Barriers to Asset Recovery An Analysis of the Key Barriers and Recommendations for Action

by Stephenson, Kevin; Gray, Larissa; Power, Ric

• ISBN13: 9780821386606
• ISBN10: 0821386603
• Format: Paperback
• Copyright: 2011-06-20
• Publisher: World Bank Publications

Summary

It is estimated that the proceeds of crime, corruption and tax evasion represent between $1 trillion and $1.6 trillion per year, with half coming from developing countries. Proceeds are typically transferred abroad and hidden in foreign jurisdictions, thus requiring international cooperation. Various international conventions and agreements require international cooperation on this issue, in particular the United Nations Convention against Corruption; however, only $5 billion in stolen assets have been repatriated over the last 15 years. This enormous gap reveals that significant barriers continue to impede asset recovery despite the commitments taken by governments, civil society and the private sector. Drawing on the experience of practitioners with hands-on experience, the Stolen Asset Recovery (StAR) Initiative launched this study to identify the barriers to stolen asset recovery internationally, provide brief analysis of the impact of these barriers, and propose recommendations for overcoming these obstacles. This volume is intended to guide policy makers in their efforts to ensure necessary resources and the development of a plan, policy or strategy aimed at eradicating the barriers to asset recovery. In addition, this study proposes actions to be taken by the G20, international organizations, financial institutions, developmental agencies and civil society.

Table of Contents

Acknowledgments	p. vii
Abbreviations	p. xi
Executive Summary	p. 1
Principal Recommendations	p. 5
Recommendations	p. 5
The Problem and a Path to a Solution	p. 11
Methodology	p. 14
The Lausanne Process	p. 15
How to Use This Study	p. 17
General Barriers and Institutional Issues	p. 19
Lack of Trust	p. 19
Lack of a Comprehensive Asset Recovery Policy	p. 24
Deficient Resources	p. 31
Lack of Adherence to and Enforcement of AML/CFT Measures	p. 33
Too Many Cooks in the Kitchen-Lack of Effective Coordination	p. 37
Quick Trigger on Formal MLA Submission	p. 40
Legal Barriers and Requirements that Delay Assistance	p. 47
Differences in Legal Traditions	p. 47
Inability to Provide MLA	p. 49
Failure to Observe UNCAC and UNTOC	p. 53
No Quick Freeze or Restraint Mechanisms	p. 54
Unbalanced Notice Requirements that Allow Dissipation of Assets	p. 56
Banking Secrecy Laws	p. 58
Arduous Procedural and Evidentiary Laws	p. 60
No Provisions for Equivalent-Value Restraint and Confiscation	p. 65
Lack of a Non-Conviction Based Confiscation Mechanism	p. 66
Inability to Enter into Plea Agreements	p. 69
Immunity Laws that Prevent Prosecution and MLA	p. 71
Fleeting Statutes of Limitations	p. 74
Inability to Recognize and Enforce Foreign Confiscation and Restraint Orders	p. 76
Inability to Return Assets to Originating Jurisdictions	p. 77
Operational Barriers and Communication Issues	p. 79
Absent or Ambiguous Focal Points	p. 79
Onerous Legal Requirements to MLA and Overly Broad MLA Refusal	p. 81
Lack of Information on MLA Requirements	p. 85
Lack of Problem-Solving Ingenuity	p. 86
Indistinct Channels and No Feedback	p. 89
Unreasonable Delays in MLA Responses	p. 90
Lack of Publicly Available Registries	p. 92
Identifying Foreign Bank Accounts	p. 93
Using Restrained Funds to Pay Legal Fees; Depletion of Confiscated Assets by Contingency Fee Payments; Asset Mismanagement	p. 94
Table of Recommendations	p. 99
	p. 113
Canada	p. 113
Cayman Islands	p. 117
France	p. 122
Germany	p. 126
Guernsey	p. 129
Hong Kong SAR, China	p. 135
Japan	p. 141
Jersey	p. 146
Liechtenstein	p. 151
Singapore	p. 156
Spain	p. 161
Switzerland	p. 165
United Kingdom	p. 170
United States	p. 175
Glossary	p. 181
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