Lucio A. Angelo Jr
SAUS Q.3, Brasilia

Hector Sbert
ECIJA Legal, Barcelona
hsbert@ecija.com

Trevor Mascarenhas
PCB Byrne, London
tmascarenhas@pcb-byrne.com

Miguel de Avillez Pereira
Avillez Castro, Lisbon
mavillezpereira@avillezcastro-legal.com

Zachary Bluestone
Gluck Bluestone PC, Washington DC
zbluestone@gluckbluestone.com

Yves Klein
Monfrini Bitton Klein, Geneva
yklein@mbk.law

Jacques-Alexandre Genet
Archipel, Paris
jagenet@archipel.law

Andreas Erotocritou
AG Erotocritou LLC, Limassol
andreas.erotocritou@erotocritou.com

Michelle Usitalo
Baker Hosteler, New York
musitalo@bakerlaw.com

Stephen Baker
Baker & Partners, St Helier
stephenbaker@bakerandpartners.com

Arnoldo B Lacayo
Sequor Law, Miami
alacayo@sequorlaw.com

Common law jurisdictions

From an English law perspective, there are risks arising from the use of investigators in asset recovery proceedings. While investigators play a vital role in tracing assets and gathering intelligence, their conduct can expose parties to serious procedural and costs sanctions if ethical or legal boundaries are crossed. The recent Salinas Pliego v Astor Asset Management decision,^[1] related to the use of covert approaches to the defendants’ solicitor leading the court to strike out a summary judgment application and to characterise the conduct as an affront to justice. The case illustrates that parties remain responsible for the actions of those they instruct and that tactical excesses may undermine even the strongest claims.

In Cyprus, it is important to correctly identify parties, particularly where companies act through representatives or in special capacities; errors in this respect may only become apparent at the enforcement stage, with potentially fatal consequences. In complex cross-border disputes, it is important to have clear leadership and coordination to ensure consistency across jurisdictions and legal teams.

From the US perspective, foreign parties may unintentionally expose themselves to US jurisdiction through ill-considered tactical decisions. Engaging US-based PR firms or investigators in non-US disputes may trigger long-arm jurisdiction in New York, opening the door to extensive discovery obligations and prolonged litigation. Once jurisdiction is established, law firm communications, payment flows and third-party instructions may all fall within the scope of disclosure. Over-zealous advocacy: exaggerating allegations, mischaracterising an opponent’s conduct or prematurely alleging fraud may lead to sanctions, reputational damage and adverse procedural outcomes. Even though the clock of privilege is large in the US, confidentiality is not synonymous with privilege, and privilege can be easily waived through careless disclosure.

Tools in the US in aid of foreign asset recovery

In aid of foreign proceedings, the broad scope and efficiency that US discovery tools can be of assistance too. An application under 28 USC 1782 offers parties an opportunity to gather information to support their foreign claim at all stages of litigation – pre-filing, while pending or post-judgment. The claim can be a contemplated one, but it is best to identify the jurisdiction you are contemplating and have a sense of your potential claims in that jurisdiction. The applicant is not restricted in the use of those documents to just those claims or that jurisdiction. The application seeks court permission to serve subpoenas on individuals or entities located in the US.

Discovery in the US is much broader in scope than that found in most other jurisdictions, permitting a party to seek all documents or testimony that is relevant to the party’s claim or potential claim. These applications are very fruitful when seeking financial information, as all US denominated transactions must pass through the US banking systems. As the target banks are typically third parties, they largely cooperate with the subpoena. A party may also seek corporate records and witness testimony.

While all 1782 applications are typically public on the docket, the application itself is often filed ex parte, and thus, notice need not be provided to the defendant or potential defendant. Another excellent option for broad US discovery is available if the claim arises in an insolvency scenario using a Chapter 15 proceeding. Chapter 15 is the implementation by the US of the UNICITRAL Model Law on Cross Border Insolvency. Provisions of this statute allow for the examination of witnesses and taking evidence on the debtor’s assets, affairs, rights, obligations and liabilities after recognition by a US Bankruptcy Court of a foreign collective proceeding and is representatives. The subpoena power in this context allows service of the subpoena across the entirety of the US. Again, the permitted scope is broad and has been described as a ‘court sanctioned fishing expedition’ in US case law. To unlock these tools, you must file a Petition for Recognition that seeks to recognise a foreign proceeding that (1) is a proceeding; (2) judicial or administrative in nature; (3) collective; (4) pending in a foreign country; (5) related to insolvency or adjustment of debts; (6) has foreign supervision (typically by a court); and (7) involves reorganisation or liquidation. Like discovery obtained with 1782 applications, there is no limit to the amount of subpoenas that can be issued and there is no express undertaking that restricts the use of the documents. Overall, utilising US discovery tools gives foreign parties a formidable opportunity to gather information for their claim at all stages of litigation.

Asset recovery tips in civil jurisdictions

Under civil law, in jurisdictions such as Portugal, effective asset recovery depends on close alignment with the client’s enforcement objectives and a genuinely holistic strategy. The procedural rigour of civil law systems – where common law style discovery is unavailable – requires evidence to be carefully structured and formally submitted from the outset. It is possible to strategically involve criminal authorities to support asset tracing and freezing in fraud cases.

A ‘deep dive’ comparison of the French and Swiss jurisdictions versus the tools available under civil law following the lifecycle of a dispute: the pre-litigation stage, proceedings after commencement of litigation and the post-judgment and enforcement phase, highlighted how the available tools differ and how they can be used strategically under French and Swiss law.

At the pre-litigation stage, both France and Switzerland offer useful, but tightly controlled, avenues for gathering information and preserving assets. In France, applications under article 145 of the Code of Civil Procedure is a particularly powerful tool, enabling the targeted gathering of evidence from third parties before proceedings are issued. By contrast, Switzerland does not recognise broad pre-trial discovery, and banking secrecy remains a practical hurdle, albeit no longer an absolute one.

During the litigation stage, interim orders are possible. French interim attachments and injunctions are relatively accessible and a highly effective tool. In Switzerland, pre-judgment attachments are also available provided certain conditions can be met, including identifying the assets, demonstrating a risk of dissipation and a nexus to Switzerland.

Turning to the post-judgment stage, France is generally arbitration-friendly and efficient in recognising and enforcing arbitral awards. In the same spirit, France offers recognition of EU judgments under the Brussels Recast regime. Switzerland likewise offers a robust framework for enforcement, with some additional complexities. Across both jurisdictions, successful enforcement ultimately depends on having identified assets early and having built a coherent, cross-border strategy from the outset.

France and Switzerland offer sophisticated and complementary toolkits for targeting fraud and recovering assets. Thinking strategically from the outset and adapting the approach as the case evolves can significantly improve the chances of locating, securing and ultimately enforcing against assets.

Conclusion

Most asset recovery ‘car crashes’ are not caused by a lack of legal knowledge, but by insufficient coordination, restraint and strategic discipline. A single misjudged step by an investigator, adviser or counsel can open unwanted jurisdictions, compromise privilege or derail years of careful work.