisdictions of continental law. In short, normally it does not matter for the claimant if assets were transferred, as long as the tracing could be proven, and the claim may be levied on transferred assets.
Second, it is the identification of assets and freezing those in compliance to applicable laws in a particular jurisdiction (or in several jurisdictions). In complicated matters, assets could be claimed by several parties, but it also happens that there are no claimants to a particular asset at all.
Third, the legal support for enforcing the claims on the frozen assets gets triggered, including collection of evidence and reducing claims to judgments and levies of execution. This is often done with a judgment from the claimant’s jurisdiction or if there is none obtained, with obtaining a local judgment. Sometimes, arbitration or mediation are available.
With regard to two first phases, the only motto for assets recovery work is speed, speed, and, again, speed. Any lost month or week or sometimes even a day is sufficient that assets could be transferred out of jurisdiction, with an additional layer of offshore structuring which may then take substantial time to undo and to go after in the new jurisdiction.
As to the third phase, the enforcement of the claim under local laws, the methods of work shift towards law offices and the timetable is entirely different. At that phase, it is rather the quality and diligence of local legal support that carries the day for a successful claimant.
Without any question, if you are able to locate and to freeze the converted assets, your chances for enforcing the claim by way of settlement are favorable. If the defendant(s) realize(s) that retaining converted assets is problematic or impossible, usually, settlements become quite achievable without litigation.